Crossrail
Project Delivery Partner
OJEU Notice 2008/S 65-088136 Lot 2
Invitation to Tender
Part 2 - Contract
Confidential
Project Delivery Partner Appointment
Cross London Rail Links Limited
(the Employer)
and
[ ]
(the Project Delivery Partner)
and
[ ]
(the Guarantor)
Project Delivery Partner Services
Contract No. [ ]
[
TO BE AMENDED TO REFLECT REQUIREMENTS OF THIRD PARTY
AGREEMENTS AS AND WHEN SAME FINALISED – DEFINED TERMS
TO BE HARMONISED BETWEEN ALL DOCUMENTS]
This amended contract is based on the NEC Professional Services Contract, the copyright in which
standard form belongs to the Institution of Civil Engineers.
Contract No 2072
1
Invitation to Tender issue dated 25
September 2008
Confidential
This agreement is made on the ………………………… day of ……………… ……………………………… 20 …………
Between
CROSS LONDON RAIL LINKS LIMITED of Portland House, Bressenden Place,
London SW1E 5BH
(company/organisation)
(the
Employer)
and
……………………………………………………………………………………………………………………………
(name)
of
………………………………………………………………………………………………………………………………………
(company/organisation)
(the
Project Delivery Partner)
and
……………………………………………………………………………………………………………………………
(name)
of
………………………………………………………………………………………………………………………………………
(company/organisation)
(the
Guarantor)
1.
The
Employer wishes to appoint the
Project Delivery Partner to carry out certain delivery
partner services in relation to the Crossrail project, London.
2.
The
Employer will pay the
Project Delivery Partner the amount due and carry out his
duties in accordance with this agreement (including the conditions of contract).
3.
The
Project Delivery Partner will Provide the Services in accordance with this agreement
(including the conditions of contract).
4.
This agreement (including the conditions of contract) and the documents referred to in it
form this contract. References in the conditions of contract to "the contract" are
references to this contract. This agreement (including the conditions of contract) shall
take precedence over any other document forming part of this contract.
5.
In consideration of the
Employer appointing the
Project Delivery Partner to Provide the
Services, the
Guarantor has agreed to guarantee the obligations of the
Project Delivery
Partner hereunder.
Executed as a deed and delivered on the
date above by:
…………………………………………………………
(signed)
…………………………………………………………
(name of Director)
…………………………………………………………
(signed)
…………………………………………………………
(name of Director or Company Secretary)
Contract No 2072
1
Invitation to Tender issue dated 25
September 2008
Confidential
…………………………………………………………
(signed)
…………………………………………………………
(name of Director)
…………………………………………………………
(signed)
…………………………………………………………
(name of Director or Company Secretary)
…………………………………………………………
(signed)
…………………………………………………………
(name of Director)
…………………………………………………………
(signed)
…………………………………………………………
(name of Director or Company Secretary)
Contract No 2072
2
Invitation to Tender issue dated 25
September 2008
Confidential
nec 3
CROSSRAIL
Project Delivery Partner Conditions of Contract
Professional Services Contract
Terms and Conditions
An NEC document
Contract No 2072
3
Invitation to Tender issue dated 25
September 2008
Confidential
CONTENTS
Acknowledgements
Core clauses 1 General
2
The Parties' main responsibilities
3 Time
4 Quality
5 Payment
6 Compensation
events
7
Rights to material
8
Indemnity, insurance and liability
9 Termination
Main Option clauses
Dispute resolution W1 Option
W1
W2 Option
W2
Secondary Option clauses X1
Price adjustment for inflation
X8 Collateral
warranty
agreements
X20 Incentives
Y(UK)2
The Housing Grants, Construction and
Regeneration Act 1996
Y(UK)3
The Contracts (Rights of Third Parties) Act 1999
Contract Data
Appendix 1 Scope
Appendix 2 Commercial
information
Appendix 3
Staff rates
Appendix 4 Incentive
schedule
Appendix 5
First Service Delivery Plan
Appendix 6
Third Party Agreements
Appendix 7 Adjudicator
Panel
Appendix 8 Novation
agreement
Appendix 9
Forms of collateral warranty
Contract No 2072
4
Invitation to Tender issue dated 25
September 2008
Confidential
CORE CLAUSES
1 General
Actions 10
10.1 The
Employer and the
Project Delivery Partner shall act as
stated in this contract and in a spirit of mutual trust and co-
operation.
Identified and 11
defined terms
11.1
In these conditions of contract, terms identified in the Contract
Data are in italics and defined terms have capital initials.
11.2
(1)
The Accepted Programme is the programme set out in
the Service Delivery Plan or is the latest programme
accepted by the
Employer. The latest programme
accepted by the
Employer supersedes previous Accepted
Programmes.
(2) The Act is the Housing Grants, Construction and
Regeneration Act 1996.
(3)
A period of time stated in days is a period calculated in
accordance with Section 116 of the Act.
(4) The Adjudicator Panel is the panel of adjudicators
referred to in Appendix 7.
(5)
Auditor means any person (including the District Auditor,
National Audit Office or any internal auditor) with the
responsibility for auditing the accounts of the
Employer and any person conducting an audit in accordance with
the
Employer's quality management system;
(6) Background Rights means in respect of each party the
Intellectual Property rights owned by or otherwise in the
possession of that party at the date of this contract;
(7)
Completion is when the
Project Delivery Partner has
•
done all the work which the Scope states he is to
do by the Completion Date and
•
corrected all notified or patent Defects.
If the work which the
Project Delivery Partner is to do by the
Completion Date is not stated in the Scope, Completion is
when the
Project Delivery Partner has done all the work
necessary for the rail transport system that is the subject of
the Programme to commence full operations
and so there are
no notified or patent Defects.
(8) The Completion Date is the
completion date unless later
changed in accordance with this contract.
Contract No 2072
5
Invitation to Tender issue dated 25
September 2008
Confidential
(9) Confidential Information means any information of
whatever kind (whether commercial, technical, financial,
operational or otherwise, in whatever form and whether
or not recorded in any way) relating to the
Employer or
the Programme;
(10)
Project Delivery Partner Information means information
provided or made available to the
Employer by the
Project Delivery Partner and recorded in any form held
by the
Employer or held by the
Project Delivery Partner on behalf of the
Employer;
(11) The Contract Date is the date of execution by the Parties
of this contract.
(12) A Defect is a part of the
services which is not in
accordance with the Scope, Standards, Legislation or
any term of this contract.
(13) The Dispute Board is the board of experts referred to in
the Dispute Board Procedure.
(14) The Dispute Board Procedure is the procedure annexed.
(15) FOI Legislation means the Freedom of Information Act
2000, all regulations made under it and the
Environmental Information Regulations 2004 and any
amendment or re-enactment of any of them and any
guidance issued by the Information Commissioner in
relation to such legislation;
(16) Foreground Rights means all Intellectual Property rights
developed by either party (and in the case of the
Project
Delivery Partner any Intellectual Property developed by
any Subconsultant to the
Project Delivery Partner) under
or in connection with this contract and/or the services,
including but not limited to all Intellectual Property rights
in the Materials;
(17) Information Request means a request for information
under the FOI Legislation;
(18) Intellectual Property means any and all patents, trade
marks, rights in designs, get-up, trade, business or
domain names, copyrights including rights in computer
software (including source codes) and databases,
topography rights (in each case whether registered or
not and any applications to register or rights to apply for
registration of any of the foregoing), rights in inventions,
Know-How, trade secrets and other confidential
information, rights in databases and other intellectual
property rights of a similar or corresponding character
which may now or in the future subsist in any part of the
world;
(19) A Key Date is the date by which work is to meet the
Condition stated. The Key Date is the
key date stated in
Contract No 2072
6
Invitation to Tender issue dated 25
September 2008
Confidential
the Contract Data and the Condition is the
condition stated in the Contract Data unless later changed in
accordance with this contract.
(20) Know-How means information and know-how whether
patentable or not including but not limited to all
patented techniques, operating instructions, machinery
designs, raw material or products specifications,
drawings, blueprints, and any other technical and
commercial information relating to design, development,
manufacture, assembly, use or sale;
(21) Legislation means any Act of Parliament or subordinate
legislation within the meaning of Section 21(1) of the
Interpretation Act 1978, any exercise of the Royal
Prerogative, and any enforceable community right within
the meaning of Section 2 of the European Communities
Act 1972, in each case in the United Kingdom.
(22) Materials means all documents, items, information, data,
reports, drawings, specifications, plans, software,
designs, inventions and/or other material produced or
supplied by the
Project Delivery Partner as part of or in
connection with the
services and/or this contract;
(23) New Employer means
TfL, the Department for Transport
or any company which is a holding company or
subsidiary (within the meaning of Section 739 of the
Companies Act 1985 as amended by Section 144 of the
Companies Act 1989) of
TfL or the Department for
Transport or is a company in which
TfL or the
Department for Transport or any such holding company
or subsidiary holds more than 25% of the issued equity
share capital (as defined by Section 744 of the
Companies Act 1985);
(24) Others are people or organisations who are not the
Employer, the
Project Delivery Partner, the
Guarantor,
the
Adjudicator or any employee, Subconsultant or
supplier of the
Project Delivery Partner.
(25) The Parties are the
Employer and the
Project Delivery
Partner.
(26) The Policies are the
Employer's Policies and Procedures
and any other such policies of which the
Employer notifies the
Project Delivery Partner.
(27) Premises are the property approved or made available
by the
Employer which is used by the
Project Delivery
Partner in Providing the Services and which, as at the
Contract Date are identified in the Contract Data.
(28) The Programme means the development, procurement
and commissioning of a railway transport system that is
capable of operating services from Maidenhead in the
County of Berkshire and from Heathrow Airport in the
Contract No 2072
7
Invitation to Tender issue dated 25
September 2008
Confidential
London Borough of Hillingdon through central London to
Shenfield in the county of Essex and Abbey Wood in the
London Borough of Greenwich in accordance with the
Sponsors' Requirements;
(29)
A Prohibited Act means;
(a) offering, giving or agreeing to give to any officer
or agent of the
Employer, any gift or consideration
of any kind:
(i) as an inducement or reward; or
(ii)
for doing or not doing (or for having done or
not having done) any act in relation to the
obtaining or performance of this contract or
any other contract with the
Employer; or
(iii) for showing or not showing favour or
disfavour for any person in relation to this
contract or any other contract with the
Employer; or
(iv) entering into this contract in connection with
which commission has been paid or has
been agreed to be paid by him or on his
behalf, or to his knowledge unless before
this contract is made, particulars of any
such commission and of the terms and
conditions of any such agreement for the
payment thereof have been disclosed in
writing to the
Employer; or
(b)
the commission of an offence under the Prevention
of Corruption Acts 1889 - 1916; or
(c) entering into any form of collusion with other
suppliers of services similar to the services or with
other actual or potential bidders for this contract.
(30) The Project means the central section of the Programme
between, in the west, Royal Oak in the City of
Westminster and, in the east, Pudding Mill Lane and
Custom House (both in London Borough of Newham)
and Abbeywood in the London Borough of Greenwich
but excluding Isle of Dogs Station and the Woolwich
Station Box;
(31) To Provide the Services means to do the work necessary
to complete the
services in accordance with this contract
and all incidental work, services and actions which this
contract requires.
(32) The Resource Schedule is the schedule of staff resources
within the Service Delivery Plan or any further resource
schedule agreed by the
Employer.
Contract No 2072
8
Invitation to Tender issue dated 25
September 2008
Confidential
(33) The Risk Register is a register of the risks which are
listed in the Contract Data and the risks which the
Employer or the
Project Delivery Partner has notified as
an early warning matter. It includes a description of the
risk and a description of the actions which are to be
taken to avoid or reduce the risk.
(34) The Scope is information which either
• specifies and describes the
services or
• states any constraints on how the
Project Delivery
Partner Provides the Services
and is either
• in the documents which the Contract Data states it is
in or
• in an instruction given in accordance with this contract.
(35) The Service Delivery Plan is the further definition of the
services and deliverables annexed (and includes the
Resource Schedule) together with all future Service
Delivery Plans that the
Employer and the
Project
Delivery Partner may agree.
(36) The Sponsor's Requirements are set out in the Scope.
(37) Standards are UK railway standards and standards and
codes of practice published from time to time by the
International Organization for Standardization or other
international standards and codes of practice, including
those published by the British Standards Institution.
(38) A Subconsultant is a person or organisation who has a
contract with the
Project Delivery Partner to provide part
of the
services.
(39) Third Party Agreements are such agreements notified to
the
Project Delivery Partner by or on behalf of the
Employer from time to time as constituting Third Party
Agreements for the purposes of this contract including
those agreements referred to as such in the Contract
Data.
(40) Third Party Rights means all Intellectual Property rights
which are not owned by the
Employer or the
Project
Delivery Partner but required either (a) by the
Project
Delivery Partner to Provide the Services, or (b) by the
Employer (or any successors) to use the Materials
and/or to implement and/or operate the Programme
whether during the term of this contract or thereafter;
(41) The Time Charge is the sum of the products of each of
the
staff rates multiplied by the total staff time
appropriate to that rate properly spent on work in this
Contract No 2072
9
Invitation to Tender issue dated 25
September 2008
Confidential
contract provided always that all staff time spent in
excess of the maximum time commitment for each staff
member set out in the Resources Schedule , or staff
time incurred by staff not included in such Resource
Schedule, shall not be included in the Time Charge and
the
Project Delivery Partner shall not be reimbursed in
respect of such staff time incurred.
(42) The Price for Services Provided to Date is the Time
Charge for the work which has been completed.
Completed Work is work that has been completed
without Defects.
(43) The Prices are the Time Charge.
(44) The TUPE Regulations are the Transfer of Undertakings
(Protection of Employment) Regulations 2006
Interpretation, the 12
law and best value
12.1
In this contract, except where the context shows otherwise,
words in the singular also mean in the plural and the other way
round and words in the masculine also mean in the feminine
and neuter. Words denoting persons include individuals,
partnerships, firms and corporations and their successors and
permitted assignees or transferees.
12.2
This contract is governed by the
law of the contract.
12.3
No change to this contract, unless provided for by the
conditions of contract, has effect unless it has been agreed,
confirmed in writing and signed by the Parties.
12.4
This contract is the entire agreement between the Parties and
supersedes all previous agreements between the Parties
relating to the subject matter of this contract and each Party
acknowledges that in entering into this contract it has not
relied on any representation or undertaking, whether oral or in
writing, save such as are expressly incorporated in this
contract.
12.5
If any clause or part of this contract is found by any court,
tribunal, administrative body or authority of competent
jurisdiction to be illegal, invalid or unenforceable then that
provision will, to the extent required, be severed from this
contract and will be ineffective without, as far as is possible,
modifying any other clause or part of this contract and this will
not affect any other provisions of this contract which will
remain in full force and effect.
12.6.1 The
Employer is currently owned by
TfL and the Department
for Transport in equal shares. It is expected that in due course
the
Employer will become a wholly owned subsidiary of
TfL.
For the avoidance of doubt the
Consultant shall not be entitled
to bring any claim in tort or in contract under or relating to this
Contract No 2072
10
Invitation to Tender issue dated 25
September 2008
Confidential
contract against
TfL or the Department for Transport.
12.6.2 The
Project Delivery Partner acknowledges that
TfL is a best
value authority for the purposes of the Local Government Act
1999 and as such the
Employer is required to make
arrangements to secure continuous improvement in the way it
exercises its functions having regard to a combination of
economy, efficiency and effectiveness. The
Project Delivery
Partner assists the
Employer to discharge the
Employer's duty
where possible, and in doing so, inter alia carries out any
reviews of the Project or the Programme reasonably requested
by the
Employer from time to time.
12.7
In this contract any reference to:
•
any enactment, order, regulation or other similar
instrument references the enactment, order, regulation
or instrument (including any EU instrument) as
amended, replaced, consolidated or re-enacted;
•
a public organisation references any successor (statutory
or otherwise) public organisation which has taken over
the functions and duties of such public organisation;
•
laws includes any applicable legislation, judgments of a
relevant court of law changing a binding 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.
Contract No 2072
11
Invitation to Tender issue dated 25
September 2008
Confidential
13.3
If this contract requires the
Employer or the
Project Delivery
Partner to reply to a communication, unless otherwise stated in
this contract, he replies within the
period for reply.
13.4 The
Employer replies to a communication submitted or
resubmitted to him by the
Project Delivery Partner for
acceptance. If his reply is not acceptance, the
Employer states
his reasons and the
Project Delivery Partner resubmits the
communication within the
period for reply taking account of
these reasons. A reason for withholding acceptance is that
more information is needed in order to assess the
Project
Delivery Partner's submission fully.
13.5 The
Employer may extend the
period for reply to a
communication if the
Employer and the
Project Delivery
Partner (acting reasonably) agree to the extension before the
reply is due. The
Employer notifies the
Project Delivery Partner of the extension which has been agreed.
13.6 The
Project Delivery Partner 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
Project Delivery Partner. Withholding acceptance for a reason
stated in this contract or for any other reasonable grounds is
not a compensation event.
Acceptance 14
14.1
No acceptance, approvals, comments, instructions, consents or
advice or indication of satisfaction given by or from the
Employer, nor any enquiry or inspection which the
Employer makes or has carried out for its benefit or on its behalf at any
time, operates to reduce, extinguish, exclude, limit or modify
the
Project Delivery Partner's liabilities, duties and obligations
under this contract unless it is in writing from the
Employer,
refers to this contract and clearly identifies the liability, duty or
obligation and the extent to which such liability, duty or
obligation is to be reduced, extinguished, excluded, limited or
modified.
Early warning 15
15.1 The
Employer and the
Project Delivery Partner give an early
warning by notifying the other as soon as either becomes
aware of any matter which could
•
increase the total of the Prices,
•
delay Completion,
•
change the Accepted Programme,
Contract No 2072
12
Invitation to Tender issue dated 25
September 2008
Confidential
•
delay meeting a Key Date,
•
impair the usefulness of the
services to the
Employer or
•
affect the work of the
Employer, an
Employer's
contractor or another consultant.
The
Project Delivery Partner may give an early warning by
notifying the
Employer of any other matter which could
increase his total cost. The
Project Delivery Partner enters
early warning matters in the Risk Register. Early warning of a
matter for which a compensation event has previously been
notified is not required.
15.2 Either
the
Employer or the
Project Delivery Partner may
instruct the other to attend a risk reduction meeting. Each
may instruct other people to attend if the other Party agrees.
15.3
At a risk reduction meeting, those who attend will, having
regard to and subject to any provisions in this contract relating
to which Party (if any) is to be 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
Project Delivery Partner revises the Risk Register to record
the decisions made at each risk reduction meeting and issues
the revised Risk Register to the
Employer. If a decision needs
a change to the Scope, the
Employer instructs the change
following issue of the revised Risk Register. For the avoidance
of doubt the
Project Delivery Partner's only entitlement to a
change in the Prices, the Completion Date or a Key Date as a
result of any revision to the Risk Register is in accordance with
clauses 60 and 65.
Ambiguities and 16
inconsistencies
16.1 The
Employer or the
Project Delivery Partner notifies the other
as soon as either becomes aware of an ambiguity or
inconsistency in or between the documents which are part of
this contract. The
Employer gives an instruction resolving the
ambiguity or inconsistency.
Illegal and 17
impossible
Contract No 2072
13
Invitation to Tender issue dated 25
September 2008
Confidential
requirements
17.1 The
Project Delivery Partner notifies the
Employer as soon as
he considers that the Scope requires him to do anything which
is illegal or impossible. If the
Employer agrees, he gives an
instruction to change the Scope appropriately.
Contract No 2072
14
Invitation to Tender issue dated 25
September 2008
Confidential
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
Project Delivery
Partner which changes the Scope, a Key Date or the Service
Delivery Plan. After Completion, an instruction is given only if
it is necessary to Provide the Services.
20.3 The
Employer does not give an instruction to the
Project
Delivery Partner which would require him to act in a way that
was outside his professional code of conduct.
20.4 The
Employer may give an instruction to the
Project Delivery
Partner omitting
services from the Scope or obligations from
the contract and may procure that such omitted
services or
obligations be provided by Others or a Subconsultant.
The Project Delivery 21
Partner's obligations
21.1 The
Project Delivery Partner Provides the Services:
•
in accordance with the Scope and the Service Delivery
Plan;
•
in compliance with all Legislation;
•
so as not to cause or contribute to any breach by the
Employer of any of its duties and obligations under any
Third Party Agreements; and
•
in accordance with Standards;
and, using the standard of skill, care and diligence referred to
in Clause 21.2:
•
in accordance with the Policies; and
•
such that there is only specified or approved for use
materials which at the time of specification, approval or
use are not deleterious to health and safety or to
durability and which accord with the guidelines
contained in the publication Good Practice in Selection
of Construction Materials (Ove Arup & Partners) current
at the date and specification, approval or use.
21.2 The
Project Delivery Partner's obligation in respect of the
performance of the
services is to use the standard of skill,
care and diligence to carry out and complete the
services to
be reasonably expected from a properly qualified professional
consultant experienced in providing services similar in size,
scope and complexity to the
services and for projects similar
Contract No 2072
15
Invitation to Tender issue dated 25
September 2008
Confidential
in size, scope and complexity to the Programme.
21.3 The
Project Delivery Partner shall cooperate with and
coordinate his Provision of the Services with the services to be
provided by the designers, the principal contractor and the
CDM Co-ordinator under the Construction (Design and
Management) Regulations 2007.
21.4 The
Project Delivery Partner shall prepare and agree with the
Employer revisions of Service Delivery Plans in a format and
covering the periods of time to be agreed with the
Employer.
Each Service Delivery Plan shall identify the
services to be
provided during the agreed period, a programme for the
same, and a Resource Schedule identifying the staff resources
to be used in relation to the provision of such
services.
Equality and 21.5
Without limiting the generality of any other provision of the
diversity
contract, the
Project Delivery Partner:
•
does not unlawfully discriminate;
•
procures that its personnel do not unlawfully
discriminate; and
•
uses reasonable endeavours to procure that its
Subconsultants do not unlawfully discriminate in
relation to the
services
within the meaning and scope of:
•
the Sex Discrimination Act 1975;
•
the Race Relations Act 1976 (including the Race
Relations (Amendment) Act 2000);
•
the Disability Discrimination Act 1995 (as amended by
the Disability Discrimination Act 2005);
•
the Employment Equality (Sexual Orientation)
Regulations 2003;
•
the Employment Equality (Religion or Belief)
Regulations 2003;
•
the Equality Act 2006;
•
and any other relevant enactments in force from time
to time relation to discrimination in employment.
21.6 The
Project Delivery Partner acknowledges that the
Employer
is under a duty under Section 71 of the Race Relations Act
1976 to have due regard to the need to eliminate unlawful
racial discrimination and to promote equality of opportunity
and good relations between persons of different racial groups.
In the performance of the contract, the
Project Delivery
Partner assists and co-operates and uses reasonable
endeavours to procure that its Subconsultants and co-operate
Contract No 2072
16
Invitation to Tender issue dated 25
September 2008
Confidential
with the
Employer where possible in satisfying this duty.
21.7 The
Project Delivery Partner acknowledges that
TfL is under a
duty by virtue of a Mayor of London’s direction under Section
155 of the Greater London Authority Act 1999 (in respect of
the Greater London Authority’s duty under section 404(2) of
the Greater London Authority Act 1999) to have due regard to
the need to:
•
promote equality of opportunity for all persons
irrespective of their race, gender, disability, age,
sexual orientation or religion;
•
eliminate unlawful discrimination; and
•
promote good relations between persons of different
racial groups, religious beliefs and sexual orientation,
and in the performance of the contract, the
Project Delivery
Partner assists and co-operates and uses reasonable
endeavours to procure that its Subconsultants assist and co-
operate with the
Employer where possible to enable
TfL to
satisfy its duty.
21.8 The
Employer’s Harassment, Bullying and Discrimination Policy
("Harassment Policy") requires the
Employer’s own staff and
those of its consultants to comply fully with the Harassment
Policy to eradicate harassment in the workplace. The
Project
Delivery Partner:
•
ensures that its staff, and those of its Subconsultants
who are engaged in the performance of the contract
are fully conversant with the requirements of the
Harassment Policy;
•
fully investigate allegations of workplace harassment
in accordance with the Harassment Policy; and
•
ensures that appropriate effective action is taken
where harassment is found to have occurred.
21.9 The
Project Delivery Partner acknowledges that the
Employer
is under a duty under Section 49A of the Disability
Discrimination Act 1995 (as amended by the Disability
Discrimination Act 2005) to have due regard to the need to
•
eliminate discrimination that is unlawful under the
Disability Discrimination Acts;
•
eliminate harassment of disabled persons related to
their disabilities and promote equality of opportunity
between disabled persons and other persons;
•
take steps to take account of disabled persons’
disabilities (even when that involves treating disabled
persons more favourably than other per sons); and
•
promote positive attitudes towards disabled persons
Contract No 2072
17
Invitation to Tender issue dated 25
September 2008
Confidential
and encourage participation by disabled persons in
public life
and in the performance of the contract, the
Project Delivery
Partner, assists and co-operates, and uses reasonable
endeavours to procure that its Subconsultants assist and co-
operate, with the
Employer where possible to enable the
Employer to satisfy its duty.
People 22
22.1
The
Project Delivery Partner either employs each
key person
named to do the job for him stated in the Contract Data or
Service Delivery Plan or employs a replacement person who
has been accepted by the
Employer. The
Project Delivery
Partner submits the name, relevant qualifications and
experience of a proposed replacement person to the
Employer for acceptance. A reason for not accepting the person is the
Employer believes (in his absolute discretion) he is a security
risk or that his relevant qualifications and experience are not
as good as those of the person who is to be replaced.
22.2 The
Employer may instruct the
Project Delivery Partner to
remove a person employed by the
Project Delivery Partner or
a Subconsultant of the
Project Delivery Partner. The
Project
Delivery Partner then arranges that, after one day, the person
has no further connection with the work included in this
contract.
22.3 The
Project Delivery Partner ensures that
key persons carry
out the responsibilities required of them and listed in the
Contract Data or Service Delivery Plan in respect of the
services. The
Project Delivery Partner does not reallocate the
duties of any
key person (or their accepted replacement) nor
assign any
key person (or their accepted replacement) to any
other project or contract without the prior written consent of
the
Employer.
22.4 If
any
key person (or their accepted replacement) dies,
resigns, retires, is dismissed, or is otherwise prevented from
carrying out its responsibilities as listed in the Contract Data
or Service Delivery Plan during the term of this contract then
if the
Employer so requires, the
Project Delivery Partner procures the replacement of such
key person (or their
accepted replacement) with a suitably qualified and competent
replacement, such replacement to be accepted by the
Employer.
22.5 The
Project Delivery Partner employs only the
key persons and
other persons referred to in the Contract Data or Service
Delivery Plan to Provide the Services. Other persons may only
be employed to Provide the Services with the written consent
(in his absolute discretion) of the
Employer.
Contract No 2072
18
Invitation to Tender issue dated 25
September 2008
Confidential
London Living Wage 22A
22A.1
In this clause 22A, the following expressions shall have the
following meanings:
"London Living Wage" the basic hourly wage of £7.45 (before
tax, other deductions and any increase for overtime) as may
be updated from time to time and notified to the
Project
Delivery Partner;
22A.2
Without prejudice to any other provision of this contract, the
Project Delivery Partner shall:
22A.2.1 ensure that none of its employees engaged in
connection with the Programme under this contract
is paid an hourly wage (or equivalent of an hourly
wage) less than the London Living Wage;
22A.2.2 ensure that none of its employees engaged in
connection with the Programme under this contract
is paid less than the amount to which they are
entitled in their respective contracts of
employment;
22A.2.3 provide to the
Employer such information
concerning the London Living Wage and as the
Employer or its nominees may reasonably require
from time to time;
22A.2.4 disseminate on behalf of the
Employer to its
employees engaged in connection with the
Programme under this contract such perception
questionnaires as the
Employer may reasonably
require from time to time and promptly collate and
return to the
Employer responses to such
questionnaires; and
22A.2.5
co-operate and provide all reasonable assistance in
monitoring the effect of the London Living Wage.
Working with the 23
Employer and Others
23.1 The
Project Delivery Partner co-operates with Others in
obtaining and providing information which they need in
connection with the
services.
23.2
Where necessary to Provide the Services, the
Project Delivery
Partner holds or attends meetings with Others. The
Project
Delivery Partner informs the
Employer of these meetings
beforehand and the
Employer may attend them.
23.3 If
the
Employer decides that the work does not meet the
Condition stated for a Key Date by the date stated and, as a
result, the
Employer incurs any loss and expense or additional
cost either
Contract No 2072
19
Invitation to Tender issue dated 25
September 2008
Confidential
•
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
Project Delivery Partner. The
Employer assesses the
additional cost within four weeks of the date when the
Condition stated for that Key Date is met.
Employer provides 23.4 (1)
The
Employer provides the right of access for the
Project
Premises
Delivery Partner to any Premises provided by the
Employer as necessary for the
services subject to any
constraints stated in the Scope or Service Delivery Plan.
(2)
The
Employer provides things which it is to provide for
any Premises provided by the
Employer as stated in the
Scope or the Service Delivery Plan.
(3)
The
Project Delivery Partner acknowledges that the
Employer may engage or need to work with Others who
will require use of or access to any Premises provided by
the
Employer in which event the
Project Delivery Partner shares any Premises provided by the
Employer with
Others as instructed by the
Employer.
Subconsulting 24
24.1 If
the
Project Delivery Partner subcontracts work, he is
responsible for Providing the Services as if he had not
subcontracted. This contract applies as if a Subconsultant's
employees were the
Project Delivery Partner's.
24.2 The
Project Delivery Partner submits the name of each
proposed Subconsultant to the
Employer for acceptance. A
reason for not accepting the Subconsultant is that the
Employer believes, in his absolute discretion, that his
appointment will not allow the
Project Delivery Partner to
Provide the Services. The
Project Delivery Partner does not
appoint a proposed Subconsultant until the
Employer has
accepted him.
24.3 The
Project Delivery Partner submits the proposed conditions
of contract and the Contract Data for each subcontract to the
Employer for acceptance unless the
Employer has agreed that
no submission is required.
The
Project Delivery Partner does not appoint a Subconsultant
on the proposed subcontract conditions and the Contract Data
submitted until the
Employer has accepted them. A reason for
not accepting them is that
•
they will not allow the
Project Delivery Partner to
Provide the Services; or
•
they do not include a statement that the parties to the
subcontract shall act in a spirit of mutual trust and co-
Contract No 2072
20
Invitation to Tender issue dated 25
September 2008
Confidential
operation; or
•
they are not consistent with the terms of this contract.
Once the sub-contract conditions have been accepted by the
Employer the
Project Delivery Partner shall not agree to vary
or amend the same or terminate the engagement of the
Subconsultant unless such variation, amendments or
termination has been accepted by the
Employer (at his
absolute discretion).
24.4 The
Project Delivery Partner shall procure that it (where
appropriate) and each Subconsultant shall enter into collateral
warranties in the forms set out in Appendix 9 in favour of each
of the
Employer, [
LUL/Tubelines/Network Rail/DLR] within 14
days of the
Employer's request to do so1.
Other 25
responsibilities
25.1 The
Project Delivery Partner obtains approval from Others
where necessary or desirable to Provide the Services.
25.2 The
Employer provides access to a person, place or thing to
the
Project Delivery Partner as stated in the Contract Data or
Service Delivery Plan on or before the later of its
access date and the access date for it shown on the Accepted Programme.
25.3 The
Project Delivery Partner obeys an instruction which is in
accordance with this contract and is given to him by the
Employer.
25.4 The
Project Delivery Partner acts in accordance with the health
and safety requirements stated in the Scope.
25.5 The
Project Delivery Partner co-operates with Others To
Provide the Services and in complying with its other
obligations under this contract so as not to cause the
Employer or Others delay, loss, expense or additional cost.
Assignment and 26
Novation
26.1 The
Project Delivery Partner does not assign the contract or
any part thereof or any benefit or interest therein or
thereunder without the prior written consent of the
Employer.
The
Employer may assign
the
contract or any part thereof or
any benefit or interest therein or thereunder.
26.2 The
Project Delivery Partner and
Guarantor execute and
deliver to the
Employer a deed of novation in the form
annexed with the Employer and any New Employer within
fourteen days of the
Employer's request.
1 Beneficiaries of warranties are to be confirmed.
Contract No 2072
21
Invitation to Tender issue dated 25
September 2008
Confidential
26.3 If
the
Project Delivery Partner and the
Guarantor do not
execute and deliver such deed of novation to the
Employer
within such time
period then no further payment is due to the
Project Delivery Partner until the
Project Delivery Partner and
Guarantor have executed and delivered such deed of novation
to the
Employer.
Transfer of 27
Undertakings
27.1
The parties acknowledge that there may be a "relevant
transfer" of an undertaking or part of one as defined in the
TUPE Regulations (
"Relevant Transfer") on the
starting date or on any omission or termination of the
services or any or all
of the
Deliver Partner's obligations under this contract and
agree to deal with the risks and/or consequences thereof as
follows.
27.2
If there is a Relevant Transfer on the
starting date, the parties
agree, as between themselves, that the
Project Delivery
Partner shall be wholly responsible for and liable accordingly
for continuing any contracts of employment, collective
agreements and/or trade union recognition agreements which
transfer under the TUPE Regulations and discharging all the
obligations of a transferee under the TUPE Regulations.
27.3
If there is or may (in the reasonable opinion of the
Employer)
be a Relevant Transfer as a result of any omission or
termination of the
services or any or all of the
Project Delivery
Partner's obligations under this contract, the parties agree as
between themselves that the
Project Delivery Partner will be
wholly responsible for and liable accordingly for discharging all
the obligations of a transferor under the TUPE Regulations.
27.4 The
Project Delivery Partner agrees that within 14 days of a
written request from the
Employer (such request not to be
made earlier than 6 months before the termination of this
contract whether by effluxion of time or otherwise) it shall
provide to the
Employer in writing the following information:
(1)
the number and description of the employees engaged
in Providing the Services;
(2)
for each employee (or where they are employed on
common terms and conditions of employment each
such group of employees) the particulars, as at a
specified date not more than 7 days before the
information is given, of the matters specified in
Section 1(4) of the Employment Rights Act 1996.
The
Employer shall be entitled to use and/or disclose the said
information in confidence in connection with engaging a
replacement delivery partner to Provide the Services or to
provide any
services or perform any obligations of the
Project
Delivery Partner omitted pursuant to clause 20.4.
Contract No 2072
22
Invitation to Tender issue dated 25
September 2008
Confidential
27.5 The
Project Delivery Partner shall not agree with or otherwise
promise any employees or trade union any terms or conditions
of employment which are outside the ordinary and normal
custom and practice for the industry or relevant trade or which
are conditional upon or triggered by a Relevant Transfer or are
intended to frustrate a re-tendering exercise or deter potential
tenderers from tendering.
Conflict of Interest 28
28.1 The
Project Delivery Partner confirms that as at the date of
this contract it does not have any interest in any matter and
does not act and has not acted for any party in respect of any
matter which would (in either case) create a conflict of
interest in Providing the Services. The
Project Delivery
Partner will undertake ongoing conflict of interest checks and
will notify the
Employer immediately if any conflict or potential
conflict of interest arises (including notification of any
instructions from a party with whom the
Employer has or has
had any dealings with respect to the Programme).
28.2
To the extent that an actual or potential conflict may arise
involving the
Employer, the
Project Delivery Partner shall
continue to act for and advise the
Employer and if reasonably
required will cease to act for any other party where to act so
would constitute a conflict of interest.
Performance 29
At 6 monthly intervals, or at such other intervals as the
reviews
Parties may agree to from time to time, the
Employer and the
Project Delivery Partner shall undertake a formal review of the
performance of the
Project Delivery Partner, including its
performance
against the Interim KPIs and Programme KPIs
pursuant to (and as defined under) clause X20. The
Project
Delivery Partner and the
Employer shall discuss any ways in
which the performance of the
Project Delivery Partner may be
improved.
Contract No 2072
23
Invitation to Tender issue dated 25
September 2008
Confidential
3 Time
Starting, Completion 30
and Key Dates
30.1 The
Project Delivery Partner starts work on the
starting date
(not before) and proceeds with the work diligently so that
Completion is on or before the Completion Date.
30.2 The
Employer decides the date of Completion and certifies it
within 30 days of the date.
30.3 The
Project Delivery Partner does the work so that the
Condition stated for each Key Date is met by the Key Date.
The programme 31
31.1
If a programme is not identified in the Contract Data, the
Project Delivery Partner submits a first programme to the
Employer for acceptance within the period stated in the
Contract Data.
31.2 The
Project Delivery Partner shows on each programme which
he submits for acceptance
•
the
starting date,
access dates, Key Dates and
Completion Date,
•
planned Completion,
•
the order and timing of the operations which the
Project Delivery Partner plans to do in order to Provide
the Services,
•
the order and timing of the work of the
Employer and
Others as last agreed with them by the
Project Delivery
Partner or, if not so agreed, as stated in the Scope,
•
the dates when the
Project Delivery Partner plans to
meet each Condition stated for the Key Dates and to
complete other work needed to allow the
Employer and
Others to do their work,
•
provisions for
•
float,
•
time risk allowances,
•
health and safety requirements and
•
the procedures set out in this contract,
•
the dates when, in order to Provide the Services in
accordance with his programme, the
Project Delivery
Partner will need
Contract No 2072
24
Invitation to Tender issue dated 25
September 2008
Confidential
•
access to a person, place or thing if later than
its
access date,
•
information and things to be provided by the
Employer and
•
information and approval from Others,
•
for each operation, a statement of how the
Project
Delivery Partner plans to do the work identifying the
resources which he plans to use and
•
other information which the Scope requires the
Project
Delivery Partner to show on a programme submitted
for acceptance.
31.3
Within two weeks of the
Project Delivery Partner submitting a
programme to him for acceptance, the
Employer either accepts
the programme or notifies the
Project Delivery Partner of his
reasons for not accepting it. A reason for not accepting a
programme is that
•
the
Project Delivery Partner's plans which it shows are
not practicable,
•
it does not show the information which this contract
requires,
•
it does not represent the
Project Delivery Partner's
plans realistically or
•
it does not comply with the Scope.
Revising the 32
programme
32.1 The
Project Delivery Partner shows on each revised
programme
•
the actual progress achieved on each operation and its
effect upon the timing of the remaining work,
•
the effects of implemented compensation events and
of notified early warning matters,
•
how the
Project Delivery Partner plans to deal with any
delays and to correct notified Defects and
•
any other changes which the
Project Delivery Partner proposes to make to the Accepted Programme.
32.2 The
Project Delivery Partner submits a revised programme to
the
Employer for acceptance
•
within the
period for reply after the
Employer has
instructed him to,
•
when the
Project Delivery Partner chooses to and, in
Contract No 2072
25
Invitation to Tender issue dated 25
September 2008
Confidential
any case,
•
at no longer interval than the interval stated in the
Contract Data from the
starting date until Completion
of the whole of the
services.
Instructions to stop 33
or not to start work
33.1 The
Employer may instruct the
Project Delivery Partner to stop
or not to start any work and may later instruct him that he
may re-start or start it.
Acceleration 34
34.1 The
Employer may instruct the
Project Delivery Partner to
submit a quotation for acceleration to achieve Completion
before the Completion Date. The
Employer states changes to
the Key Dates to be included in the quotation. A quotation for
an acceleration comprises proposed changes to the Prices and
a revised programme showing the earlier Completion Date and
the changed Key Dates. The
Project Delivery Partner submits
details of his assessment with each quotation.
34.2 The
Project Delivery Partner submits a quotation or gives his
reasons for not doing so within the
period for reply.
34.3 When
the
Employer accepts a quotation for acceleration, the
Project Delivery Partner submits changes to the Completion
Date, the Key Dates and the forecast of the total Time Charge
for the whole of the
services to the
Employer for acceptance.
Contract No 2072
26
Invitation to Tender issue dated 25
September 2008
Confidential
4 Quality
Quality management 40
system
40.1 The
Project Delivery Partner operates a quality management
system for Providing the Services as stated in the Scope. The
quality management system complies with the requirements
stated in the Scope.
40.2 The
Project Delivery Partner provides the
Employer, within the
period stated in the Contract Data, with a quality policy
statement and a quality plan for acceptance. The quality policy
statement and quality plan comply with the requirements
stated in the Scope.
40.3 The
Project Delivery Partner complies with an instruction from
the
Employer to the
Project Delivery Partner to correct a failure
to comply with the quality plan.
Correcting Defects 41
41.1 Until
the
defects date, the
Employer notifies the
Project
Delivery Partner of each Defect as soon as he finds it and the
Project Delivery Partner notifies the
Employer of each Defect
as soon as he finds it. After Completion and until the
defects
date, the
Project Delivery Partner notifies the
Employer of each
Defect as soon as he finds it. The
Employer's rights in respect
of a Defect which the
Employer has not found or notified by
the
defects date are not affected.
41.2 The
Project Delivery Partner corrects a Defect whether or not
the
Employer notifies him of it. The
Project Delivery Partner corrects Defects within a time which minimises the adverse
effect on the
Employer or Others. If the
Project Delivery
Partner does not correct a Defect within a reasonable time
having regard to the nature of the Defect, the
Employer assesses the cost to him of having the Defect corrected by
other people and the
Project Delivery Partner pays this
amount.
41.3
For the avoidance of doubt, the
Project Delivery Partner continues to be liable for Defects after:
•
the
defects date;
•
the operation of this clause 41;
•
the termination of this contract for any reason
(including breach by the
Employer);
in accordance with the
law of the contract.
Contract No 2072
27
Invitation to Tender issue dated 25
September 2008
Confidential
5 Payment
Assessing the 50
amount due
50.1 The
Project Delivery Partner assesses the amount due and
submits an invoice at each assessment date. The first
assessment date is decided by the
Project Delivery Partner to
suit the procedures of the Parties and is not later than the
assessment interval after the
starting date. Later assessment
dates occur
•
at the end of each
assessment interval until eight
weeks after the
defects date and
•
at Completion of the whole of the
services.
50.2
Invoices submitted by the
Project Delivery Partner include the
details stated in the Scope to show how the amount due has
been assessed. The first invoice is for the amount due. Other
invoices are for the change in the amount due since the
previous invoice.
50.3
The amount due is
•
the Price for Services Provided to Date,
•
the amount of the
expenses properly spent by the
Project Delivery Partner in Providing the Services and
•
other amounts to be paid to the
Project Delivery
Partner,
less amounts to be paid by or retained from the
Project
Delivery Partner.
Any tax which the law requires the
Employer to pay to the
Project Delivery Partner is included in the amount due.
Payment 51
51.1
The date on which a payment becomes due is seven days after
the date of the
Project Delivery Partner's invoice.
The final date for payment is twenty three days after the date
on which payment becomes due.
Not later than five days after the date on which a payment
becomes due, the
Employer issues a notice to the
Project
Delivery Partner stating the amount of payment made or
proposed to be made, and the basis on which the amount was
calculated.
51.2
If either Party intends to withhold payment of an amount due
under this contract, he notifies the other Party not later than
five days (the prescribed period) before the final date for
payment by stating the amount proposed to be withheld and
the reason for withholding payment. If there is more than one
Contract No 2072
28
Invitation to Tender issue dated 25
September 2008
Confidential
reason, the amount for each reason is stated.
A Party does not withhold payment of an amount due under
this contract unless he has notified his intention to withhold
payment as required by this contract.
51.3 (1)
If:
• any payment has not been paid in full by the final date for
payment; and
• notification of intention to withhold payment has not been
given in accordance with clause 51.2
the
Project Delivery Partner may suspend his performance
under this contract.
(2) The
Project Delivery Partner does not exercise his right to
suspend his performance under this contract unless he has
notified the Employer of:
• his intention to suspend his performance under this
contract and
• the grounds for suspending his performance under this
contract.
(3) The right of the
Project Delivery Partner to suspend his
performance ends when the amount that should be paid to
the
Project Delivery Partner is paid to him in full.
51.4 If
the
Project Delivery Partner exercises his right under the Act
to suspend his performance, it is a compensation event.
51.5
Payments are in the
currency of this contract unless otherwise
stated in this contract.
51.6 If
the
Employer does not accept the
Project Delivery Partner's
assessment of the amount due, he notifies the
Project Delivery
Partner of his reasons and the amount which he assesses is
due before the payment becomes due. He pays the amount of
his assessment. The agreed part of the invoice is paid. The
Project Delivery Partner either
•
corrects the invoice to a sum agreed by the
Employer or
•
provides further information to justify the invoice.
51.7
If a payment is late or has been delayed because of a
disagreement, interest is paid. Interest is assessed from the
date by which the late payment should have been made until
the date when the late payment is made, and is included in the
first assessment after the late payment is made.
51.8
Interest is calculated on a daily basis at the
interest rate and is
compounded annually.
Contract No 2072
29
Invitation to Tender issue dated 25
September 2008
Confidential
Accounts and 52
records
52.2
Without prejudice to clause 73, the
Project Delivery Partner keeps accounts and records of his Time Charge and
expenses and allows the
Employer to inspect them at any time within
working hours.
Contract No 2072
30
Invitation to Tender issue dated 25
September 2008
Confidential
6 Compensation
events
Compensation 60
events
60.1
The following are compensation events.
(1)
The
Employer gives an instruction changing the Scope or
a Service Delivery Plan.
(2)
The
Employer does not provide access to any Premises
provided by the
Employer for the
Project Delivery Partner as stated in this contract.
(3)
The
Employer does not provide something which he is to
provide by the date for providing it shown on the
Accepted Programme.
(4)
The
Employer gives an instruction to stop or not to start
any work or to change a Key Date.
(5)
The
Employer or Others do not work within the times
shown on the Accepted Programme or within the
conditions stated in the Scope.
(6)
The
Employer does not reply to a communication from
the
Project Delivery Partner within the period required
by this contract.
(7)
The
Employer changes a decision which he has
previously communicated to the
Project Delivery Partner.
(8)
The
Employer withholds an acceptance (other than
acceptance of a quotation for acceleration) for a reason
not stated in this contract.
(9)
The
Employer notifies a correction to an assumption
which he has stated about a compensation event.
(10) A breach of contract or act of prevention by the
Employer which is not one of the other compensation
events in this contract.
(11)
The
Employer notifies the
Project Delivery Partner of a
Policy with which he is to comply that is not listed in the
Contract Data or a Service Delivery Plan.
Notifying 61
compensation
events
61.1
For compensation events which arise from the
Employer giving
an instruction or changing an earlier decision, the
Project
Delivery Partner 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
Project
Contract No 2072
31
Invitation to Tender issue dated 25
September 2008
Confidential
Delivery Partner to submit quotations, unless the event arises
from a fault of the
Project Delivery Partner or quotations have
already been submitted. The
Project Delivery Partner puts the
instruction or changed decision into effect.
61.2 The
Employer may instruct the
Project Delivery Partner to
submit quotations for a proposed instruction or a proposed
changed decision. The
Project Delivery Partner does not put a
proposed instruction or a proposed changed decision into
effect.
61.3
Subject to clause 61.8, the
Project Delivery Partner notifies the
Employer of an event which has happened or which he expects
to happen as a compensation event if the
Project Delivery
Partner believes that the event is a compensation event.
If
the
Project Delivery Partner does not notify a compensation
event within eight weeks of becoming aware of the event, he is
not entitled to a change in Prices, the Completion Date or a
Key Date.
61.4
If and to the extent the
Employer decides that an event
notified by the
Project Delivery Partner
•
arises from or is contributed to by a fault of the
Project
Delivery Partner,
•
has not happened and is not expected to happen,
•
has no effect upon the
Project Delivery Partner's costs,
Completion or meeting a Key Date or
•
is not one of the compensation events stated in this
contract
he notifies the
Project Delivery Partner of his decision that the
Prices, the Completion Date and the Key Date are not to be
changed.
If
the
Employer decides otherwise, he notifies the
Project
Delivery Partner accordingly and instructs him to submit
quotations.
61.5 If
the
Employer decides that the
Project Delivery Partner did
not give an early warning of the event which an experienced
consultant could have given, he notifies this decision to the
Project Delivery Partner when he instructs him to submit
quotations.
61.6 If
the
Employer decides that the effects of a compensation
event are too uncertain to be forecast reasonably, he states
assumptions about the event in his instruction to the
Project
Delivery Partner 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.
Contract No 2072
32
Invitation to Tender issue dated 25
September 2008
Confidential
No change in Prices is made in respect of any matter notified
after the
defects date.
61.8 The
Project Delivery Partner and the
Employer agree to
implement a procedure for bundling together and submitting
every 4 weeks notifications of and for assessing and
implementing compensation events. Such procedure will not
apply in respect of any compensation events of such value or
nature which require that they should be brought to the
attention of the other Party before the next notification date.
Quotations for 62
compensation
events
62.1
After discussing with the
Project Delivery Partner different
ways of dealing with the compensation event which are
practicable, the
Employer may instruct the
Project Delivery
Partner to submit alternative quotations. The
Project Delivery
Partner submits the required quotations to the
Employer and
may submit quotations for other methods of dealing with the
compensation event which he considers practicable.
62.2
Quotations for compensation events comprise proposed
changes to the Prices and any delay to the Completion Date
and Key Dates assessed by the
Project Delivery Partner. The
Project Delivery Partner submits details of his assessment with
each quotation. If the programme for remaining work is
altered by the compensation event, the
Project Delivery
Partner includes the alterations to the Accepted Programme in
his quotation.
62.3
The
Project Delivery Partner submits quotations within two
weeks of being instructed to do so by the
Employer. The
Employer replies within two weeks of the submission. His reply
is
•
an instruction to submit a revised quotation,
•
an acceptance of a quotation,
•
a notification that a proposed instruction will not be
given or a proposed changed decision will not be made
or
•
a notification that he will be making his own
assessment.
62.4
The
Employer instructs the
Project Delivery Partner to submit a
revised quotation only after explaining his reasons for doing so
to the
Project Delivery Partner. The
Project Delivery Partner submits the revised quotation within three weeks of being
instructed to do so.
62.5
The
Employer extends the time allowed for
Contract No 2072
33
Invitation to Tender issue dated 25
September 2008
Confidential
•
the
Project Delivery Partner to submit quotations for a
compensation event and
•
the
Employer to reply to a quotation
if
the
Employer and the
Project Delivery Partner agree to the
extension before the submission or reply is due. The
Employer notifies the extension that has been agreed to the
Project
Delivery Partner.
Assessing 63
compensation
events
63.1
The changes to the Prices are assessed as the effect of the
compensation event upon
•
the actual Time Charge for the work already done and
•
the forecast Time Charge for the work not yet done.
The date when the
Employer instructed or should have
instructed the
Project Delivery Partner to submit quotations
divides the work already done from the work not yet done.
63.2
If the effect of a compensation event is to reduce the total
Time Charge, the Prices are proportionately reduced and the
Project Delivery Partner shall not be entitled to any payment in
respect of loss of profit or loss of opportunity in respect of the
same.
63.3.1 Subject to clause 63.3.2 a delay to the Completion Date is
assessed as the length of time that, due to the compensation
event, Completion is later than the Completion Date and a
delay to a Key Date is assessed as the length of time that, due
to the compensation event, the date when the Condition stated
for a Key Date is met is later than the relevant Key Date.
63.3.2 Any delay is only treated as being due to a compensation
event if the compensation event is the sole or principal cause
of the delay.
63.4
The rights of the
Employer and the
Project Delivery Partner to
changes to the Prices, the Completion Date and the Key Dates
are their only rights in respect of a compensation event.
63.5
If
the
Employer has notified the
Project Delivery Partner of his
decision that the
Project Delivery Partner did not give an early
warning of a compensation event which an experienced
consultant could have given, the event is assessed as if the
Project Delivery Partner 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
Project Delivery
Contract No 2072
34
Invitation to Tender issue dated 25
September 2008
Confidential
Partner's risk under this contract.
63.7
Assessments for work not yet done are based upon the
assumptions that the
Project Delivery Partner will react
competently and promptly to the compensation event and that
the Accepted Programme can be changed. Assessments for
work already done include only cost and time which were
reasonably incurred.
63.8
A compensation event which is an instruction to change the
Scope in order to resolve an ambiguity or inconsistency is
assessed as if the Prices, the Completion Date and the Key
Dates were for the interpretation most favourable to the Party
which did not provide the Scope.
63.9
If a change to the Scope makes the description of the
Condition for a Key Date incorrect, the
Employer corrects the
description. This correction is taken into account in assessing
the compensation event for the change to the Scope.
63.10
If the work included in a quotation for a compensation event
includes work by staff for which there is no
staff rate, a
proposed rate is included in the quotation.
63.11 The following are deducted from the assessment of
compensation events
•
the cost of events for which this contract requires the
Project Delivery Partner to insure and
•
other costs paid to the
Project Delivery Partner by
insurers.
The Employer's 64
assessments
64.1
The
Employer assesses a compensation event
•
if the
Project Delivery Partner has not submitted a
required quotation and details of his assessment within
the time allowed,
•
if the
Employer decides that the
Project Delivery
Partner has not assessed the compensation event
correctly in a quotation and he does not instruct the
Project Delivery Partner to submit a revised quotation,
•
if, when the
Project Delivery Partner 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
Project Delivery Partner submits
quotations for a compensation event, the
Employer has
not accepted the
Project Delivery Partner's latest
programme for one of the reasons stated in this
contract.
Contract No 2072
35
Invitation to Tender issue dated 25
September 2008
Confidential
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
Project Delivery Partner has not submitted a
programme or alterations to a programme for
acceptance as required by this contract.
64.3
The
Employer notifies the
Project Delivery Partner of his
assessment of a compensation event and gives him details of it
within the period allowed for the
Project Delivery Partner's
submission of his quotation for the same event. This period
starts when the need for the
Employer's assessment becomes
apparent.
Implementing 65
compensation
events
65.1
A compensation event is implemented when
•
the
Employer notifies his acceptance of the
Project
Delivery Partner's quotation,
•
the
Employer notifies the
Project Delivery Partner of
his own assessment or
•
a
Project Delivery Partner's quotation is treated as
having been accepted by the
Employer.
65.2
The assessment of a compensation event is not revised if a
forecast upon which it is based is shown by later recorded
information to have been wrong.
65.3
The changes to the forecast amount of the Prices, the
Completion Date and the Key Dates are included in the
notification implementing a compensation event and the
Service Delivery Plan is modified accordingly.
Reviewing staff 66
Where the
Project Delivery Partner considers that staff
resourcing levels
resource levels set out in the Service Delivery Plan are not
included in Service
sufficient to Provide the Services and such lack of sufficiency is
Delivery Plans
not due to a compensation event, the
Employer and the
Project Delivery Partner shall discuss whether or not to agree a
change to the Service Delivery Plan. If no agreement can be
reached the
Employer will, in its absolute discretion, decide
whether the Service Delivery Plan should be changed and if so
in what regard.
Contract No 2072
36
Invitation to Tender issue dated 25
September 2008
Confidential
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
Project Delivery Partner confirms that it will be able
to Provide the Services without using or incorporating its
Background Rights therein and that the
Employer will be
able to use the
services to develop, implement and
operate the Programme both during the term of this
contract and thereafter without needing a right to use
any such Background Rights.
(b) The
Project Delivery Partner may request the
Employer's
consent to use or to incorporate the
Project Delivery
Partner's Background Rights to Provide the Services and
may do so subject to receipt of the
Employer's prior
written consent. Such consent shall be given at the
Employer's absolute discretion and will be subject to
prior contract between the
Employer and the
Project
Delivery Partner with respect to licensing and
commercial arrangements required with respect to use
of such Background Rights.
Foreground Rights 70B
and Materials
70B.1
All Foreground Rights and Materials shall vest in and be the
property of the
Employer on their creation. To the extent that
any such Foreground Rights or Materials vest in the
Project
Delivery Partner or any Subconsultant or other third party
engaged by the
Project Delivery Partner in performing this
contract, the
Project Delivery Partner hereby:
(a) assigns to the
Employer (or shall procure that the
Employer is granted an assignment of) all such present
and future Foreground Rights immediately upon
creation; and
(b) transfers to the
Employer (or shall procure that the
relevant owner transfers) ownership in such present or
future Materials immediately upon creation.
Contract No 2072
37
Invitation to Tender issue dated 25
September 2008
Confidential
70B.2 The
Project Delivery Partner shall in engaging or employing
any Subconsultant enter into an enforceable written contract
with such party which provides that:
(a) all Foreground Rights and Materials created by the Sub-
contractor pursuant to such contract shall vest in and
becomes the property of the
Employer immediately upon
creation;
(b) upon such vesting, the
Employer shall become entitled
to exclusive perpetual and unrestricted rights of use and
ownership of such Foreground Rights and Materials; and
(c) the
Employer or its nominee shall be able to enforce the
rights of the
Project Delivery Partner against such
Subconsultant pursuant to the terms of the Contracts
(Rights of Third Parties) Act 1999;
70B.3 The
Project Delivery Partner shall provide a copy of any
contract proposed pursuant to clause 70B.2 to the
Employer for approval and authorisation prior to entry into or execution
of the same.
70B.4 The
Project Delivery Partner agrees to provide to the
Employer
or any person nominated by the
Employer immediate access to
all Materials in whatever form reasonably requested by the
Employer (including without limitation the source code of any
software that is not commercially available) at any time but at
the latest on termination or expiry of this contract. The
Project
Delivery Partner shall upon the written request of the
Employer enter into a deposit and/or source code escrow contract with
the
Employer and a third party nominated by the
Employer in
respect of such Materials in such form as the
Employer may
require.
Third Party Rights 70C
70C.1 The
Project Delivery Partner shall be responsible for obtaining
all necessary consents, authorities or approvals required to use
any Third Party Rights necessary for performing its obligations
under this contract.
70C.2 The
Project Delivery Partner shall ensure that the
Employer
has all Third Party Rights necessary to enable the
Employer to
develop, implement and operate the Programme and/or use
Materials during the term of this contract and thereafter.
70C.3 The
Project Delivery Partner shall use its best endeavours to
ensure that it is a condition of any licence into which the
Project Delivery Partner 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.
Contract No 2072
38
Invitation to Tender issue dated 25
September 2008
Confidential
70C.4
All licenses in respect of Third Party Rights used by the
Project
Delivery Partner in connection with the
services shall continue
for a period of 24 months from expiry or termination of this
contract. The
Project Delivery Partner shall use its best
endeavours to ensure that all licences for Third Party Rights
that are not commercially available may be extended at the
request of the
Employer thereafter on the same terms. Where
the
Employer requires an extended right of use of any Third
Party Rights used by the
Project Delivery Partner in connection
with the services (or any part thereof) that is not commercially
available, the
Employer shall pay or procure the payment of, in
accordance with terms agreed between the parties, a
reasonable licence fee for any such use for the extended
period. In determining whether or not any licence fee is
reasonable regard shall be had to the nature and use made of
the Third Party Rights, licence fees charged to the
Project
Delivery Partner or Subconsultant by their licensors for such
Third Party Rights, industry practice and the licence fees for
the Third Party Rights normally charged by the
Project Delivery
Partner or Subconsultant in similar circumstances.
Licence from the 70D
Employer
The
Employer hereby grants to the
Project Delivery Partner for
the term of this contract and free of charge a non-exclusive,
royalty-free licence to use such of the
Employer's data,
reports, drawings, specifications, plans, software, designs,
inventions and/or other material of the
Employer as are
required by the
Project Delivery Partner to Provide the Services
and to fulfil its other obligations pursuant to this contract and
which relate to the
services. This licence is limited to use of
such materials for the purpose of, and solely as necessary for,
the
services during the term of this contract. To the extent
that any modifications or enhancements to materials licensed
by the
Employer to the
Project Delivery Partner under this
clause 70D are carried out by or on behalf of the
Project
Delivery Partner in Providing the Services, the
Project Delivery
Partner hereby assigns (or shall procure that the
Employer is
granted an assignment of) all present and future Intellectual
Property in those modifications and enhancements. By virtue
of this clause 70D all such Intellectual Property rights shall
vest in the
Employer on their creation.
Warranties and 70E
Indemnity
70E.1 The
Project Delivery Partner warrants that:
(a)
it is the beneficial owner of its Background Rights; and
(b) the
Employer's use of the
Project Delivery Partner's
Background Rights or any Foreground Rights developed
or supplied by the
Project Delivery Partner pursuant to
this contract will not infringe Intellectual Property owned
by any third party.
Contract No 2072
39
Invitation to Tender issue dated 25
September 2008
Confidential
70E.2 The
Project Delivery Partner will indemnify and hold harmless
the
Employer against any and all liability, loss, damages, costs,
legal costs, professional and other expenses of any nature
whatsoever incurred or suffered by the
Employer (whether
direct or consequential) in respect of any claim or action that
the
Employer's use of:
(a) Intellectual Property rights licensed by the
Project
Delivery Partner to the
Employer under this clause 70;
or
(b) the Foreground Rights developed or supplied by the
Project Delivery Partner under this contract;
infringes the Intellectual Property rights of any third party.
Infringements 70F
The
Project Delivery Partner shall exercise good commercial
discretion in watching for Intellectual Property rights and the
publication of any applications for the registration of
Intellectual Property rights owned or controlled by third parties
which may be relevant to the intentions of the
Employer and
the
Project Delivery Partner as expressed in this contract.
Should any such Intellectual Property rights of a third party
come to the notice of the
Project Delivery Partner, then the
Project Delivery Partner shall inform the
Employer promptly
and the parties shall decide jointly what action is to be taken.
In the event of an agreement not being reached by the
Employer and the
Project Delivery Partner, the
Employer shall
make the final decision. the
Employer and the
Project Delivery
Partner shall at all times have regard when making their
decision to the Patents Act 1977 and any subsequent
amendment or enactment of such legislation and any other
applicable law.
Copyright and 70G
Publication
70G.1 The
Employer shall be the proprietor of the copyright in this
contract and any data relating to this contract. The
Employer reserves the right to determine whether the results of the
services shall be published and if so on what conditions. The
Project Delivery Partner 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."
Contract No 2072
40
Invitation to Tender issue dated 25
September 2008
Confidential
70G.2
7.2
The following copyright statement shall be included by
the
Project Delivery Partner on all copyright items intended for
reproduction including final reports:
"© Copyright Controller HMSO year. This material is published
for Cross London Rail Links Limited with the permission of the
Controller of Her Majesty’s Stationery Office".
Further Assurances 70H
70H.1 The
Project Delivery Partner shall (at its own cost) upon the
request of the
Employer promptly execute all documents and
do all acts and things which may be necessary to bring into
effect or confirm any assignment or the terms of any of the
licences contained or referred to in this clause 70.
70H.2
The parties shall, when appropriate, execute a formal licence
or licences for the purpose of registering any licences granted
pursuant to this clause 70 in such form as may be necessary to
give effect to this contract and to conform with the laws for the
time being existing in respect of Intellectual Property rights.
Such licence or licences shall be subject to all the terms and
conditions of this contract.
General 70I
70I.1 The
Project Delivery Partner shall not sell, copy or use the
Intellectual Property referred to in this clause 70 if this might
compromise the services and/or Materials (or any part thereof)
or the
Employer's use of them.
70I.2 The
Project Delivery Partner shall notify any proposed assignee
of this contract of the licences granted to the
Employer under
or in accordance with this contract.
70I.3 The
Project Delivery Partner shall ensure that any contracts
between the
Project Delivery Partner and any Subconsultant
imposes obligations on the Sub-consultant which are identical
in effect to the obligations imposed on the
Project Delivery
Partner under this clause 70.
70I.4 The
Project Delivery Partner 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
Project Delivery Partner shall not, except with the consent
of the
Employer, make any press announcements or publicise
this contract or the Programme in any way unless the purpose
of such disclosure is to allow compliance with a requirement to
disclose information concerning this contract as required by
law or the requirement of the stock exchange. The provisions
of this clause shall not apply to any information relating to this
contract, which is or which pursuant to this clause 71 is public
knowledge (otherwise than by breach of this clause) or which
is limited to the fact of the
Project Delivery Partner being a
Contract No 2072
41
Invitation to Tender issue dated 25
September 2008
Confidential
party to this contract.
Data Protection 72
72.1 (a)
The
Project Delivery Partner shall comply with all of its
obligations under the Data Protection Act 1998 (the
"DPA") and, where it is processing personal data (as
defined in the DPA) on behalf of the
Employer ("Employer Personal Data"), the
Project Delivery Partner shall only act in accordance with instructions from the
Employer in relation to the Employer Personal Data.
(b)
The
Project Delivery Partner shall take appropriate
technical and organisational measures to the satisfaction
of the
Employer to prevent unauthorised or unlawful
processing of, accidental loss or destruction of, and
damage to, Employer Personal Data.
72.2 The
Project Delivery Partner shall fully indemnify and hold the
Employer harmless in respect of all losses, liabilities, claims,
actions, proceedings, demands, costs, charges or expenses
arising out of or in connection with: (i) any breach by the
Project Delivery Partner, its employees, agents,
Subconsultants, or any other third party to whom it has
disclosed Employer Personal Data; and (ii) any third party
claims made in respect of information subject to the DPA,
which claims would not have arisen but for some act, omission
or negligence on the part of the
Project Delivery Partner, its
employees, agents, Subconsultants, or any other third party to
whom it has disclosed Employer Personal Data.
Access to 73
Information
73.1 The
Project Delivery Partner shall free of charge disclose to the
Employer and shall free of charge allow the
Employer and/or
those nominated by him to inspect and take away copies and
all such information relating to the
services (including without
prejudice to the generality of 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
Project Delivery Partner shall ensure that such representatives have full and free
access (including access to the
Project Delivery Partner’s premises) and licence to use such information in order to
facilitate the operation of this clause but the
Project Delivery
Partner shall not be obliged to supply any information which
would be treated as privileged in any proceedings.
Freedom of 74
Information
74.1 The
Project Delivery Partner acknowledges that the
Employer
is subject to the FOI Legislation and agrees to assist and co-
operate with the
Employer to enable the
Employer to comply
with its obligations under the FOI Legislation. The foregoing
Contract No 2072
42
Invitation to Tender issue dated 25
September 2008
Confidential
shall not preclude the
Project Delivery Partner from objecting
to a disclosure of
Project Delivery Partner Information.
74.2 The
Employer shall be responsible for determining whether
Project Delivery Partner Information is exempt information
under the FOI Legislation and for determining what
Project
Delivery Partner Information will be disclosed in that respect to
an Information Request in accordance with the FOI Legislation.
The
Project Delivery Partner shall not itself respond to any
person making an Information Request, save to acknowledge
receipt, unless expressly authorised to do so by the
Employer.
74.3 The
Project Delivery Partner acknowledges that the
Employer
may be obliged under the FOI Legislation to disclose
Project
Delivery Partner Information.
Confidential 75
Information
75.1
Subject to the other provisions of and as expressly permitted
by this clause 75, the
Project Delivery Partner:
(a) may not use any Confidential Information for any
purpose other than the performance of its obligations
under this contract;
(b) may not disclose any Confidential Information to any
person except with the prior written consent of the
Employer; and
(c)
shall make every effort to prevent the use or disclosure
of the Confidential Information.
75.2
Notwithstanding clause 75.1, the
Project Delivery Partner may
disclose any Confidential Information to the following parties in
the following circumstances:
(a) to any officer or servant of the
Project Delivery Partner
or any person engaged in the provision of goods or
services to or for him if disclosure is necessary to enable
the
Project Delivery Partner to Provide the Services or to
enforce its rights under this contract, upon obtaining an
undertaking of strict confidentiality from such officer,
servant or person;
(b)
to the extent required by any applicable law, the rules of
any stock exchange or regulatory body or any written
request of any taxation authority; and
(c) pursuant to the order of any court or tribunal of
competent jurisdiction.
75.3
The provisions of clause 75.1 above shall not apply to any
Confidential Information which:
(a) is at the date of this contract or any time thereafter
becomes publicly known other than by breach of this
Contract No 2072
43
Invitation to Tender issue dated 25
September 2008
Confidential
contract or of an obligation of confidence;
(b) can be shown by the
Project Delivery Partner to the
Employer's reasonable satisfaction to have been known
by the
Project Delivery Partner before disclosure by the
Employer.
75.4
Before disclosure of any Confidential Information, the
Project
Delivery Partner shall ensure that the recipient is made aware
of and complies with the
Project Delivery Partner's obligations
of confidentiality under this contract as if the recipient was a
party to this contract.
75.5
Without prejudice to any other rights or remedies which the
Employer may have, the
Project Delivery Partner acknowledges
and agrees that in the event of breach of this clause 75 the
Employer shall, without proof of special damage, be entitled to
an injunction or other equitable remedy for any threatened or
actual breach of the provisions of this clause in addition to any
damages or other remedies to which it may be entitled.
75.6
If this contract is terminated, the
Project Delivery Partner shall, return to the
Employer all of the Confidential Information
then within its possession or control or destroy such
Confidential Information using a secure and confidential
method of destruction and furnish to the
Employer sufficient
evidence of such destruction, save that the
Project Delivery
Partner may retain one copy of the Confidential Information if
required to do so by law.
Contract No 2072
44
Invitation to Tender issue dated 25
September 2008
Confidential
8
Indemnity, insurance and liability
Indemnity 80
80.1
The
Project Delivery Partner indemnifies the
Employer against
all losses, claims, proceedings, compensation and costs
payable arising from:
•
death and/or personal injury;
•
property damage or loss;
•
breach of statutory duty;
•
third party claims (including an infringement of the rights
of Others but except for an infringement which arose out
of the use by the
Project Delivery Partner of things
provided by the
Employer);
arising from the
Project Delivery Partner Providing the
Services.
Insurance cover 81
81.1
The
Project Delivery Partner provides the insurances stated in
the Insurance Table except any insurance which the
Employer is to provide as stated in the Contract Data. The insurances
provide cover from the Contract Date until the end of the
periods stated in the Contract Data.
INSURANCE TABLE
Insurance against
Minimum amount of cover
Liability of the
Project
The amount stated in the
Delivery Partner for claims
Contract Data
made against him 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
Project
event
Delivery Partner) or loss of or
damage to property resulting
from an action or failure to
take action by the
Project
Delivery Partner
Liability for death of or bodily
The greater of the amount
injury to employees of the
required by the applicable law
Project Delivery Partner
and the amount stated in the
arising out of and in the
Contract Data for any one
course of their employment in event
connection with this contract
Contract No 2072
45
Invitation to Tender issue dated 25
September 2008
Confidential
81.2
When requested by a Party the other Party provides
certificates from his insurer or broker stating that the
insurances required by this contract are in force.
Contract No 2072
46
Invitation to Tender issue dated 25
September 2008
Confidential
9 Termination
Termination 90
90.1
Either Party may terminate the
Project Delivery Partner's
employment by notifying the other Party if the other Party has
done one of the following or its equivalent.
•
If the other Party is an individual and has
•
presented his petition for bankruptcy,
•
had a bankruptcy order made against him,
•
had a receiver appointed over his assets or
•
made an arrangement with his creditors.
•
If the other Party is a company or partnership and has
•
had a winding-up order made against it,
•
had a provisional liquidator appointed to it,
•
passed a resolution for winding-up (other than in
order to amalgamate or reconstruct),
•
had an administration order made against it,
•
had a receiver, receiver and manager, or
administrative receiver appointed over the whole
or a substantial part of its undertaking or assets
or
•
made an arrangement with its creditors.
90.2 The
Project Delivery Partner may terminate his employment by
notifying the
Employer if the
Employer has not paid an amount
due to the
Project Delivery Partner within eight weeks of the
issue of a notice by the
Project Delivery Partner to the
Employer confirming that the final date for payment of such
amount has passed.
90.3 The
Employer may terminate the
Project Delivery Partner's
employment by notifying the
Project Delivery Partner if
•
the
Employer no longer requires the
Project Delivery
Partner to Provide the Services or
•
the
Project Delivery Partner has failed to comply with
his obligations.
•
the
Project Delivery Partner commits a Prohibited Act
90.4 The
Employer may terminate the
Project Delivery Partner's
employment by notifying the
Project Delivery Partner if an
event occurs which
Contract No 2072
47
Invitation to Tender issue dated 25
September 2008
Confidential
•
stops the
Project Delivery Partner completing the
services or
•
stops the
Project Delivery Partner completing the
services by the date shown on the Accepted
Programme and is forecast to delay Completion by
more than 13 weeks,
and
which
•
neither Party could prevent and
•
an experienced consultant would have judged at the
Contract Date to have such a small chance of occurring
that it would have been unreasonable for him to have
allowed for it.
Procedures on 91
termination
91.1
On
termination
•
the
Project Delivery Partner does no further work
necessary to Provide the Services,
•
the
Employer may complete the
services and may use
any material to which he has title,
•
the
Employer may require the
Project Delivery Partner to assign the benefit of any subconsultancy or other
contract related to performance of this contract to the
Employer and
•
the
Project Delivery Partner gives to the
Employer or
the
Employer's nominee information resulting from
work carried out to date and information the
Project
Delivery Partner has obtained which he has a
responsibility to provide under this contract.
•
the Parties continue to comply with the constraints and
obligations in this contract on
•
the use of material prepared or obtained by the
Project Delivery Partner and
•
publicising the services, confidentiality and the
FOI Legislation
Termination shall be without prejudice to any accrued rights
and obligations under this contract as at the date of such
termination.
91.2
Following any termination of the
Project Delivery Partner's
employment or the omission of any of the
services under this
contract and upon the expiry of this contract, the
Project
Delivery Partner shall co-operate with the
Employer and shall
provide to him all reasonable assistance to facilitate the
handover or transfer of any of the
Project Delivery Partner's
Contract No 2072
48
Invitation to Tender issue dated 25
September 2008
Confidential
obligations or
services to the
Employer or the
Employer's
nominee including briefing and providing information to the
Employer or the
Employer's nominee.
Payment on 92
termination
92.1
A final payment is made as soon as possible after termination.
The amount due on termination is
•
an amount due assessed as for normal payments and
•
a fair and reasonable proportion of the Prices
commensurate with any partially complete activities as
at the date of termination.
92.2 If
the
Employer terminates because of the
•
insolvency of the
Project Delivery Partner or
•
failure of the
Project Delivery Partner to comply with
his obligations,
the amount due on termination includes a deduction of the
forecast of the additional cost to the
Employer of completing
the whole of the
services together with the amount of any loss
or expense or additional cost incurred or suffered by the
Employer and arising out of the termination or the event
entitling the
Employer to terminate. If such deduction exceeds
the amount due on termination such excess shall be
recoverable by the
Employer from the
Project Delivery Partner as a debt.
Contract No 2072
49
Invitation to Tender issue dated 25
September 2008
Confidential
100 Guarantee
100.1 The
Guarantor is a party to this contract for the sole purpose
of guaranteeing the performance of the obligations of the
Project Delivery Partner hereunder.
100.2 In consideration of the
Employer appointing the
Project
Delivery Partner in accordance with the terms of this contract,
the
Guarantor:
(a)
agrees that if the
Project Delivery Partner shall in any
respect fail to perform any of its obligations arising
under this contract (as the same may be amended or
varied from time to time) or shall commit any breach or
fail to perform any warranty or indemnity set out in this
contract (as the same may be amended or varied from
time to time), then the
Guarantor shall forthwith upon
the
Employer's demand perform and fulfil in the place of
the
Project Delivery Partner each and every obligation,
warranty or indemnity in respect of which the
Project
Delivery Partner has defaulted or as may be unfulfilled
by the
Project Delivery Partner, and the
Guarantor shall
indemnify and save harmless the
Employer from any
and all losses, damages, expenses, claims, costs or
proceedings which the
Employer may suffer or incur by
reason of the said failure or breach;
(b)
confirms that it has full power and capacity to enter into
this contract and to give the guarantee set out herein,
and that the guarantee shall not be revocable and shall
be a continuing guarantee; and
(c)
agrees that the
Employer is entitled to assign any of its
rights under this guarantee at any time to any person
who takes an assignment, novation or other transfer of
this contract or the benefit thereof.
100.3 As
between
the
Guarantor and the
Employer, the
Guarantor
shall remain liable under clause 100.2 as if it were the sole
principal obligor and not merely a guarantor
100.4 The
Guarantor shall not be discharged nor shall its liability be
affected by anything which would not discharge it or affect its
liability if it were the sole principal obligor including, but not
limited to:
(a)
any amendment, modification, waiver, consent or
variation, express or implied, to the Scope, the
services or to this contract or any related documentation;
(b)
the granting of any extensions of time or forbearance,
forgiveness or indulgences in relation to time to the
Project Delivery Partner;
(c)
the enforcement, absence of enforcement or release of
the contract or of any security, right of action or other
Contract No 2072
50
Invitation to Tender issue dated 25
September 2008
Confidential
guarantee or indemnity;
(d)
the dissolution, amalgamation, reconstruction,
reorganisation of the
Project Delivery Partner or any
other person;
(e)
the illegality, invalidity or unenforceability of or any
defect in any provision of the contract or any of the
Project Delivery Partner's obligations under the
contract;
(f)
any indulgence or additional or advanced payment,
forbearance, payment or concession to the
Project
Delivery Partner;
(g)
any compromise of any dispute with the
Project Delivery
Partner;
(h)
any failure of supervision to detect or prevent any fault
of the
Project Delivery Partner;
(i)
any assignment of the benefit of the contract.
100.5 Without prejudice to the generality of clause 100.2, the
Employer shall have the right, as its sole option, in the event of
any default by the
Project Delivery Partner to engage another
consultant, other than the
Guarantor or any nominee of the
Guarantor to Provide the Services and the
Guarantor undertakes to pay any additional costs (whether direct or
indirect) thereby incurred by the
Employer.
Contract No 2072
51
Invitation to Tender issue dated 25
September 2008
Confidential
MAIN OPTION CLAUSES
W2
Dispute Resolution W.2.1 Any dispute or difference between the Parties as to the
construction of this contract or any matter or thing of
whatsoever nature arising under this contract or in connection
therewith (a "Dispute") shall be resolved pursuant to the terms
of this clause W.2.
Managerial W.2.2
Without prejudice to the Parties' rights at any time to refer
Discussions
Disputes to adjudication in accordance with this clause W.2 the
Parties shall each use their reasonable endeavours to resolve
any Dispute which may arise by means of prompt, bona fide
discussion at a managerial level appropriate to the Dispute in
question. If such discussions do not resolve the Dispute,
subject to the Parties' rights to refer the Dispute to
adjudication, the Parties shall refer the Dispute to the Dispute
Board in accordance with the Dispute Board Procedure.
Adjudication W.2.3
Either party may give notice at any time of its intention to
Procedure
refer to adjudication a Dispute arising out of or in connection
with this contract and such adjudication shall be conducted in
accordance with the Scheme for Construction Contracts
(England and Wales) Regulations 1998. The adjudicator shall
be agreed between the Parties or shall be nominated by the
referring party from the Adjudicator Panel.
Joinder W.2.4
(a) If a Dispute arising under this contract raises issues of
fact or law which are the same as, or relate to issues
raised in an unresolved dispute between the
Employer and any Other (a "Related Dispute"):
(i)
the
Employer may require a representative of the
parties in the Related Dispute to meet with the
parties under this contract and endeavour to
resolve both the Related Dispute and the Dispute;
and
(ii)
the
Employer may refer the Related Dispute to an
adjudicator or court to which the Dispute has been
referred under this contract or may refer the
Dispute to an adjudicator or court to which the
Related Dispute had been referred and the
proceedings shall be consolidated, save where the
adjudicator or court shall in its absolute discretion
determine that it is not possible to consolidate the
proceedings; and
(iii) any dispute as to whether the Dispute raises
issues of fact or law which are the same as or
related to issues of fact or law in the Related
Dispute shall be resolved by the adjudicator or
court to which the Dispute and the Related
Dispute have been referred, provided that, if the
adjudicator or court decides that such issues of
fact or law do not arise in the Related Dispute this
Contract No 2072
52
Invitation to Tender issue dated 25
September 2008
Confidential
clause W.2.4 shall cease to apply; and
(iv) the adjudicator to whom the Dispute and the
Related Dispute have been referred shall have
power to make such decisions, directions and all
necessary orders and awards in respect of the
Dispute and the Related Dispute in the same way
as if the procedure of the High Court as to joining
one or more defendants or joining co-defendants
or third parties was available to the parties and to
him.
(b)
The
Employer may only refer a Related Dispute to the
adjudicator appointed in relation to a Dispute if the
adjudicator receives particulars of the Related Dispute
within seven days of the referral of the Dispute to the
adjudicator under this contract and may only refer a
Dispute to the adjudicator appointed in relation to a
Related Dispute if the adjudicator receives particulars of
the Dispute within seven days of the referral of the
Related Dispute to the adjudicator.
Final and Binding W.2.5
The Parties may agree that the adjudicator's decision shall be
Decision
final and binding and shall finally determine any Dispute, or in
the absence of such agreement may otherwise refer such
Dispute to the courts of England and Wales for further
determination
Contract No 2072
53
Invitation to Tender issue dated 25
September 2008
Confidential
SECONDARY OPTION CLAUSES
Option X1: Price adjustment for inflation
If staff rates are fixed at the Contract Date and are not
variable with changes in salary paid to individuals.
Price adjustment X1
factor
X1.1
On 1 April 2010 and on each anniversary of 1 April thereafter,
the
Project Delivery Partner calculates a price adjustment
factor equal to (L - B)/B, where L is the last published value of
the
index and B is the last value of the
index published before
1 April 2010.
If the value of an
index is changed after it has been used in
calculating a price adjustment factor, the calculation is
repeated and a correction included in the next assessment of
the amount due.
The price adjustment factor calculated at the Completion Date
for the whole of the
services is used for calculating price
adjustment after this date.
Price adjustment X1.2
Each amount due after 1 April 2010 includes an amount for
price adjustment which is the sum of
•
the change in the Price for Services Provided to Date
since the last assessment of the amount due multiplied
by the price adjustment factor calculated at the last
anniversary and
•
the amount for price adjustment included in the
previous amount due.
Price adjustment X1.3
Each time the amount due is assessed after 1 April 2010, an
Option C
amount for price adjustment is added to the total of the Prices
which is the change in the Price for Services Provided to Date
since the last assessment of the amount due multiplied by
(PAF/(1+PAF)) where PAF is the price adjustment factor
calculated at the last anniversary.
Expenses X1.6
If payment rates for any of the
expenses are fixed at the
adjustment
Contract Date and are not otherwise adjustable for inflation,
each amount due after the 1 April 2010 includes an amount for
expenses adjustment which is the sum of
•
the change in fixed
expenses since the last assessment
of the amount due multiplied by the price adjustment
factor calculated at the last anniversary and
•
the amount for
expenses adjustment included in the
previous amount due.
Contract No 2072
54
Invitation to Tender issue dated 25
September 2008
Confidential
If staff rates are variable with changes in salary paid to
individuals.
Price adjustment X1
factor
X1.1
On 1 April 2010 and on each anniversary of 1 April thereafter,
the
Project Delivery Partner calculates a price adjustment
factor equal to (L - B)/B, where L is the last published value of
the
index and B is the last value of the
index published before
the 1 April 2010.
If
an
index is changed after it has been used in calculating a
price adjustment factor, the calculation is repeated and a
correction included in the next assessment of the amount due.
The price adjustment factor calculated at the Completion Date
for the whole of the
services is used for calculating price
adjustment after this date.
Price adjustment X1.2
Each amount due after 1 April 2010 includes an amount for
Option A
price adjustment which is the sum of
•
the change in the Price for Services Provided to Date
since the last assessment of the amount due multiplied
by the price adjustment factor calculated at the last
anniversary and
•
the amount for price adjustment included in the
previous amount due.
Price adjustment X1.3
Each time the amount due is assessed after 1 April 2010, an
Option C
amount for price adjustment is added to the total of the Prices
which is the change in the Price for Services Provided to Date
since the last assessment of the amount due multiplied by
(PAF/(1+PAF)) where PAF is the price adjustment factor
calculated at the last anniversary.
Price adjustment X1.4 Not
Used.
Option G
Compensation X1.5
The Time Charge for compensation events is assessed using
events Options A, C
the
staff rates current at the time of assessing the
and G (lump sum
compensation event adjusted to the Contract Date by dividing
items on the Task
by (1+PAF), where PAF is the price adjustment factor
Schedule) only
calculated at the last anniversary.
Expenses X1.6
If payment rates for any of the
expenses are fixed at the
adjustment
Contract Date and are not otherwise adjustable for inflation,
each amount due after the 1 April 2010 includes an amount for
expenses adjustment which is the sum of
•
the change in fixed
expenses since the last assessment
of the amount due multiplied by the price adjustment
factor calculated at the last anniversary and
•
the amount for
expenses adjustment included in the
Contract No 2072
55
Invitation to Tender issue dated 25
September 2008
Confidential
previous amount due.
Option X8: Collateral warranty agreements2
Collateral warranty X8
agreements
X8.1 [
Assume warranties or third party rights in favour of:
•
LUL – identified packages
•
NR – identified packages
•
Tubelines – identified packages
•
DLR – identified packages]
•
Rail for London – identified packages
•
Any operator of any depot]
Option X20: Incentives
Incentives X20
X20.1
Interim KPIs and Programme KPIs are aspects of performance
by the
Project Delivery Partner for which targets are stated in
the Incentive Schedule. The Incentive Schedule is the
incentive schedule unless later changed in accordance with this
contract.
X20.2
From the
starting date until the
defects date, the
Project
Delivery Partner reports to the
Employer his performance
against each of the Interim KPIs and Programme KPIs. Reports
are provided at the intervals stated in the Contract Data or
Service Delivery Plan and include the forecast final
measurement against each indicator.
X20.3
If the
Project Delivery Partner’s forecast final measurement
against an Interim KPI or Programme KPI will not achieve an
"Excellent" rating in the relevant Performance Band, he
submits his proposals for improving performance.
X20.4
The
Project Delivery Partner or the
Employer (as the case may
be) is paid the relevant percentage of the Interim Earned
Amount and is paid the Final Earned Amount in accordance
with the Incentive Schedule.
X20.5
Capitalised terms used in this clause X20 and not otherwise
defined have the meaning ascribed to them in the Incentive
2 Beneficiaries of warranties are to be confirmed.
Contract No 2072
56
Invitation to Tender issue dated 25
September 2008
Confidential
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.
Contract No 2072
57
Invitation to Tender issue dated 25
September 2008
Confidential
CONTRACT DATA
Part one – Data provided by the Employer
Statements given in all
contracts
1 General
•
The
conditions of contract are the amended NEC Professional
Services Contract Conditions to which this Contract Data is
attached.
•
The
Employer is
Name
Cross London Rail Links Limited
Address
Portland House, Bressenden Place, London SW1E 5BH
•
The
services are set out in the Scope as the same may be
modified or augmented by the Service Delivery Plan.
•
The Scope is at Appendix 1.
•
The
language of this contract is English
•
The
law of the contract is the law of England and Wales
•
The
period for reply is 14 days except in relation to the
following: [ ]
•
The
period for retention is 15 years following Completion or
earlier termination.
•
The following matters will be included in the Risk Register:
………………………………………………………………………………
•
The
Employer's Policies and Procedures are set out in Appendix
1
•
The Third Party Agreements are set out in Appendix 6.
•
TfL is Transport for London of Windsor House, 42-50 Victoria
Street, London SW1H 0TL.
2 The Parties' main
•
The
Employer provides access to the persons, places and things
responsibilities
as set out in Appendix 2 and the Service Delivery Plan
3 Time
•
The
starting date is [
]
•
The programme identified in the Contract Data is in the Service
Delivery Plan.
•
The
Project Delivery Partner submits revised programmes at
each assessment interval.
Contract No 2072
58
Invitation to Tender issue dated 25
September 2008
Confidential
4 Quality
•
The quality policy statement and quality plan are provided
within 1 month of the
starting date.
•
3The
defects date is the later of twelve months after the date
that the railway transport system that is the subject of the
Programme commences full operations and twelve months from
final completion under the Project Development Agreement
5 Payment
•
The
assessment interval is every four week accounting period of
the
Employer, such periods to be advised to the
Project Delivery
Partner annually.
•
The
currency of this contract is pounds sterling (£).
•
The
interest rate is 2% per annum (not less than 2) above the
base rate of the Bank of England.
8 Indemnity, insurance
•
The amounts of insurance and the periods for which the
Project
and liability
Delivery Partner maintains insurance are
event cover period
following
Completion of the
whole of the
services or earlier
termination
failure of the
Project
£25 million in
Twelve years
Delivery Partner to respect of each
use the skill and claim, without limit
care normally used to the number of
by 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
Project Delivery to the number of
Partner) or loss of or claims
damage to property
resulting from an
action or failure to
take action by the
Project Delivery
Partner.
death of or bodily £10 million in
Twelve years
injury to employees respect of each
of the
Project
claim, without limit
Delivery Partner
to the number of
arising out of and in claims.
the course of their
employment in
3
Definition to be aligned with final position under the Project Development Agreement
Contract No 2072
59
Invitation to Tender issue dated 25
September 2008
Confidential
connection with this
contract
Optional statements
If the Employer has decided the completion date for the
whole of the services
•
The
completion date for the whole of the
services is [ ]
If
the
Employer has identified work which is to meet a stated
condition by a key date
•
The
key dates and
conditions to be met are set out in the
Service Delivery Plan.
If
the
Employer states any expenses
•
The
expenses stated by the Employer are in Appendix 2
If Option C, E or G is used
The
Project Delivery Partner prepares forecasts of the total Time
Charge and
expenses at each assessment interval
If Option X1 is used
The
index is the Average Earnings Index Whole Economy excluding
bonuses series jqdw.
If Option X8 is used
The
collateral warranty agreements are as set out in Appendix 9
agreement reference
third party
Appendix
9
[
LUL]
[
Tubelines]
[
NR]
[
DLR]
[
Rail for London]
[
Any operator of any depot]
If Option X20 is used
•
The
incentive schedule is in Appendix 4 and/or the Service
Delivery Plan
•
A report of performance against each Interim KPI and the
Programme KPIs is provided by the
Project Delivery Partner
at each assessment interval for review by the
Employer.
Contract No 2072
60
Invitation to Tender issue dated 25
September 2008
Confidential
Y(UK)3
Term
Person or organisation
All
TfL
All
Department for Transport
Contract No 2072
61
Invitation to Tender issue dated 25
September 2008
Confidential
Part two – Data provided by the Project Delivery Partner
Statements given in all •
The
Project Delivery Partner is
contracts
Name
[ ]
Address [ ]
•
The
key persons are
………………………………………………………………………………
and any further
key persons identified in the Service Delivery Plan.
•
The
staff rates are as set out in Appendix 3 and/or the Service
Delivery Plan and are further explained in Appendix 2
•
The following matters will be included in the Risk Register
………………………………………………………………………………
………………………………………………………………………………
………………………………………………………………………………
•
The
Guarantor is
Name
[ ]
Address
[ ]
Contract No 2072
62
Invitation to Tender issue dated 25
September 2008
Confidential
Appendix 1
Scope
Contract No 2072
63
Invitation to Tender issue dated 25
September 2008
Confidential
Appendix 2
Commercial information
Staff rates
The s
taff rates applicable to all grades and types of staff are shown in appendix 3.
The
staff rates shall be deemed to include all costs required or incurred by the
Project Delivery
Partner to Provide the Services in accordance with the contract but excluding
expenses.
The
staff rates are daily rates for a minimum eight working hour day. No further payment shall be
made for hours worked in excess of any eight hour working day within any 24 hour period. Where
staff work less than an eight working hour day then the
staff rates shall be proportionally reduced.
Indexation: Option X1 applies.
Expenses
The
expenses are:
•
Reasonable transport costs required and approved in advance by the
Employer but
excluding any transport costs to any office of the
Project Delivery Partner or any office or
construction site of the
Employer or any contractor of the
Employer.
Persons, places and things provided by the Employer The
Employer shall provide the following things for use by the
Project Delivery Partner’s staff:
•
Central office and construction site office accommodation including all normal office
furniture and stationery.
•
Computer workstations and use of information technology appropriate for the tasks being
undertaken (typical software listed below), telephone (but excluding mobile telephone),
printing and fax facilities.
•
Microsoft Excel, Word, Powerpoint, Visio
•
Primavera P6
•
Lotus Notes
•
Documentum
•
Crossrail specific safety training (the
Employer shall not however provide any industry
standard safety training required for the role being undertaken by the
Project Delivery
Partner’s staff nor Network Rail, London Underground or Docklands Light Railway safety
training or infrastructure access qualifications or the like).
•
Crossrail unique software systems training (the
Employer shall not however provide any
industry standard software training required for the role being undertaken by the
Project
Delivery Partner’s staff).
Service Delivery Plan: Resource Schedule
The initial Resource Schedule is contained within the Service Delivery Plan.
Contract No 2072
64
Invitation to Tender issue dated 25
September 2008
Confidential
The Time Charge for staff used by the
Project Delivery Partner in any
assessment interval shall not
exceed the maximum Time Charge for the corresponding
assessment interval shown within the
Resource Schedule.
Before the
Project Delivery Partner allows any
key persons or any other persons to commence
Providing the Services it shall propose to the
Employer an appropriate
staff rate that is consistent
with the
staff rates in Appendix 3 and shall obtain the
Employer’s acceptance of that person and
the proposed
staff rate. The
Employer’s acceptance of any person and their applicable
staff rate is
required irrespective of the
staff rates set out in Appendix 3.
Requests for the acceptance of
staff rates shall include detailed curriculum vitae of each person
together with details of the proposed role and responsibilities, position within the
Project Delivery
Partner’s team and reporting lines, anticipated duration and any other information requested by
the
Employer.
The Resource Schedule shall only be applicable for the period of time covered by the Resource
Schedule.
At least three
assessment interval periods prior to the end of the time period covered by any
Resource Schedule, the
Project Delivery Partner shall propose a new resource schedule for
Providing the Services for the next period of time which shall normally be a year commencing 1
April but may be any other period of time notified by the
Employer.
At least one
assessment interval period before the end of the time covered by any Resource
Schedule, the
Project Delivery Partner and the
Employer shall agree the new resource schedule for
Providing the Services for the next period of time. Following notification by the
Employer that the
new resource schedule has been agreed, this shall become the Resource Schedule for the period of
time covered.
Where the
Employer notifies the
Project Delivery Partner under clause 65.1 of the contract then
the
Employer shall also provide the
Project Delivery Partner with a revised Resource Schedule
indicating the changes from the previous Resource Schedule.
Invoicing
Prior to the submission of each invoice the
Project Delivery Partner and the
Employer should, as
far as possible, discuss and agree the amount due and to be invoiced by the
Project Delivery
Partner.
Details to be included within invoices:
The
Project Delivery Partner shall include information within each invoice to demonstrate to the
Employer how the amount has been assessed including details of:
•
The name of each person being invoiced for.
•
The grade, position and/or role being undertaken by each person.
•
In the case of Subconsultants' staff, the name of the Subconsultant company.
•
The days, or part days, properly worked for each individual member of staff.
•
The staff rate applicable to each person.
•
The Time Charge for each person and the total Time Charge.
Contract No 2072
65
Invitation to Tender issue dated 25
September 2008
Confidential
For the purposes of the above the
Project Delivery Partner must use a template spreadsheet
issued by the
Employer. This must be submitted hard copy with the invoice and also electronically
to the
Employer.
For expenses:
•
Evidence and details of the prior approval of the
Employer.
•
Copies of invoices and Subconsultant accounts to demonstrate that the amounts have
been properly incurred.
•
Calculations showing the amount due including
Contract No 2072
66
Invitation to Tender issue dated 25
September 2008
Confidential
Appendix 3
Staff rates
Contract No 2072
67
Invitation to Tender issue dated 25
September 2008
Confidential
Appendix 4
Incentive Schedule
1. Definitions
In this schedule, the following defined terms have the following meanings:
Contract Year
A twelve month period, commencing 1 April, save that the
first Contract Year shall be the period from the Contract
Date to and including 31 March 2010.
Final Earned Amount
Has the meaning set out in section 3.2 below.
Final Incentive Schedule
The final incentive schedule attached.
Final Maximum Amount
The sum of the Reserved Amounts.
Interim Actual Amount
Such amount of the Interim Maximum Amount as is
allocated within the Interim Incentive Schedule to the
achievement of a particular Performance Band for an
Interim KPI.
Interim Earned Amount
Has the meaning set out in section 2.2 below.
Interim Incentive Schedule
The interim incentive schedule attached and subsequent
interim incentive schedules agreed in accordance with this
annexure.
Interim KPI
A key performance indicator set out in the Interim Incentive
Schedule.
Interim Maximum Amount
An amount expressed in pounds sterling being the product
of the anticipated Price for Services Provided to Date for the
next Contract Year multiplied by the Interim Performance
Incentive Percentage.
Interim Performance
15%
Incentive Percentage
Omission Value
An amount equal to the Interim Performance Incentive
Percentage applied to the anticipated Price for Services
Provided to Date for omitted
services as at the date of such
omission.
Performance Band
A performance band set out in the Interim or Final Incentive
Schedule.
Programme Completion
The
defects date.
Programme KPI
A key performance indicator set out in the Final Incentive
Schedule.
Reserved Amount
75% of the Interim Earned Amount in any Contract Year.
Contract No 2072
68
Invitation to Tender issue dated 25
September 2008
Confidential
2.
Interim Incentive Scheme
2.1
Fixing Interim KPIs
The Interim KPIs and associated Performance Bands and Interim Actual Amounts are to be aligned
with the short-term aims for this contract and the Project.
The Interim KPIs for the first Contract Year are attached.
No later than 3 assessment intervals prior to the commencement of each subsequent Contract
Year, the
Project Delivery Partner submits a draft Interim Incentive Schedule to the
Employer for
review as part of its proposed Service Delivery Plan. The
Employer reviews this and the Parties
use all reasonable endeavours to agree the same before the final assessment date prior to
commencement of such Contract Year. In the event of any failure to agree the Interim Incentive
Schedule by such date, the
Employer shall be entitled at its absolute discretion to determine the
Interim Incentive Schedule for the Contract Year in question.
Subject to the remainder of this paragraph, once the Interim Incentive Schedule for a Contract
Year (including without limitation the Interim Maximum Amount) has been agreed by the Parties or
determined by the
Employer as relevant, it may not be changed whether in consequence of a
compensation event or otherwise. If the
Employer omits
services whose Omission Value exceeds
15% of the Interim Maximum Amount and such omission arises out of any failure by the
Project
Delivery Partner, the
Employer may in its absolute discretion deduct such Omission Value from the
current Interim Maximum Amount.
2.2
Ascertaining the applicable Interim Actual Amount
At the end of a Contract Year, the
Project Delivery Partner reports his performance against the
Interim KPIs to the
Employer, stating which Performance Band he believes he has achieved in
respect of each Interim KPI. The
Employer reviews the
Project Delivery Partner’s report and either
accepts or rejects the
Project Delivery Partner’s statements in respect of each Interim KPI. If the
Employer rejects the
Project Delivery Partner's statements in whole or in part then the
Employer shall make his own assessment of the
Project Delivery Partner's performance against those Interim
KPI's where the
Employer has rejected the
Project Delivery Partner's statement and such
assessment shall, subject to the
Project Delivery Partner's rights under clause W.2, be used in the
assessment of the Interim Earned Amount.
The "Interim Earned Amount" is the sum of the Interim Actual Amounts associated with the
Performance Band achieved against each Interim KPI and:
If the Interim Earned Amount is a positive number:
•
25% of the Interim Earned Amount is an amount due to the
Project Delivery Partner pursuant to clause 50.3. Invoices submitted by the
Project Delivery Partner shall clearly
identify the Interim Earned Amount and the calculation thereof; and
•
The Reserved Amount is not an amount due but is included within the Final Maximum
Amount.
Or, if the Interim Earned Amount is a negative number:
•
the Interim Earned Amount is an amount due to the
Employer as a debt and may be
deducted from sums otherwise payable to the
Project Delivery Partner; provided that the
aggregate of such deductions in any Contract Year shall not exceed 10% of the anticipated
Price for services Provided to Date for that Contract Year; and
•
no amount is added to or deducted from the Final Maximum Amount.
Contract No 2072
69
Invitation to Tender issue dated 25
September 2008
Confidential
3.
Final Incentive Scheme
3.1
Fixed Programme KPIs
The Final Incentive Schedule is included within this Appendix. The
Employer will only consider
making changes to the Final Incentive Schedule where there is a major change to the Sponsor's
Requirements that can be shown to materially affect the Programme KPIs and/or Performance
Bands. In such circumstances the
Employer shall propose changes to the Final Incentive Schedule
in writing for agreement by the
Project Delivery Partner. The
Project Delivery Partner shall
respond to any such proposal within a reasonable period and if the proposal is agreed such
agreement shall be recorded in writing and the Final Incentive Schedule shall be amended
accordingly.
3.2
Ascertaining the applicable Final Earned Amount
Upon Programme Completion the
Project Delivery Partner reports his performance against the
Programme KPIs to the
Employer, stating which Performance Band he believes he has achieved in
respect of each Programme KPI. The
Employer reviews the
Project Delivery Partner’s report and
either accepts or rejects the
Project Delivery Partner’s statements in respect of each Programme
KPI. If the
Employer rejects the
Project Delivery Partner's statements in whole or in part then he
shall make his own assessment of the
Project Delivery Partner's performance against those
Programme KPI's where the
Employer has rejected the
Project Delivery Partner's statement and
such assessment shall, subject to the
Project Delivery Partner's rights under clause W.2, be used
in the assessment of the Final Earned Amount.
The "Final Earned Amount" is the sum of the percentages achieved in respect of each Programme
KPI applied to the Final Maximum Amount.
The Final Earned Amount is an amount due to the
Project Delivery Partner pursuant to clause 50.3.
Invoices submitted by the
Project Delivery Partner shall clearly identify the Final Earned Amount
and the calculation thereof. If the Final Earned Amount is a negative amount, such amount is
payable by the
Project Delivery Partner to the
Employer as a debt due and the
Employer may
deduct such amount from sums otherwise due to the
Project Delivery Partner.
If the
Project Delivery Partner's performance against a Programme KPI is capable of being
determined prior to Programme Completion, the
Project Delivery Partner may report his
performance against such Programme KPI to the
Employer, stating which Performance Band he
believes he has achieved and requesting that the
Employer makes a provisional determination of
the Final Earned Amount in respect of that KPI. If the
Employer in its absolute discretion agrees to
make such a provisional determination and accepts the
Project Delivery Partner's statements in
respect of such KPI, the amount of such provisional determination is an amount due and payable
to the
Project Delivery Partner in accordance with the preceding paragraph. The
Project Delivery
Partner acknowledges that any payment of such provisional determination is without prejudice to
the
Employer's right to open up and re-determine such provisional determination following
Programme Completion. In the event any such re-determination reduces the Final Earned Amount
for such KPI, the amount of such reduction is payable to the
Employer as a debt due and may be
deducted from sums otherwise payable to the
Project Delivery Partner.
The
Project Delivery Partner is only entitled to be paid any Reserved Amount or part thereof in
accordance with this section 3 and without limiting the foregoing is not entitled to any such
payment following termination of its employment or this contract prior to Programme Completion.
In the event the
Project Delivery Partner has been paid a provisional sum in respect of the Final
Incentive Schedule and its employment or this contract is terminated, such amount is payable to
Contract No 2072
70
Invitation to Tender issue dated 25
September 2008
Confidential
the
Employer as a debt due and may be deducted from sums otherwise payable to the
Project
Delivery Partner.
Contract No 2072
71
Invitation to Tender issue dated 25
September 2008
Confidential
Interim Incentive Schedule
Interim Maximum Amount (aggregate of sums available for "Excellent" rating for all Interim KPIs) is: [£]
[Table to be inserted]
Contract No 2072
72
Invitation to Tender issue dated 25 September 2008
Confidential
Final Incentive Schedule
[Table to be inserted]
Contract No 2072
73
Invitation to Tender issue dated 25 September 2008
Confidential
Appendix 5
First Service Delivery Plan
[Each Service Delivery Plan will contain a "quality plan".]
Contract No 2072
74
Invitation to Tender issue dated 25
September 2008
Confidential
Appendix 6
Third Party Agreements
Core Agreements
Project Development Agreement
Sponsors Agreement
TfL Shareholders Agreement
Stakeholder and industry All agreements between CLRL and Programme stakeholders and
partner agreements
industry partners, including Network Rail, London Underground,
DLR, BAA, Berkeley Homes, Canary Wharf Group, Wood Wharf, City
of London Corporation, utility companies and the ODA.
Contract No 2072
75
Invitation to Tender issue dated 25
September 2008
Confidential
Appendix 7
Dispute Resolution
Part 1: Dispute Board Procedure
[TO BE ADVISED AND AGREED WITH PROJECT DELIVERY PARTNER. IN THE EVENT A
PROCEDURE IS NOT AGREED PRIOR TO AWARD THE PROJECT DELIVERY PARTNER WILL
INSTEAD HAVE AN OBLIGATION TO USE ALL REASONABLE ENDEAVOURS TO AGREE A
DISPUTE BOARD PROCEDURE WITH THE EMPLOYER FOLLOWING AWARD.]
Part 2: Adjudication Panel
[TO BE ADVISED AND AGREED WITH PROJECT DELIVERY PARTNER]
Contract No 2072
76
Invitation to Tender issue dated 25
September 2008
Confidential
Appendix 8
Novation agreement
THIS AGREEMENT is made the day of 200
BETWEEN:-
(1)
[
] whose registered office is at [
]
(“the
Employer”);
(2)
[
] whose registered office is at [
]
(“the
New
Employer”);
and
(3)
[
] whose registered office is at [
]
(“the
Project
Delivery
Partner”).
WHEREAS:-
(A)
The Employer has appointed the Project Delivery Partner to provide [
]
services
(“the Services”) by an agreement dated [ ] (“the Appointment”) in relation to
the Project as defined in the Appointment.
(B)
The Employer has entered into an agreement with the New Employer in respect of the
Project.
(C)
The Employer, Project Delivery Partner and New Employer have agreed that from the date
of this Agreement the New Employer shall assume the obligations of the Employer and
that the Project Delivery Partner shall perform its obligations under the Appointment in
favour of the New Employer and that the Employer and the Project Delivery Partner shall
each release the other from any obligations owed by the other to them under the
Appointment.
NOW IT IS HEREBY AGREED as follows:-
1.
Novation
1.1
The Employer hereby releases and discharges the Project Delivery Partner from any and
all obligations and liabilities owed to the Employer under the Appointment.
1.2
The Project Delivery Partner undertakes to perform the Appointment and to be bound by
its terms in every way as if the New Employer were, and had been from the inception, a
party to the Appointment in lieu of the Employer.
1.3
The Project Delivery Partner hereby releases and discharges the Employer from any and
all obligations and liabilities owed to the Project Delivery Partner under the Appointment
and accepts the obligations and liability of the New Employer under the Appointment in
lieu of the liability of the Employer.
1.4
Without prejudice to Clause 1.2, the Project Delivery Partner warrants to the New
Employer that it shall be liable for any loss or damage suffered or incurred by the New
Employer arising out of any negligent act, default or breach by the Project Delivery
Partner in the performance of its obligations under the Appointment prior to the date of
this Agreement. Subject to any limitation of liability in the Appointment, the Project
Delivery Partner shall be liable for such loss or damage notwithstanding that such loss or
damage would not have been suffered or incurred by the Employer (or suffered or
incurred to the same extent by the Employer).
Contract No 2072
77
Invitation to Tender issue dated 25
September 2008
Confidential
1.5
The Project Delivery Partner acknowledges that all fees and expenses properly due to the
Project Delivery Partner under the Appointment up to the date of this Agreement have
been paid by the Employer.
1.6
The New Employer undertakes to perform the Appointment and to be bound by its terms
in every way as if the New Employer were, and had been from the inception, a party to
the Appointment in lieu of the Employer.
2.
Proper Law and Jurisdiction
This Agreement and the rights and obligations of the parties hereto shall be governed
and construed according to English Law. Any dispute shall be subject to the jurisdiction
of the English Courts.
3.
Contracts (Rights of Third Parties) Act 1999
Notwithstanding any other provision in this Agreement, nothing in this Agreement is
intended to confer on any person any right to enforce any of the provisions of this
Agreement which such person would not have had, but for the Contracts (Rights of Third
Parties) Act 1999.
IN WITNESS whereof the parties hereto have executed this Agreement as a Deed the day and year
first before written.
Executed as a Deed by
)
[ ] )
acting by:-
)
Director
Director/Secretary
Executed as a Deed by
)
[ ] )
acting by:-
)
Director
Director/Secretary
Executed as a Deed by
)
[ ] )
acting by:-
)
Director
Director/Secretary
Contract No 2072
78
Invitation to Tender issue dated 25
September 2008
Confidential
Appendix 9
Forms of collateral warranty4
4 Forms of warranty to be included once collateral warranty requirements finalised.
Contract No 2072
79
Invitation to Tender issue dated 25
September 2008
Crossrail
