Crossrail
Design Consultant Framework
OJEU Notice 2008/S 66-089463
Invitation to Tender
Part 3 - Framework Agreement
Confidential
CROSS LONDON RAIL LINKS
DESIGN CONSULTANT FRAMEWORK
OJEU Notice 2008/S 66-089463
Invitation to Tender – Part 3
Contract No 2073
Invitation to Tender issue dated 20
August 2008
LONDON\MCH\10122878.07
Confidential
Framework Agreement
Cross London Rail Links Limited
(the Employer)
and
[ ]
(the Consultant)
and
[ ]
(the Guarantor)
Design Consultancy Services
Contract No. 2073
[TO BE AMENDED TO REFLECT REQUIREMENTS OF THIRD PARTY AGREEMENTS AS AND
WHEN SAME FINALISED – DEFINED TERMS USED IN THIS FRAMEWORK AGREEMENT TO
BE HARMONISED WITH THIRD PARTY AGREEMENTS]
This amended contract is based on the NEC Framework Contract and Professional Services Contract, the
copyright in which standard forms belongs to the Institution of Civil Engineers.
200
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CONTENTS
Framework Agreement Recitals
Conditions of Contract and Contract Data
Annexure 1
Framework Information
Annexure 2
Framework scope
Annexure 3
Selection Procedure
Annexure 4
Quotation Procedure and Appendix
Annexure 5
Forms of Novation
Annexure 6
Dispute Resolution
Annexure 7
Package Order
Agreement and Contract Data
Appendix
1:
Scope
Appendix
2: Commercial
information
Appendix 3:
Service Delivery Plan
Appendix 4:
Design Package Budget
Annexure 8
Package Order Conditions of Contract
Annexure 9
Forms of Warranty
Annexure 10
Form of Guarantee if Package Order novated to a contractor
Annexure 11
Third Party Agreements
Annexure 12
LUL Requirements
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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
Consultant)
and
……………………………………………………………………………………………………………………………
(name)
of ………………………………………………………………………………………………………………………………………
(company/organisation)
(the
Guarantor)
1.
The
Employer wishes to procure the carrying out of certain design services in connection
with the Crossrail project, London.
2.
For the purpose of carrying out such services the
Employer may retain the
Consultant as
may be required.
3.
The
Employer and the
Consultant accept and agree that under this Framework Agreement
no guarantee is given nor representation made by the
Employer to the
Consultant that the
Consultant will be appointed to carry out any services.
4.
This Framework Agreement (including the conditions of contract) shall take precedence
over any other document forming part of this Framework Agreement.
5.
In consideration of the
Employer appointing the
Consultant under this Framework
Agreement the
Guarantor has agreed to guarantee the obligations of the
Consultant hereunder and under each Package Order.
Executed as a deed and delivered on the
date above by:
…………………………………………………………
(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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…………………………………………………………
(signed)
…………………………………………………………
(name of Director)
…………………………………………………………
(signed)
…………………………………………………………
(name of Director or Company Secretary)
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Framework Agreement – Conditions of Contract
Actions 10
10.1
The
Employer and the
Consultant shall act as stated in this
contract and in a spirit of mutual trust and co-operation.
Identified and defined 11
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 Adjudicator Panel is the panel of adjudicators details
of whom are annexed.
(2) 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.
(3) Consultant Information means information provided or
made available to the
Employer by the
Consultant and
recorded in any form held by the
Employer or held by the
Consultant on behalf of the
Employer.
(4)
A Design Package is work which is to be carried out under
this contract.
(5) The Dispute Board is the board of experts referred to in
the Dispute Board Procedure.
(6)
The Dispute Board Procedure is the procedure annexed.
(7) 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.
(8)
Framework Information is information which specifies how
the Parties work together and is in the document which
the Contract Data states it is in.
(9) Information Request means a request for information
under the FOI Legislation.
10) Others are people or organisations who are not the
Employer, the
Consultant, the
Guarantor, the
Adjudicator or any employee, subconsultant or supplier of the
Consultant.
(11) 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
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25% of the issued equity share capital (as defined by
Section 744 of the Companies Act 1985);
(12) A Package Order is an instruction to carry out a Design
Package and shall be in the form annexed.
(13) The Parties are the
Employer and the
Consultant.
(14) 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
Requirements of Transport for London and the Secretary
of State for Transport;
(15) 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) for 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 other
suppliers of services similar to the services or with
other actual or potential bidders for this contract.
(16) 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
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Box;
(17) Package Order Scope means the "Scope" for a particular
Package Order as defined in the contract for such
Package Order.
Interpretation, the law 12
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 England and Wales.
12.3
No change to this contract has effect unless it has been agreed,
confirmed in writing and signed by the Parties.
12.4
This contract and all related Package Orders are the entire
agreement between the Parties and supersede all previous
agreements between the Parties relating to the subject matter
of this contract and the Package Orders and each Party
acknowledges that in entering into this contract and each
Package Order it has not relied on any representation or
undertaking, whether oral or in writing, save such as are
expressly incorporated in this contract or the relevant Package
Order.
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
Consultant 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
Consultant 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.
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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) 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 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.
12.8
A period of time stated in days is a period calculated in
accordance with Section 116 of the Housing Grants,
Construction and Regeneration Act 1996.
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 English.
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.
The Parties' obligations 14
14.1
When
the
Employer requires work to be carried out within the
framework scope, he selects a consultant using the
selection
procedure.
14.2
The
Consultant obeys an instruction which is in accordance with
this contract and is given to him by the
Employer.
14.3
The
Consultant attends meetings with the
Employer and others
as stated in the Framework Information.
14.4
At 6 monthly intervals, or at such other intervals as the Parties
may agree to from time to time, the
Employer and the
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Consultant shall undertake a formal review of the performance
of the
Consultant against the key performance indicators set out
in the Framework Information. The
Consultant and the
Employer shall discuss any ways in which the performance of
the
Consultant may be improved and may agree from time to
time revisions to such key performance indicators as may be
appropriate to encourage and measure such performance
improvements.
Package Order 15
15.1
After he selects the
Consultant, the
Employer instructs him to
submit a quotation for a proposed Design Package and provides
the Contract Data specific to the Design Package.
15.2 The
Consultant submits a quotation in accordance with the
quotation procedure. The
Consultant submits details of his
assessment with the quotation. The assessment is made using
the
quotation information. The
Employer replies to the
submission within 28 days (or such other period as the
Employer notifies to the
Consultant) of receiving the quotation.
His reply is
•
issue of a Package Order accepting the quotation,
•
an instruction to submit a revised quotation or
•
a notification that the proposed Package Order will not
be issued to the
Consultant.
15.3
If a quotation is to be revised, the
Employer advises the
Consultant of the reasons for not accepting the quotation and
the
Consultant submits a revised quotation within the time
required by the
Employer.
15.4 The
Consultant does not do any work included in a proposed
Design Package until he has received a Package Order and both
parties have executed the Package Order.
Assignment 16
The
Consultant 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.
Novation 17
17.1 The
Consultant and
Guarantor executes and delivers to the
Employer a deed of novation in the form annexed to this
contract with the
Employer and any New Employer within
fourteen days of the
Employer's request.
Conflict of Interest 18
18.1 The
Consultant 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
Consultant will undertake ongoing conflict of
interest checks and will notify the
Employer immediately if any
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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).
18.2
To the extent that an actual or potential conflict may arise
involving the
Employer, the
Consultant shall where reasonably
required 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.
Completion 19
19.1 After
the
end date
•
the
Employer may not issue a Package Order
•
the
Consultant completes Design Packages ordered
before the
end date.
Publicity 20
The
Consultant 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 20 is entitled
to be public knowledge (otherwise than by breach of this clause)
or which is limited to the fact of the
Consultant being a party to
this contract.
Access to Information 21
21.1 The
Consultant shall free of charge disclose to the
Employer and
shall free of charge allow the
Employer and/or his nominated
staff to inspect and take away copies and all such information
relating to the
Consultants engagement in relation to the
Programme (including without prejudice to the generality of 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
Consultant shall ensure that such representatives have full and free access
(including access to the
Consultant's premises) and licence to
use such information in order to facilitate the operation of this
clause but the
Consultant shall not be obliged to supply any
information which would be treated as privileged in any
proceedings.
Freedom of Information 22
22.1 The
Consultant 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
Consultant from objecting to a disclosure of Consultant
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Information.
22.2 The
Employer shall be responsible for determining whether
Consultant Information is exempt information under the FOI
Legislation and for determining what Consultant Information will
be disclosed in that respect to an Information Request in
accordance with the FOI Legislation. The
Consultant shall not
itself respond to any person making an Information Request,
save to acknowledge receipt, unless expressly authorised to do
so by the
Employer.
22.3 The
Consultant acknowledges that the
Employer may be obliged
under the FOI Legislation to disclose Consultant Information.
Confidential 23
Information
23.1
Subject to the other provisions of and as expressly permitted by
this clause 23, the
Consultant:
(1) may not use any Confidential Information for any purpose
other than the performance of its obligations under this
contract;
(2) may not disclose any Confidential Information to any
person except with the prior written consent of the
Employer; and
(3)
shall make every effort to prevent the use or disclosure of
the Confidential Information.
23.2
Notwithstanding clause 23.1, the
Consultant may disclose any
Confidential Information to the following parties in the following
circumstances:
(1) to any officer or servant of the
Consultant or any person
engaged in the provision of goods or services to or for him
if disclosure is necessary to enable the
Consultant to
perform its obligations under or to enforce its rights under
this contract, upon obtaining an undertaking of strict
confidentiality from such officer, servant or person;
(2) 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
(3) pursuant to the order of any court or tribunal of
competent jurisdiction.
23.3
The provisions of clause 23.1 above shall not apply to any
Confidential Information which:
(1) 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;
(2) can be shown by the
Consultant to the
Employer's
reasonable satisfaction to have been known by the
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Consultant before disclosure by the
Employer;
(3) is required to be disclosed by any court or governmental,
administrative or regulatory authority competent to
require such disclosure;
(4) is required to be disclosed by any applicable law or
regulation; or
(5) is disclosed in circumstances where such disclosure is a
"protected disclosure" as defined by section 43A of the
Employment Rights Act 1996.
23.4
Before disclosure of any Confidential Information, the
Consultant shall ensure that the recipient is made aware of and complies
with the
Consultant's obligations of confidentiality under this
contract as if the recipient was a party to this contract.
23.5
Without prejudice to any other rights or remedies which the
Employer may have, the
Consultant acknowledges and agrees
that in the event of breach of this clause 23 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.
23.6
If this contract is terminated, the
Consultant 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
Consultant may retain one copy of the Confidential
Information if required to do so by law.
Termination 24
24.1 The
Employer may terminate the
Consultant's employment
under this contract at any time by notifying the
Consultant if
•
the
Employer no longer requires the
Consultant to carry
out any work in connection with the Programme or
•
the
Consultant has failed to comply with his obligations or
•
the Consultant commits a Prohibited Act.
24.2 The
Consultant may terminate the
Consultant's employment
under this contract by notifying the
Employer if the
Employer
has done one of the following or its equivalent.
•
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,
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•
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.
24.3
After a Party has notified termination,
•
the
Employer may not issue a Package Order,
•
the
Consultant completes Design Packages ordered
before the notification and
•
the Parties continue to comply with the constraints and
obligations in this contract in relation to publicising the
services, confidentiality and the FOI Legislation.
For the avoidance of doubt the
Consultant shall not be entitled
to any claim for loss of profit, business or opportunity arising
from any notified termination.
Termination shall be without prejudice to any accrued rights and
obligations under this contract as at the date of such
termination.
24.4
Following any termination of the
Consultant's employment under
this contract, the
Consultant shall co-operate with the
Employer and shall provide to him all reasonable assistance to facilitate
the handover or transfer of such obligations to the
Employer or
the
Employer's nominee including briefing and providing
information to the
Employer or the
Employer's nominee.
Guarantee 25
25.1 The
Guarantor is a party to this contract for the sole purpose of
guaranteeing the performance of the obligations of the
Consultant hereunder and under each Package Order.
25.2
In consideration of the
Employer appointing the
Consultant in
accordance with the terms of this contract, the
Guarantor:
(a)
agrees that if the
Consultant shall in any respect fail to
perform any of its obligations arising under or out of this
contract or a Package Order (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 or a Package Order (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
Consultant each and
every obligation, warranty or indemnity in respect of
which the
Consultant has defaulted or as may be
unfulfilled by the
Consultant, 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
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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.
25.3
As between the
Guarantor and the
Employer, the
Guarantor shall remain liable under clause 25.2 as if it were the sole
principal obligor and not merely a guarantor
25.4 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
framework scope or
the Scope or
services under a Package Order or to this
contract or any Package Order or any related
documentation;
(b)
the granting of any extensions of time or forbearance,
forgiveness or indulgences in relation to time to the
Consultant;
(c)
the enforcement, absence of enforcement or release of
the contract or any Package Order or of any security,
right of action or other guarantee or indemnity;
(d)
the dissolution, amalgamation, reconstruction,
reorganisation of the
Consultant or any other person;
(e)
the illegality, invalidity or unenforceability of or any
defect in any provision of the contract or any Package
Order or any of the
Consultant's obligations under the
contract or any Package Order or;
(f)
any indulgence or additional or advanced payment,
forbearance, payment or concession to the
Consultant;
(g)
any compromise of any dispute with the
Consultant;
(h)
any failure of supervision to detect or prevent any fault of
the
Consultant;
(i)
any assignment of the benefit of the contract or any
Package Order.
25.5
Without prejudice to the generality of clause 25.2, the
Employer shall have the right, as its sole option, in the event of any
default by the
Consultant to engage another consultant, other
than the
Guarantor or any nominee of the
Guarantor to Provide
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the Services under any Package Order and the
Guarantor undertakes to pay any additional costs (whether direct or
indirect) thereby incurred by the
Employer.
25.6 The
Guarantor agrees that any decision of any adjudicator
appointed in accordance with this contract or a Package Order
and/or any court and/or any agreement reached between the
Consultant and the
Employer in respect of or in connection with
this contract or a Package Order shall be binding on the
Guarantor, provided always that the
Guarantor shall have
available to it such rights of appeal or challenge as the
Consultant would have or would have had.
Disputes
26
Dispute Resolution 26.1
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 26.
Managerial Discussions 26.2
Without prejudice to the Parties' rights at any time to refer
Disputes to adjudication in accordance with this clause 26 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 Procedure 26.3
Either party may give notice at any time of its intention to 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 26.4
(1) 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"):
(a)
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
(b)
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
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determine that it is not possible to consolidate the
proceedings; and
(c)
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 clause 27.4 shall cease
to apply; and
(d) 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.
(2)
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 26.5
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
Third Party Rights 27
27.1
With the exception of
TfL and
Network Rail, a person or
organisation who is not one of the Parties may not enforce a
term of this contract under the Contracts (Rights of Third
Parties) Act 1999. Each of
TfL and
Network Rail may enforce
the terms of this contract and may utilise the contract to place
in their own name Package Orders in relation to the Programme
with the
Consultant pursuant to clause 15.
London Living Wage 28
28.1
In this clause 28, the following expressions shall have the
following meanings:
"London Living Wage" the basic hourly wage of £7.05 (before
tax, other deductions and any increase for overtime) as may be
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updated from time to time and notified to the
Consultant;
28.2
Without prejudice to any other provision of this contract, the
Consultant shall:
28.2.1
ensure that none of its employees engaged in
connection with the Programme under this contract
or any Package Order is paid an hourly wage (or
equivalent of an hourly wage) less than the London
Living Wage;
28.2.2
ensure that none of its employees engaged in
connection with the Programme under this contract
or any Package Order is paid less than the amount
to which they are entitled in their respective
contracts of employment;
28.2.3
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;
28.2.4
disseminate on behalf of the
Employer to its
employees engaged in connection with the
Programme under this contract or any Package
Order 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
28.2.5
co-operate and provide all reasonable assistance in
monitoring the effect of the London Living Wage.
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CONTRACT DATA
Part one - Data provided by the Employer
The Data which will apply to all work under the Framework
Agreement is
• The
Employer is
Name
Cross London Rail Links Limited
Address
Portland House, Bressenden Place, London SW1E 5BH
• The Framework Information is in Annexure 1
•
Network Rail is [Network Rail Infrastructure Limited of [ ]]
• The
framework scope is in Annexure 2
• The
selection procedure is in Annexure 3
•
TfL is Transport for London of Windsor House, 42-50 Victoria Street,
London SW1H 0TL
• The
quotation procedure is in Annexure 4
• The
end date is
the completion of the
Programme
• The
framework consultants are the Consultant and: [
]
The Data which will apply to all Package Orders is
The Data completed in the Contract Data forming part of the Package Order
set out in Annexure 7.
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Part two - Data provided by the Consultant
The Data which will apply to all work under the Framework Agreement
is
• The
Consultant is.................................................................................
Name.............................................................................................
Address..........................................................................................
• The
quotation information is in the
quotation procedure.
The Data which will apply to all Package Orders is
The Data completed in the Contract Data forming part of the Package Order set
out at Annexure 7.
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ANNEXURE 1
Framework Information
Framework Panels
The Employer has entered into a number of framework agreements with
framework consultants and has compiled the following Framework Panels:
Panel
Design category
A
Tunnels and Shafts
B
Stations
C
Portals
D
Rail Systems
E
Communications and Control Systems
F
Architectural Component Design
G
Materials and Workmanship Specification
The Framework Panel members are
framework consultants who competed for and were awarded
framework agreements under OJEU notice 2008/S 66-089463.
The
Consultant has been appointed under its Framework Agreement to the following Panels:
[
]
The Employer may consider and discuss with relevant
framework consultants how they might, if
desirable, collaborate with other
framework consultants appointed to other Framework Panels.
The
Employer may award a Design Package to a
framework consultant, the Scope of which
includes a management and co-ordination role in respect of other
framework consultants who have
been awarded a related Design Package.
Co-operation
The Employer may, from time to time, wish to consult with the
Consultant in relation to future
Design Packages. The
Consultant agrees to provide any reasonable cooperation and advice which
the Employer seeks prior to entering into a Package Order, acknowledging that unless and until
the
Employer and the
Consultant enter into a Package Order, the
Consultant shall not be entitled
to any reimbursement in connection with the Framework Agreement.
When the
Employer and the
Consultant have entered into a Package Order, the
Employer may
request the
Consultant and the
Consultant agrees to attend any meetings and to provide any
necessary cooperation with other
framework consultants where this is considered by the
Employer to be beneficial to the Design Package in question or to the Crossrail Programme as a whole.
Framework key performance indicators
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The key performance indicators referred to in clause 14.4 of the Framework Agreement –
Conditions of Contract are the Key Performance Indicators defined in any Package Orders which
have already been entered into between the
Consultant and the
Employer and which may include
key performance indicators relating to the following aspects of performance:
•
Designing within a cost target
•
Designing within the Resource Schedule cost for the Design Package;
•
Timely production of design deliverables;
•
Quality of design deliverables;
•
Safety;
•
Responsible procurement;
•
Customer satisfaction;
•
Retention of
key persons; and
•
Collaborative working.
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ANNEXURE 2
Framework scope
Framework scope
1.
Framework scope
1.1.
The
framework scope relates only to the Project save for exceptional circumstances where
services may be required in relation to other parts of the Programme.
1.2.
For the Design Categories that the
Consultant has been appointed to and for the
undertaking of the Programme, Package Orders may include any part of the following
services:
(a) The development of the Scheme Design to a pre-construction design status
(including the preparation of drawings and/or performance specifications) and
demonstration that the design is within a construction budget through the
preparation of estimates.
(b) Supporting the procurement of construction contracts.
(c) Detailed design arising from changes during construction.
(d) Checking of contractors’ designs during construction.
(e) Supporting the supervision of construction to ensure site engineering maintains the
integrity of the design.
(f)
Testing, commissioning and maintenance support.
(g) Specialist studies, technical and support services to the
Employer.
(h) The development of designs for Non Collaborative Over-Site Developments to enable
the
Employer to obtain planning approval.
1.3.
The Design Categories are:
(a)
Category A: Tunnels and Shafts
(b)
Category B: Stations
(c)
Category C: Portals
(d)
Category D: Rail Systems
(e)
Category E: Communications and Control Systems
(f)
Category F: Architectural Component Design
(g)
Category G: Materials and Workmanship Specification
1.4.
When undertaking any Package Order the
Consultant must ensure that the design is
integrated and co-ordinated with the other designs prepared or being prepared for the
Programme by other design consultants of the Employer or by
Others.
1.5.
The Scope of a Design Package awarded to the
Consultant may include a management and
co-ordination role in respect of other
framework consultants who have been awarded a
related Design Package.
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1.6.
When undertaking any Package Order the
Consultant must produce all documentation,
presentations, samples or models necessary to support any submission to CLRL and to any
external Stakeholders, Statutory Bodies or approval Authorities to whom CLRL has an
obligation to consult or seek approval.
1.7.
Category A (Tunnels and Shafts) includes all sprayed concrete lining installations (SCL),
wherever applicable, at all locations, including running tunnels, shafts, portals and
stations; such installations to include escalator barrels, cross passages, etc. Architectural
space planning and fit out of SCL installations at stations and portals shall be the
responsibility of consultants under Design Packages in Categories B and C respectively.
1.8.
The elements of the services within each Category are:
Category A: Tunnels and shafts design comprising:
(a)
Civil, structural, geotechnical, drainage, ground movement and mitigation.
(b)
Aerodynamics
(c)
Ventilation, ventilation control and all M&E and fixed equipment (excluding rail
systems)
(d)
Track system design including track slab and floating track slab
(e)
Fire Engineering
(f)
TBM specification
(g)
Space coordination
(h)
Alignment
(i)
Utilities – connections, diversions and protection
(j)
Environmental, town planning and traffic / transport
(k)
In addition to the above activities, the following in respect of shafts, ancillary
buildings and Non Collaborative Over-Site Developments at any intermediate shaft:
.1
Architectural: urban design; landscaping; space planning; fit out of surface and
sub-surface structures, including fixtures, fittings and equipment; other
specialist services as required
.2
Building Services - lighting, LV power, HVAC, water, drainage
.3
Lifts
Category B: Stations design comprising:
(a)
Civil, structural, geotechnical, drainage, ground movement and mitigation
(b)
Architectural: urban design; landscaping; space planning; fit out of surface and
sub-surface structures, including fixtures, fittings and equipment; other specialist
services as required
(c)
Building Services - lighting, LV power, HVAC, water, drainage
(d)
Lifts and escalators
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(e)
Fire Engineering
(f)
Acoustics
(g)
Wayfinding
(h)
Security
(i)
Utilities – connections, diversions and protection
(j)
Environmental, town planning and traffic/transport
Category C: Portal design, including ancillary buildings, comprising:
(a)
Civil, structural, geotechnical, drainage, ground movement and mitigation
(b)
Architectural: urban design; landscaping; space planning; fit out of surface and
sub-surface structures, including fixtures, fittings and equipment; other specialist
services as required
(c)
Building Services - lighting, LV power, HVAC, water, drainage
(d)
Lifts
(e)
Fire Engineering
(f)
Utilities - connections, diversions and protection
(g)
Environmental, town planning and traffic/transport
Category D: Rail systems comprising:
(a)
Rolling Stock and associated maintenance and stabling facilities
(b)
Signalling
(c)
Traction power and OLE
(d)
Bulk power distribution
(e)
HV Installations
(f)
Rail Control Centre
(g)
Platform edge doors
(h)
Systems Integration
(i)
Earthing and Bonding
(j)
Other necessary rail systems
Category E – Communications and control systems comprising:
(a)
CCTV
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(b)
Public address
(c) Access control and intruder detection
(d) Radio Systems
(e) Telephony system
(f)
SCADA
(g) Automatic revenue collection
(h) Master systems integration
(i)
Central and station control systems.
(j)
Help point systems
(k) Customer Information Systems
(l)
Transmission networks
(m) Other necessary communications and control systems
Category F - Architectural component design comprising:
(a)
Common components for floors, walls, ceilings and for other fit out and finishes
typically associated with Stations and above ground buildings and specifically
excluding within rail running tunnels.
(b)
Fit out product to include but not limited to lighting, PA, CCTV camera housing,
acoustic treatment, help points, revenue protection, wayfinding signage,
advertising media sites, information signs, branding
Category G – Materials and workmanship specification comprising:
a.
Preparation of specifications for civils, building works and M&E to be used across the
Project works contracts.
2.
Required Standard
2.1.
In undertaking a Package Order the
Consultant shall achieve the standard and detail of
design and produce the design deliverables (“The Required Standard”) stated within the
Package Order Scope.
3.
Project Requirements
3.1.
In undertaking a Package Order the
Consultant shall comply with the Crossrail Sponsors
Requirements, operational requirements, engineering requirements (including engineering
standards), environmental and planning requirements, health and safety requirements and
the Crossrail Bill documents (including the Undertakings and Assurances and
Environmental Minimum Requirements) (“The Project Requirements”) included within the
Package Order Scope.
4.
Employer's Policies
4.1.
The
Consultant shall comply with the management processes and procedures established
by the
Employer and forming part of its Business Management System.
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4.2.
In undertaking a Package Order the
Consultant shall also comply with the
Employer’s
management processes and procedures included within the Package Order Scope.
5.
Service Activities
5.1.
In undertaking a Package Order the
Consultant shall perform and/or take account of the
service activities indicated in this section to the extent described within the Package Order
Scope.
(a) Quality Management
(b) Environmental Management
(c) Planning, Environment and Traffic & Highways Consents
(d) Health and Safety Management
(e) Technical Assurance
(f)
Standards Management
(g) Value Engineering
(h) Architecture Design Process
(i)
Systems Engineering
(j)
Requirements Management
(k) Interface Management
(l)
Issues Management
(m) Assumptions Management
(n) Engineering Safety Management
(o) Human Factors
(p) Reliability, Availability and Maintainability Management
(q) Electromagnetic Compatibility
(r) Configuration Management
(s) Verification and Validation
(t)
Construction Programme Development
(u) Buildability and Construction Planning
(v) Procurement Support
(w) Cost Estimating and Cost Control
(x) Risk Management (Project Risks)
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(y) Contract Controls
(z) Information Management
(aa) Document Management
6.
Input Data
6.1.
In undertaking a Package Order the
Consultant shall have due regard and/or take account
of the information indicated in this section to the extent described within the Package
Order Scope.
(a) Geotechnical survey information
(b) Measured survey information
(c) Scheme Designs and associated documents
7.
Collaborative Working
7.1.
In undertaking a Package Order the
Consultant shall work in a collaborative manner with
the
Employer, other consultants engaged by the
Employer, the Crossrail industry partners
and stakeholders to the extent and in the manner described within the Package Order
Scope.
7.2.
The
Employer’s preference is to encourage collaborative working through co-location of the
Employer, the
Employer’s Delivery Partners and the designers within the
Employer’s offices
located in central London. Details of such co-location offices will be provided within the
Package Order Scope.
8.
Cooperation with Crossrail Sponsors' representatives/advisers
8.1.
The
Consultant shall liaise and cooperate as required with representatives of, or advisers
to, the Crossrail Sponsors (Transport for London and Department for Transport).
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ANNEXURE 3
Selection Procedure
Introduction
The
Employer has entered into a number of framework agreements with
framework consultants,
including the
Consultant. The
Employer has formed Framework Panels which are set out in the Framework Information.
The purpose of this
selection procedure is to provide guidance on how the
Employer selects
framework consultants from the Framework Panels who will be instructed to submit quotations
under Clause 15.1 of the Framework Agreement.
With call for Package Order Competition
Generally, Package Orders will be issued following Package Order Competitions prepared and
assessed in accordance with the
quotation procedure (Annexure 4).
The
Employer may conduct a Package Order Competition on a phased basis so as to identify the
framework consultants who are instructed to submit a quotation. Details will be provided to
relevant
framework consultants at the start of relevant Package Order Competitions
Without call for Package Order Competition
In some circumstances, the
Employer may select a
framework consultant to submit a quotation
without a Package Order Competition by application of the terms laid down in this Framework
Agreement.
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ANNEXURE 4
Quotation Procedure
Introduction This
quotation procedure provides guidance on how the
framework consultant and the
Employer are to prepare and assess a quotation for a proposed Design Package instructed under Clause 16.1
of the Framework Agreement.
Package Order information provided by the Employer
The
Employer will prepare Package Order information setting out the following data for the Design
Package:
(a)
the applicable Main Option clause for the Package Order and, if Option C
or E, whether method 1 (rates) or 2 (actual cost) (see below);
(b) the
Scope;
(c)
details of the Design Package;
(d)
details of access to persons, places and things;
(e)
matters included in the Risk Register;
(f) the
starting date;
(g)
a schedule of
key dates and
conditions (deliverables schedule)
(h)
the authority of the
Employer’s Agent;
(i)
details relating either to Option X12: Partnering or to Option X20:
Incentives; and
(j)
any changes to the Contract Data at Annexure 7 to the Framework
Agreement.
The
Employer sends the Package Order information to the selected
framework consultants and
instructs the submission of a quotation. The
Employer may instruct the selected
framework
consultants to submit their quotations through the Crossrail eSourcing Portal Service.
Option C or E payment methods
When requesting a quotation under Option C or E the
Employer indicates which of the following
methods the
framework consultant shall use for
staff rates.
•
Method 1: rates
•
Method 2: actual cost
The
framework consultant’s quotation shall comply with the requirements applicable to Option C or
E quotations set out in the Quotation Procedure Appendix.
Key Performance Indicators: Option X12 or X20
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The
Employer may adopt Option X20 and will include an
incentive schedule for Key Performance
Indicators within any request for a quotation.
Key Performance Indicators and associated incentives may be included for, without limitation:
•
Designing within a cost target.
•
Designing within the Resource Schedule cost for the Design Package.
•
Timely production of design deliverables.
•
Quality of design deliverables.
•
Safety.
•
Responsible Procurement.
•
Customer Satisfaction.
•
Retention of
key persons.
•
Collaborative working.
Alternatively, the
Employer may adopt Option X12 and will include a Schedule of Partners including
Key Performance Indicators and Partnering Information within any request for quotation.
Quotation information prepared by the Framework Consultant
The
framework consultant prepares a quotation that comprises the following documents:
(a)
the required commercial information according to the selected Main Option
clause for the Package Order as follows:
•
Option A: an
activity schedule; or
•
Option C: an
activity schedule, staff rates, Consultant’s share
percentages and
share ranges ; or
•
Option E:
staff rates; and
•
any required quotation response in respect of Key Performance
Indicators.
(b)
a Service Delivery Plan setting out the
Consultant’s proposals for delivery of the
services and deliverables which are the subject of the Package Order and
including:
•
a programme in accordance with clause 31.2 of the Package Order;
•
if Main Option C or E applies, a Resource Schedule that shows, on a
periodic basis for the duration of the Package Order, details as
requested by the
Employer relating to:
• key
persons;
• all other staff; and
• whether
key persons and/or other staff are to be co-located at
the
Employer’s office or located at the
Consultant’s office.
•
a schedule of working drawings to be issued each month by discipline;
and
•
any further matters to be included in the Risk Register.
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(c)
any further information requested by the
Employer.
All proposals submitted by the
Consultant within its quotation must be consistent with all proposals
which it submitted in its tender submission relating to the award of this Framework Agreement.
Assessment of the framework consultant’s quotation by the Employer
The
Employer will evaluate the quotations received from
framework consultants.
The
Employer will evaluate the commercial information within the
framework consultant’s quotation independently from the remainder of the quotation.
The evaluation of each item within the quotation will be weighted depending on the nature of the
Design Package.
The
Employer will determine the most economically advantageous tender from the point of view of
the
Employer. The
Employer is under no obligation to accept the lowest quotation.
The
Employer may negotiate with the
framework consultant who has submitted the most
economically advantageous tender to finalise the documents comprising the Package Order.
Package Order award
The
Employer will inform all
framework consultants who were selected and instructed to submit
quotations of its decision relating to the award of the Package Order.
The
Employer will produce the Package Order comprising the following documents in the forms set
out at Annexure 7 to this Framework Agreement:
•
The Package Order form of agreement (incorporating the Package Order conditions of
contract);
•
The completed Contract Data Parts one and two;
•
The Scope (Appendix 1);
•
The commercial information (Appendix 2);
•
The Service Delivery Plan (Appendix 3); and
•
The Design Package Budget (Appendix 4).
The
Employer and the appointed
framework consultant will each execute the Package Order as a
deed.
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Quotation Procedure Appendix: Option C or E staff rates
Where the quotation is to be Option C or E method 1:
The
framework consultant shall complete a schedule, provided by the
Employer, of
staff
rates applicable to the particular quotation being provided. These s
taff rates shall not
exceed the Maximum Staff Rates attached to this Quotation Procedure for the appropriate
grade and type of staff. The
staff rates shall also be used by the
framework consultant when
preparing the Resource Schedule.
Where the quotation is to be Option C or E method 2:
The
s
taff rates shall be calculated upon an actual cost basis for each member of staff as
set out below.
Package Order quotations based on Option C or E method 1: Maximum Staff Rates
The Maximum Staff Rates payable under any Option C or E method 1 Package Order are set out in
Table 1 attached.
The Maximum Staff Rates are adjusted annually for inflation as follows:
On 1 April immediately following the Contract Date and on each anniversary of 1 April, the
Consultant calculates an adjustment to the Maximum Staff Rates 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
immediately following the Contract Date.
The
Consultant presents such adjustment to the
Employer for acceptance.
The actual
staff rates for any Package Order shall be set out at Appendix 2 to the Package Order.
Package Order quotations based on Option C or E method 2
Staff rates are calculated upon the actual cost of employment of the
framework consultant’s staff
with the addition of the percentage shown in Table 2. The actual cost comprises:
1. the cost to the
framework consultant of employing personnel including all normal employer
costs for payroll, pension contributions, national insurance, holidays, sickness, training,
medicals, travel costs, bonus and incentive payments, cars or car allowances, London and
regional weightings, professional fees, mobile phones, normal surveying and measuring
equipment, personal protective equipment and overtime payments; or
2. where services are sub-contracted, the sub-contract rates properly payable by the
framework consultant under the terms of the subcontract; or
3. where services are provided by agency personnel, directly to the
framework consultant,
the rates properly payable by the
framework consultant.
Table 2
The following percentage additions are to be made to the actual costs identified above and shall be
deemed to include the
framework consultant’s corporate, local and regional overheads or the like,
insurances, risk allowances, profit and any other costs or expenses not included within the actual
cost:
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Actual Cost Method
Percentage
Percentage
Addition –
Addition –
Employer Offices
Consultant Offices
1. Employed Personnel
2. Sub-contracted
3. Agency
The “percentage addition –
Employer offices” shall apply where staff are to be based in the offices
of the
Employer.
The “percentage addition –
Consultant offices” shall apply where staff are to be based in the offices
of the
framework consultant.
No further costs other than the actual cost and percentage addition set out above shall be
chargeable under Option C or E method 2.
Information applicable to staff rates, both methods 1 and 2
When preparing any quotation for any Option C or E Package Order, the
framework consultant shall have regard to the provisions of Appendix 2 to the Package Order (Annexure 7).
Staff rates are calculated prior to and may therefore be subject to the application of any applicable
volume discount as set out in Appendix 2 to the Package Order (Annexure 7).
Table 1: Maximum Staff Rates
[
Insert spreadsheet]
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ANNEXURE 5
Forms of Novation
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 Consultant”)[; and][.]
(4)
[
[ ] whose registered office is at [ ] ("the Guarantor").]
WHEREAS:-
(A)
The Employer has appointed the Consultant to provide [
]
services
(“the
Services”) by a [Framework Agreement] [Package Order] dated [ ] (“the
Appointment”) in relation to the Programme and the Project as defined in the
Appointment. [The Guarantor has guaranteed the obligations of the Consultant under
the Appointment].
(B)
The Employer has entered into an agreement with the New Employer in respect of the
Programme and the Project.
(C)
The Employer, Consultant [Guarantor] 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 Consultant [and Guarantor] shall perform [its][their] obligations under the
Appointment in favour of the New Employer and that the Employer on the one part and
the Consultant [and Guarantor] on the other part 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 Consultant [and Guarantor] from any
and all obligations and liabilities owed to the Employer under the Appointment.
1.2
The Consultant [and Guarantor] 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 Consultant hereby releases and discharges the Employer from any and all obligations
and liabilities owed to the Consultant 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 Consultant [and Guarantor] warrants to the New
Employer that [it][they] 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 Consultant in the
performance of its obligations under the Appointment prior to the date of this Agreement.
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Subject to any limitation of liability in the Appointment, the Consultant [and Guarantor]
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).
1.5
The Consultant acknowledges that all fees and expenses properly due to the Consultant
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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[Executed as a Deed by
)
[ ] )
acting
by:-
)
Director
Director/Secretary]
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ANNEXURE 6
Dispute Resolution
Part 1: Dispute Board Procedure
[TO BE ADVISED AND AGREED WITH FRAMEWORK CONSULTANTS. IN THE EVENT A
PROCEDURE IS NOT AGREED PRIOR TO AWARD THE CONSULTANT 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 FRAMEWORK CONSULTANTS.]
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ANNEXURE 7
Package Order
Package Order
Cross London Rail Links Limited
(the Employer)
and
[ ]
(the Consultant)
Design Consultancy Services
Design Package [ ]
Contract No. [ ]
200
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This agreement is made on the ………………………… day of ……………… ……………………………… 20 …………
Between
CROSS LONDON RAIL LINKS LIMITED of Portland House, Bressenden Place,
London SW1E 5BH (the
Employer)
and
……………………………………………………………………………………………………………………………
(name)
of ………………………………………………………………………………………………………………………………………
(the
Consultant)
1.
The
Employer and the
Consultant have entered into a Framework Agreement dated
[ ] in relation to the Crossrail project, London.
2.
Pursuant to the Framework Agreement the
Consultant has issued a quotation to carry out
a Design Package (as defined in the Framework Agreement) that has been accepted by
the
Employer. The Parties are required to execute this Package Order before the
Consultant begins to Provide the Services.
3.
The
Employer will pay the
Consultant the amount due and carry out his duties in
accordance with this Package Order and the Package Order Conditions of Contract at
Annexure 8 to the Framework Agreement ("the conditions of contract").
4.
The
Consultant will Provide the Services in accordance with this Package Order and the
conditions of contract.
5.
The Package Order and the conditions of contract and the documents referred to in them
form this contract. References in the conditions of contract to "the contract" are
references to this contract. This Package Order and the conditions of contract shall take
precedence over any other document forming part of this contract.
Executed as a deed and delivered on the
date above by:
…………………………………………………………
(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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CONTRACT DATA
Part one – Data provided by the Employer
Statements given in all
contracts
1 General
•
The
conditions of contract are the Package Order Conditions of
Contract at Annexure 8 to the Framework Agreement utilising
payment option [ ]
•
The
Employer is
Name
Cross London Rail Links Limited
Address
Portland House, Bressenden Place, London SW1E 5BH
•
The
services are the services set out in the Scope.
•
The Scope is at Appendix 1.
•
The
key dates and
conditions to be met are set out in the
Scope.
•
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:
•
Employer to reply to a design submission [ ] days
•
Employer to reply to [ ] [
to be completed for each
Package Order]
•
The
period for retention is 15 years following Completion or
earlier termination.
•
The following matters will be included in the Risk Register:
[
to be completed for each Package Order]
•
The Design Package is
[
to be completed for each Package Order]
•
The
Employer's Policies are set out in the Scope.
•
TfL is Transport for London of Windsor House, 42-50 Victoria
Street, London SW1H 0TL
•
The Third Party Agreements are set out in Annexure 11 to the
Framework Agreement.
•
The Framework Agreement is the framework agreement
between the
Employer and the
Consultant dated [
].
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2 The Parties' main
•
The
Employer provides access to the persons, places and things
responsibilities
as set out in Appendix 2 and the Scope.
3 Time
•
The
starting date is [
to be completed for each Package Order]
•
The
Consultant submits revised programmes at each
assessment interval.
4 Quality
•
The quality policy statement and quality plan are provided
within [1] month of the
starting date.
•
The
defects date is twelve months after completion of the on
site construction work for the Design Package to which the
services relate.
5 Payment
•
The
assessment interval is every CLRL four week accounting
period, such periods to be advised to the
Consultant 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, insurance
•
The amounts of insurance and the periods for which the
and liability
Consultant maintains insurance are1
event cover period
following
Completion of the
whole of the
services or earlier
termination
failure of the
£10 million in
Twelve years
Consultant to use respect of each
the skill and care claim, without limit
normally used by to the number of
professionals
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 of claim, without limit
the
Consultant) or to the number of
loss of or damage to claims
property resulting
from an action or
failure to take action
by the
Consultant.
death of or bodily £10 million in
Twelve years
injury to employees respect of each
of the
Consultant
claim, without limit
arising out of and in to the number of
1 Advice being sought from CLRL’s insurance broker as to appropriate levels of insurance.
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the course of their claims.
employment in
connection with this
contract
•
The
Employer provides the following insurances
………………………………………………………………………………
Optional statements
If
the
Employer states any expenses
•
The
expenses stated by the
Employer are at Appendix 2.
If Option A is used
•
The
Consultant prepares forecasts of the total
expenses at each
assessment interval.
If Option C or E is used
•
The
Consultant prepares forecasts of the total Time Charge and
expenses at each assessment interval.
If Option C is used
•
The
Consultant's share percentages and the
share ranges are
set out in Appendix 2.
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 Annexure 9
agreement
reference
third party
Attached to the
Conditions of [
LUL]
Contract
[
NR]
[
Tubelines]
[
DLR]
If Option X10 is used
The
Employer's Agent is [
to be completed for each Package Order]
Name [ ]
Address [
]
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•
The authority of the
Employer's Agent is
[
to be completed for each Package Order]
…………………….. as set out in ……………………..
If Option X12 is used2
[
to be completed for each Package Order]
•
The
Client is
Name
Cross London Rail Links Limited
Address
Portland House, Bressenden Place, London SW1E 5BH
•
The
Client's objective is
…………………………………………….
•
The Partnering Information is in
…………………………………………….
…………………………………………….
…………………………………………….
If Option X20 is used3
•
The
incentive schedule for Key Performance Indicators is in
Appendix 2.
•
A report of performance against each Key Performance
Indicator is provided by the
Consultant at each assessment
interval for review by the
Employer.
If Option Y(UK)3 is used
Term
person or organisation
All
TfL
All
Department for Transport
2 The
Employer may select either or none of Option X12 or Option X20 for a Package Order.
3 The
Employer may select either or none of Option X12 or Option X20 for a Package Order.
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Part two – Data provided by the Consultant
Completion of the data in full, according to the Options chosen, is
essential to create a complete contract.
Statements given in all •
The
Consultant is
contracts
Name [ ]
Address [
]
•
The
key persons are set out in the Service Delivery Plan.
•
The
staff rates are set out in Appendix 2.
•
The following matters will be included in the Risk Register:
Those matters set out in the Service Delivery Plan.
Optional statements
•
The programme identified in the Contract Data is in the Service
Delivery Plan.
If Option A or C is used
•
The
activity schedule is at Appendix 2
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Appendix 1
Scope
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Appendix 2
Commercial information
Option A Package Order
The
activity schedule is [
]
Option C Package Order
The
activity schedule is [
]
The
staff rates are [
]
The
share ranges and the
Consultant’s share percentages are:
share range
Consultant's share percentage
less than ……………………………..%
…………………………………………… %
from ……………… % to …………. %
…………………………………………… %
from ……………… % to …………. %
…………………………………………… %
greater than ……………………… %
…………………………………………… %
Option E Package Order
The
staff rates are [
]
Staff rate coverage (Options C and E)
The
staff rates (methods 1 and 2) shall be deemed to include all costs required or incurred by the
Consultant to Provide the Services in accordance with the Package Order and Package Order
Conditions of 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.
Approval of individuals and staff rates (Options C and E)
Before the
Consultant 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 this Appendix 2 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 this Appendix 2.
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
Consultant’s team and reporting lines, anticipated duration and any other information requested by the
Employer.
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The Resource Schedule contained in the Service Delivery Plan shall only be applicable for the
period of time covered by the Resource Schedule.
Indexation (Options C and E)
Option X1 applies.
Volume Discount (all Options)
Where all sums paid to the
Consultant within any year for all Package Orders issued under the
Framework Agreement exceed the amount shown in Table 3 below, then the Price for Services
Provided to Date and any other sums due to the
Consultant for all Package Orders shall be reduced
by the percentage indicated. The effect of such reductions shall also be applied retrospectively to
the Price for Services Provided to Date and any other sums due to the
Consultant for all Package
Orders within that year. Where applied retrospectively this shall be deducted from the assessment
of the amount due for the assessment interval immediately following the period in which all sums
paid to the
Consultant for all Package Orders exceed the amount.
For the purposes of the volume discount a year shall be a calendar year commencing 1 April.
Table 3
Value of Package Orders
Percentage Reduction
>£500,000
>£1,000,000
>£2,000,000
>£5,000,000
>£10,000,000
>£15,000,000
>£20,000,000
Staff rates are calculated prior to and may therefore be subject to the application of any applicable
volume discount as set out above.
Expenses (all Options)
The
expenses stated by the
Employer are:
•
Reasonable transport costs required and approved in advance by the
Employer but
excluding any transport costs to any office of the
Consultant or any office or construction
site of the Employer or any contractor of the Employer.
•
Specialist sub-contracted surveys, intrusive investigation and testing works.
•
Abnormal printing and binding costs.
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Provided that all such
expenses shall only be chargeable when approved in advance by the
Employer.
The following percentage additions shall apply in respect of approved expenses:
Table 4
Category of expense
Percentage addition
A %
B %
C %
D %
Person, Places and Things Provided by the Employer (all Options)
Where the
Consultant’s staff are to be based in the offices of the
Employer, then the
Employer shall provide the following things for use by those 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
• CAD software – DGN XM/Microstation format within a Bentley Projectwise XM
implementation.
• Relevant design software
•
Crossrail specific safety training (the Employer shall not however provide any
industry standard safety training required for the role being undertaken by the
Consultant’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 Consultant’s staff).
Where the
Consultant’s staff are to be based in the offices of the
Consultant, then
Employer shall
provide the following things for use by those staff:
•
Crossrail specific safety training (the
Employer shall not however provide any
industry standard safety training required for the role being undertaken by the
Consultant’s staff nor Network Rail, London Underground or Docklands Light
Railway safety training or infrastructure access qualifications or the like).
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•
Crossrail unique software systems training (the
Employer shall not however
provide any industry standard software training required for the role being
undertaken by the
Consultant’s staff).
either
Option X20: Incentive Schedule
[
]
or
Option X12: Partnering
[Partnering Information]
[Schedule of Partners]
Invoicing
Prior to the submission of each invoice the
Consultant and the
Employer should, as far as possible,
discuss and agree the amount due and to be invoiced by the
Consultant.
Details to be included within invoices:
Option C and E
The
Consultant 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.
For the purposes of the above the
Consultant 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
Option
A
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The
Consultant shall include information within each invoice to demonstrate to the
Employer
how the amount has been assessed including details of:
•
Approvals or acceptance from the
Employer or Others required by the Scope for
each activity
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Appendix 3
Service Delivery Plan
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Appendix 4
Design Package Budget
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ANNEXURE 8
Package Order Conditions of Contract
nec 3
CROSSRAIL
Package Order Conditions of Contract
Professional Services Contract
Terms and Conditions
This contract should be used for the appointment of a supplier to
provide professional services
An NEC document
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CONTENTS
Acknowledgements
iv
Core clauses 1 General
3
2
The Parties' main responsibilities
10
3 Time
14
4 Quality
17
5 Payment
18
6 Compensation
events
20
7
Rights to material
26
8
Indemnity, insurance and liability
34
9 Termination
36
Main Option clauses A
Priced contract with activity schedule
39
C Target
contract
41
E
Time based contract
44
Dispute resolution W2 Option
W2
47
Secondary Option clauses X1
Price Adjustment for inflation
X8 Collateral
warranty
agreements
49
X10 Employer's
Agent
X12 Partnering
49
X20 Incentives
50
Y(UK)3
The Contracts (Rights of Third Parties) Act 1999
52
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CORE CLAUSES
1 General
Actions 10
10.1 The
Employer and the
Consultant 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 identified in
the Contract Data 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 the schedule to the Framework
Agreement.
(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
Consultant 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
Consultant is to do by the Completion
Date is not stated in the Scope, Completion is when the
Consultant has done all the work necessary for the
Employer to use the
services and for Others to do their work and so
there are no notified or patent Defects.
(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,
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operational or otherwise, in whatever form and whether
or not recorded in any way) relating to the
Employer or
the Programme;
(10) Consultant Information means information provided or
made available to the
Employer by the
Consultant and
recorded in any form held by the
Employer or held by
the
Consultant 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 Design Package Budget is the
Employer's budget for
the Design Package a copy of which is at Appendix 4 to
the Package Order.
(14)
The
Design Package is the works package in relation to
which the
Consultant shall Provide the Services.
(15) The Dispute Board is the board of experts referred to in
the Dispute Board Procedure.
(16) The Dispute Board Procedure is the procedure annexed
to the Framework Agreement.
(17) 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;
(18) Foreground Rights means all Intellectual Property rights
developed by either party (and in the case of the
Consultant any Intellectual Property developed by any
Subconsultant to the
Consultant) under or in connection
with this contract and/or the services, including but not
limited to all Intellectual Property rights in the Materials;
(19) The Framework Agreement is the framework agreement
between the
Employer and the
Consultant in relation to
the provision of design services for the Programme and
identified in the Contract Data.
(20) Information Request means a request for information
under the FOI Legislation;
(21) 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
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registration of any of the foregoing), rights in 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;
(22) 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.
(23) 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;
(24) 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.
(25) LUL Requirements means those requirements of London
Underground Limited annexed to the Framework
Agreement;
(26) Materials means all documents, items, information, data,
reports, drawings, specifications, plans, software,
designs, inventions and/or other material produced or
supplied by the
Consultant as part of or in connection
with the
services and/or this contract;
(27) 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);
(28) Others are people or organisations who are not the
Employer, the
Consultant, the
Guarantor, the
Adjudicator or any employee, Subconsultant or supplier
of the
Consultant.
(29) The Package Order is the document in which these
conditions are incorporated by reference, executed
pursuant to the Framework Agreement by the
Employer
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and the
Consultant under which the
Consultant has
agreed to Provide the Services.
(30) The Parties are the
Employer and the
Consultant.
(31) The Policies are the
Employer's Policies and any other
such policies of which the
Employer notifies the
Consultant.
(32) 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
Requirements of Transport for London and the Secretary
of State for Transport;
(33) 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 other
suppliers of services similar to the services or with
other actual or potential bidders for this contract.
(34) 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
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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;
(35) 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.
(36) The Resource Schedule is the schedule of staff
resources within the Service Delivery Plan or any further
resource schedule agreed by the
Employer.
(37) The Risk Register is a register of the risks which are
listed in the Contract Data and the risks which the
Employer or the
Consultant 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.
(38) The Scope is information which either
•
specifies and describes the
services or
•
states any constraints on how the
Consultant
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
(39) 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
Consultant may agree.
(40) Standards are 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 by the
British Standards Institution.
(41) A Subconsultant is a person or organisation who has a
contract with the
Consultant to provide part of the
services.
(42) Third Party Agreements are such agreements notified to
the
Consultant 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.
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(43) Third Party Rights means all Intellectual Property rights
which are not owned by the
Employer or the
Consultant
but required either (a) by the
Consultant 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;
(44) 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.
Interpretation and 12
the law
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.
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, the Framework Agreement and all other related
Package Orders are the entire agreement between the Parties
and supersede all previous agreements between the Parties
relating to the subject matter of this contract the Framework
Agreement and the other Package Orders 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
Consultant acknowledges that
TfL is a best value authority
for the purposes of the Local Government Act 1999 and as
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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
Consultant 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 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
Consultant to
reply to a communication, unless otherwise stated in this
contract, he replies within the
period for reply.
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13.4 The
Employer replies to a communication submitted or
resubmitted to him by the
Consultant for acceptance. If his
reply is not acceptance, the
Employer states his reasons and
the
Consultant 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
Consultant's submission fully.
13.5 The
Employer may extend the
period for reply to a
communication if the
Employer and the
Consultant (acting
reasonably) agree to the extension before the reply is due. The
Employer notifies the
Consultant of the extension which has
been agreed.
13.6 The
Consultant retains copies of drawings, specifications,
reports and other documents which record the
services for the
period for retention. The 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
Consultant. 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 or the
Employer's Agent, nor any enquiry or
inspection which the
Employer or the
Employer's Agent makes
or has carried out for its benefit or on its behalf at any time,
operates to reduce, extinguish, exclude, limit or modify the
Consultant'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
Consultant 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.
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The
Consultant may give an early warning by notifying the
Employer of any other matter which could increase the
Consultant's total cost. The
Employer 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
Consultant 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 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
Employer revises the Risk Register to record the decisions
made at each risk reduction meeting and issues the revised
Risk Register to the
Consultant. If a decision needs a change
to the Scope, the
Employer instructs the change at the same
time as he issues the revised Risk Register. For the avoidance
of doubt, the
Consultant'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
Consultant 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
Consultant 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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Prevention 18
Not Used.
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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
Consultant which
changes the Scope or a Key Date. 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
Consultant
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
Consultant
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 Consultant's 21
obligations
21.1 The
Consultant 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 without limiting the
foregoing in accordance with LUL Requirement
s; 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;
•
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; and
•
such that the Design Package is designed so that it can
be constructed so as not to exceed the Design Package
Budget.
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21.2 The
Consultant'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 in size,
scope and complexity to the Programme.
21.3 The
Consultant is a designer for the purposes of the
Construction (Design and Management) Regulations 2007 and
shall in Providing the Services perform all the functions and
duties of a designer under such Regulations.
21.4 The
Consultant 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
Consultant:
•
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
Consultant 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
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good relations between persons of different racial groups. In
the performance of the contract, the
Consultant 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.
21.7 The
Consultant 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
Consultant 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
Consultant:
•
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
Consultant 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’
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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
and in the performance of the contract, the
Consultant, 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
Consultant 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
Consultant 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
Consultant to remove a person
employed by the
Consultant or a Subconsultant. The
Consultant then arranges that, after one day, the person has
no further connection with the work included in this contract.
22.3 The
Consultant 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
C
onsultant 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
the
Consultant wishes to employ other persons to Provide
the Services the
Consultant notifies the
Employer. The
Employer may (in his absolute discretion) require the
Consultant not to employ any such other person to Provide the
Services.
Working with the 23
Employer and Others
23.1 The
Consultant 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
Consultant holds
or attends meetings with Others. The
Consultant informs the
Employer of these meetings beforehand and the
Employer may attend them.
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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
•
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
Consultant. 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
Consultant 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 and the Service Delivery Plan.
(3)
The
Consultant 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
Consultant shares any Premises provided
by the
Employer with Others as instructed by the
Employer.
Subconsulting 24
24.1 If
the
Consultant 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
Consultant's.
24.2 The
Consultant 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
Consultant to Provide the Services. The
Consultant does
not appoint a proposed Subconsultant until the
Employer has
accepted him.
24.3 The
Consultant 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
Consultant 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
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•
they will not allow the
Consultant 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
Employer the
Consultant 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
Consultant shall procure that it (where appropriate) and
each Subconsultant shall enter into collateral warranties in the
forms set out in Annexure 9 to the Framework Agreement in
favour of each of the
Employer, [
LUL/Tubelines/Network
Rail/DLR] within 14 days of the
Employer's request to do so.
Other 25
responsibilities
25.1 The
Consultant 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
Consultant 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
Consultant obeys an instruction which is in accordance
with this contract and is given to him by the
Employer.
25.4 The
Consultant acts in accordance with the health and safety
requirements stated in the Scope.
25.5
The Consultant 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 26 The
Consultant 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.
Novation 27
27.1 The
Consultant shall 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. 4[The
Consultant executes and delivers to the
4 Systems designer only
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Employer a deed of novation in the form annexed to the
Framework Agreement with the
Employer and a contractor (as
the
Employer directs) within fourteen days of the Employer's
request and shall deliver to such contractor a guarantee of its
obligations in the form annexed to the Framework Agreement]
27.2 If
the
Consultant does not execute and deliver such deed of
novation to the
Employer within such time
period then no
further payment is due to the
Consultant until the
Consultant has executed and delivered such deed of novation to the
Employer.
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3 Time
Starting, Completion 30
and Key Dates
30.1 The
Consultant 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
Consultant 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
Consultant submits a first programme to the
Employer for
acceptance within the period stated in the Contract Data.
31.2 The
Consultant 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 work which the
Consultant
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
Consultant or, if
not so agreed, as stated in the Scope,
•
the dates when the
Consultant 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
Consultant will
need
•
access to a person, place or thing if later than
its
access date,
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•
information and things to be provided by the
Employer and
•
information and approval from Others,
•
for each operation, a statement of how the
Consultant
plans to do the work identifying the resources which he
plans to use and
•
other information which the Scope requires the
Consultant to show on a programme submitted for
acceptance.
31.3
Within two weeks of the
Consultant submitting a programme
to him for acceptance, the
Employer either accepts the
programme or notifies the
Consultant of his reasons for not
accepting it. A reason for not accepting a programme is that
•
the
Consultant's plans which it shows are not
practicable,
•
it does not show the information which this contract
requires,
•
it does not represent the
Consultant's plans realistically
or
•
it does not comply with the Scope.
Revising the 32
programme
32.1 The
Consultant 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
Consultant plans to deal with any delays and to
correct notified Defects and
•
any other changes which the
Consultant proposes to
make to the Accepted Programme.
32.2 The
Consultant submits a revised programme to the
Employer
for acceptance
•
within the
period for reply after the
Employer has
instructed him to,
•
when the
Consultant 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.
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Instructions to stop 33
or not to start work
33.1 The
Employer may instruct the
Consultant 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
Consultant 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
Consultant submits details of his
assessment with each quotation.
34.2 The
Consultant submits a quotation or gives his reasons for not
doing so within the
period for reply.
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4 Quality
Quality management 40
system
40.1 The
Consultant 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
Consultant 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
Consultant complies with an instruction from the
Employer
to the
Consultant to correct a failure to comply with the quality
plan.
Correcting Defects 41
41.1 Until
the
defects date, the
Employer notifies the
Consultant of
each Defect as soon as he finds it and the
Consultant notifies
the
Employer of each Defect as soon as he finds it. After
Completion and until the
defects date, the
Consultant 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
Consultant corrects a Defect whether or not the
Employer
notifies him of it. The
Consultant corrects Defects within a time
which minimises the adverse effect on the
Employer or Others.
If the
Consultant 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
Consultant pays this amount.
41.3
For the avoidance of doubt, the
Consultant 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
Consultant assesses the amount due and submits an
invoice at each assessment date. The first assessment date is
decided by the
Consultant 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
Consultant include the details stated
in Appendix 2 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
Consultant in Providing the Services and
•
other amounts to be paid to the
Consultant
•
less amounts to be paid by or retained from the
Consultant.
Any tax which the law requires the
Employer to pay to the
Consultant 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
Consultant'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
Consultant 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. If there is more than one
reason, the amount for each reason is stated.
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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
Consultant may suspend his performance under
this
contract.
(2) The
Consultant 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
Consultant to suspend his performance
ends when the amount that should be paid to the
Consultant is paid to him in full.
51.4 If
the
Consultant 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
Consultant's assessment
of the amount due, he notifies the
Consultant 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
Consultant 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.
51.8
Interest is calculated on a daily basis at the
interest rate and is
compounded annually.
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6 Compensation
events
Compensation 60
events
60.1
The following are compensation events.
(1)
The
Employer gives an instruction changing the Scope.
(2)
The
Employer does not provide access to a person, place
or thing for the
Consultant 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
Consultant within the period required by this
contract.
(7)
The
Employer changes a decision which he has
previously communicated to the
Consultant.
(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
Consultant 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
Consultant notifies the
Employer of the compensation event at the time of
receiving the instruction or the change to the earlier decision.
The
Employer then instructs the
Consultant to submit
quotations, unless the event arises from a fault of the
Consultant or quotations have already been submitted. The
Consultant puts the instruction or changed decision into effect.
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61.2 The
Employer may instruct the
Consultant to submit
quotations for a proposed instruction or a proposed changed
decision. The
Consultant does not put a proposed instruction or
a proposed changed decision into effect.
61.3
Subject to clause 61.8, the
Consultant notifies the
Employer of
an event which has happened or which he expects to happen
as a compensation event if the
Consultant believes that the
event is a compensation event.
If
the
Consultant 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
Consultant
•
arises from or is contributed to by a fault of the
Consultant,
•
has not happened and is not expected to happen,
•
has no effect upon the
Consultant's costs, Completion or
meeting a Key Date or
•
is not one of the compensation events stated in this
contract
he notifies the
Consultant 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
Consultant
accordingly and instructs him to submit quotations.
61.5 If
the
Employer decides that the
Consultant did not give an
early warning of the event which an experienced consultant
could have given, he notifies this decision to the
Consultant 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
Consultant to submit quotations. Assessment of the event is
based on these assumptions. If any of them is later found to
have been 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
Consultant 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.
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Quotations for 62
compensation
events
62.1
After discussing with the
Consultant different ways of dealing
with the compensation event which are practicable, the
Employer may instruct the
Consultant to submit alternative
quotations. The
Consultant 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
Consultant. The
Consultant submits details of his assessment with each quotation. If the
programme for remaining work is altered by the compensation
event, the
Consultant includes the alterations to the Accepted
Programme in his quotation.
62.3
The
Consultant 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
Consultant to submit a revised
quotation only after explaining his reasons for doing so to the
Consultant. The
Consultant submits the revised quotation
within three weeks of being instructed to do so.
62.5
The
Employer extends the time allowed for
•
the
Consultant to submit quotations for a compensation
event and
•
the
Employer to reply to a quotation
if the
Employer and the
Consultant agree to the extension
before the submission or reply is due. The
Employer notifies
the extension that has been agreed to the
Consultant.
Assessing 63
compensation
events
63.1
The changes to the Prices are assessed as the effect of the
compensation event upon
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•
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
Consultant 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
Consultant 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
Consultant 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
Consultant of his decision that
the
Consultant did not give an early warning of a compensation
event which an experienced consultant could have given, the
event is assessed as if the
Consultant had given early warning,
thereby enabling the
Employer to have taken 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
Consultant's risk
under this contract.
63.7
Assessments for work not yet done are based upon the
assumptions that the
Consultant 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
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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
Consultant to insure and
•
other costs paid to the
Consultant by insurers.
The Employer's 64
assessments
64.1
The
Employer assesses a compensation event
•
if the
Consultant has not submitted a required quotation
and details of his assessment within the time allowed,
•
if the
Employer decides that the
Consultant has not
assessed the compensation event correctly in a
quotation and he does not instruct the
Consultant to
submit a revised quotation,
•
if, when the
Consultant submits quotations for a
compensation event, he has not submitted a
programme or alterations to a programme which this
contract requires him to submit or
•
if, when the
Consultant submits quotations for a
compensation event, the
Employer has not accepted the
Consultant'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
Consultant has not submitted a programme or
alterations to a programme for acceptance as required
by this contract.
64.3
The
Employer notifies the
Consultant of his assessment of a
compensation event and gives him details of it within the
period allowed for the
Consultant'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
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•
the
Employer notifies his acceptance of the
Consultant's
quotation,
•
the
Employer notifies the
Consultant of his own
assessment or
•
a
Consultant'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.
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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
Consultant 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
Consultant may request the
Employer's consent to
use or to incorporate the
Consultant'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
Consultant 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
Consultant or any Subconsultant or other third party engaged by the
Consultant in performing this contract, the
Consultant 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 present or
future Materials immediately upon creation.
70B.2 The
Consultant shall in engaging or employing any
Subconsultant enter into an enforceable written contract with
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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
Consultant against such Subconsultant
pursuant to the terms of the Contracts (Rights of Third
Parties) Act 1999;
70B.3 The
Consultant shall provide a copy of any contract proposed
pursuant to clause 70B.2 to the
Employer's Agent for approval
and authorisation prior to entry into or execution of the same.
70B.4 The
Consultant 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
Consultant 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
Consultant 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
Consultant 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
Consultant shall use its best endeavours to ensure that it
is a condition of any licence into which the
Consultant or any
Subconsultant enters with a 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
Consultant in connection with the
services shall continue for a
period of 24 months from expiry or termination of this
contract. The
Consultant shall use its best endeavours to
ensure that all licences for Third Party Rights that are not
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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
Consultant 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
Consultant 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
Consultant or Subconsultant in similar circumstances.
Licence from the 70D
Employer
The
Employer hereby grants to the
Consultant 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
Consultant 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
Consultant under this clause 70D are carried out by or on
behalf of the
Consultant in Providing the Services, the
Consultant 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
70E.1 The
Consultant warrants that:
(a)
it is the beneficial owner of its Background Rights; and
(b) the
Employer's use of the
Consultant's Background
Rights or any Foreground Rights developed or supplied
by the
Consultant pursuant to this contract will not
infringe Intellectual Property owned by any third party.
70E.2 The
Consultant 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:
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(a)
Intellectual Property rights licensed by the
Consultant to
the
Employer under this clause 70; or
(b) the Foreground Rights developed or supplied by the
Consultant under this contract;
infringes the Intellectual Property rights of any third party.
Infringements 70F
The
Consultant 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
Consultant as expressed in this contract. Should any such Intellectual
Property rights of a third party come to the notice of the
Consultant, then the
Consultant 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
Consultant, the
Employer shall make the
final decision. the
Employer and the
Consultant 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
Consultant shall provide 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
Consultant 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
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70H.1 The
Consultant 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
Consultant 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
Consultant 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
Consultant shall ensure that any contracts between the
Consultant and any Subconsultant impose obligations on the
Sub-consultant which are identical in effect to the obligations
imposed on the
Consultant under this clause 70.
70I.4 The
Consultant agrees to provide all assistance reasonably
requested by the
Employer on termination or 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
Consultant 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
Consultant being a party to this
contract.
Data Protection 72
72.1 (a)
The
Consultant 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
Consultant shall only act in accordance with
instructions from the
Employer in relation to the
Employer Personal Data.
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(b)
The
Consultant 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
Consultant 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
Consultant, 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
Consultant, its
employees, agents, Subconsultants, or any other third party to
whom it has disclosed Employer Personal Data.
Access to 73
Information
73.1 The
Consultant 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 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
Consultant shall ensure that
such representatives have full and free access (including
access to the
Consultant's premises) and licence to use such
information in order to facilitate the operation of this clause
but the
Consultant shall not be obliged to supply any
information which would be treated as privileged in any
proceedings.
Freedom of 74
Information
74.1 The
Consultant 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
Consultant from objecting to a disclosure of
Consultant Information.
74.2 The
Employer shall be responsible for determining whether
Consultant Information is exempt information under the FOI
Legislation and for determining what
Consultant Information
will be disclosed in that respect to an Information Request in
accordance with the FOI Legislation. The
Consultant shall not
itself respond to any person making an Information Request,
save to acknowledge receipt, unless expressly authorised to do
so by the
Employer.
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74.3 The
Consultant acknowledges that the
Employer may be
obliged under the FOI Legislation to disclose
Consultant Information.
Confidential 75
Information
75.1
Subject to the other provisions of and as expressly permitted
by this clause 75, the
Consultant:
(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
Consultant may disclose any
Confidential Information to the following parties in the
following circumstances:
(a)
to any officer or servant of the
Consultant or any person
engaged in the provision of goods or services to or for
him if disclosure is necessary to enable the
Consultant 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
Consultant to the
Employer's
reasonable satisfaction to have been known by the
Consultant before disclosure by the
Employer.
75.4
Before disclosure of any Confidential Information, the
Consultant shall ensure that the recipient is made aware of and
complies with the
Consultant'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
Consultant acknowledges and agrees
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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
Consultant 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
Consultant 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
Consultant indemnifies the
Employer against 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
Consultant of things provided by the
Employer);
arising from the
Consultant's Providing the Services.
Insurance cover 81
81.1
The
Consultant 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
Consultant for
The amount stated in the
claims made against him
Contract Data
arising out of his failure to use
the skill care and diligence
required by the contract
Liability for death of or bodily
The amount stated in the
injury to a person (not an
Contract Data for any one
employee of the
Consultant)
event
or loss of or damage to
property resulting from an
action or failure to take action
by the
Consultant
Liability for death of or bodily
The greater of the amount
injury to employees of the
required by the applicable law
Consultant arising out of and
and the amount stated in the
in the course of their
Contract Data for any one
employment in connection
event
with this contract
81.2
When requested by a Party the other Party provides
certificates from his insurer or broker stating that the
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insurances required by this contract are in force.
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9 Termination
Termination 90
90.1
Either Party may terminate the
Consultant'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
Consultant may terminate his employment by notifying the
Employer if the
Employer has not paid an amount due to the
Consultant within eight weeks of the issue of a notice by the
Consultant to the
Employer confirming that the final date for
payment of such amount has passed.
90.3 The
Employer may terminate the
Consultant's employment by
notifying the
Consultant if
•
the
Employer no longer requires the
Consultant to
Provide the Services or
•
the
Consultant has failed to comply with his obligations
or
•
the Consultant commits a Prohibited Act.
90.4 The
Employer may terminate the
Consultant's employment by
notifying the
Consultant if an event occurs which
•
stops the
Consultant completing the
services or
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•
stops the
Consultant 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
Consultant 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
Consultant to assign the
benefit of any subconsultancy or other contract related
to performance of this contract to the
Employer and
•
the
Consultant gives to the
Employer or the
Employer's
nominee information resulting from work carried out to
date and information the
Consultant 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
Consultant 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
Consultant's employment
under this contract or the omission of any of the
services, the
Consultant shall co-operate with the
Employer and shall
provide to him all reasonable assistance to facilitate the
handover or transfer of any of the
Consultant'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
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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
Consultant or
•
failure of the
Consultant 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
Consultant as a debt.
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MAIN OPTION CLAUSES
Option A: Priced contract with activity schedule
Identified and 11
defined terms
11.2
(42) The Activity Schedule is the
activity schedule unless later
changed in accordance with this contract.
(43) The Price for Services Provided to Date is the total of the
Prices for the activities which have been completed. A
completed activity is one which is without Defects.
(44) The Prices are the lump sum prices for each of the
activities on the Activity Schedule unless later changed
in accordance with this contract.
The Consultant's 21
obligations
21.10 The
Consultant prepares forecasts of the total
expenses for the
whole of the
services and submits them to the
Employer.
Forecasts are prepared at the intervals stated in the Contract
Data from the
starting date until Completion of the whole of
the
services. An explanation of the changes made since the
previous forecast is submitted with each forecast.
The programme 31
31.4
The
Consultant provides information which shows how each
activity on the Activity Schedule relates to the operations on
each programme which he submits for acceptance.
Acceleration 34
34.3
When
the
Employer accepts a quotation for an acceleration, he
changes the Prices, the Completion Date and the Key Dates
accordingly and accepts the revised programme.
Accounts and 52
records
52.1
The
Consultant keeps accounts and records of his
expenses and allows the
Employer to inspect them at any time within
working hours.
The Activity 53
Schedule
53.1
Information in the Activity Schedule is not Scope.
53.2
if
the
Consultant changes a planned method of completing the
services at his discretion so that the Activity Schedule does not
comply with the Accepted Programme, he submits a revision of
the Activity Schedule to the
Employer for acceptance.
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53.3
A reason for not accepting a revision of the Activity Schedule is
that
•
it does not comply with the Accepted Programme,
•
any changed Prices are not reasonably distributed
between the activities or
•
the total of the Prices is changed.
Quotations for 62
compensation
events
62.6
The cost of preparing quotations for compensation events is
not included in the assessment of compensation events.
Assessing 63
compensation
events
63.12
If the effect of a compensation event is to reduce the total
Time Charge and the event is
•
a change to the Scope or
•
a correction of an assumption stated by the
Employer
for assessing an earlier compensation event,
the Prices are reduced.
63.13
Assessments for changed Prices for compensation events are
in the form of changes to the Activity Schedule.
Implementing 65
compensation
events
65.3
The changes to the Prices, the Completion Date and the Key
Dates are included in the notification implementing a
compensation event.
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Option C: Target contract
Identified and 11
defined terms
11.2
(42) The Activity Schedule is the
activity schedule unless later
changed in accordance with this contract.
(43) The Price for Services Provided to Date is the Time
Charge for the work which has been completed.
Completed work is work completed without Defects.
(44) The Prices are the lump sum prices for each of the
activities on the Activity Schedule unless later changed
in accordance with this contract.
The Consultant's 21
obligations
21.10 The
Consultant prepares forecasts of the total Time Charge
and
expenses for the whole of the
services and submits them
to the
Employer. Forecasts are prepared at the intervals stated
in the Contract Data from the
starting date until Completion of
the whole of the
services. An explanation of the changes made
since the previous forecast is submitted with each forecast.
The programme 31
31.4
The
Consultant provides information which shows how each
activity on the Activity Schedule relates to the operations on
each programme which he submits for acceptance.
Acceleration 34
34.3
When
the
Employer accepts a quotation for an acceleration, he
changes the Prices, the Completion Date and the Key Dates
accordingly and accepts the revised programme.
Assessing the 50
amount due
50.4
Payments of Time Charge made by the
Consultant in a
currency other than the
currency of this contract are included
in the amount due as payments to be made to him in the same
currency. Such payments are converted to the
currency of this
contract in order to calculate the
Consultant's share using the
exchange rates.
Accounts and 52
records
52.1
The
Consultant keeps accounts and records of his Time Charge
and
expenses and allows the
Employer to inspect them at any
time within working hours.
The Activity 53
Schedule
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53.1
Information in the Activity Schedule is not Scope.
53.2
If
the
Consultant changes a planned method of completing the
services at his discretion so that the Activity Schedule does not
comply with the Accepted Programme, he submits a revision of
the Activity Schedule to the
Employer for acceptance.
53.3
A reason for not accepting a revision of the Activity Schedule is
that
•
it does not comply with the Accepted Programme,
•
any changed Prices are not reasonably distributed
between the activities or
•
the total of the Prices is changed.
The Consultant's 54
share
54.1
The
Employer assesses the
Consultant's share of the difference
between the total of the Prices and the Price for Services
Provided to Date. The difference is divided into increments
falling within each of the
share ranges. The limits of a
share
range are the Price for Services Provided to Date divided by
the total of the Prices, expressed as a percentage. The
Consultant's share equals the sum of the products of the
increment within each
share range and the corresponding
Consultant's share percentage.
54.2
If the Price for Services Provided to Date is less than the total
of the Prices, the
Consultant is paid his share of the saving. If
the Price for Services Provided to Date is greater than the total
of the Prices, the
Consultant pays his share of the excess.
54.3
The
Employer makes a preliminary assessment of the
Consultant's share at Completion of the whole of the
services using his forecasts of the final Price for Services Provided to
Date and the final total of the Prices. This share is included in
the amount due following Completion of the whole of the
services.
54.4
The
Employer makes a final assessment of the
Consultant's
share using the final Price for Services Provided to Date and
the final total of the Prices. This share is included in the final
amount due.
Assessing 63
compensation
events
63.12
If the effect of a compensation event is to reduce the total
Time Charge and the event is
•
a change to the Scope, other than a change to the
Scope which the
Consultant proposed and the
Employer has accepted or
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•
a correction of an assumption stated by the
Employer
for assessing an earlier compensation event,
the Prices are reduced.
63.13
Assessments for changed Prices for compensation events are
in the form of changes to the Activity Schedule.
Implementing 65
compensation
events
65.3
The changes to the Prices, the Completion Date and the Key
Dates are included in the notification implementing a
compensation event.
Payment on 92
termination
92.3
If there is a termination, the
Employer assesses the
Consultant's share.
The
Employer's assessment of the
Consultant's share is added
to the amount due to the
Consultant on termination if there
has been a saving or deducted if there has been an excess.
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Option E: Time based contract
Identified and 11
defined terms
11.2
(42) The Price for Services Provided to Date is the Time
Charge for the work which has been completed.
Completed work is work completed without Defects.
(43) The Prices are the Time Charge.
The Consultant's 21
obligations
21.10 The
Consultant prepares forecasts of the total Time Charge
and
expenses for the whole of the
services and submits them
to the
Employer. Forecasts are prepared at the intervals stated
in the Contract Data from the
starting date until Completion of
the whole of the
services. An explanation of the changes made
since the previous forecast is submitted with each forecast.
Acceleration 34
34.3
When
the
Employer accepts a quotation for an acceleration, he
changes the Completion Date, the Key Dates and the forecast
of the total Time Charge for the whole of the
services accordingly and accepts the revised programme.
Assessing the 50
amount due
50.4
Payments of Time Charge made by the
Consultant in a
currency other than the
currency of this contract are included
in the amount due as payments to be made to him in the same
currency. Such payments are converted to the
currency of this
contract in order to calculate the
Consultant's share using the
exchange rates.
Accounts and 52
records
52.1
The
Consultant keeps accounts and records of his Time Charge
and
expenses and allows the
Employer to inspect them at any
time within working hours.
Implementing 65
compensation
events
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.
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DISPUTE RESOLUTION
Option 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
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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 immediately following the Contract Date and on
each anniversary of 1 April, the
Consultant 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 Contract Date.
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 immediately following the
Contract Date 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
Option C
immediately following the Contract Date, an 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 first anniversary 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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If staff rates are variable with changes in salary paid to
individuals.
Price adjustment X1
factor
X1.1
On 1 April immediately following the Contract Date and on
each anniversary of 1 April, the
Consultant 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 Contract Date.
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 immediately following the
Option A
Contract Date 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
Option C
immediately following the Contract Date, an 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 first anniversary 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
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factor calculated at the last anniversary and
•
the amount for
expenses adjustment included in the
previous amount due.
Option X8: Collateral warranty agreements
Collateral warranty X85
agreements
X8.1 [
Assume warranties or third party rights in favour of:
•
LUL – identified packages
•
NR – identified packages
•
Tubelines – identified packages
•
DLR – identified packages
•
[a contractor - from the systems designer only,
in relation to certain packages only.]
•
[the Employer – from the systems designer only
in relation to certain package only if novated to
a contractor.]]
Option X10: Employer's Agent
Employer's Agent X10
X10.1 The
Employer's
Agent acts on behalf of the
Employer with the
authority set out in the Contract Data.
X10.2 The
Employer may replace the
Employer's
Agent after he has
notified the
Consultant of the name of the replacement.
Option X12: Partnering
Identified and X12
defined terms
X12.1 (1) The Partners are those named in the Schedule of
Partners. The
Client is a Partner.
(2)
An Own Contract is a contract between two Partners
which includes this Option.
5 Beneficiaries of warranties are to be confirmed for specific packages. The forms of warranties which have been included are
such forms as are available to CLRL’s solicitors which have previously been approved by the relevant beneficiaries
but will require specific approval here.
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(3)
The Core Group comprises the Partners listed in the
Schedule of Core Group Members.
(4) Partnering Information is information which specifies
how the Partners work together and is either in the
documents which the Contract Data states it is in or in
an instruction given in accordance with this contact.
(5) A Key Performance Indicator is an aspect of
performance for which a target is stated in the Schedule
of Partners.
Actions X12.2
(1)
Each Partner works with other Partners to achieve the
Client's
objective stated in the Contract Data and the
objectives of every other Partner stated in the Schedule
of Partners.
(2)
Each Partner nominates a representative to act for him
in dealings with other Partners.
(3)
The Core Group acts and takes decisions on behalf of
the Partners on those matters stated in the Partnering
information.
(4)
The Partners select the members of the Core Group. The
Core Group decides how they will work and decides the
dates when each member joins and leaves the Core
Group. The
Client's representative leads the Core Group
unless stated otherwise in the Partnering Information.
(5) The Core Group keeps the Schedule of Core Group
Members and the Schedule of Partners up to date and
issues copies of them to the Partners each time either is
revised.
(6)
This Option does not create a legal partnership between
Partners who are not one of the Parties in this contract.
Working together X12.3
(1)
The Partners work together as stated in the Partnering
Information and in a spirit of mutual trust and co-
operation.
(2) A Partner may ask another Partner to provide
information which he needs to carry out the work in his
Own Contract and the other Partner provides it.
(3) Each Partner gives an early warning to the other
Partners when he becomes aware of any matter that
could affect the achievement of another Partner's
objectives stated in the Schedule of Partners.
(4)
The Partners use common information systems as set
out in the Partnering Information.
(5)
A Partner implements a decision of the Core Group by
issuing instructions in accordance with its Own
Contracts.
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(6)
The Core Group may give an instruction to the Partners
to change the Partnering Information.
(7)
The Core Group prepares and maintains a timetable
showing the proposed timing of the contributions of the
Partners. The Core Group issues a copy of the timetable
to the Partners each time it is revised. The
Consultant changes his programme if it is necessary to do so in
order to comply with the revised timetable. Each such
change is a compensation event which may lead to
reduced Prices.
(8)
A Partner gives advice, information and opinion to the
Core Group and to other Partners when asked to do so
by the Core Group. This advice, information and opinion
relates to work that another Partner is to carry out
under its Own Contract and is given fully, openly and
objectively. The Partners show contingency and risk
allowances in information about costs, prices and timing
for future work.
(9)
A Partner notifies the Core Group before subcontracting
any work,
Incentives X12.4
(1)
A Partner is paid the amount stated in the Schedule of
Partners if the target stated for a Key Performance
Indicator is improved upon or achieved. Payment of the
amount is due when the target has been improved upon
or achieved and is made as part of the amount due in
the Partner's Own Contract.
(2)
The
Client may add a Key Performance Indicator and
associated payment to the Schedule of Partners but may
not delete or reduce a payment stated in the Schedule
of Partners.
Option X20: Incentives
Incentives X20
X20.1
A Key Performance Indicator is an aspect of performance by
the
Consultant for which a target is 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
Consultant reports to the
Employer his performance against each of the
Key Performance Indicators. 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
Consultant’s forecast final measurement against a Key
Performance Indicator will not achieve the target stated in the
Incentive Schedule, he submits his proposals for improving
performance.
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X20.4
The
Consultant is paid the amount stated in the Incentive
Schedule if the target stated for a Key Performance Indicator is
improved upon or achieved. Payment of the amount is due
when the target has been improved upon or achieved.
X20.5
The
Employer may add a Key Performance Indicator and
associated payment to the Incentive Schedule but may not
delete or reduce a payment stated in the Incentive Schedule.
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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ANNEXURE 9
Forms of Warranty6
London Underground Warranty
THIS DEED is made the day of day of 200
BETWEEN: (1)
[
]
whose registered office is at [
] (the
"Consultant"); and
(2)
LONDON UNDERGROUND LIMITED whose principal office is at 55 Broadway, London
SW1H 0BD (the
"Beneficiary")
WHEREAS:
(A)
[
]
(“
the Developer”) has agreed with the Beneficiary
pursuant to an agreement dated [
] (“
the Development Agreement”) to procure
the design and construction of the Works as described in the Development Agreement
(“
the Works”).
(B)
The Consultant has entered into a contract with the Developer dated
[ ]
(“
the
Contract") for the provision of certain services in relation to the Works as more
particularly defined in the Contract (“
the Services").
(C)
The Consultant acknowledges that the Beneficiary has an interest in the proper carrying
out of the Services and has agreed to enter into a direct contractual relationship with the
Beneficiary on the terms contained in this Deed.
NOW THIS DEED WITNESSETH as follows:
1.
In this Deed unless otherwise stated defined terms shall have the same meaning as
ascribed to them in the Contract.
2.
The Consultant hereby covenants with the Beneficiary that:
2.1
it has exercised and will continue to exercise the skill, care and diligence required of it by
the Contract in the performance of its duties under the Contract save and except that the
Consultant shall have no greater liability to the Beneficiary under this Deed than it would
have to the Beneficiary under the Contract if the Beneficiary had been named as a joint
employer in the Contract;
2.2
it has complied and shall continue to comply promptly and efficiently with the terms of
and has fulfilled and will continue to fulfil its duties and obligations referred to in the
Contract including without limitation those pursuant to clause 21.1 thereof; and
2.3
in the design of the Works it has taken due account of the requirements of the Beneficiary
insofar as they have been notified to it by the Employer.
3.
Without prejudice to the generality of clause 2, the Consultant further warrants that it will
specify for use in the Project only materials that are in accordance with (i) the guidelines
contained in the publication "Good Practice in selection of Construction Materials" (1997:
6 These forms of warranties are such forms as are available to CLRL's solicitors which have previously been approved by the
relevant beneficiaries but will require specific approval here. Further forms of warranties will be required for other
beneficiaries.
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Ove Arup & Partners), (ii) the then current form of Volumes 1 and 2 of the Red Book
prepared by the Loss Prevention Certification Board and (iii) applicable British Standards
and Codes of Practice provided that where there is a conflict within or between applicable
British Standards and/or Codes of Practice the Consultant shall exercise the degree of skill
and care required by clause 2.1 to select the relevant Standard or Code, and that it has
used and will continue to use the skill, care and diligence required by clause 2.1 to see
that only such materials have been or will be used in the construction of any part of the
Project.
4.
The Consultant acknowledges that in carrying out or procuring the carrying out of the
Services and its obligations under the Contract, it shall act in accordance with and take
account of the statutory requirements and mandatory standards imposed by legislation or
statutory regulations, including without limitation the Health & Safety At Work Act 1974
(as the same may be amended or re-enacted from time to time) and all other applicable
health and safety legislation) and (to the extent that it is consistent with the standard set
out in clause 2.1), Good Industry Practice applicable to the Consultant and to the
Services.
5.
Without prejudice to the provisions of Clause 2 hereof the Consultant hereby covenants
with the Beneficiary that in relation to any practical completion certificates to be issued by
the Consultant in relation to the Works the Consultant will exercise the degree of skill care
and diligence required of it pursuant to Clause 2.1 hereof having due regard to the
provisions of the contract under which such practical completion certificate is to be issued
and acknowledges that the Beneficiary will be relying upon and will be entitled to rely
upon such practical completion certificate issued by the Consultant on the above basis.
6.
The obligations of the Consultant under this Deed shall not be released diminished or in
any other way affected by any independent enquiry into any relevant matter which may
be made or carried out by or on behalf of the Beneficiary nor by the appointment by the
Beneficiary of any independent firm company or party whatsoever to review the progress
or otherwise report to it in respect of the Works.
7.
The Consultant has effected and will continue to maintain professional indemnity
insurance in an amount of £[
] ([ ] million pounds) for each and every claim or
series of claims arising out of the same event or circumstances which may be made
against the Consultant in respect of the Services for a period of twelve years from the
date of the issue of the certificate of practical completion of the whole of the Works
provided always that such insurance is available at commercially reasonable rates and
upon reasonable commercial terms in the UK market. If such insurance ceases to be
available at commercially reasonable rates and upon reasonable commercial terms the
Consultant shall inform the Beneficiary as soon as possible in which case the Consultant
and the Beneficiary will discuss means of best protecting their respective positions in the
absence of such insurance. When deciding whether such insurances are available at
commercially reasonable rates and on commercially reasonable terms, no account shall be
taken of any increase in the premium or imposition of terms which arise as a result of the
Consultant’s insurance claims record. As and when it is reasonably requested to do so by
the Beneficiary, the Consultant shall produce for inspection documentary evidence in the
form of a broker's letter or certificate (including details of the names of the insurer and
the insured, the policy start and end date, limits of indemnity/sums insured and
deductibles, territory and key extensions and key exclusions of cover) that its professional
indemnity insurance is being maintained and confirm that payment has been made in
respect of the last preceding premium due under it.
8.
Notwithstanding anything herein contained, the Consultant shall not be liable to the
Beneficiary for any breach or breaches of this Deed which is or are the subject matter of
arbitration or litigation proceedings commenced against the Consultant unless such
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proceedings are commenced before the expiry of 12 years from the date of practical
completion of the whole of the Works.
9.
This Deed, the benefit hereof and/or the rights arising hereunder (whether or not
accrued) may be assigned by the Beneficiary twice without the consent of the Consultant
being required. No further assignment shall be permitted without the consent of the
Consultant, such consent not to be unreasonably withheld or delayed. The Consultant
shall do all such acts, deeds and things as may be reasonably necessary to give effect to
any such assignment.
10.
The Consultant shall not be entitled to contend that any person to whom this Deed is
assigned in accordance with clause 9 hereof is precluded from recovering under this Deed
any loss incurred by such assignee resulting from any breach of this Deed (whenever
happening) by reason that such person is an assignee and not a named beneficiary under
this Deed.
11.
The Contracts (Rights of Third Parties) Act 1999 shall not apply to the Deed and no person
other than the parties to this Deed (which term shall for the purposes of this clause
include all permitted assignees or transferees or successors in title) shall have any rights
under it nor shall it be enforceable under the Act by any person other than the parties to
it.
12.
Where the Consultant is a partnership the term "Consultant" includes any additional
partners who may be admitted into the partnership of the Consultant during the currency
of this Deed and the rights, obligations and liabilities to the partners in the Consultant are
joint and several. This Deed shall not automatically terminate upon the death, retirement
or resignation of any partner in the Consultant.
13.
Copyright
13.1
Insofar as the beneficial ownership of copyright is vested in him the Consultant grants the
Beneficiary (and notwithstanding that the Consultant may complete its duties or terminate
its Contract or have its Contract terminated) a royalty free irrevocable, unconditional,
unlimited and non exclusive licence to use and to reproduce all details, plans,
specifications, schedules and other documentation and information prepared or provided
by the Consultant in connection with the Works for any purpose related to the Works
including, but without limitation, the construction, completion, use and maintenance,
letting, promotion, advertisement, reinstatement and repair of the Works and such licence
shall enable the Beneficiary to copy and use such documents for the aforementioned
purposes (including an extension to the Development or the Public Transport Works but
such use shall not include a license to reproduce the designs contained in them for any
such extension) provided that the Consultant shall not be liable for any use of such
documents for any purpose other than that for which it was originally prepared and such
licence shall include the right to grant sub licences and shall be freely assignable by the
Beneficiary.
13.2
Insofar as the beneficial ownership of copyright in the material referred to in 13.1 hereof
is vested in a person other than the Consultant, the Consultant shall use all reasonable
endeavours to procure that the beneficial owner grants to the Beneficiary a licence in such
material or similar terms and for such purposes as are referred to in clause 13.1.
14.
Notices
Any notice to be given hereunder shall be deemed to be duly given if it is in writing and
delivered by hand at or sent by registered post to the registered office or principal place of
business in the United Kingdom for the time being of the party to be served and in the
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case of any such notice sent by registered post shall be deemed to have been received
forty-eight (48) hours after being posted.
15.
Law and Disputes
Any and all disputes and claims between the Beneficiary and the Consultant as to the
construction, interpretation, validity and application of this Deed and any and all matters
or things of whatsoever nature arising out of or in connection therewith shall be governed
by and construed in accordance with English Law and the parties hereby submit to the
jurisdiction of the Courts of England and Wales.
IN WITNESS WHEREOF this Agreement has been duly executed and delivered as a
Deed by the parties hereto on this day and year first before written.
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Tube Lines Warranty
THIS DEED is made the day of * day of * 200*
BETWEEN:
(1)
[
] whose registered office is at [
] (the
"Consultant");
and
(2)
TUBE LINES LIMITED whose principal office is at [ ] (the "Beneficiary")
WHEREAS:
(A)
[
]
(“
the Developer”) has agreed with the Beneficiary
pursuant to an agreement dated [
] (“
the Development Agreement”) to procure
the design and construction of the Works as described in the Development Agreement
(“
the Works”).
(B)
The Consultant has entered into a contract with the Developer dated [ ] (“the Contract")
for the provision of certain services in relation to the Works as more particularly defined in
the Contract (“the Services").
(C)
Pursuant to the terms of the PPP Contract (as defined in the Development Agreement) the
Beneficiary will be responsible for the repair and maintenance of part of the Works.
(D)
The Consultant acknowledges that the Beneficiary has an interest in the proper carrying
out of the Services and has agreed to enter into a direct contractual relationship with the
Beneficiary on the terms contained in this Deed.
NOW THIS DEED WITNESSETH as follows:
1.
In this Deed unless otherwise stated defined terms shall have the same meaning as ascribed
to them in the Contract.
2.
The Consultant hereby covenants with the Beneficiary that:
2.1 it has exercised and will continue to exercise the skill, care and diligence required of it by
the Contract in the performance of its duties under the Contract save and except that the
Consultant shall have no greater liability to the Beneficiary under this Deed than it would have to
the Beneficiary under the Contract if the Beneficiary had been named as a joint employer in the
Contract;
2.2 it has complied and shall continue to comply promptly and efficiently with the terms of and
has fulfilled and will continue to fulfil its duties and obligations referred to in the Contract; and
2.3 in the design of the Works it has taken due account of the requirements of the Beneficiary
insofar as they have been notified to it by the Employer.
3.
Without prejudice to the generality of clause 2, the Consultant further warrants that it will
specify for use in the Project only materials that are in accordance with (i) the guidelines contained
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in the publication "Good Practice in selection of Construction Materials" (1997: Ove Arup &
Partners), (ii) the then current form of Volumes 1 and 2 of the Red Book prepared by the Loss
Prevention Certification Board and (iii) applicable British Standards and Codes of Practice provided
that where there is a conflict within or between applicable British Standards and/or Codes of
Practice the Consultant shall exercise the degree of skill and care required by clause 2.1 to select
the relevant Standard or Code, and that it has used and will continue to use the skill, care and
diligence required by clause 2.1 to see that only such materials have been or will be used in the
construction of any part of the Project.
4.
The Consultant acknowledges that in carrying out or procuring the carrying out of the
Services and its obligations under the Contract, it shall act in accordance with and take account of
the statutory requirements and mandatory standards imposed by legislation or statutory
regulations, including without limitation the Health & Safety At Work Act 1974 (as the same may
be amended or re-enacted from time to time) and all other applicable health and safety legislation)
and (to the extent that it is consistent with the standard set out in clause 2.1), Good Industry
Practice applicable to the Consultant and to the Services.
5.
Without prejudice to the provisions of Clause 2 hereof the Consultant hereby covenants with
the Beneficiary that in relation to any practical completion certificates to be issued by the
Consultant in relation to the Works the Consultant will exercise the degree of skill care and
diligence required of it pursuant to Clause 2.1 hereof having due regard to the provisions of the
contract under which such practical completion certificate is to be issued and acknowledges that
the Beneficiary will be relying upon and will be entitled to rely upon such practical completion
certificate issued by the Consultant on the above basis.
6.
The obligations of the Consultant under this Deed shall not be released diminished or in any
other way affected by any independent enquiry into any relevant matter which may be made or
carried out by or on behalf of the Beneficiary nor by the appointment by the Beneficiary of any
independent firm company or party whatsoever to review the progress or otherwise report to it in
respect of the Works.
7.
The Consultant has effected and will continue to maintain professional indemnity insurance
in an amount of £[ ],000,000 ([ ] million pounds) for each and every claim or series of claims
arising out of the same event or circumstances which may be made against the Consultant in
respect of the Services for a period of twelve years from the date of the issue of the certificate of
practical completion of the whole of the Works provided always that such insurance is available at
commercially reasonable rates and upon reasonable commercial terms in the UK market. If such
insurance ceases to be available at commercially reasonable rates and upon reasonable
commercial terms the Consultant shall inform the Beneficiary as soon as possible in which case the
Consultant and the Beneficiary will discuss means of best protecting their respective positions in
the absence of such insurance. When deciding whether such insurances are available at
commercially reasonable rates and on commercially reasonable terms, no account shall be taken of
any increase in the premium or imposition of terms which arise as a result of the Consultant’s
insurance claims record. As and when it is reasonably requested to do so by the Beneficiary, the
Consultant shall produce for inspection documentary evidence in the form of a broker's letter or
certificate (including details of the names of the insurer and the insured, the policy start and end
date, limits of indemnity/sums insured and deductibles, territory and key extensions and key
exclusions of cover) that its professional indemnity insurance is being maintained and confirm that
payment has been made in respect of the last preceding premium due under it.
8.
Notwithstanding anything herein contained, the Consultant shall not be liable to the
Beneficiary for any breach or breaches of this Deed which is or are the subject matter of
arbitration or litigation proceedings commenced against the Consultant unless such proceedings
are commenced before the expiry of 12 years from the date of practical completion of the whole of
the Works.
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9.
This Deed, the benefit hereof and/or the rights arising hereunder (whether or not accrued)
may be assigned by the Beneficiary twice without the consent of the Consultant being required.
No further assignment shall be permitted without the consent of the Consultant, such consent not
to be unreasonably withheld or delayed. The Consultant shall do all such acts, deeds and things as
may be reasonably necessary to give effect to any such assignment.
10. The Consultant shall not be entitled to contend that any person to whom this Deed is
assigned in accordance with clause 9 hereof is precluded from recovering under this Deed any loss
incurred by such assignee resulting from any breach of this Deed (whenever happening) by reason
that such person is an assignee and not a named beneficiary under this Deed.
11. The Contracts (Rights of Third Parties) Act 1999 shall not apply to the Deed and no person
other than the parties to this Deed (which term shall for the purposes of this clause include all
permitted assignees or transferees or successors in title) shall have any rights under it nor shall it
be enforceable under the Act by any person other than the parties to it.
12. Where the Consultant is a partnership the term "Consultant" includes any additional partners
who may be admitted into the partnership of the Consultant during the currency of this Deed and
the rights, obligations and liabilities to the partners in the Consultant are joint and several. This
Deed shall not automatically terminate upon the death, retirement or resignation of any partner in
the Consultant.
13. Copyright
13.1 Insofar as the beneficial ownership of copyright is vested in him the Consultant grants the
Beneficiary (and notwithstanding that the Consultant may complete its duties or terminate its
Contract or have its Contract terminated) a royalty free irrevocable, unconditional, unlimited and
non exclusive licence to use and to reproduce all details, plans, specifications, schedules and other
documentation and information prepared or provided by the Consultant in connection with the
Works for any purpose related to the Works including, but without limitation, the construction,
completion, use and maintenance, letting, promotion, advertisement, reinstatement and repair of
the Works and such licence shall enable the Beneficiary to copy and use such documents for the
aforementioned purposes (including an extension to the Development or the Public Transport
Works but such use shall not include a license to reproduce the designs contained in them for any
such extension) provided that the Consultant shall not be liable for any use of such documents for
any purpose other than that for which it was originally prepared and such licence shall include the
right to grant sub licences and shall be freely assignable by the Beneficiary.
13.2 Insofar as the beneficial ownership of copyright in the material referred to in 13.1 hereof is
vested in a person other than the Consultant, the Consultant shall use all reasonable endeavours
to procure that the beneficial owner grants to the Beneficiary a licence in such material or similar
terms and for such purposes as are referred to in clause 13.1.
14. Notices
Any notice to be given hereunder shall be deemed to be duly given if it is in writing and delivered
by hand at or sent by registered post to the registered office or principal place of business in the
United Kingdom for the time being of the party to be served and in the case of any such notice
sent by registered post shall be deemed to have been received forty-eight (48) hours after being
posted.
15. Law and Disputes
Any and all disputes and claims between the Beneficiary and the Consultant as to the construction,
interpretation, validity and application of this Deed and any and all matters or things of
whatsoever nature arising out of or in connection therewith shall be governed by and construed in
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accordance with English Law and the parties hereby submit to the jurisdiction of the Courts of
England and Wales.
IN WITNESS WHEREOF this Agreement has been duly executed and delivered as a Deed by the
parties hereto on this day and year first before written.
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Network Rail Warranty
This deed is dated the
200
BETWEEN:
(1)
[ ] ("the Consultant") (registered in England and Wales as
company number [
] whose registered office is at [ ] which includes its successors.
(2)
NETWORK RAIL INFRASTRUCTURE LIMITED ("Network Rail") registered in England
and Wales as company number 2904587) whose registered office is at 40 Melton Street
London NW1 2EE.
BACKGROUND
(A)
[
] Limited ("the Developer") has entered into the Contract
with the Consultant pursuant to which the Consultant shall design the Works.
(B)
The Consultant agrees to enter into this Deed to both warrant its performance of and to
provide assurances in respect of its obligations under the Contract to Network Rail.
IT IS AGREED that in consideration of the payment of ten pounds (£10.00) by Network Rail to
the Consultant receipt of which the Consultant acknowledges:
1.
INTERPRETATION
1.1
In this Deed unless the context otherwise requires:
"Certification of Substantial Completion" has the meaning ascribed to it in the
Construction Contract;
"Construction Contract" means the contract made between the Developer and the
contractor for the construction and completion of the Works;
"Contract" means the contract between the Developer and the Consultant for the design
of part of the Works;
"Services" means the Consultant's services to be provided under the Contract;
"Works" has the meaning ascribed to it in the Construction Contract;
1.2
In interpreting this Deed:
(j)
if any party to this Deed is a partnership then the provisions of this Deed will bind each
and every such partner jointly and severally;
(k)
references to the singular shall be deemed to include the plural (and vice versa) and
reference to the "person" shall be deemed to include any individual firm unincorporated
association or body corporate;
(l)
references to Network Rail shall be deemed to include its successors in title and its
permitted assignees;
(m)
headings to clauses shall be disregarded.
2.
SKILL AND CARE
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2.1
The Consultant undertakes with and warrants to Network Rail that it has and shall
continue to carry out its obligations under the Contract and all statutory requirements
including any standard specified therein.
2.2
Without derogation from clause 2.1 and to the extent that under the Contract the
Consultant is required to take responsibility for the design of the Works and/or for the
selection of goods materials plant and equipment for incorporation therein the Consultant
warrants that the same has been or will be designed or selected with the degree of skill
and care that would reasonably be expected of a competent professional designer
experienced in carrying out design activities of a similar nature scope and complexity to
those comprised in the Works.
2.3
The Consultant has not specified or used nor will it specify for use or use any products or
materials in the Works which at the time of use are not permitted under the Contract.
3.
INSURANCE
The Consultant shall effect and maintain from the date on which the Contract becomes
effective until the date 12 years after the date of issue of the Certificate of Substantial
Completion professional indemnity insurance with a well established insurance office or
underwriter of repute in the sum of £[ ],000,000 for each and every event in respect of
negligence omission or default on the part of the Consultant in the conduct of and
execution of its professional activities and duties in relation to the Works and generally in
connection with the Contract Provided That such insurance is generally available in the
United Kingdom market at reasonable commercial premium rates and on commercially
reasonable terms. The Consultant shall provide to Network Rail from time to time on
reasonable request particulars of the policy as may be permitted by the insurers and
documentary evidence that such insurance is being maintained. The Consultant shall
immediately inform Network Rail if such insurance ceases to be maintained.
4.
INTELLECTUAL PROPERTY
4.1
The Consultant shall grant at no cost to Network Rail a full royalty-free non-exclusive and
non-terminable licence to Network Rail to use and reproduce any sections drawings
specifications soil reports calculations method statements staging proposals and
programmes and any other materials provided by the Consultant in connection with the
Services (whether in existence or to be made) and all amendments and additions to them
and any works designs or inventions of the Consultant incorporated or referred to in them
("Proprietary Material") for all purposes relating to the Works including without limitation
the construction completion reconstruction modification use refurbishment maintenance
repair or alteration of the same. The licence in favour of Network Rail shall include the
right to grant or assign sub-licences of the right to use and reproduce Proprietary
Material. The Consultant shall have no liability for any use of Proprietary Material other
than for the purpose for which it was originally intended.
The Consultant shall indemnify Network Rail against any reasonable costs claims damages
demands losses expenses liabilities or proceedings of whatever kind and howsoever
arising properly incurred by Network Rail as a result of any third party alleging
infringement of its intellectual property by reason of the Proprietary Material being used
for the purpose for which it was originally intended.
5.
LIABILITY
5.1
The Consultant shall have no liability to Network Rail under this Deed which is greater or
of longer duration than if Network Rail were named as the employer under the Contract.
Provided that the foregoing limitation shall not apply to the extent that the liability that
the Consultant would owe is based upon any compromise modification or waiver of the
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respective rights and/or obligations of the Consultant and Network Rail arising out of or in
connection with the Contract.
5.2
The Consultant shall be entitled to raise as a defence to proceedings brought under this
Deed any defence that is available to it under the Contract except the defences of set-off
and counterclaim.
5.3
The obligations of the Consultant under this Deed shall cease 12 years after the date of
issue of the Certificate of Substantial Completion save in respect of any claim under this
Deed where proceedings have been issued during such 12-year period.
6.
ASSIGNMENT
The benefit of and the rights of Network Rail under this Deed may be assigned without the
consent of the Consultant on two occasions only and Network Rail will notify the
Consultant in writing following any such assignment specifying the name and address of
the assignee and the date of the assignment. The Consultant will not contend that any
such assignee is precluded from recovering any loss resulting from any breach of this
Deed (whatever the date of such breach) by reason only that that person is an assignee
and not the original beneficiary hereunder.
7.
NOTICES
7.1
Any notice or other document to be given under this Deed shall be in writing and shall be
deemed duly given if proven to have been delivered by hand by registered post or by fax:
(a)
if to Network Rail at:
marked for the attention of [
]; and
(b)
if to the Consultant at
marked for attention of [
]
7.2
or such other recipient delivery addresses or fax number as either party may specify to
the other in writing from time to time. A notice or other document so delivered before
17:30 on any day shall be deemed to have been duly given on that day. A notice or other
document so delivered after 17:30 on a day or on a day which is not a business day shall
be deemed to be duly given on the next following business day.
8.
GENERAL
8.1
No approval or inspection of the Works or of any designs or specifications and no testing
of any work or materials by or on behalf of Network Rail and no omission to inspect or
test shall negate or diminish any duty or liability of the Consultant arising under this
Deed.
8.2
The Consultant acknowledges that Network Rail shall rely upon the reasonable skill care
and attention of the Consultant in performing its obligations under the Contract.
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8.3
The rights powers and remedies provided in this Deed are cumulative and not exclusive of
any rights powers and remedies by law and may be exercised from time to time and as
often as Network Rail may deem expedient.
8.4
Any waiver by Network Rail of any provision of this Deed or any consent or approval given
by Network Rail under this Deed shall only be effective if given in writing and then only for
the purpose and upon the terms for which it is given.
8.5
If at any time any one or more of the provisions in this Deed is or becomes invalid illegal
or unenforceable in any respect under any law or regulation the validity legality and
enforceability of the remaining provisions of this Deed shall not be in any way affected or
impaired.
9.
THIRD PARTY RIGHTS
The parties to this Deed do not intend that any of its terms will be enforceable by virtue of
the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.
10.
LAW AND JURISDICTION
This Deed is governed by the laws of England and Wales.
11.
NET CONTRIBUTION
In the event of any breach of this warranty the Consultant's liability shall be limited to
that proportion of the loss which it would be just and equitable to require the Consultant
to pay having regard to the extent of the Consultant's responsibility for the same and on
the basis that those other contractors consultants and suppliers who were engaged by the
Developer in connection with the works shall be deemed to have provided contractual
undertakings on terms no less onerous than this warranty to Network Rail in respect of
the performance of its services in connection with the works and shall be deemed to have
paid to Network Rail such proportion which it would be just and equitable for them to pay
having regard to the extent of the responsibility.
Executed as a deed by [
insert name in
)
bold and upper case]
)
acting by [a director and its
)
secretary/two directors]:
)
Director
Director/Secretary
Executed as a deed by
NETWORK RAIL
)
INFRASTRUCTURE LIMITED
)
acting by [a director and its
)
secretary/two directors]:
)
Director
Director/Secretary
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SUBCONSULTANTS WARRANTY
THIS DEED is made the
day of
200
BETWEEN:
(1)
(No. ) whose registered office is at (the
"Beneficiary");
(2)
Limited (No. ) whose registered office is at (the
"Sub-Consultant"); and
(3)
[
(No. ) whose registered office is at (the
"Consultant").]7
RECITALS
(A)
This deed relates to the [
] aspects of the Crossrail Project (the
"Project").
(B)
The Consultant (the
"Consultant") has entered into an agreement dated [
]
(the
"Appointment") with the Sub-Consultant for the provision of the services
described or referred to in the Appointment (the
"Services") in connection with the
carrying out and completion of the Project.
(C)
[The Beneficiary/[CLRL
] of [
] (the
"Employer")] has entered
into an agreement dated [
] (the
"Main Appointment") with the
Consultant for the provision of the services described or referred to in the Main
Appointment in connection with the carrying out and completion of the Project.
(D)
[Recital in relation to LUL/Tubelines/NR/DLR interest in the services]
(E)
The Sub-Consultant has agreed to enter into this deed.
Now, in consideration of the payment of one pound by the Beneficiary (receipt of which is hereby
acknowledged by the Sub-Consultant) this deed witnesses as follows:
1.
WARRANTIES
The Sub-Consultant warrants to the Beneficiary that the Sub-Consultant has complied and
shall continue to comply with all its obligations under the Appointment. Without prejudice
to the foregoing, the Sub-Consultant further warrants to the Beneficiary that:
1.1
The Sub-Consultant has exercised and shall continue to exercise all the reasonable skill,
care and diligence to be expected of a properly qualified professional consultant who has
held itself out as competent to perform the Services and who is to perform or has
performed the Services having due regard to the size, scope, nature and complexity of the
Project provided that in the event of any breach of this clause 1:
(a)
the Sub-Consultant shall be entitled in any action or proceedings by the Beneficiary to
rely on any express limitation in the Appointment and to raise the equivalent rights in
defence of liability (except set-off and counterclaims) as it would have had if the
Beneficiary had been named as the joint employer with the Consultant under the
Appointment;
(b)
no action or proceedings for any breach of clause 1 shall be commenced against the
Sub-Consultant after the expiry of 12 years from the date of practical completion of the
whole of the Works as certified under the Contract; and
7 Employer warranty only
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(c)
the obligations and liabilities of the Sub-Consultant under this clause 1 shall not be
released or diminished by any enquiry or inspection in to any matter which may be made
or carried out by or on behalf of the Beneficiary or by the appointment of (or failure to
appoint) any person, firm or company by the Beneficiary to make or carry out any
enquiry or inspection and whether or not any independent liability of such person, firm or
company to the Beneficiary arises in connection therewith.
2.
COPYRIGHT LICENCE
2.1
The Sub-Consultant as beneficial owner hereby grants (or shall procure that the beneficial
owner who can grant the same shall grant) to the Beneficiary a royalty-free, irrevocable
and non-exclusive licence or licences to use and copy the documents for any purposes
connected with the Works and completed Works, including (without limitation) the
execution, completion, repair, maintenance, modification, extension, mortgaging,
advertisement, reinstatement, letting and sale thereof. Such licence or licences shall
carry the right to grant sub-licences and shall be transferable to third parties. The Sub-
Consultant shall have no liability for any mis-use of the documents (which shall be
determined by reference to, inter alia, the purposes for which they were originally
prepared).
2.2
The Sub-Consultant irrevocably waives, and shall procure that each of its sub-contractors
or suppliers irrevocably waive, any rights he may have under Chapter IV (Moral Rights)
Part 1 of the Copyright Design and Patents Act 1988 in relation to any documents and the
Sub-Consultant shall obtain a written waiver from his employees, and from the respective
employees of each of its sub-contractors or suppliers, of any such rights which they may
have.
2.3
The Sub-Consultant shall provide the Beneficiary with copies of the documents as the
Beneficiary may request from time to time, provided that the Beneficiary shall be
responsible for the Sub-Consultant's reasonable copying charges.
2.4
For the purposes of this clause 2
"Documents" shall mean the drawings, models,
specifications, schedules, reports, details, plans, calculations, software and other similar
documents and information provided or to be provided by or on behalf of the Sub-
Consultant in connection with the Works.
3.
INSURANCE
Without prejudice to its obligations under this deed or otherwise at law, the Sub-
Consultant shall from the date hereof until the expiry of 12 years from the date of the
practical completion of the whole of the Works as certified under the Contract, maintain
professional indemnity insurance sufficient to cover the Sub-Consultant's obligations and
liabilities under or in connection with this deed with a limit of indemnity of not less than £
for each and every claim, provided such insurance continues to be available generally in
the insurance market at commercially reasonable rates. The Sub-Consultant shall as and
when it is reasonably required so to do by the Beneficiary make available for inspection by
the Beneficiary documentary evidence that such insurance is being maintained properly.
The Sub-Consultant shall immediately inform the Beneficiary if such insurance ceases to
be maintained and/or available in the insurance market at commercially reasonable rates.
The Sub-Consultant shall immediately upon receipt thereof notify each such insurer or
underwriter of its professional indemnity insurance of any claim made against it under this
Deed.
4.
ASSIGNMENT
The benefit of this deed and the rights arising hereunder (whether or not accrued) shall be
assignable twice by the Beneficiary without the Sub-Consultant's prior written consent.
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5.
CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
5.1
1[Subject to clause 5.2] nothing in this deed confers any rights on any third party
pursuant to the Contracts (Rights of Third Parties) Act 1999 (or any re-enactment or re-
making thereof).
1[5.2
[Transport for London] and the [Department for Transport] and their successors shall be
entitled to enforce the terms of this deed].
6.
INSTRUCTIONS
The Beneficiary has no authority to issue any direction or instruction to the Sub-
Consultant in relation to the performance of its obligations under the Appointment
1[unless and until the Beneficiary has given notice under clauses 8.1 or 8.2.]
7.
BENEFICIARY'S LIABILITY FOR SUMS DUE
The Beneficiary has no liability to the Sub-Consultant in respect of sums due under the
Appointment 1[unless and until the Beneficiary has given notice under clauses 8.1 or 8.2.]
1[8
OPTION FOR BENEFICIARY TO STEP IN
8.1
The Sub-Consultant agrees that in the event of the termination of the Main Appointment
by the Beneficiary the Sub-Consultant will, if so required by written notice given by the
Beneficiary, and subject to clause 8.3, accept the instructions of the Beneficiary or its
appointee to the exclusion of the Consultant in respect of the carrying out and completion
of the Project upon the terms and conditions of the Appointment, and upon the
Beneficiary's request the Sub-Consultant will enter into an agreement for the novation of
the Appointment by the Consultant to the Beneficiary or its appointee, such agreement to
be in terms reasonably required by the Beneficiary (but subject always to clause 8.3).
8.2
The Sub-Consultant further agrees that it will not without first giving the Beneficiary not
less than 21 days' prior written notice exercise any right it may have to terminate the
Appointment (or its employment thereunder) or to treat the same as having been
repudiated by the Consultant or to discontinue the performance of any duties and/or
obligations to be performed by the Sub-Consultant pursuant thereto. Such right to
terminate the Appointment or treat the same as having been repudiated or discontinue
performance shall cease if within such period of notice, and subject to clause 8.3, the
Beneficiary shall give notice in writing to the Sub-Consultant requiring the Sub-Consultant
to accept the instructions of the Beneficiary or its appointee to the exclusion of the
Consultant in respect of the carrying out and completion of the Works upon the terms and
conditions of the Appointment, and upon the Beneficiary's request the Sub-Consultant
shall enter into an agreement for the novation of the Appointment by the Consultant to
the Beneficiary or its appointee, such agreement to be in terms reasonably required by
the Beneficiary (but subject always to clause 8.3).
8.3
It shall be a condition of any notice given or any new agreement proposed by the
Beneficiary under clauses 8.1 or 8.2 that the Beneficiary or its appointee accepts liability
for payment of the sums properly due to the Sub-Consultant under the Appointment
(including any sums outstanding at the date of such notice) and for the performance of
the Consultant's obligations under the Appointment. Upon the issue of any notice by the
Beneficiary under clauses 8.1 and 8.2 the Appointment shall continue in full force and
effect as if no right of determination or to treat the same as repudiated or to discontinue
performance on the part of the Sub-Consultant had arisen and the Sub-Consultant shall
be liable to the Beneficiary or as appointee in lieu of its liability to the Consultant. If any
notice given by the Beneficiary under clauses 8.1 or 8.2 requires the Sub-Consultant to
accept the instructions of the Beneficiary's appointee and/or to novate the Appointment to
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such appointee, the Beneficiary shall be liable to the Sub-Consultant as guarantor for the
payment of all sums from time to time due to the Sub-Consultant from the Beneficiary's
appointee.
8.4
The Consultant has agreed to be a party to this deed for the purposes of acknowledging
that the Sub-Consultant shall not be in breach of the Appointment by complying with the
obligations imposed on it by clauses 8.1 and 8.2. The Consultant acknowledges that the
Sub-Consultant shall be entitled to rely on a notice given to the Sub-Consultant by the
Beneficiary under clause 8.1 as conclusive evidence for the purposes of this deed of the
termination of the Agreement by the Beneficiary.]
9.
NOTICES
All notices required to be delivered by this deed shall be in writing and shall only be duly
given if delivered by hand or sent by prepaid recorded delivery to the registered office or
principal place of business of the intended recipient or to the relevant facsimile number
which, for the Sub-Consultant is [
], [and] the Beneficiary is [
]
[and for the Consultant is
]], or to such other address or facsimile number
as a party may have notified in writing to the other parties to this deed. In the case of
such notices the same shall be deemed to have been received:
9.1
at the time of delivery in the case of delivery by hand;
9.2
48 hours after being posted in the case of registered post; and
9.3
upon completion of the transmission in the case of a facsimile transmission.
10.
GOVERNING LAW AND JURISDICTION
This deed shall be governed by English law and the parties hereby irrevocably submit to
the non-exclusive jurisdiction of the English courts.
IN WITNESS WHEREOF the parties hereto have executed and delivered this deed on the day and
year first above written.
Executed as a deed by [
insert name in
)
bold and upper case]
)
acting by [a director and its
)
secretary/two directors]:
)
Director
Director/Secretary
Executed as a deed by [
insert name in
)
bold and upper case]
)
acting by [a director and its
)
secretary/two directors]:
)
Director
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Director/Secretary
[Executed as a deed by [
insert name in
)
bold and upper case]
)
acting by [a director and its
)
secretary/two directors]:
)
Director
Director/Secretary]
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8[
ANNEXURE 10
Form of Guarantee if Package Order novated to a contractor]
8 Systems designers only
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ANNEXURE 11
Third Party Agreements
Core Agreements
Project Development Agreement
Sponsor Agreement
TfL Shareholders Agreement
Stakeholder and Industry Partner
All agreements between CLRL and Programme
Agreements
stakeholders and 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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ANNEXURE 12
LUL Requirements
1.
The Consultant warrants, undertakes and represents that the CLRL Interface Works will:
1.1
comply with the reasonable instructions of LUL’s engineer;
1.2
comply with all Law and all Standards;
1.3
only specify substances and materials for incorporation into the CLRL Interface Works
which are in accordance with relevant codes of practice, general good building practice
and which have not been declared deleterious in any publication of the Building Research
Establishment current at the time of such specification or incorporation; and
1.4
be carried out using only materials that are new sound and good quality.
2.
The Consultant warrants, undertakes and represents that any plant, equipment or other
product of the CLRL Interface Works that becomes a fixture on, or part of, LUL Property as
a result of the CLRL Interface Works will at and following takeover by or on behalf of LUL:
2.1
be capable of being used, operated and maintained in a safe, economic and efficient
manner, free from any unreasonable risk to the health and well-being of persons using it
and free from any unreasonable or available risk of pollution, nuisance, interference or
hazard;
2.2
not deteriorate at a greater rate than that reasonably to be expected of high quality,
reliable, well-designed plant of a similar nature and manufacture;
2.3
operate safely and efficiently in combination with any plant, equipment and/or system to
which it is to be connected (save where LUL agrees otherwise);
2.4
be electromagnetically compatible with existing LUL Systems;
2.5
comply with all Law and all Standards; and
2.6
be Available (save where LUL agrees otherwise).
For the purposes of this Annexure, capitalised terms shall bear the following meanings:
"Available" means in respect of Interface Works:
(a)
the applicable Interface Works comply with the Standards;
(b)
the applicable Interface Works are safe and fit for purpose;
(c)
there are no foreseeable hazards to the use of the applicable Interface Works
except insofar as a risk assessment has been carried out and any risk is expressly
accepted by LUL; and
(d)
the applicable Interface Works are readily accessible and operable by LUL
throughout the periods stipulated and agreed;
“CLRL Interface Works” means Interface Works to be performed and/or procured by, and
ancillary deliverables to be produced and/or procured by, the
Employer pursuant to [the LUL
Agreement dated [ ]];
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"CLRL Standards" means the rules and regulations including codes of practice and standards for
undertaking works for the Programme issued by the
Employer as such, as may be amended for to
time to time and issued to LUL;
"Interface Works" means works and services in relation to the Programme that are on or impact
on or are in the vicinity of LUL Property or systems (including without limitation protective works
required as a result of the Programme), as described in the [Interface Scope Schedule] from time
to time;
"Law" means any and all of the following each as is in force from time to time:
(a)
laws, by-laws, codes, common law or other laws or legislation made by a
Competent Authority and all rules, regulations, ordinances, orders, notices,
directives, franchises, guidance notes and circulars promulgated pursuant to the
same (to the extent legally effective); and
(b)
any authoritative judicial or legally effective administrative interaction of each of
the foregoing;
"LUL" means London Underground Limited
“LUL’s Engineer” means the engineer appointed by LUL from time to time for the purposes of
this Agreement, whose appointment has been notified to the
Employer;
“LUL Property” means all land, buildings and structures (and contents thereof) owned by or
leased or licensed to LUL (including the Underground Network);
"LUL Standards" means rules and regulations including codes of practice and standards relating
to the operation of LUL’s railway and/or the requirements for undertaking works on or in the
vicinity of LUL station and railway infrastructure (including any or all of LUL Category 1 and 2)
Standards as may be adjusted pursuant to the Standards Code (in the case of Category 1) and
Category 1 (in the case of Category 2));
"Standards" means LUL Standards and CLRL Standards;
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Crossrail
