From: Andy Walker
Sent: 25 March 2010 12:51
To: Shiraz Sheikh; David Holling
Subject: Fw: Risk Sharing Agreement
And more....
Andy
From: McIntosh, Greg <xxxx.xxxxxxxx@xxxx.xx.xx>
To: Andy Walker
Cc: Joseph Holmes; Foy, Emma <xxxx.xxx@xxxx.xx.xx>
Sent: Thu Mar 25 12:37:42 2010
Subject: Risk Sharing Agreement
Andy
Looking again at the Agreement I see that there are clauses allowing you to dispute the
proposed level of Legal Fees, Employer’s Agent Fees and Planning Consultant’s Fees, but
you have no right to dispute any Pre-Construction Agreement costs. Why is this? I also note
that any dispute which is not resolved by a meeting of the Project Manager and the Council’s
Representative is referred to the joint partnership project team for determination. If this body
has equal representation from both parties, what happens if it fails to make a determination?
Shouldn’t this be referred to some form of independent arbitration? The amounts involved
could be significant and the cost of arbitration may be well worth incurring.
You have the power to challenge Disputable Costs, but I cannot see any comparable powers
to challenge whether a Triggering Event has taken place. I know that the majority of these
Events are not disputable, but any exercise of judgement by the Employer that a Triggering
Event has taken place (unacceptable planning conditions being the most obvious – see my
previous email) should really be open to challenge and independent resolution procedures if
agreement cannot be reached.
You should also be aware that any costs incurred as a consequence of this Agreement being
invoked would have to be met from revenue.
Regards
Greg
Greg McIntosh
Director
Public Sector Audit
kpmg LLP
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