Crossrail
Programme Partner
OJEU Notice 2008/S 65-088136 Lot 1
Invitation to Tender
Part 2 - Contract
Confidential
Programme Partner Appointment
Cross London Rail Links Limited
(the Employer)
and
[ ]
(the Programme Partner)
and
[ ]
(the Guarantor)
Programme Partner Services
Contract No. [ ]
[
TO BE AMENDED TO REFLECT REQUIREMENTS OF THIRD PARTY
AGREEMENTS AS AND WHEN SAME FINALISED – DEFINED TERMS
USED IN THIS CONTRACT TO BE HARMONISED WITH THIRD PARTY
AGREEMENTS]
This amended contract is based on the NEC Professional Services Contract, the copyright in which
standard form belongs to the Institution of Civil Engineers.
200
Contract No 2072
1
Invitation to Tender issue dated 25
September 2008
Confidential
This agreement is made on the ………………………… day of ……………… ……………………………… 20 …………
Between
CROSS LONDON RAIL LINKS LIMITED of Portland House, Bressenden Place,
London SW1E 5BH
(company/organisation)
(the
Employer)
and
……………………………………………………………………………………………………………………………
(name)
of
………………………………………………………………………………………………………………………………………
(company/organisation)
(the
Programme Partner)
and
……………………………………………………………………………………………………………………………
(name)
of
………………………………………………………………………………………………………………………………………
(company/organisation)
(the
Guarantor)
1.
The
Employer wishes to appoint the
Programme Partner to carry out certain programme
partner services in relation to the Crossrail project, London.
2.
The
Employer will pay the
Programme Partner the amount due and carry out his duties in
accordance with this agreement (including the conditions of contract).
3.
The
Programme Partner will Provide the Services in accordance with this agreement
(including the conditions of contract).
4.
This agreement (including the conditions of contract) and the documents referred to in it
form this contract. References in the conditions of contract to "the contract" are
references to this contract. This agreement (including the conditions of contract) shall
take precedence over any other document forming part of this contract.
5.
In consideration of the
Employer appointing the
Programme Partner to Provide the
Services, the
Guarantor has agreed to guarantee the obligations of the
Programme
Partner hereunder.
Executed as a deed and delivered on the
date above by:
…………………………………………………………
(signed)
…………………………………………………………
(name of Director)
…………………………………………………………
(signed)
…………………………………………………………
(name of Director or Company Secretary)
Contract No 2072
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Invitation to Tender issue dated 25
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…………………………………………………………
(signed)
…………………………………………………………
(name of Director)
…………………………………………………………
(signed)
…………………………………………………………
(name of Director or Company Secretary)
…………………………………………………………
(signed)
…………………………………………………………
(name of Director)
…………………………………………………………
(signed)
…………………………………………………………
(name of Director or Company Secretary)
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nec 3
CROSSRAIL
Programme Partner Conditions of Contract
Professional Services Contract
Terms and Conditions
An NEC document
Contract No 2072
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CONTENTS
Acknowledgements
Core clauses 1 General
2
The Parties' main responsibilities
3 Time
4 Quality
5 Payment
6 Compensation
events
7
Rights to material
8
Indemnity, insurance and liability
9 Termination
Main Option clauses
Dispute resolution W1 Option
W1
W2 Option
W2
Secondary Option clauses X1
Price adjustment for inflation
X8 Collateral
warranty
agreements
X20 Incentives
Y(UK)2
The Housing Grants, Construction and
Regeneration Act 1996
Y(UK)3
The Contracts (Rights of Third Parties) Act 1999
Contract Data
Appendix 1 Scope
Appendix 2 Commercial
information
Appendix 3
Staff rates
Appendix 4 Incentive
schedule
Appendix 5
First Service Delivery Plan
Appendix 6
Third Party Agreements
Appendix 7 Dispute
Resolution
Appendix 8 Novation
agreement
Appendix 9
Forms of collateral warranty
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CORE CLAUSES
1 General
Actions 10
10.1 The
Employer and the
Programme Partner shall act as
stated in this contract and in a spirit of mutual trust and
co-operation.
Identified and 11
defined terms
11.1
In these conditions of contract, terms identified in the
Contract Data are in italics and defined terms have
capital initials.
11.2
(1)
The Accepted Programme is the programme set
out in the Service Delivery Plan or is the latest
programme accepted by the
Employer. The latest
programme accepted by the
Employer supersedes previous Accepted Programmes.
(2)
The Act is the Housing Grants, Construction and
Regeneration Act 1996.
(3)
A period of time stated in days is a period
calculated in accordance with Section 116 of the
Act.
(4)
The Adjudicator Panel is the panel of adjudicators
referred to in Appendix 7.
(5) Auditor means any person (including the District
Auditor, National Audit Office or any internal
auditor) with the responsibility for auditing the
accounts of the
Employer and any person
conducting an audit in accordance with the
Employer's quality management system;
(6)
Background Rights means in respect of each party
the Intellectual Property rights owned by or
otherwise in the possession of that party at the
date of this contract;
(7)
Completion is when the
Programme Partner has
•
done all the work which the Scope states
he is to do by the Completion Date and
•
corrected all notified or patent Defects.
If the work which the
Programme Partner is to do by the
Completion Date is not stated in the Scope, Completion
is when the
Programme Partner has done all the work
necessary for the rail transport system that is the
subject of the Programme to commence full operations
and so there are no notified or patent Defects.
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(8) The Completion Date is the
completion date
unless later changed in accordance with this
contract.
(9) Confidential Information means any information
of whatever kind (whether commercial, technical,
financial, operational or otherwise, in whatever
form and whether or not recorded in any way)
relating to the
Employer or the Programme;
(10)
Programme Partner Information means
information provided or made available to the
Employer by the
Programme Partner and
recorded in any form held by the
Employer or
held by the
Programme Partner on behalf of the
Employer;
(11) The Contract Date is the date of execution by the
Parties of this contract.
(12) A Defect is a part of the
services which is not in
accordance with the Scope, Standards, Legislation
or any term of this contract.
(13) The Dispute Board is the board of experts
referred to in the Dispute Board Procedure.
(14) The Dispute Board Procedure is the procedure
annexed.
(15)
FOI Legislation means the Freedom of
Information Act 2000, all regulations made under
it and the Environmental Information Regulations
2004 and any amendment or re-enactment of any
of them and any guidance issued by the
Information Commissioner in relation to such
legislation;
(16) Foreground Rights means all Intellectual Property
rights developed by either party (and in the case
of the
Programme Partner any Intellectual
Property developed by any Subconsultant to the
Programme Partner) under or in connection with
this contract and/or the services, including but
not limited to all Intellectual Property rights in the
Materials;
(17) Information Request means a request for
information under the FOI Legislation;
(18) Intellectual Property means any and all patents,
trade marks, rights in designs, get-up, trade,
business or domain names, copyrights including
rights in computer software (including source
codes) and databases, topography rights (in each
case whether registered or not and any
applications to register or rights to apply for
registration of any of the foregoing), rights in
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inventions, Know-How, trade secrets and other
confidential information, rights in databases and
other intellectual property rights of a similar or
corresponding character which may now or in the
future subsist in any part of the world;
(19) A Key Date is the date by which work is to meet
the Condition stated. The Key Date is the
key
date stated in the Contract Data and the
Condition is the
condition stated in the Contract
Data unless later changed in accordance with this
contract.
(20) Know-How means information and know-how
whether patentable or not including but not
limited to all patented techniques, operating
instructions, machinery designs, raw material or
products specifications, drawings, blueprints, and
any other technical and commercial information
relating to design, development, manufacture,
assembly, use or sale;
(21) Legislation means any Act of Parliament or
subordinate legislation within the meaning of
Section 21(1) of the Interpretation Act 1978, any
exercise of the Royal Prerogative, and any
enforceable community right within the meaning
of Section 2 of the European Communities Act
1972, in each case in the United Kingdom.
(22)
Materials means all documents, items,
information, data, reports, drawings,
specifications, plans, software, designs,
inventions and/or other material produced or
supplied by the
Programme Partner as part of or
in connection with the
services and/or this
contract;
(23) New Employer means
TfL, the Department for
Transport or any company which is a holding
company or subsidiary (within the meaning of
Section 739 of the Companies Act 1985 as
amended by Section 144 of the Companies Act
1989) of
TfL or the Department for Transport or is
a company in which
TfL or the Department for
Transport or any such holding company or
subsidiary holds more than 25% of the issued
equity share capital (as defined by Section 744 of
the Companies Act 1985);
(24) Others are people or organisations who are not
the
Employer, the
Programme Partner, the
Guarantor, the
Adjudicator or any employee,
Subconsultant or supplier of the
Programme
Partner.
(25) The Parties are the
Employer and the
Programme
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Partner.
(26) The Policies are the
Employer's Policies and
Procedures and any other such policies of which
the
Employer notifies the
Programme Partner.
(27) Premises are the property approved or made
available by the
Employer which is used by the
Programme Partner in Providing the Services and
which, as at the Contract Date are identified in
the Contract Data.
(28) The Programme means the development,
procurement and commissioning of a railway
transport system that is capable of operating
services from Maidenhead in the County of
Berkshire and from Heathrow Airport in the
London Borough of Hillingdon through central
London to Shenfield in the county of Essex and
Abbey Wood in the London Borough of Greenwich
in accordance with the Sponsors' Requirements;
(29)
A Prohibited Act means;
(a) offering, giving or agreeing to give to any
officer or agent of the
Employer, any gift or
consideration of any kind:
(i) as an inducement or reward; or
(ii) for doing or not doing (or for having
done or not having done) any act in
relation to the obtaining or
performance of this contract or any
other contract with the
Employer; or
(iii) for showing or not showing favour or
disfavour for any person in relation to
this contract or any other contract
with the
Employer; or
(iv) entering into this contract in
connection with which commission
has been paid or has been agreed to
be paid by him or on his behalf, or to
his knowledge unless before this
contract is made, particulars of any
such commission and of the terms
and conditions of any such
agreement for the payment thereof
have been disclosed in writing to the
Employer; or
(b) the commission of an offence under the
Prevention of Corruption Acts 1889 - 1916;
or
(c) entering into any form of collusion with
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other suppliers of services similar to the
services or with other actual or potential
bidders for this contract.
(30) The Project means the central section of the
Programme between, in the west, Royal Oak in
the City of Westminster and, in the east, Pudding
Mill Lane and Custom House (both in London
Borough of Newham) and Abbeywood in the
London Borough of Greenwich but excluding Isle
of Dogs Station and the Woolwich Station Box;
(31) To Provide the Services means to do the work
necessary to complete the
services in accordance
with this contract and all incidental work, services
and actions which this contract requires.
(32) The Resource Schedule is the schedule of staff
resources within the Service Delivery Plan or any
further resource schedule agreed by the
Employer.
(33) The Risk Register is a register of the risks which
are listed in the Contract Data and the risks which
the
Employer or the
Programme Partner has
notified as an early warning matter. It includes a
description of the risk and a description of the
actions which are to be taken to avoid or reduce
the risk.
(34) The Scope is information which either
• specifies and describes the
services or
• states any constraints on how the
Programme
Partner Provides the Services
and is either
• in the documents which the Contract Data
states it is in or
• in an instruction given in accordance with this
contract.
(35) The Service Delivery Plan is the further definition
of the
services and deliverables annexed (and
includes the Resource Schedule) together with all
future Service Delivery Plans that the
Employer and the
Programme Partner may agree.
(36) The Sponsors' Requirements are set out in the
Scope.
(37) Standards are UK railway standards and
standards and codes of practice published from
time to time by the International Organization for
Standardization or other international standards
and codes of practice, including those published
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by the British Standards Institution.
(38) A Subconsultant is a person or organisation who
has a contract with the
Programme Partner to
provide part of the
services.
(39) Third Party Agreements are such agreements
notified to the
Programme Partner by or on behalf
of the
Employer from time to time as constituting
Third Party Agreements for the purposes of this
contract including those agreements referred to
as such in the Contract Data.
(40) Third Party Rights means all Intellectual Property
rights which are not owned by the
Employer or
the
Programme Partner but required either (a) by
the
Programme Partner to Provide the Services,
or (b) by the
Employer (or any successors) to use
the Materials and/or to implement and/or operate
the Programme whether during the term of this
contract or thereafter;
(41) The Time Charge is the sum of the products of
each of the
staff rates multiplied by the total staff
time appropriate to that rate properly spent on
work in this contract provided always that all staff
time spent in excess of the maximum time
commitment for each staff member set out in the
Resources Schedule , or staff time incurred by
staff not included in such Resource Schedule,
shall not be included in the Time Charge and the
Programme Partner shall not be reimbursed in
respect of such staff time incurred.
(42) The Price for Services Provided to Date is the
Time Charge for the work which has been
completed. Completed Work is work that has
been completed without Defects.
(43) The Prices are the Time Charge.
(44)
The
TUPE
Regulations are the Transfer of
Undertakings (Protection of Employment)
Regulations 2006
Interpretation, the 12
law and best value
12.1
In this contract, except where the context shows
otherwise, words in the singular also mean in the plural
and the other way round and words in the masculine
also mean in the feminine and neuter. Words denoting
persons include individuals, partnerships, firms and
corporations and their successors and permitted
assignees or transferees.
12.2
This contract is governed by the
law of the contract.
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12.3
No change to this contract, unless provided for by the
conditions of contract, has effect unless it has been
agreed, confirmed in writing and signed by the Parties.
12.4
This contract is the entire agreement between the
Parties and supersedes all previous agreements
between the Parties relating to the subject matter of
this contract and each Party acknowledges that in
entering into this contract it has not relied on any
representation or undertaking, whether oral or in
writing, save such as are expressly incorporated in this
contract.
12.5
If any clause or part of this contract is found by any
court, tribunal, administrative body or authority of
competent jurisdiction to be illegal, invalid or
unenforceable then that provision will, to the extent
required, be severed from this contract and will be
ineffective without, as far as is possible, modifying any
other clause or part of this contract and this will not
affect any other provisions of this contract which will
remain in full force and effect.
12.6.1 The
Employer is currently owned by
TfL and the
Department for Transport in equal shares. It is
expected that in due course the
Employer will become a
wholly owned subsidiary of
TfL. For the avoidance of
doubt the
Consultant shall not be entitled to bring any
claim in tort or in contract under or relating to this
contract against
TfL or the Department for Transport.
12.6.2 The
Programme Partner acknowledges that
TfL is a best
value authority for the purposes of the Local
Government Act 1999 and as such the
Employer is
required to make arrangements to secure continuous
improvement in the way it exercises its functions having
regard to a combination of economy, efficiency and
effectiveness. The
Programme Partner assists the
Employer to discharge the
Employer's duty where
possible, and in doing so, inter alia carries out any
reviews of the Project or the Programme reasonably
requested by the
Employer from time to time.
12.7
In this contract any reference to:
•
any enactment, order, regulation or other similar
instrument references the enactment, order,
regulation or instrument (including any EU
instrument) as amended, replaced, consolidated
or re-enacted;
•
a public organisation references any successor
(statutory or otherwise) public organisation which
has taken over the functions and duties of such
public organisation;
•
laws includes any applicable legislation, judgments
of a relevant court of law changing a binding
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precedent, standards and codes of practice
published from time to time by the International
Organisation for Standardisation or other
international standards and codes of practice;
•
words preceding "include", "includes", "including",
and "included" are construed without limitation to
the words which follow those words; and
•
this contract includes any permitted variation,
amendment, or supplement to this contract.
Communications 13
13.1
Each instruction, certificate, submission, proposal,
record acceptance, notification, reply and other
communication which this contract requires is
communicated in a form which can be read, copied and
recorded or is available for access on a nominated
hosted web server (save in the case of the notification
of a Dispute which shall be notified in hard copy only).
Writing is in the
language of this contract.
13.2
A communication has effect when it is received at the
last address notified by the recipient for receiving
communications or, if none is notified, at the address of
the recipient stated in the Contract Data. Alternatively,
an electronic communication has effect when it is
posted on a nominated hosted web service.
Communications relating to the notification of a dispute
shall have no effect under this contract unless served in
hard copy.
13.3
If this contract requires the
Employer or the
Programme
Partner to reply to a communication, unless otherwise
stated in this contract, he replies within the
period for
reply.
13.4 The
Employer replies to a communication submitted or
resubmitted to him by the
Programme Partner for
acceptance. If his reply is not acceptance, the
Employer states his reasons and the
Programme Partner resubmits the communication within the
period for reply taking account of these reasons. A reason for
withholding acceptance is that more information is
needed in order to assess the
Programme Partner's
submission fully.
13.5 The
Employer may extend the
period for reply to a
communication if the
Employer and the
Programme
Partner (acting reasonably) agree to the extension
before the reply is due. The
Employer notifies the
Programme Partner of the extension which has been
agreed.
13.6 The
Programme Partner retains copies of drawings,
specifications, reports and other documents which
record the
services for the
period for retention. The
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copies are retained in the form stated in the Scope.
13.7 A notification which this contract requires is
communicated separately from other communications.
13.8 The
Employer may withhold acceptance of a submission
by the
Programme Partner. Withholding acceptance for
a reason stated in this contract or for any other
reasonable grounds is not a compensation event.
Acceptance 14
14.1
No acceptance, approvals, comments, instructions,
consents or advice or indication of satisfaction given by
or from the
Employer, nor any enquiry or inspection
which the
Employer makes or has carried out for its
benefit or on its behalf at any time, operates to reduce,
extinguish, exclude, limit or modify the
Programme
Partner's liabilities, duties and obligations under this
contract unless it is in writing from the
Employer, refers
to this contract and clearly identifies the liability, duty
or obligation and the extent to which such liability, duty
or obligation is to be reduced, extinguished, excluded,
limited or modified.
Early warning 15
15.1 The
Employer and the
Programme Partner give an early
warning by notifying the other as soon as either
becomes aware of any matter which could
•
increase the total of the Prices,
•
delay Completion,
•
change the Accepted Programme,
•
delay meeting a Key Date,
•
impair the usefulness of the
services to the
Employer or
•
affect the work of the
Employer, an
Employer's
contractor or another consultant.
The
Programme Partner may give an early warning by
notifying the
Employer of any other matter which could
increase his total cost. The
Programme Partner enters
early warning matters in the Risk Register. Early
warning of a matter for which a compensation event has
previously been notified is not required.
15.2 Either
the
Employer or the
Programme Partner may
instruct the other to attend a risk reduction meeting.
Each may instruct other people to attend if the other
Party agrees.
15.3
At a risk reduction meeting, those who attend will,
having regard to and subject to any provisions in this
contract relating to which Party (if any) is to be
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responsible for each registered risk, co-operate in
•
making and considering proposals for how the
effect of the registered risks can be avoided or
reduced,
•
seeking solutions that will bring advantage to all
those who will be affected,
•
deciding on the actions which will be taken and
who, in accordance with this contract, will take
them and
•
deciding which risks have now been avoided or
have passed and can be removed from the Risk
Register.
15.4 The
Programme Partner revises the Risk Register to
record the decisions made at each risk reduction
meeting and issues the revised Risk Register to the
Employer. If a decision needs a change to the Scope,
the
Employer instructs the change following issue of the
revised Risk Register. For the avoidance of doubt the
Programme Partner's only entitlement to a change in
the Prices, the Completion Date or a Key Date as a
result of any revision to the Risk Register is in
accordance with clauses 60 and 65.
Ambiguities and 16
inconsistencies
16.1 The
Employer or the
Programme Partner notifies the
other as soon as either becomes aware of an ambiguity
or inconsistency in or between the documents which are
part of this contract. The
Employer gives an instruction
resolving the ambiguity or inconsistency.
Illegal and 17
impossible
requirements
17.1 The
Programme Partner notifies the
Employer as soon
as he considers that the Scope requires him to do
anything which is illegal or impossible. If the
Employer agrees, he gives an instruction to change the Scope
appropriately.
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2
The Parties' main responsibilities
The Employer's 20
obligations
20.1 The
Employer provides information and things which this
contract requires him to provide in accordance with the
Accepted Programme.
20.2 The
Employer may give an instruction to the
Programme
Partner which changes the Scope, a Key Date or the Service
Delivery Plan. After Completion, an instruction is given only if
it is necessary to Provide the Services.
20.3 The
Employer does not give an instruction to the
Programme
Partner which would require him to act in a way that was
outside his professional code of conduct.
20.4 The
Employer may give an instruction to the
Programme
Partner omitting
services from the Scope or obligations from
the contract and may procure that such omitted
services or
obligations be provided by Others or a Subconsultant.
The Programme 21
Partner's obligations
21.1 The
Programme Partner Provides the Services:
•
in accordance with the Scope and the Service Delivery
Plan;
•
in compliance with all Legislation;
•
so as not to cause or contribute to any breach by the
Employer of any of its duties and obligations under any
Third Party Agreements; and
•
in accordance with Standards;
and, using the standard of skill, care and diligence referred to
in Clause 21.2:
•
in accordance with the Policies; and
•
such that there is only specified or approved for use
materials which at the time of specification, approval or
use are not deleterious to health and safety or to
durability and which accord with the guidelines
contained in the publication Good Practice in Selection
of Construction Materials (Ove Arup & Partners) current
at the date and specification, approval or use.
21.2 The
Programme Partner's obligation in respect of the
performance of the
services is to use the standard of skill,
care and diligence to carry out and complete the
services to
be reasonably expected from a properly qualified professional
consultant experienced in providing services similar in size,
scope and complexity to the
services and for projects similar
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in size, scope and complexity to the Programme.
21.3 The
Programme Partner shall cooperate with and coordinate
his Provision of the Services with the services to be provided
by the designers, the principal contractor and the CDM Co-
ordinator under the Construction (Design and Management)
Regulations 2007.
21.4 The
Programme Partner shall prepare and agree with the
Employer revisions of Service Delivery Plans in a format and
covering the periods of time to be agreed with the
Employer.
Each Service Delivery Plan shall identify the
services to be
provided during the agreed period, a programme for the
same, and a Resource Schedule identifying the staff resources
to be used in relation to the provision of such
services.
Equality and 21.5
Without limiting the generality of any other provision of the
diversity
contract, the
Programme Partner:
•
does not unlawfully discriminate;
•
procures that its personnel do not unlawfully
discriminate; and
•
uses reasonable endeavours to procure that its
Subconsultants do not unlawfully discriminate in
relation to the
services
within the meaning and scope of:
•
the Sex Discrimination Act 1975;
•
the Race Relations Act 1976 (including the Race
Relations (Amendment) Act 2000);
•
the Disability Discrimination Act 1995 (as amended by
the Disability Discrimination Act 2005);
•
the Employment Equality (Sexual Orientation)
Regulations 2003;
•
the Employment Equality (Religion or Belief)
Regulations 2003;
•
the Equality Act 2006;
•
and any other relevant enactments in force from time
to time relation to discrimination in employment.
21.6 The
Programme Partner acknowledges that the
Employer is
under a duty under Section 71 of the Race Relations Act 1976
to have due regard to the need to eliminate unlawful racial
discrimination and to promote equality of opportunity and
good relations between persons of different racial groups. In
the performance of the contract, the
Programme Partner assists and co-operates and uses reasonable endeavours to
procure that its Subconsultants and co-operate with the
Employer where possible in satisfying this duty.
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21.7 The
Programme Partner acknowledges that
TfL is under a duty
by virtue of a Mayor of London’s direction under Section 155
of the Greater London Authority Act 1999 (in respect of the
Greater London Authority’s duty under section 404(2) of the
Greater London Authority Act 1999) to have due regard to the
need to:
•
promote equality of opportunity for all persons
irrespective of their race, gender, disability, age,
sexual orientation or religion;
•
eliminate unlawful discrimination; and
•
promote good relations between persons of different
racial groups, religious beliefs and sexual orientation,
and in the performance of the contract, the
Programme
Partner assists and co-operates and uses reasonable
endeavours to procure that its Subconsultants assist and co-
operate with the Employer where possible to enable
TfL to
satisfy its duty.
21.8 The
Employer’s Harassment, Bullying and Discrimination Policy
(“Harassment Policy”) requires the
Employer’s own staff and
those of its consultants to comply fully with the Harassment
Policy to eradicate harassment in the workplace. The
Programme Partner:
•
ensures that its staff, and those of its Subconsultants
who are engaged in the performance of the contract
are fully conversant with the requirements of the
Harassment Policy;
•
fully investigate allegations of workplace harassment
in accordance with the Harassment Policy; and
•
ensures that appropriate effective action is taken
where harassment is found to have occurred.
21.9 The
Programme Partner acknowledges that the
Employer is
under a duty under Section 49A of the Disability
Discrimination Act 1995 (as amended by the Disability
Discrimination Act 2005) to have due regard to the need to
•
eliminate discrimination that is unlawful under the
Disability Discrimination Acts;
•
eliminate harassment of disabled persons related to
their disabilities and promote equality of opportunity
between disabled persons and other persons;
•
take steps to take account of disabled persons’
disabilities (even when that involves treating disabled
persons more favourably than other per sons); and
•
promote positive attitudes towards disabled persons
and encourage participation by disabled persons in
public life
Contract No 2072
Invitation to Tender issue dated 25 September 2008
Confidential
and in the performance of the contract, the
Programme
Partner, assists and co-operates, and uses reasonable
endeavours to procure that its Subconsultants assist and co-
operate, with the
Employer where possible to enable the
Employer to satisfy its duty.
People 22
22.1
The
Programme Partner either employs each
key person
named to do the job for him stated in the Contract Data or
Service Delivery Plan or employs a replacement person who
has been accepted by the
Employer. The
Programme Partner submits the name, relevant qualifications and experience of a
proposed replacement person to the
Employer for acceptance.
A reason for not accepting the person is the
Employer believes
(in his absolute discretion) he is a security risk or that his
relevant qualifications and experience are not as good as
those of the person who is to be replaced.
22.2 The
Employer may instruct the
Programme Partner to remove
a person employed by the
Programme Partner or a
Subconsultant of the
Programme Partner. The
Programme
Partner then arranges that, after one day, the person has no
further connection with the work included in this contract.
22.3 The
Programme Partner ensures that
key persons carry out
the responsibilities required of them and listed in the Contract
Data or Service Delivery Plan in respect of the
services. The
Programme Partner does not reallocate the duties of any
key person (or their accepted replacement) nor assign any
key person (or their accepted replacement) to any other project or
contract without the prior written consent of the
Employer.
22.4 If
any
key person (or their accepted replacement) dies,
resigns, retires, is dismissed, or is otherwise prevented from
carrying out its responsibilities as listed in the Contract Data
or Service Delivery Plan during the term of this contract then
if the
Employer so requires, the
Programme Partner procures
the replacement of such
key person (or their accepted
replacement) with a suitably qualified and competent
replacement, such replacement to be accepted by the
Employer.
22.5 The
Programme Partner employs only the
key persons and
other persons referred to in the Contract Data or Service
Delivery Plan to Provide the Services. Other persons may only
be employed to Provide the Services with the written consent
(in his absolute discretion) of the
Employer.
Contract No 2072
Invitation to Tender issue dated 25 September 2008
Confidential
London Living Wage 22A
22A.1
In this clause 22A, the following expressions shall have the
following meanings:
"London Living Wage" the basic hourly wage of £7.45 (before
tax, other deductions and any increase for overtime) as may
be updated from time to time and notified to the
Programme
Partner;
22A.2
Without prejudice to any other provision of this contract, the
Programme Partner shall:
22A.2.1 ensure that none of its employees engaged in
connection with the Programme under this contract
is paid an hourly wage (or equivalent of an hourly
wage) less than the London Living Wage;
22A.2.2 ensure that none of its employees engaged in
connection with the Programme under this contract
is paid less than the amount to which they are
entitled in their respective contracts of
employment;
22A.2.3 provide to the
Employer such information
concerning the London Living Wage and as the
Employer or its nominees may reasonably require
from time to time;
22A.2.4 disseminate on behalf of the
Employer to its
employees engaged in connection with the
Programme under this contract such perception
questionnaires as the
Employer may reasonably
require from time to time and promptly collate and
return to the
Employer responses to such
questionnaires; and
22A.2.5
co-operate and provide all reasonable assistance in
monitoring the effect of the London Living Wage.
Working with the 23
Employer and Others
23.1 The
Programme Partner co-operates with Others in obtaining
and providing information which they need in connection with
the
services.
23.2
Where necessary to Provide the Services, the
Programme
Partner holds or attends meetings with Others. The
Programme Partner informs the
Employer of these meetings
beforehand and the
Employer may attend them.
23.3 If
the
Employer decides that the work does not meet the
Condition stated for a Key Date by the date stated and, as a
result, the
Employer incurs any loss and expense or additional
cost either
•
in carrying out work or
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Invitation to Tender issue dated 25 September 2008
Confidential
•
by paying an additional amount to Others in carrying
out work,
the additional cost the
Employer has paid or will incur is paid
by the
Programme Partner. The
Employer assesses the
additional cost within four weeks of the date when the
Condition stated for that Key Date is met.
Employer provides 23.4 (1)
The
Employer provides the right of access for the
Premises
Programme Partner to any Premises provided by the
Employer as necessary for the
services subject to any
constraints stated in the Scope or Service Delivery Plan.
(2)
The
Employer provides things which it is to provide for
any Premises provided by the
Employer as stated in the
Scope or the Service Delivery Plan.
(3)
The
Programme Partner acknowledges that the
Employer
may engage or need to work with Others who will require
use of or access to any Premises provided by the
Employer in which event the
Programme Partner shares
any Premises provided by the
Employer with Others as
instructed by the
Employer.
Subconsulting 24
24.1 If
the
Programme Partner subcontracts work, he is responsible
for Providing the Services as if he had not subcontracted. This
contract applies as if a Subconsultant's employees were the
Programme Partner's.
24.2 The
Programme Partner submits the name of each proposed
Subconsultant to the
Employer for acceptance. A reason for
not accepting the Subconsultant is that the
Employer believes,
in his absolute discretion, that his appointment will not allow
the
Programme Partner to Provide the Services. The
Programme Partner does not appoint a proposed
Subconsultant until the
Employer has accepted him.
24.3 The
Programme Partner submits the proposed conditions of
contract and the Contract Data for each subcontract to the
Employer for acceptance unless the
Employer has agreed that
no submission is required.
The
Programme Partner does not appoint a Subconsultant on
the proposed subcontract conditions and the Contract Data
submitted until the
Employer has accepted them. A reason for
not accepting them is that
•
they will not allow the
Programme Partner to Provide
the Services; or
•
they do not include a statement that the parties to the
subcontract shall act in a spirit of mutual trust and co-
operation; or
•
they are not consistent with the terms of this contract.
Once the sub-contract conditions have been accepted by the
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Confidential
Employer the
Programme Partner shall not agree to vary or
amend the same or terminate the engagement of the
Subconsultant unless such variation, amendments or
termination has been accepted by the
Employer (at his
absolute discretion).
24.4 The
Programme Partner shall procure that it (where
appropriate) and each Subconsultant shall enter into collateral
warranties in the forms set out in Appendix 9 in favour of each
of the
Employer, [
LUL/Tubelines/Network Rail/DLR] within 14
days of the
Employer's request to do so1.
Other 25
responsibilities
25.1 The
Programme Partner obtains approval from Others where
necessary or desirable to Provide the Services.
25.2 The
Employer provides access to a person, place or thing to
the
Programme Partner as stated in the Contract Data or
Service Delivery Plan on or before the later of its
access date and the access date for it shown on the Accepted Programme.
25.3 The
Programme Partner obeys an instruction which is in
accordance with this contract and is given to him by the
Employer.
25.4 The
Programme Partner acts in accordance with the health
and safety requirements stated in the Scope.
25.5 The
Programme Partner co-operates with Others To Provide
the Services and in complying with its other obligations under
this contract so as not to cause the Employer or Others delay,
loss, expense or additional cost.
Assignment and 26
Novation
26.1 The
Programme Partner does not assign the contract or any
part thereof or any benefit or interest therein or thereunder
without the prior written consent of the
Employer. The
Employer may assign
the
contract or any part thereof or any
benefit or interest therein or thereunder.
26.2 The
Programme Partner and
Guarantor execute and deliver to
the
Employer a deed of novation in the form annexed with the
Employer and any New Employer within fourteen days of the
Employer's request.
26.3 If
the
Programme Partner and the
Guarantor do not execute
and deliver such deed of novation to the
Employer within such
time
period then no further payment is due to the
Programme
Partner until the
Programme Partner and
Guarantor have
executed and delivered such deed of novation to the
1 Beneficiaries of warranties are to be confirmed.
Contract No 2072
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Confidential
Employer.
Transfer of 27
Undertakings
27.1
The parties acknowledge that there may be a "relevant
transfer" of an undertaking or part of one as defined in the
TUPE Regulations (
"Relevant Transfer") on the
starting date or on any omission or termination of the
services or any or all
of the
Deliver Partner's obligations under this contract and
agree to deal with the risks and/or consequences thereof as
follows.
27.2
If there is a Relevant Transfer on the
starting date, the parties
agree, as between themselves, that the
Programme Partner shall be wholly responsible for and liable accordingly for
continuing any contracts of employment, collective
agreements and/or trade union recognition agreements which
transfer under the TUPE Regulations and discharging all the
obligations of a transferee under the TUPE Regulations.
27.3
If there is or may (in the reasonable opinion of the
Employer)
be a Relevant Transfer as a result of any omission or
termination of the
services or any or all of the
Programme
Partner's obligations under this contract, the parties agree as
between themselves that the
Programme Partner will be
wholly responsible for and liable accordingly for discharging all
the obligations of a transferor under the TUPE Regulations.
27.4 The
Programme Partner agrees that within 14 days of a
written request from the
Employer (such request not to be
made earlier than 6 months before the termination of this
contract whether by effluxion of time or otherwise) it shall
provide to the
Employer in writing the following information:
(1)
the number and description of the employees engaged
in Providing the Services;
(2)
for each employee (or where they are employed on
common terms and conditions of employment each
such group of employees) the particulars, as at a
specified date not more than 7 days before the
information is given, of the matters specified in
Section 1(4) of the Employment Rights Act 1996.
The
Employer shall be entitled to use and/or disclose the said
information in confidence in connection with engaging a
replacement programme partner to Provide the Services or to
provide any
services or perform any obligations of the
Programme Partner omitted pursuant to clause 20.4.
27.5 The
Programme Partner shall not agree with or otherwise
promise any employees or trade union any terms or conditions
of employment which are outside the ordinary and normal
custom and practice for the industry or relevant trade or which
are conditional upon or triggered by a Relevant Transfer or are
intended to frustrate a re-tendering exercise or deter potential
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tenderers from tendering.
Conflict of Interest 28
28.1 The
Programme Partner confirms that as at the date of this
contract it does not have any interest in any matter and does
not act and has not acted for any party in respect of any
matter which would (in either case) create a conflict of
interest in Providing the Services. The
Programme Partner will
undertake ongoing conflict of interest checks and will notify
the
Employer immediately if any conflict or potential conflict of
interest arises (including notification of any instructions from a
party with whom the
Employer has or has had any dealings
with respect to the Programme).
28.2
To the extent that an actual or potential conflict may arise
involving the
Employer, the
Programme Partner shall continue
to act for and advise the
Employer and if reasonably required
will cease to act for any other party where to act so would
constitute a conflict of interest.
Performance 29
At 6 monthly intervals, or at such other intervals as the
reviews
Parties may agree to from time to time, the
Employer and the
Programme Partner shall undertake a formal review of the
performance of the
Programme Partner, including its
performance
against the Interim KPIs and Programme KPIs
pursuant to (and as defined under) clause X20. The
Programme Partner and the
Employer shall discuss any ways
in which the performance of the
Programme Partner may be
improved.
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Confidential
3 Time
Starting, 30
Completion and
Key Dates
30.1 The
Programme Partner starts work on the
starting date
(not before) and proceeds with the work diligently so
that Completion is on or before the Completion Date.
30.2 The
Employer decides the date of Completion and
certifies it within 30 days of the date.
30.3 The
Programme Partner does the work so that the
Condition stated for each Key Date is met by the Key
Date.
The programme 31
31.1
If a programme is not identified in the Contract Data, the
Programme Partner submits a first programme to the
Employer for acceptance within the period stated in the
Contract Data.
31.2 The
Programme Partner shows on each programme
which he submits for acceptance
•
the
starting date,
access dates, Key Dates and
Completion Date,
•
planned Completion,
•
the order and timing of the operations which the
Programme Partner plans to do in order to
Provide the Services,
•
the order and timing of the work of the
Employer and Others as last agreed with them by the
Programme Partner or, if not so agreed, as
stated in the Scope,
•
the dates when the
Programme Partner plans to
meet each Condition stated for the Key Dates
and to complete other work needed to allow the
Employer and Others to do their work,
•
provisions for
•
float,
•
time risk allowances,
•
health and safety requirements and
•
the procedures set out in this contract,
•
the dates when, in order to Provide the Services
in accordance with his programme, the
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Programme Partner will need
•
access to a person, place or thing if later
than its
access date,
•
information and things to be provided by
the
Employer and
•
information and approval from Others,
•
for each operation, a statement of how the
Programme Partner plans to do the work
identifying the resources which he plans to use
and
•
other information which the Scope requires the
Programme Partner to show on a programme
submitted for acceptance.
31.3
Within two weeks of the
Programme Partner submitting a
programme to him for acceptance, the
Employer either
accepts the programme or notifies the
Programme
Partner of his reasons for not accepting it. A reason for
not accepting a programme is that
•
the
Programme Partner's plans which it shows
are not practicable,
•
it does not show the information which this
contract requires,
•
it does not represent the
Programme Partner's
plans realistically or
•
it does not comply with the Scope.
Revising the 32
programme
32.1 The
Programme Partner shows on each revised
programme
•
the actual progress achieved on each operation
and its effect upon the timing of the remaining
work,
•
the effects of implemented compensation events
and of notified early warning matters,
•
how the
Programme Partner plans to deal with
any delays and to correct notified Defects and
•
any other changes which the
Programme Partner proposes to make to the Accepted Programme.
32.2 The
Programme Partner submits a revised programme to
the
Employer for acceptance
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•
within the
period for reply after the
Employer has
instructed him to,
•
when the
Programme Partner chooses to and, in
any case,
•
at no longer interval than the interval stated in
the Contract Data from the
starting date until
Completion of the whole of the
services.
Instructions to 33
stop or not to start
work
33.1 The
Employer may instruct the
Programme Partner to
stop or not to start any work and may later instruct him
that he may re-start or start it.
Acceleration 34
34.1 The
Employer may instruct the
Programme Partner to
submit a quotation for acceleration to achieve
Completion before the Completion Date. The
Employer states changes to the Key Dates to be included in the
quotation. A quotation for an acceleration comprises
proposed changes to the Prices and a revised programme
showing the earlier Completion Date and the changed
Key Dates. The
Programme Partner submits details of his
assessment with each quotation.
34.2 The
Programme Partner submits a quotation or gives his
reasons for not doing so within the
period for reply.
34.3 When
the
Employer accepts a quotation for acceleration,
the
Programme Partner submits changes to the
Completion Date, the Key Dates and the forecast of the
total Time Charge for the whole of the
services to the
Employer for acceptance.
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Confidential
4 Quality
Quality 40
management
system
40.1 The
Programme Partner operates a quality management
system for Providing the Services as stated in the Scope.
The quality management system complies with the
requirements stated in the Scope.
40.2 The
Programme Partner provides the
Employer, within
the period stated in the Contract Data, with a quality
policy statement and a quality plan for acceptance. The
quality policy statement and quality plan comply with
the requirements stated in the Scope.
40.3 The
Programme Partner complies with an instruction
from the
Employer to the
Programme Partner to correct
a failure to comply with the quality plan.
Correcting Defects 41
41.1 Until
the
defects date, the
Employer notifies the
Programme Partner of each Defect as soon as he finds it
and the
Programme Partner notifies the
Employer of
each Defect as soon as he finds it. After Completion and
until the
defects date, the
Programme Partner notifies
the
Employer of each Defect as soon as he finds it. The
Employer's rights in respect of a Defect which the
Employer has not found or notified by the
defects date are not affected.
41.2 The
Programme Partner corrects a Defect whether or not
the
Employer notifies him of it. The
Programme Partner corrects Defects within a time which minimises the
adverse effect on the
Employer or Others. If the
Programme Partner does not correct a Defect within a
reasonable time having regard to the nature of the
Defect, the
Employer assesses the cost to him of having
the Defect corrected by other people and the
Programme Partner pays this amount.
41.3
For the avoidance of doubt, the
Programme Partner continues to be liable for Defects after:
•
the
defects date;
•
the operation of this clause 41;
•
the termination of this contract for any reason
(including breach by the
Employer);
in accordance with the
law of the contract.
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5 Payment
Assessing the 50
amount due
50.1 The
Programme Partner assesses the amount due and
submits an invoice at each assessment date. The first
assessment date is decided by the
Programme Partner to
suit the procedures of the Parties and is not later than
the
assessment interval after the
starting date. Later
assessment dates occur
•
at the end of each
assessment interval until eight
weeks after the
defects date and
•
at Completion of the whole of the
services.
50.2
Invoices submitted by the
Programme Partner include
the details stated in the Scope to show how the amount
due has been assessed. The first invoice is for the
amount due. Other invoices are for the change in the
amount due since the previous invoice.
50.3
The amount due is
•
the Price for Services Provided to Date,
•
the amount of the
expenses properly spent by
the
Programme Partner in Providing the Services
and
•
other amounts to be paid to the
Programme
Partner,
less amounts to be paid by or retained from the
Programme Partner.
Any tax which the law requires the
Employer to pay to
the
Programme Partner is included in the amount due.
Payment 51
51.1
The date on which a payment becomes due is seven
days after the date of the
Programme Partner's invoice.
The final date for payment is twenty three days after the
date on which payment becomes due.
Not later than five days after the date on which a
payment becomes due, the
Employer issues a notice to
the
Programme Partner stating the amount of payment
made or proposed to be made, and the basis on which
the amount was calculated.
51.2
If either Party intends to withhold payment of an amount
due under this contract, he notifies the other Party not
later than five days (the prescribed period) before the
final date for payment by stating the amount proposed
to be withheld and the reason for withholding payment.
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If there is more than one reason, the amount for each
reason is stated.
A Party does not withhold payment of an amount due
under this contract unless he has notified his intention to
withhold payment as required by this contract.
51.3 (1)
If:
• any payment has not been paid in full by the final
date for payment; and
• notification of intention to withhold payment has not
been given in accordance with clause 51.2
the
Programme Partner may suspend his
performance under this contract.
(2) The
Programme Partner does not exercise his right to
suspend his performance under this contract unless
he has notified the Employer of:
• his intention to suspend his performance under this
contract and
• the grounds for suspending his performance under
this contract.
(3) The right of the
Programme Partner to suspend his
performance ends when the amount that should be
paid to the
Programme Partner is paid to him in full.
51.4 If
the
Programme Partner exercises his right under the
Act to suspend his performance, it is a compensation
event.
51.5
Payments are in the
currency of this contract unless
otherwise stated in this contract.
51.6 If
the
Employer does not accept the
Programme
Partner's assessment of the amount due, he notifies the
Programme Partner of his reasons and the amount which
he assesses is due before the payment becomes due. He
pays the amount of his assessment. The agreed part of
the invoice is paid. The
Programme Partner either
•
corrects the invoice to a sum agreed by the
Employer or
•
provides further information to justify the
invoice.
51.7
If a payment is late or has been delayed because of a
disagreement, interest is paid. Interest is assessed from
the date by which the late payment should have been
made until the date when the late payment is made, and
is included in the first assessment after the late payment
is made.
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51.8
Interest is calculated on a daily basis at the
interest rate and is compounded annually.
Accounts and 52
records
52.2
Without prejudice to clause 73, the
Programme Partner keeps accounts and records of his Time Charge and
expenses and allows the
Employer to inspect them at
any time within working hours.
Contract No 2072
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Confidential
6 Compensation
events
Compensation 60
events
60.1
The following are compensation events.
(1)
The
Employer gives an instruction changing the
Scope or a Service Delivery Plan.
(2)
The
Employer does not provide access to any
Premises provided by the
Employer for the
Programme Partner as stated in this contract.
(3)
The
Employer does not provide something which
he is to provide by the date for providing it shown
on the Accepted Programme.
(4)
The
Employer gives an instruction to stop or not
to start any work or to change a Key Date.
(5)
The
Employer or Others do not work within the
times shown on the Accepted Programme or
within the conditions stated in the Scope.
(6)
The
Employer does not reply to a communication
from the
Programme Partner within the period
required by this contract.
(7)
The
Employer changes a decision which he has
previously communicated to the
Programme
Partner.
(8)
The
Employer withholds an acceptance (other
than acceptance of a quotation for acceleration)
for a reason not stated in this contract.
(9)
The
Employer notifies a correction to an
assumption which he has stated about a
compensation event.
(10) A breach of contract or act of prevention by the
Employer which is not one of the other
compensation events in this contract.
(11)
The
Employer notifies the
Programme Partner of a
Policy with which he is to comply that is not listed
in the Contract Data or a Service Delivery Plan.
Notifying 61
compensation
events
61.1
For compensation events which arise from the
Employer giving an instruction or changing an earlier decision, the
Programme Partner notifies the
Employer of the
compensation event at the time of receiving the
Contract No 2072
Invitation to Tender issue dated 25 September 2008
Confidential
instruction or the change to the earlier decision. The
Employer then instructs the
Programme Partner to
submit quotations, unless the event arises from a fault
of the
Programme Partner or quotations have already
been submitted. The
Programme Partner puts the
instruction or changed decision into effect.
61.2 The
Employer may instruct the
Programme Partner to
submit quotations for a proposed instruction or a
proposed changed decision. The
Programme Partner does not put a proposed instruction or a proposed
changed decision into effect.
61.3
Subject to clause 61.8, the
Programme Partner notifies
the
Employer of an event which has happened or which
he expects to happen as a compensation event if the
Programme Partner believes that the event is a
compensation event.
If
the
Programme Partner does not notify a
compensation event within eight weeks of becoming
aware of the event, he is not entitled to a change in
Prices, the Completion Date or a Key Date.
61.4
If and to the extent the
Employer decides that an event
notified by the
Programme Partner
•
arises from or is contributed to by a fault of the
Programme Partner,
•
has not happened and is not expected to
happen,
•
has no effect upon the
Programme Partner's
costs, Completion or meeting a Key Date or
•
is not one of the compensation events stated in
this contract
he notifies the
Programme Partner of his decision that
the Prices, the Completion Date and the Key Date are
not to be changed.
If
the
Employer decides otherwise, he notifies the
Programme Partner accordingly and instructs him to
submit quotations.
61.5 If
the
Employer decides that the
Programme Partner did
not give an early warning of the event which an
experienced consultant could have given, he notifies this
decision to the
Programme Partner when he instructs
him to submit quotations.
61.6 If
the
Employer decides that the effects of a
compensation event are too uncertain to be forecast
reasonably, he states assumptions about the event in
his instruction to the
Programme Partner to submit
quotations. Assessment of the event is based on these
assumptions. If any of them is later found to have been
Contract No 2072
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wrong, the
Employer notifies a correction.
61.7
A compensation event is not notified after the
defects
date. No change in Prices is made in respect of any
matter notified after the
defects date.
61.8 The
Programme Partner and the
Employer agree to
implement a procedure for bundling together and
submitting every 4 weeks notifications of and for
assessing and implementing compensation events. Such
procedure will not apply in respect of any compensation
events of such value or nature which require that they
should be brought to the attention of the other Party
before the next notification date.
Quotations for 62
compensation
events
62.1
After discussing with the
Programme Partner different
ways of dealing with the compensation event which are
practicable, the
Employer may instruct the
Programme
Partner to submit alternative quotations. The
Programme Partner submits the required quotations to
the
Employer and may submit quotations for other
methods of dealing with the compensation event which
he considers practicable.
62.2
Quotations for compensation events comprise proposed
changes to the Prices and any delay to the Completion
Date and Key Dates assessed by the
Programme
Partner. The
Programme Partner submits details of his
assessment with each quotation. If the programme for
remaining work is altered by the compensation event,
the
Programme Partner includes the alterations to the
Accepted Programme in his quotation.
62.3
The
Programme Partner submits quotations within two
weeks of being instructed to do so by the
Employer. The
Employer replies within two weeks of the submission.
His reply is
•
an instruction to submit a revised quotation,
•
an acceptance of a quotation,
•
a notification that a proposed instruction will not
be given or a proposed changed decision will not
be made or
•
a notification that he will be making his own
assessment.
62.4
The
Employer instructs the
Programme Partner to
submit a revised quotation only after explaining his
reasons for doing so to the
Programme Partner. The
Programme Partner submits the revised quotation within
three weeks of being instructed to do so.
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62.5
The
Employer extends the time allowed for
•
the
Programme Partner to submit quotations for
a compensation event and
•
the
Employer to reply to a quotation
if
the
Employer and the
Programme Partner agree to the
extension before the submission or reply is due. The
Employer notifies the extension that has been agreed to
the
Programme Partner.
Assessing 63
compensation
events
63.1
The changes to the Prices are assessed as the effect of
the compensation event upon
•
the actual Time Charge for the work already
done and
•
the forecast Time Charge for the work not yet
done.
The date when the
Employer instructed or should have
instructed the
Programme Partner to submit quotations
divides the work already done from the work not yet
done.
63.2
If the effect of a compensation event is to reduce the
total Time Charge, the Prices are proportionately
reduced and the
Programme Partner shall not be
entitled to any payment in respect of loss of profit or
loss of opportunity in respect of the same.
63.3.1
Subject to clause 63.3.2 a delay to the Completion Date
is assessed as the length of time that, due to the
compensation event, Completion is later than the
Completion Date and a delay to a Key Date is assessed
as the length of time that, due to the compensation
event, the date when the Condition stated for a Key
Date is met is later than the relevant Key Date.
63.3.2 Any delay is only treated as being due to a
compensation event if the compensation event is the
sole or principal cause of the delay.
63.4
The rights of the
Employer and the
Programme Partner to changes to the Prices, the Completion Date and the
Key Dates are their only rights in respect of a
compensation event.
63.5
If
the
Employer has notified the
Programme Partner of
his decision that the
Programme Partner did not give an
early warning of a compensation event which an
experienced consultant could have given, the event is
assessed as if the
Programme Partner had given early
warning, thereby enabling the
Employer to have taken
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action to minimise or avoid the effects of such
compensation event.
63.6
Assessment of the effect of a compensation event
includes risk allowances for cost and time for matters
which have a significant chance of occurring and are at
the
Programme Partner's risk under this contract.
63.7
Assessments for work not yet done are based upon the
assumptions that the
Programme Partner will react
competently and promptly to the compensation event
and that the Accepted Programme can be changed.
Assessments for work already done include only cost
and time which were reasonably incurred.
63.8
A compensation event which is an instruction to change
the Scope in order to resolve an ambiguity or
inconsistency is assessed as if the Prices, the
Completion Date and the Key Dates were for the
interpretation most favourable to the Party which did
not provide the Scope.
63.9
If a change to the Scope makes the description of the
Condition for a Key Date incorrect, the
Employer corrects the description. This correction is taken into
account in assessing the compensation event for the
change to the Scope.
63.10
If the work included in a quotation for a compensation
event includes work by staff for which there is no
staff
rate, a proposed rate is included in the quotation.
63.11
The following are deducted from the assessment of
compensation events
•
the cost of events for which this contract
requires the
Programme Partner to insure and
•
other costs paid to the
Programme Partner by
insurers.
The Employer's 64
assessments
64.1
The
Employer assesses a compensation event
•
if the
Programme Partner has not submitted a
required quotation and details of his assessment
within the time allowed,
•
if the
Employer decides that the
Programme
Partner has not assessed the compensation
event correctly in a quotation and he does not
instruct the
Programme Partner to submit a
revised quotation,
•
if, when the
Programme Partner submits
quotations for a compensation event, he has not
submitted a programme or alterations to a
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programme which this contract requires him to
submit or
•
if, when the
Programme Partner submits
quotations for a compensation event, the
Employer has not accepted the
Programme
Partner's latest programme for one of the
reasons stated in this contract.
64.2
The
Employer assesses a compensation event using his
own assessment of the programme for the remaining
work if
•
there is no Accepted Programme or
•
the
Programme Partner has not submitted a
programme or alterations to a programme for
acceptance as required by this contract.
64.3
The
Employer notifies the
Programme Partner of his
assessment of a compensation event and gives him
details of it within the period allowed for the
Programme
Partner's submission of his quotation for the same
event. This period starts when the need for the
Employer's assessment becomes apparent.
Implementing 65
compensation
events
65.1
A compensation event is implemented when
•
the
Employer notifies his acceptance of the
Programme Partner's quotation,
•
the
Employer notifies the
Programme Partner of
his own assessment or
•
a
Programme Partner's quotation is treated as
having been accepted by the
Employer.
65.2
The assessment of a compensation event is not revised
if a forecast upon which it is based is shown by later
recorded information to have been wrong.
65.3
The changes to the forecast amount of the Prices, the
Completion Date and the Key Dates are included in the
notification implementing a compensation event and the
Service Delivery Plan is modified accordingly.
Reviewing staff 66
Where the
Programme Partner considers that staff
resourcing levels
resource levels set out in the Service Delivery Plan are
included in Service
not sufficient to Provide the Services and such lack of
Delivery Plans
sufficiency is not due to a compensation event, the
Employer and the
Programme Partner shall discuss
whether or not to agree a change to the Service
Delivery Plan. If no agreement can be reached the
Employer will, in its absolute discretion, decide whether
the Service Delivery Plan should be changed and if so in
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what regard.
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7
Rights to material
The Parties' use of 70
material
Background Rights 70A
70A.1 The Background Rights shall remain the absolute
unencumbered property of the owner of such rights at
the date of this contract. No party will make any
representation or do any act which may be taken to
indicate that it has any right, title or interest in or to the
ownership or use of any of the Background Rights of the
other party except under the terms of this contract, and
each party acknowledges that nothing contained in this
contract shall give it any right, title or interest in or to
the Background Rights of the other party save as
granted in this contract.
70A.2 (a) The
Programme Partner confirms that it will be
able to Provide the Services without using or
incorporating its Background Rights therein and
that the
Employer will be able to use the
services to develop, implement and operate the
Programme both during the term of this contract
and thereafter without needing a right to use any
such Background Rights.
(b) The
Programme Partner may request the
Employer's consent to use or to incorporate the
Programme Partner's Background Rights to
Provide the Services and may do so subject to
receipt of the
Employer's prior written consent.
Such consent shall be given at the
Employer's absolute discretion and will be subject to prior
contract between the
Employer and the
Programme Partner with respect to licensing and
commercial arrangements required with respect to
use of such Background Rights.
Foreground Rights 70B
and Materials
70B.1
All Foreground Rights and Materials shall vest in and be
the property of the
Employer on their creation. To the
extent that any such Foreground Rights or Materials
vest in the
Programme Partner or any Subconsultant or
other third party engaged by the
Programme Partner in
performing this contract, the
Programme Partner hereby:
(a)
assigns to the
Employer (or shall procure that the
Employer is granted an assignment of) all such
present and future Foreground Rights immediately
upon creation; and
(b) transfers to the
Employer (or shall procure that
the relevant owner transfers) ownership in such
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present or future Materials immediately upon
creation.
70B.2 The
Programme Partner shall in engaging or employing
any Subconsultant enter into an enforceable written
contract with such party which provides that:
(a)
all Foreground Rights and Materials created by the
Sub-contractor pursuant to such contract shall
vest in and becomes the property of the
Employer immediately upon creation;
(b) upon such vesting, the
Employer shall become
entitled to exclusive perpetual and unrestricted
rights of use and ownership of such Foreground
Rights and Materials; and
(c) the
Employer or its nominee shall be able to
enforce the rights of the
Programme Partner against such Subconsultant pursuant to the terms
of the Contracts (Rights of Third Parties) Act
1999;
70B.3 The
Programme Partner shall provide a copy of any
contract proposed pursuant to clause 70B.2 to the
Employer for approval and authorisation prior to entry
into or execution of the same.
70B.4 The
Programme Partner agrees to provide to the
Employer or any person nominated by the
Employer immediate access to all Materials in whatever form
reasonably requested by the
Employer (including
without limitation the source code of any software that
is not commercially available) at any time but at the
latest on termination or expiry of this contract. The
Programme Partner shall upon the written request of the
Employer enter into a deposit and/or source code
escrow contract with the
Employer and a third party
nominated by the
Employer in respect of such Materials
in such form as the
Employer may require.
Third Party Rights 70C
70C.1 The
Programme Partner shall be responsible for
obtaining all necessary consents, authorities or
approvals required to use any Third Party Rights
necessary for performing its obligations under this
contract.
70C.2 The
Programme Partner shall ensure that the
Employer
has all Third Party Rights necessary to enable the
Employer to develop, implement and operate the
Programme and/or use Materials during the term of this
contract and thereafter.
70C.3 The
Programme Partner shall use its best endeavours to
ensure that it is a condition of any licence into which the
Programme Partner or any Subconsultant enters with a
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third party that the
Employer shall be entitled to a
royalty free, irrevocable copyright licence in respect of
such Third Party Rights, such licence to be capable of
assignment and sub-licence and to allow use of the
Third Party Rights for any purpose connected with the
Programme.
70C.4
All licenses in respect of Third Party Rights used by the
Programme Partner in connection with the
services shall
continue for a period of 24 months from expiry or
termination of this contract. The
Programme Partner shall use its best endeavours to ensure that all licences
for Third Party Rights that are not commercially
available may be extended at the request of the
Employer thereafter on the same terms. Where the
Employer requires an extended right of use of any Third
Party Rights used by the
Programme Partner in
connection with the services (or any part thereof) that is
not commercially available, the
Employer shall pay or
procure the payment of, in accordance with terms
agreed between the parties, a reasonable licence fee for
any such use for the extended period. In determining
whether or not any licence fee is reasonable regard shall
be had to the nature and use made of the Third Party
Rights, licence fees charged to the
Programme Partner or Subconsultant by their licensors for such Third Party
Rights, industry practice and the licence fees for the
Third Party Rights normally charged by the
Programme
Partner or Subconsultant in similar circumstances.
Licence from the 70D
Employer
The
Employer hereby grants to the
Programme Partner
for the term of this contract and free of charge a non-
exclusive, royalty-free licence to use such of the
Employer's data, reports, drawings, specifications,
plans, software, designs, inventions and/or other
material of the
Employer as are required by the
Programme Partner to Provide the Services and to fulfil
its other obligations pursuant to this contract and which
relate to the
services. This licence is limited to use of
such materials for the purpose of, and solely as
necessary for, the
services during the term of this
contract. To the extent that any modifications or
enhancements to materials licensed by the
Employer to
the
Programme Partner under this clause 70D are
carried out by or on behalf of the
Programme Partner in
Providing the Services, the
Programme Partner hereby
assigns (or shall procure that the
Employer is granted
an assignment of) all present and future Intellectual
Property in those modifications and enhancements. By
virtue of this clause 70D all such Intellectual Property
rights shall vest in the
Employer on their creation.
Warranties and 70E
Indemnity
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70E.1 The
Programme Partner warrants that:
(a)
it is the beneficial owner of its Background
Rights; and
(b) the
Employer's use of the
Programme Partner's
Background Rights or any Foreground Rights
developed or supplied by the
Programme Partner pursuant to this contract will not infringe
Intellectual Property owned by any third party.
70E.2 The
Programme Partner will indemnify and hold
harmless the
Employer against any and all liability, loss,
damages, costs, legal costs, professional and other
expenses of any nature whatsoever incurred or suffered
by the
Employer (whether direct or consequential) in
respect of any claim or action that the
Employer's use
of:
(a) Intellectual Property rights licensed by the
Programme Partner to the
Employer under this
clause 70; or
(b) the Foreground Rights developed or supplied by
the
Programme Partner under this contract;
infringes the Intellectual Property rights of any third
party.
Infringements 70F
The
Programme Partner shall exercise good commercial
discretion in watching for Intellectual Property rights
and the publication of any applications for the
registration of Intellectual Property rights owned or
controlled by third parties which may be relevant to the
intentions of the
Employer and the
Programme Partner as expressed in this contract. Should any such
Intellectual Property rights of a third party come to the
notice of the
Programme Partner, then the
Programme
Partner shall inform the
Employer promptly and the
parties shall decide jointly what action is to be taken. In
the event of an agreement not being reached by the
Employer and the
Programme Partner, the
Employer shall make the final decision. The
Employer and the
Programme Partner shall at all times have regard when
making their decision to the Patents Act 1977 and any
subsequent amendment or enactment of such legislation
and any other applicable law.
Copyright and 70G
Publication
70G.1 The
Employer shall be the proprietor of the copyright in
this contract and any data relating to this contract. The
Employer reserves the right to determine whether the
results of the services shall be published and if so on
what conditions. The
Programme Partner shall provide
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any reports that the
Employer shall request and shall
enclose with the report the following disclaimer:
"The authors of this report are employed by [
]. The work reported herein was carried out
under a deed placed on [date of letter of acceptance] by
Cross London Rail Links Limited and should not be relied
upon as authoritative by any third party.
This report shall not be copied or reproduced in whole or
in part except with the express consent of Cross London
Rail Links Limited."
70G.2 7.2
The following copyright statement shall be
included by the
Programme Partner on all copyright
items intended for reproduction including final reports:
"© Copyright Controller HMSO year. This material is
published for Cross London Rail Links Limited with the
permission of the Controller of Her Majesty’s Stationery
Office".
Further Assurances 70H
70H.1 The
Programme Partner shall (at its own cost) upon the
request of the
Employer promptly execute all documents
and do all acts and things which may be necessary to
bring into effect or confirm any assignment or the terms
of any of the licences contained or referred to in this
clause 70.
70H.2
The parties shall, when appropriate, execute a formal
licence or licences for the purpose of registering any
licences granted pursuant to this clause 70 in such form
as may be necessary to give effect to this contract and
to conform with the laws for the time being existing in
respect of Intellectual Property rights. Such licence or
licences shall be subject to all the terms and conditions
of this contract.
General 70I
70I.1 The
Programme Partner shall not sell, copy or use the
Intellectual Property referred to in this clause 70 if this
might compromise the
services and/or Materials (or any
part thereof) or the
Employer's use of them.
70I.2 The
Programme Partner shall notify any proposed
assignee of this contract of the licences granted to the
Employer under or in accordance with this contract.
70I.3 The
Programme Partner shall ensure that any contracts
between the
Programme Partner and any Subconsultant
imposes obligations on the Sub-consultant which are
identical in effect to the obligations imposed on the
Programme Partner under this clause 70.
70I.4 The
Programme Partner agrees to provide all assistance
reasonably requested by the
Employer on termination or
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expiry of this contract to handover the Materials and/or
the provision of the
services to a third party nominated
by the
Employer.
Publicity 71
The
Programme Partner shall not, except with the
consent of the
Employer, make any press
announcements or publicise this contract or the
Programme in any way unless the purpose of such
disclosure is to allow compliance with a requirement to
disclose information concerning this contract as required
by law or the requirement of the stock exchange. The
provisions of this clause shall not apply to any
information relating to this contract, which is or which
pursuant to this clause 71 is public knowledge
(otherwise than by breach of this clause) or which is
limited to the fact of the
Programme Partner being a
party to this contract.
Data Protection 72
72.1 (a)
The
Programme Partner shall comply with all of its
obligations under the Data Protection Act 1998
(the "DPA") and, where it is processing personal
data (as defined in the DPA) on behalf of the
Employer ("Employer Personal Data"), the
Programme Partner shall only act in accordance
with instructions from the
Employer in relation to
the Employer Personal Data.
(b)
The
Programme Partner shall take appropriate
technical and organisational measures to the
satisfaction of the
Employer to prevent
unauthorised or unlawful processing of, accidental
loss or destruction of, and damage to, Employer
Personal Data.
72.2 The
Programme Partner shall fully indemnify and hold
the
Employer harmless in respect of all losses, liabilities,
claims, actions, proceedings, demands, costs, charges
or expenses arising out of or in connection with: (i) any
breach by the
Programme Partner, its employees,
agents, Subconsultants, or any other third party to
whom it has disclosed Employer Personal Data; and (ii)
any third party claims made in respect of information
subject to the DPA, which claims would not have arisen
but for some act, omission or negligence on the part of
the
Programme Partner, its employees, agents,
Subconsultants, or any other third party to whom it has
disclosed Employer Personal Data.
Access to 73
Information
73.1 The
Programme Partner shall free of charge disclose to
the
Employer and shall free of charge allow the
Employer and/or those nominated by him to inspect and
take away copies and all such information relating to the
services (including without prejudice to the generality of
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the foregoing accounts and records) as the
Employer shall reasonably require in order to satisfy itself that the
provisions of this contract are being observed and
performed, and/or in order to facilitate the operation of
this contract, and the
Programme Partner shall ensure
that such representatives have full and free access
(including access to the
Programme Partner’s premises)
and licence to use such information in order to facilitate
the operation of this clause but the
Programme Partner shall not be obliged to supply any information which
would be treated as privileged in any proceedings.
Freedom of 74
Information
74.1 The
Programme Partner acknowledges that the
Employer is subject to the FOI Legislation and agrees to
assist and co-operate with the
Employer to enable the
Employer to comply with its obligations under the FOI
Legislation. The foregoing shall not preclude the
Programme Partner from objecting to a disclosure of
Programme Partner Information.
74.2 The
Employer shall be responsible for determining
whether
Programme Partner Information is exempt
information under the FOI Legislation and for
determining what
Programme Partner Information will
be disclosed in that respect to an Information Request in
accordance with the FOI Legislation. The
Programme
Partner shall not itself respond to any person making an
Information Request, save to acknowledge receipt,
unless expressly authorised to do so by the
Employer.
74.3 The
Programme Partner acknowledges that the
Employer may be obliged under the FOI Legislation to
disclose
Programme Partner Information.
Confidential 75
Information
75.1
Subject to the other provisions of and as expressly
permitted by this clause 75, the
Programme Partner:
(a) may not use any Confidential Information for any
purpose other than the performance of its
obligations under this contract;
(b) may not disclose any Confidential Information to
any person except with the prior written consent
of the
Employer; and
(c) shall make every effort to prevent the use or
disclosure of the Confidential Information.
75.2
Notwithstanding clause 75.1, the
Programme Partner may disclose any Confidential Information to the
following parties in the following circumstances:
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(a) to any officer or servant of the
Programme
Partner or any person engaged in the provision of
goods or services to or for him if disclosure is
necessary to enable the
Programme Partner to
Provide the Services or to enforce its rights under
this contract, upon obtaining an undertaking of
strict confidentiality from such officer, servant or
person;
(b) to the extent required by any applicable law, the
rules of any stock exchange or regulatory body or
any written request of any taxation authority; and
(c)
pursuant to the order of any court or tribunal of
competent jurisdiction.
75.3
The provisions of clause 75.1 above shall not apply to
any Confidential Information which:
(a)
is at the date of this contract or any time
thereafter becomes publicly known other than by
breach of this contract or of an obligation of
confidence;
(b) can be shown by the
Programme Partner to the
Employer's reasonable satisfaction to have been
known by the
Programme Partner before
disclosure by the
Employer.
75.4
Before disclosure of any Confidential Information, the
Programme Partner shall ensure that the recipient is
made aware of and complies with the
Programme
Partner's obligations of confidentiality under this
contract as if the recipient was a party to this contract.
75.5
Without prejudice to any other rights or remedies which
the
Employer may have, the
Programme Partner acknowledges and agrees that in the event of breach of
this clause 75 the
Employer shall, without proof of
special damage, be entitled to an injunction or other
equitable remedy for any threatened or actual breach of
the provisions of this clause in addition to any damages
or other remedies to which it may be entitled.
75.6
If this contract is terminated, the
Programme Partner shall, return to the
Employer all of the Confidential
Information then within its possession or control or
destroy such Confidential Information using a secure
and confidential method of destruction and furnish to
the
Employer sufficient evidence of such destruction,
save that the
Programme Partner may retain one copy
of the Confidential Information if required to do so by
law.
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8
Indemnity, insurance and liability
Indemnity 80
80.1
The
Programme Partner indemnifies the
Employer against all losses, claims, proceedings, compensation and
costs payable arising from:
•
death and/or personal injury;
•
property damage or loss;
•
breach of statutory duty;
•
third party claims (including an infringement of the
rights of Others but except for an infringement
which arose out of the use by the
Programme
Partner of things provided by the
Employer);
arising from the
Programme Partner Providing the
Services.
Insurance cover 81
81.1
The
Programme Partner provides the insurances stated in
the Insurance Table except any insurance which the
Employer is to provide as stated in the Contract Data.
The insurances provide cover from the Contract Date
until the end of the periods stated in the Contract Data.
INSURANCE TABLE
Insurance
against
Minimum amount of
cover
Liability of the
Programme
The amount stated in the
Partner for claims made
Contract Data
against him arising out of
his failure to use the skill
care and diligence required
by the contract
Liability for death of or
The amount stated in the
bodily injury to a person
Contract Data for any one
(not an employee of the
event
Programme Partner) or loss
of or damage to property
resulting from an action or
failure to take action by the
Programme Partner
Liability for death of or
The greater of the amount
bodily injury to employees
required by the applicable
of the
Programme Partner
law and the amount stated
arising out of and in the
in the Contract Data for
course of their employment any one event
in connection with this
contract
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81.2
When requested by a Party the other Party provides
certificates from his insurer or broker stating that the
insurances required by this contract are in force.
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9 Termination
Termination 90
90.1
Either Party may terminate the
Programme Partner's
employment by notifying the other Party if the other
Party has done one of the following or its equivalent.
•
If the other Party is an individual and has
•
presented his petition for bankruptcy,
•
had a bankruptcy order made against him,
•
had a receiver appointed over his assets or
•
made an arrangement with his creditors.
•
If the other Party is a company or partnership and
has
•
had a winding-up order made against it,
•
had a provisional liquidator appointed to it,
•
passed a resolution for winding-up (other
than in order to amalgamate or
reconstruct),
•
had an administration order made against
it,
•
had a receiver, receiver and manager, or
administrative receiver appointed over the
whole or a substantial part of its
undertaking or assets or
•
made an arrangement with its creditors.
90.2 The
Programme Partner may terminate his employment
by notifying the
Employer if the
Employer has not paid
an amount due to the
Programme Partner within eight
weeks of the issue of a notice by the
Programme Partner to the
Employer confirming that the final date for
payment of such amount has passed.
90.3 The
Employer may terminate the
Programme Partner's
employment by notifying the
Programme Partner if
•
the
Employer no longer requires the
Programme
Partner to Provide the Services or
•
the
Programme Partner has failed to comply with
his obligations.
•
the
Programme Partner commits a Prohibited Act
90.4 The
Employer may terminate the
Programme Partner's
employment by notifying the
Programme Partner if an
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event occurs which
•
stops the
Programme Partner completing the
services or
•
stops the
Programme Partner completing the
services by the date shown on the Accepted
Programme and is forecast to delay Completion
by more than 13 weeks,
and
which
•
neither Party could prevent and
•
an experienced consultant would have judged at
the Contract Date to have such a small chance of
occurring that it would have been unreasonable
for him to have allowed for it.
Procedures on 91
termination
91.1
On
termination
•
the
Programme Partner does no further work
necessary to Provide the Services,
•
the
Employer may complete the
services and
may use any material to which he has title,
•
the
Employer may require the
Programme
Partner to assign the benefit of any
subconsultancy or other contract related to
performance of this contract to the
Employer and
•
the
Programme Partner gives to the
Employer or
the
Employer's nominee information resulting
from work carried out to date and information
the
Programme Partner has obtained which he
has a responsibility to provide under this
contract.
•
the Parties continue to comply with the
constraints and obligations in this contract on
•
the use of material prepared or obtained by
the
Programme Partner and
•
publicising the services, confidentiality and
the FOI Legislation
Termination shall be without prejudice to any accrued
rights and obligations under this contract as at the date
of such termination.
91.2
Following any termination of the
Programme Partner's
employment or the omission of any of the
services under
this contract and upon the expiry of this contract, the
Programme Partner shall co-operate with the
Employer
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and shall provide to him all reasonable assistance to
facilitate the handover or transfer of any of the
Programme Partner's obligations or
services to the
Employer or the
Employer's nominee including briefing
and providing information to the
Employer or the
Employer's nominee.
Payment on 92
termination
92.1
A final payment is made as soon as possible after
termination. The amount due on termination is
•
an amount due assessed as for normal payments
and
•
a fair and reasonable proportion of the Prices
commensurate with any partially complete
activities as at the date of termination.
92.2 If
the
Employer terminates because of the
•
insolvency of the
Programme Partner or
•
failure of the
Programme Partner to comply with
his obligations,
the amount due on termination includes a deduction of
the forecast of the additional cost to the
Employer of
completing the whole of the
services together with the
amount of any loss or expense or additional cost incurred
or suffered by the
Employer and arising out of the
termination or the event entitling the
Employer to
terminate. If such deduction exceeds the amount due on
termination such excess shall be recoverable by the
Employer from the
Programme Partner as a debt.
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100 Guarantee
100.1 The
Guarantor is a party to this contract for the sole
purpose of guaranteeing the performance of the
obligations of the
Programme Partner hereunder.
100.2 In consideration of the
Employer appointing the
Programme Partner in accordance with the terms of this
contract, the
Guarantor:
(a)
agrees that if the
Programme Partner shall in any
respect fail to perform any of its obligations arising
under this contract (as the same may be amended
or varied from time to time) or shall commit any
breach or fail to perform any warranty or
indemnity set out in this contract (as the same
may be amended or varied from time to time),
then the
Guarantor shall forthwith upon the
Employer's demand perform and fulfil in the place
of the
Programme Partner each and every
obligation, warranty or indemnity in respect of
which the
Programme Partner has defaulted or as
may be unfulfilled by the
Programme Partner, and
the
Guarantor shall indemnify and save harmless
the
Employer from any and all losses, damages,
expenses, claims, costs or proceedings which the
Employer may suffer or incur by reason of the said
failure or breach;
(b)
confirms that it has full power and capacity to
enter into this contract and to give the guarantee
set out herein, and that the guarantee shall not be
revocable and shall be a continuing guarantee; and
(c)
agrees that the
Employer is entitled to assign any
of its rights under this guarantee at any time to
any person who takes an assignment, novation or
other transfer of this contract or the benefit
thereof.
100.3 As between the
Guarantor and the
Employer, the
Guarantor shall remain liable under clause 100.2 as if it
were the sole principal obligor and not merely a guarantor
100.4 The
Guarantor shall not be discharged nor shall its liability
be affected by anything which would not discharge it or
affect its liability if it were the sole principal obligor
including, but not limited to:
(a)
any amendment, modification, waiver, consent or
variation, express or implied, to the Scope, the
services or to this contract or any related
documentation;
(b)
the granting of any extensions of time or
forbearance, forgiveness or indulgences in relation
to time to the
Programme Partner;
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(c)
the enforcement, absence of enforcement or
release of the contract or of any security, right of
action or other guarantee or indemnity;
(d)
the dissolution, amalgamation, reconstruction,
reorganisation of the
Programme Partner or any
other person;
(e)
the illegality, invalidity or unenforceability of or
any defect in any provision of the contract or any
of the
Programme Partner's obligations under the
contract;
(f)
any indulgence or additional or advanced payment,
forbearance, payment or concession to the
Programme Partner;
(g)
any compromise of any dispute with the
Programme Partner;
(h)
any failure of supervision to detect or prevent any
fault of the
Programme Partner;
(i)
any assignment of the benefit of the contract.
100.5
Without prejudice to the generality of clause 100.2, the
Employer shall have the right, as its sole option, in the
event of any default by the
Programme Partner to engage
another consultant, other than the
Guarantor or any
nominee of the
Guarantor to Provide the Services and the
Guarantor undertakes to pay any additional costs
(whether direct or indirect) thereby incurred by the
Employer.
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MAIN OPTION CLAUSES
W2
Dispute Resolution W.2.1 Any dispute or difference between the Parties as to the
construction of this contract or any matter or thing of
whatsoever nature arising under this contract or in connection
therewith (a "Dispute") shall be resolved pursuant to the terms
of this clause W.2.
Managerial W.2.2
Without prejudice to the Parties' rights at any time to refer
Discussions
Disputes to adjudication in accordance with this clause W.2 the
Parties shall each use their reasonable endeavours to resolve
any Dispute which may arise by means of prompt, bona fide
discussion at a managerial level appropriate to the Dispute in
question. If such discussions do not resolve the Dispute,
subject to the Parties’ rights to refer the Dispute to
adjudication, the Parties shall refer the Dispute to the Dispute
Board in accordance with the Dispute Board Procedure.
Adjudication W.2.3
Either party may give notice at any time of its intention to
Procedure
refer to adjudication a Dispute arising out of or in connection
with this contract and such adjudication shall be conducted in
accordance with the Scheme for Construction Contracts
(England and Wales) Regulations 1998. The adjudicator shall
be agreed between the Parties or shall be nominated by the
referring party from the Adjudicator Panel.
Joinder W.2.4
(a) If a Dispute arising under this contract raises issues of
fact or law which are the same as, or relate to issues
raised in an unresolved dispute between the
Employer and any Other (a "Related Dispute"):
(i)
the
Employer may require a representative of the
parties in the Related Dispute to meet with the
parties under this contract and endeavour to
resolve both the Related Dispute and the Dispute;
and
(ii)
the
Employer may refer the Related Dispute to an
adjudicator or court to which the Dispute has been
referred under this contract or may refer the
Dispute to an adjudicator or court to which the
Related Dispute had been referred and the
proceedings shall be consolidated, save where the
adjudicator or court shall in its absolute discretion
determine that it is not possible to consolidate the
proceedings; and
(iii) any dispute as to whether the Dispute raises
issues of fact or law which are the same as or
related to issues of fact or law in the Related
Dispute shall be resolved by the adjudicator or
court to which the Dispute and the Related
Dispute have been referred, provided that, if the
adjudicator or court decides that such issues of
fact or law do not arise in the Related Dispute this
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clause W.2.4 shall cease to apply; and
(iv) the adjudicator to whom the Dispute and the
Related Dispute have been referred shall have
power to make such decisions, directions and all
necessary orders and awards in respect of the
Dispute and the Related Dispute in the same way
as if the procedure of the High Court as to joining
one or more defendants or joining co-defendants
or third parties was available to the parties and to
him.
(b)
The
Employer may only refer a Related Dispute to the
adjudicator appointed in relation to a Dispute if the
adjudicator receives particulars of the Related Dispute
within seven days of the referral of the Dispute to the
adjudicator under this contract and may only refer a
Dispute to the adjudicator appointed in relation to a
Related Dispute if the adjudicator receives particulars of
the Dispute within seven days of the referral of the
Related Dispute to the adjudicator.
Final and Binding W.2.5
The Parties may agree that the adjudicator's decision shall be
Decision
final and binding and shall finally determine any Dispute, or in
the absence of such agreement may otherwise refer such
Dispute to the courts of England and Wales for further
determination
Contract No 2072
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Confidential
SECONDARY OPTION CLAUSES
Option X1: Price adjustment for inflation
If staff rates are fixed at the Contract Date and are not
variable with changes in salary paid to individuals.
Price adjustment X1
factor
X1.1
On 1 April 2010 and on each anniversary of 1 April thereafter,
the
Programme Partner calculates a price adjustment factor
equal to (L - B)/B, where L is the last published value of the
index and B is the last value of the
index published before 1
April 2010.
If the value of an
index is changed after it has been used in
calculating a price adjustment factor, the calculation is
repeated and a correction included in the next assessment of
the amount due.
The price adjustment factor calculated at the Completion Date
for the whole of the
services is used for calculating price
adjustment after this date.
Price adjustment X1.2
Each amount due after 1 April 2010 includes an amount for
price adjustment which is the sum of
•
the change in the Price for Services Provided to Date
since the last assessment of the amount due multiplied
by the price adjustment factor calculated at the last
anniversary and
•
the amount for price adjustment included in the
previous amount due.
Price adjustment X1.3
Each time the amount due is assessed after 1 April 2010, an
Option C
amount for price adjustment is added to the total of the Prices
which is the change in the Price for Services Provided to Date
since the last assessment of the amount due multiplied by
(PAF/(1+PAF)) where PAF is the price adjustment factor
calculated at the last anniversary.
Expenses X1.6
If payment rates for any of the
expenses are fixed at the
adjustment
Contract Date and are not otherwise adjustable for inflation,
each amount due after the 1 April 2010 includes an amount for
expenses adjustment which is the sum of
•
the change in fixed
expenses since the last assessment
of the amount due multiplied by the price adjustment
factor calculated at the last anniversary and
•
the amount for
expenses adjustment included in the
previous amount due.
If staff rates are variable with changes in salary paid to
Contract No 2072
Invitation to Tender issue dated 25 September 2008
Confidential
individuals.
Price adjustment X1
factor
X1.1
On 1 April 2010 and on each anniversary of 1 April thereafter,
the
Programme Partner calculates a price adjustment factor
equal to (L - B)/B, where L is the last published value of the
index and B is the last value of the
index published before the
1 April 2010.
If
an
index is changed after it has been used in calculating a
price adjustment factor, the calculation is repeated and a
correction included in the next assessment of the amount due.
The price adjustment factor calculated at the Completion Date
for the whole of the
services is used for calculating price
adjustment after this date.
Price adjustment X1.2
Each amount due after 1 April 2010 includes an amount for
Option A
price adjustment which is the sum of
•
the change in the Price for Services Provided to Date
since the last assessment of the amount due multiplied
by the price adjustment factor calculated at the last
anniversary and
•
the amount for price adjustment included in the
previous amount due.
Price adjustment X1.3
Each time the amount due is assessed after 1 April 2010, an
Option C
amount for price adjustment is added to the total of the Prices
which is the change in the Price for Services Provided to Date
since the last assessment of the amount due multiplied by
(PAF/(1+PAF)) where PAF is the price adjustment factor
calculated at the last anniversary.
Price adjustment X1.4 Not
Used.
Option G
Compensation X1.5
The Time Charge for compensation events is assessed using
events Options A, C
the
staff rates current at the time of assessing the
and G (lump sum
compensation event adjusted to the Contract Date by dividing
items on the Task
by (1+PAF), where PAF is the price adjustment factor
Schedule) only
calculated at the last anniversary.
Expenses X1.6
If payment rates for any of the
expenses are fixed at the
adjustment
Contract Date and are not otherwise adjustable for inflation,
each amount due after the 1 April 2010 includes an amount for
expenses adjustment which is the sum of
•
the change in fixed
expenses since the last assessment
of the amount due multiplied by the price adjustment
factor calculated at the last anniversary and
•
the amount for
expenses adjustment included in the
previous amount due.
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Option X8: Collateral warranty agreements2
Collateral warranty X8
agreements
X8.1 [
Assume warranties or third party rights in favour of:
•
LUL – identified packages
•
NR – identified packages
•
Tubelines – identified packages
•
DLR – identified packages
•
Rail for London – identified packages
•
Any operator of any depot]
Option X20: Incentives
Incentives X20
X20.1
Interim KPIs and Programme KPIs are aspects of performance
by the
Programme Partner for which targets are stated in the
Incentive Schedule. The Incentive Schedule is the
incentive
schedule unless later changed in accordance with this contract.
X20.2
From the
starting date until the
defects date, the
Programme
Partner reports to the
Employer his performance against each
of the Interim KPIs and Programme KPIs. Reports are provided
at the intervals stated in the Contract Data or Service Delivery
Plan and include the forecast final measurement against each
indicator.
X20.3
If the
Programme Partner’s forecast final measurement against
an Interim KPI or Programme KPI will not achieve an
"Excellent" rating in the relevant Performance Band, he
submits his proposals for improving performance.
X20.4
The
Programme Partner or the
Employer (as the case may be)
is paid the relevant percentage of the Interim Earned Amount
and is paid the Final Earned Amount in accordance with the
Incentive Schedule.
X20.5
Capitalised terms used in this clause X20 and not otherwise
defined have the meaning ascribed to them in the Incentive
Schedule.
2 Beneficiaries of warranties are to be confirmed.
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Option Y(UK)3: The Contracts (Rights of Third Parties) Act 1999
Third party rights Y(UK)3
Y3.1
A person or organisation who is not one of the Parties may
enforce a term of this contract under the Contracts (Rights of
Third Parties) Act 1999 only if the term and the person or
organisation are stated in the Contract Data.
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CONTRACT DATA
Part one – Data provided by the Employer
Statements given in
all contracts
1 General
•
The
conditions of contract are the amended NEC
Professional Services Contract Conditions to which this
Contract Data is attached.
•
The
Employer is
Name
Cross London Rail Links Limited
Address
Portland House, Bressenden Place, London SW1E
5BH
•
The
services are set out in the Scope as the same may be
modified or augmented by the Service Delivery Plan.
•
The Scope is at Appendix 1.
•
The
language of this contract is English
•
The
law of the contract is the law of England and Wales
•
The
period for reply is 14 days except in relation to the
following: [ ]
•
The
period for retention is 15 years following Completion
or earlier termination.
•
The following matters will be included in the Risk Register:
………………………………………………………………………………
•
The
Employer's Policies and Procedures are set out in
Appendix 1
•
The Third Party Agreements are set out in Appendix 6.
•
TfL is Transport for London of Windsor House, 42-50
Victoria Street, London SW1H 0TL.
2 The Parties' main
•
The
Employer provides access to the persons, places and
responsibilities
things as set out in Appendix 2 and the Service Delivery
Plan
3 Time
•
The
starting date is [
]
•
The programme identified in the Contract Data is in the
Service Delivery Plan.
•
The
Programme Partner submits revised programmes at
each assessment interval.
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4 Quality
•
The quality policy statement and quality plan are provided
within 1 month of the
starting date.
•
3The
defects date is the later of twelve months after the
date that the railway transport system that is the subject of
the Programme commences full operations and twelve
months from final completion under the Project
Development Agreement.
5 Payment
•
The
assessment interval is every four week accounting
period of the
Employer, such periods to be advised to the
Programme Partner annually.
•
The
currency of this contract is pounds sterling (£).
•
The
interest rate is 2% per annum (not less than 2) above
the base rate of the Bank of England.
8 Indemnity,
•
The amounts of insurance and the periods for which the
insurance and liability
Programme Partner maintains insurance are
event cover
period
following
Completion of the
whole of the
services or earlier
termination
failure of the
£25 million in Twelve years
Programme Partner
respect of each
to use the skill and claim, without
care normally used limit to the
by professionals
number of claims
providing services
similar to the
services
death of or bodily £25 million in Twelve years
injury to a person respect of each
(not an employee claim, without
of the
Programme
limit to the
Partner) or loss of number of claims
or damage to
property resulting
from an action or
failure to take
action by the
Programme
Partner.
death of or bodily £10 million in Twelve years
injury to employees respect of each
of the
Programme
claim, without
Partner arising out limit to the
of and in the course
number of claims.
of their
3 Definition to be aligned with final position under the Project Development Agreement.
Contract No 2072
Invitation to Tender issue dated 25 September 2008
Confidential
employment in
connection with this
contract
Optional statements
If the Employer has decided the completion date for the
whole of the services
•
The
completion date for the whole of the
services is [ ]
If
the
Employer has identified work which is to meet a
stated condition by a key date
•
The
key dates and
conditions to be met are set out in the
Service Delivery Plan.
If
the
Employer states any expenses
•
The
expenses stated by the Employer are in Appendix 2
If Option C, E or G is used
The
Programme Partner prepares forecasts of the total Time
Charge and
expenses at each assessment interval
If Option X1 is used
The
index is the Average Earnings Index Whole Economy
excluding bonuses series jqdw.
If Option X8 is used
The
collateral warranty agreements are as set out in Appendix 9
agreement reference
third party
Appendix
9
[
LUL]
[
Tubelines]
[
NR]
[
DLR]
[Rail for London]
[Any operator of any depot]
If Option X20 is used
•
The
incentive schedule is in Appendix 4 and/or the
Service Delivery Plan
•
A report of performance against each Interim KPI and
the Programme KPIs is provided by the
Programme
Partner at each assessment interval for review by the
Employer.
Contract No 2072
Invitation to Tender issue dated 25 September 2008
Confidential
Y(UK)3
Term
Person or organisation
All
TfL
All
Department for Transport
Contract No 2072
Invitation to Tender issue dated 25 September 2008
Confidential
Part two – Data provided by the Programme Partner
Statements given in •
The
Programme Partner is
all contracts
Name
[ ]
Address [ ]
•
The
key persons are
………………………………………………………………………………
and any further
key persons identified in the Service Delivery
Plan.
•
The
staff rates are as set out in Appendix 3 and/or the
Service Delivery Plan and are further explained in Appendix
2
•
The following matters will be included in the Risk Register
………………………………………………………………………………
………………………………………………………………………………
………………………………………………………………………………
•
The
Guarantor is
Name
[ ]
Address
[ ]
Contract No 2072
Invitation to Tender issue dated 25 September 2008
Confidential
Appendix 1
Scope
Contract No 2072
Invitation to Tender issue dated 25 September 2008
Confidential
Appendix 2
Commercial information
Staff rates
The s
taff rates applicable to all grades and types of staff are shown in appendix 3.
The
staff rates shall be deemed to include all costs required or incurred by the
Programme
Partner to Provide the Services in accordance with the contract but excluding
expenses.
The
staff rates are daily rates for a minimum eight working hour day. No further payment
shall be made for hours worked in excess of any eight hour working day within any 24
hour period. Where staff work less than an eight working hour day then the
staff rates
shall be proportionally reduced.
Indexation: Option X1 applies.
Expenses
The
expenses are:
•
Reasonable transport costs required and approved in advance by the
Employer but
excluding any transport costs to any office of the
Programme Partner or any office
or construction site of the
Employer or any contractor of the
Employer.
Persons, places and things provided by the Employer The
Employer shall provide the following things for use by the
Programme Partner’s staff:
•
Central office and construction site office accommodation including all normal office
furniture and stationery.
•
Computer workstations and use of information technology appropriate for the tasks
being undertaken (typical software listed below), telephone (but excluding mobile
telephone), printing and fax facilities.
•
Microsoft Excel, Word, Powerpoint, Visio
•
Primavera P6
•
Lotus Notes
•
Documentum
•
Crossrail specific safety training (the
Employer shall not however provide any
industry standard safety training required for the role being undertaken by the
Programme Partner’s staff nor Network Rail, London Underground or Docklands
Light Railway safety training or infrastructure access qualifications or the like).
•
Crossrail unique software systems training (the
Employer shall not however
provide any industry standard software training required for the role being
undertaken by the
Programme Partner’s staff).
Service Delivery Plan: Resource Schedule
The initial Resource Schedule is contained within the Service Delivery Plan.
Contract No 2072
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Confidential
The Time Charge for staff used by the
Programme Partner in any
assessment interval shall
not exceed the maximum Time Charge for the corresponding
assessment interval shown
within the Resource Schedule.
Before the
Programme Partner allows any
key persons or any other persons to commence
Providing the Services it shall propose to the
Employer an appropriate
staff rate that is
consistent with the
staff rates in Appendix 3 and shall obtain the
Employer’s acceptance of
that person and the proposed
staff rate. The
Employer’s acceptance of any person and
their applicable
staff rate is required irrespective of the
staff rates set out in Appendix 3.
Requests for the acceptance of
staff rates shall include detailed curriculum vitae of each
person together with details of the proposed role and responsibilities, position within the
Programme Partner’s team and reporting lines, anticipated duration and any other
information requested by the
Employer.
The Resource Schedule shall only be applicable for the period of time covered by the
Resource Schedule.
At least three
assessment interval periods prior to the end of the time period covered by
any Resource Schedule, the
Programme Partner shall propose a new resource schedule for
Providing the Services for the next period of time which shall normally be a year
commencing 1 April but may be any other period of time notified by the
Employer.
At least one
assessment interval period before the end of the time covered by any
Resource Schedule, the
Programme Partner and the
Employer shall agree the new
resource schedule for Providing the Services for the next period of time. Following
notification by the
Employer that the new resource schedule has been agreed, this shall
become the Resource Schedule for the period of time covered.
Where the
Employer notifies the
Programme Partner under clause 65.1 of the contract
then the
Employer shall also provide the
Programme Partner with a revised Resource
Schedule indicating the changes from the previous Resource Schedule.
Invoicing
Prior to the submission of each invoice the
Programme Partner and the
Employer should,
as far as possible, discuss and agree the amount due and to be invoiced by the
Programme
Partner.
Details to be included within invoices:
The
Programme Partner shall include information within each invoice to demonstrate to the
Employer how the amount has been assessed including details of:
•
The name of each person being invoiced for.
•
The grade, position and/or role being undertaken by each person.
•
In the case of Subconsultants' staff, the name of the Subconsultant company.
•
The days, or part days, properly worked for each individual member of staff.
•
The staff rate applicable to each person.
•
The Time Charge for each person and the total Time Charge.
Contract No 2072
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For the purposes of the above the
Programme Partner must use a template spreadsheet
issued by the
Employer. This must be submitted hard copy with the invoice and also
electronically to the
Employer.
For expenses:
•
Evidence and details of the prior approval of the
Employer.
•
Copies of invoices and Subconsultant accounts to demonstrate that the amounts
have been properly incurred.
•
Calculations showing the amount due including
Contract No 2072
Invitation to Tender issue dated 25 September 2008
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Appendix 3
Staff rates
Contract No 2072
Invitation to Tender issue dated 25 September 2008
Confidential
Appendix 4
Incentive Schedule
1. Definitions
In this schedule, the following defined terms have the following meanings:
Contract Year
A twelve month period, commencing 1 April, save that the
first Contract Year shall be the period from the Contract
Date to and including 31 March 2010.
Final Earned Amount
Has the meaning set out in section 3.2 below.
Final Incentive Schedule
The final incentive schedule attached.
Final Maximum Amount
The sum of the Reserved Amounts.
Interim Actual Amount
Such amount of the Interim Maximum Amount as is
allocated within the Interim Incentive Schedule to the
achievement of a particular Performance Band for an
Interim KPI.
Interim Earned Amount
Has the meaning set out in section 2.2 below.
Interim Incentive Schedule
The interim incentive schedule attached and subsequent
interim incentive schedules agreed in accordance with this
annexure.
Interim KPI
A key performance indicator set out in the Interim Incentive
Schedule.
Interim Maximum Amount
An amount expressed in pounds sterling being the product
of the anticipated Price for Services Provided to Date for the
next Contract Year multiplied by the Interim Performance
Incentive Percentage.
Interim Performance
15%
Incentive Percentage
Omission Value
An amount equal to the Interim Performance Incentive
Percentage applied to the anticipated Price for Services
Provided to Date for omitted
services as at the date of such
omission.
Performance Band
A performance band set out in the Interim or Final Incentive
Schedule.
Programme Completion
The
defects date.
Programme KPI
A key performance indicator set out in the Final Incentive
Schedule.
Reserved Amount
75% of the Interim Earned Amount in any Contract Year.
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2.
Interim Incentive Scheme
2.1
Fixing Interim KPIs
The Interim KPIs and associated Performance Bands and Interim Actual Amounts are to be
aligned with the short-term aims for this contract and the Project.
The Interim KPIs for the first Contract Year are attached.
No later than 3 assessment intervals prior to the commencement of each subsequent
Contract Year, the
Programme Partner submits a draft Interim Incentive Schedule to the
Employer for review as part of its proposed Service Delivery Plan. The
Employer reviews
this and the Parties use all reasonable endeavours to agree the same before the final
assessment date prior to commencement of such Contract Year. In the event of any
failure to agree the Interim Incentive Schedule by such date, the
Employer shall be
entitled at its absolute discretion to determine the Interim Incentive Schedule for the
Contract Year in question.
Subject to the remainder of this paragraph, once the Interim Incentive Schedule for a
Contract Year (including without limitation the Interim Maximum Amount) has been agreed
by the Parties or determined by the
Employer as relevant, it may not be changed whether
in consequence of a compensation event or otherwise. If the
Employer omits
services whose Omission Value exceeds 15% of the Interim Maximum Amount and such omission
arises out of any failure by the
Programme Partner, the
Employer may in its absolute
discretion deduct such Omission Value from the current Interim Maximum Amount.
2.2
Ascertaining the applicable Interim Actual Amount
At the end of a Contract Year, the
Programme Partner reports his performance against the
Interim KPIs to the
Employer, stating which Performance Band he believes he has
achieved in respect of each Interim KPI. The
Employer reviews the
Programme Partner’s report and either accepts or rejects the
Programme Partner’s statements in respect of each
Interim KPI. If the
Employer rejects the
Programme Partner's statements in whole or in
part then the
Employer shall make his own assessment of the
Programme Partner's performance against those Interim KPI's where the
Employer has rejected the
Programme
Partner's statement and such assessment shall, subject to the
Programme Partner's rights
under clause W.2, be used in the assessment of the Interim Earned Amount.
The "Interim Earned Amount" is the sum of the Interim Actual Amounts associated with
the Performance Band achieved against each Interim KPI and:
•
25% of the Interim Earned Amount is an amount due to the
Programme Partner
pursuant to clause 50.3. Invoices submitted by the
Programme Partner shall
clearly identify the Interim Earned Amount and the calculation thereof.
•
The Reserved Amount is not an amount due but is included within the Final
Maximum Amount.
3.
Final Incentive Scheme
3.1
Fixed Programme KPIs
The Final Incentive Schedule is included within this Appendix. The
Employer will only
consider making changes to the Final Incentive Schedule where there is a major change to
the Sponsor's Requirements that can be shown to materially affect the Programme KPIs
and/or Performance Bands. In such circumstances the
Employer shall propose changes to
the Final Incentive Schedule in writing for agreement by the
Programme Partner. The
Programme Partner shall respond to any such proposal within a reasonable period and if
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the proposal is agreed such agreement shall be recorded in writing and the Final Incentive
Schedule shall be amended accordingly.
3.2
Ascertaining the applicable Final Earned Amount
Upon Programme Completion the
Programme Partner reports his performance against the
Programme KPIs to the
Employer, stating which Performance Band he believes he has
achieved in respect of each Programme KPI. The
Employer reviews the
Programme
Partner’s report and either accepts or rejects the
Programme Partner’s statements in
respect of each Programme KPI. If the
Employer rejects the
Programme Partner's statements in whole or in part then the
Employer shall make his own assessment of the
Programme Partner's performance against those Interim KPI's where the
Employer has
rejected the
Programme Partner's statement and such assessment shall, subject to the
Programme Partner's rights under clause W.2, be used in the assessment of the Interim
Earned Amount.
The "Final Earned Amount" is the sum of the percentages achieved in respect of each
Programme KPI applied to the Final Maximum Amount.
The Final Earned Amount is an amount due to the
Programme Partner pursuant to clause
50.3. Invoices submitted by the
Programme Partner shall clearly identify the Final Earned
Amount and the calculation thereof. If the Final Earned Amount is a negative amount,
such amount is payable by the
Programme Partner to the
Employer as a debt due and the
Employer may deduct such amount from sums otherwise due to the
Programme Partner.
If the
Programme Partner's performance against a Programme KPI is capable of being
determined prior to Programme Completion, the
Programme Partner may report his
performance against such Programme KPI to the
Employer, stating which Performance
Band he believes he has achieved and requesting that the
Employer makes a provisional
determination of the Final Earned Amount in respect of that KPI. If the
Employer in its
absolute discretion agrees to make such a provisional determination and accepts the
Programme Partner's statements in respect of such KPI, the amount of such provisional
determination is an amount due and payable to the
Programme Partner in accordance with
the preceding paragraph. The
Programme Partner acknowledges that any payment of such
provisional determination is without prejudice to the
Employer's right to open up and re-
determine such provisional determination following Programme Completion. In the event
any such re-determination reduces the Final Earned Amount for such KPI, the amount of
such reduction is payable to the
Employer as a debt due and may be deducted from sums
otherwise payable to the
Programme Partner.
The
Programme Partner is only entitled to be paid any Reserved Amount or part thereof in
accordance with this section 3 and without limiting the foregoing is not entitled to any such
payment following termination of its employment or this contract prior to Programme
Completion. In the event the
Programme Partner has been paid a provisional sum in
respect of the Final Incentive Schedule and its employment or this contract is terminated,
such amount is payable to the
Employer as a debt due and may be deducted from sums
otherwise payable to the
Programme Partner.
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Interim Incentive Schedule (Contract Year: Contract Date to 31 March 2009)
Interim Maximum Amount (aggregate of sums available for "Excellent" rating for all Interim KPIs) is: [(£)]
[Table to be inserted]
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Final Incentive Schedule
[Table to be inserted]
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Appendix 5
First Service Delivery Plan
[Each Service Delivery Plan will contain a "quality plan".]
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Appendix 6
Third Party Agreements
Core Agreements
Project Development Agreement
Sponsors Agreement
TfL Shareholders Agreement
Stakeholder and industry All agreements between CLRL and Programme stakeholders and
partner agreements
industry partners, including Network Rail, London Underground,
DLR, BAA, Berkeley Homes, Canary Wharf Group, Wood Wharf, City
of London Corporation, utility companies and the ODA.
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Appendix 7
Part 1: Dispute Board Procedure
[TO BE ADVISED AND AGREED WITH PROGRAMME PARTNER. IN THE EVENT A
PROCEDURE IS NOT AGREED PRIOR TO AWARD THE PROGRAMME PARTNER WILL
INSTEAD HAVE AN OBLIGATION TO USE ALL REASONABLE ENDEAVOURS TO AGREE A
DISPUTE BOARD PROCEDURE WITH THE EMPLOYER FOLLOWING AWARD.]
Part 2: Adjudication Panel
[TO BE ADVISED AND AGREED WITH PROGRAMME PARTNER]
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Appendix 8
Novation agreement
THIS AGREEMENT is made the day of 200
BETWEEN:-
(1)
[
] whose registered office is at [
]
(“the
Employer”);
(2)
[
] whose registered office is at [
]
(“the
New
Employer”);
and
(3)
[
] whose registered office is at [
]
(“the
Programme
Partner”).
WHEREAS:-
(A)
The Employer has appointed the Programme Partner to provide [
]
services
(“the Services”) by an agreement dated [ ] (“the Appointment”) in relation to
the Project as defined in the Appointment.
(B)
The Employer has entered into an agreement with the New Employer in respect of the
Project.
(C)
The Employer, Programme Partner and New Employer have agreed that from the date of
this Agreement the New Employer shall assume the obligations of the Employer and that
the Programme Partner shall perform its obligations under the Appointment in favour of
the New Employer and that the Employer and the Programme Partner shall each release
the other from any obligations owed by the other to them under the Appointment.
NOW IT IS HEREBY AGREED as follows:-
1.
Novation
1.1
The Employer hereby releases and discharges the Programme Partner from any and all
obligations and liabilities owed to the Employer under the Appointment.
1.2
The Programme Partner undertakes to perform the Appointment and to be bound by its
terms in every way as if the New Employer were, and had been from the inception, a
party to the Appointment in lieu of the Employer.
1.3
The Programme Partner hereby releases and discharges the Employer from any and all
obligations and liabilities owed to the Programme Partner under the Appointment and
accepts the obligations and liability of the New Employer under the Appointment in lieu of
the liability of the Employer.
1.4
Without prejudice to Clause 1.2, the Programme Partner warrants to the New Employer
that it shall be liable for any loss or damage suffered or incurred by the New Employer
arising out of any negligent act, default or breach by the Programme Partner in the
performance of its obligations under the Appointment prior to the date of this Agreement.
Subject to any limitation of liability in the Appointment, the Programme Partner shall be
liable for such loss or damage notwithstanding that such loss or damage would not have
been suffered or incurred by the Employer (or suffered or incurred to the same extent by
the Employer).
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1.5
The Programme Partner acknowledges that all fees and expenses properly due to the
Programme Partner under the Appointment up to the date of this Agreement have been
paid by the Employer.
1.6
The New Employer undertakes to perform the Appointment and to be bound by its terms
in every way as if the New Employer were, and had been from the inception, a party to
the Appointment in lieu of the Employer.
2.
Proper Law and Jurisdiction
This Agreement and the rights and obligations of the parties hereto shall be governed
and construed according to English Law. Any dispute shall be subject to the jurisdiction
of the English Courts.
3.
Contracts (Rights of Third Parties) Act 1999
Notwithstanding any other provision in this Agreement, nothing in this Agreement is
intended to confer on any person any right to enforce any of the provisions of this
Agreement which such person would not have had, but for the Contracts (Rights of Third
Parties) Act 1999.
IN WITNESS whereof the parties hereto have executed this Agreement as a Deed the day and year
first before written.
Executed as a Deed by
)
[ ] )
acting by:-
)
Director
Director/Secretary
Executed as a Deed by
)
[ ] )
acting by:-
)
Director
Director/Secretary
Executed as a Deed by
)
[ ] )
acting by:-
)
Director
Director/Secretary
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Appendix 9
Forms of collateral warranty4
4 Forms of warranty to be included once collateral warranty requirements finalised.
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