standard form dbda july 2012

8/21/2019 Standard Form DBDA July 2012

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Standard Form

Project Agreement(hub D&B Projects)

Version 2: Jul 2!"2


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DESIGN AND BUILD DEVELOPMENT AGREEMENT

between

[AUTHORITY]

and

[HUBCO1]

[Pr!e"t]

[Date]

1Adjust to reflect identity of Project Service Provider is a subsidiary of hubco


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#$b TEMPLATE PRO%ECT AGREEMENT & D'B PRO%ECTS

VERSION 1

IMPORTANT NOTICE

This is the Template Project Agreement for D&B Projects as referred to in and set out inSection 2 Design and Build Development Agreement! of Schedule Part " Template ProjectAgreements! of the Territory Partnering Agreement #TPA#!$ %nder the terms of the TPA theparties are obliged to use this Template Project Agreement subject to amendment as describedbelo! here the 'acility is to be publicly financed and here hubco is procuring design andconstruction only$ A suitably e(tended version of this form ill be used here a 'acility is to bepublicly financed but facilities management is also to be done by hubco$

%sers should be aare of the folloing points)*

1$ This Template Project Agreement for D&B Projects has been derived as follos +

The bul, of the clauses e(cept for definitions used for parties! are ta,en from the

current as at -une 2../! Scottish 0S standard form PPP contract insofar asrelevant$

A number of additional clauses or amendments to standard clauses have been

included to reflect the absence of private funding and long term hubcoinvolvement$

These include)*

o 3i4uidated Damages 5lause 16$2!

o Application for Payments 5lause 2"$2et se4!

o 7etentions 5lause 2"$8!

o Defects 5orrection 5lause 1"!

Title ris, other than the ris, of complying ith disclosed title information and

reserved rights! is ta,en by the public sector 5lause /and SchedulePart 6!

2$ 5hanges to the Template Project Agreement other than project specific and minordrafting such as completion of time periods! or to reflect the issues discussed atparagraph 9belo re4uire prior approval of the S'T$ 0ormally approval ill only begiven to changes re4uired to reflect changing guidance or demonstrable changingmar,et circumstances$

:$ ;here there ill be more than one user of the 'acility one authority from among the7elevant Participants as defined in the TPA!! ill be lead authority$


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e(tend to parties see,ing to change the substance of commercial terms or ma,ingunnecessary drafting amendments$

8$ This Template Project Agreement is not a replacement for independent specialistadvice and parties must ensure that they have ta,en appropriate legal financial andtechnical advice before using this document$

"$ This Template Project Agreement should be used in conjunction ith the =uidanceissued>adopted by the Scottish =overnment and>or S'T from time to time$

?$ This notice and the footnotes should be removed as appropriate before finalisation ofthe document for issue for a specific project$

/$ Should you have any 4uestions on the standard form please contact the S'T hubteam http)>>$scottishfuturestrust$org$u,!$


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CONTENTS

C(a$)e Pa*e

1 D@'0T


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2/ 5


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S5@D%3@

PA7T 1 * D@'0T


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BET+EEN)

1! [ ]the #A$t#r,t-#!I and

2! [ ] LIMITED registered under number J K! hose registeredoffice is J K ##$b"#2!$

+HEREAS.

JTO BE COMPLETEDK

NO+ IT IS HEREBY AGREEDas follos)*

PART 1. GENERAL

1$ 1DE/INITIONS AND INTERPRETATION

Schedule Part 1Definitions and Interpretation! shall apply$

2$ 2E0ECUTION AND DELIVERY O/ DOCUMENTS

2$1


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6$1$: in any material respect depart from its obligations or aive or allo to lapseany rights it may have in a material respect! or procure that others in anymaterial respect depart from their obligations or aive or allo to lapse anyrights they may have in a material respect! under any Project DocumentI or

6$1$6 enter into or permit the entry into by any other person of! any agreement

replacing all or part of or otherise materially and adversely affecting theinterpretation of! any Project Document

unless the proposed course of action and any relevant documentation! has beensubmitted to the AuthorityGs 7epresentative for revie under Schedule Part " "evie#Procedure! and either i! there has been no objection in accordance ith section :$2 ofSchedule Part ""evie# Procedure! ithin tenty 2.! Business Days of receipt bythe AuthorityGs 7epresentative of the submission of the proposed course of action andany relevant documentation! or such shorter period as may be agreed by the partiesIor ii! hubco is acting in accordance ith the comments of the Authority as provided inparagraph 6$2 of Schedule Part " "evie# Procedure!I and in the circumstancesspecified in 5lause6$1$1 hubco has complied ith 5lause 6: Assignation and$ub%contracting!$

De(,2er-

6$2 ;ithout prejudice to the provisions of this 5lause6&Project Documents' if at any timean amendment is made to any Project Document or hubco enters into a ne ProjectDocument or any agreement hich affects the interpretation or application of anyProject Document! hubco shall deliver to the Authority a conformed copy of each suchamendment or agreement ithin ten 1.! Business Days of the date of its e(ecution orcreation certified as a true copy by an officer of hubco$

9$ 9THE +OR3S

S"4e

9$1 Subject to and in accordance ith the provisions of this Agreement hubco shallperform its duties under this Agreement at its on cost and ris, ithout recourse to theAuthority e(cept as otherise e(pressly provided in this Agreement$

Genera( )tandard)

9$2 hubco shall at its on cost be solely responsible for procuring that the ;or,s are at alltimes performed)*

9$2$1 in compliance ith all 3a and 5onsents including ithout limitation thegiving of notices and the obtaining of any such 5onsents! and so as not toprejudice the reneal of any such 5onsentsI

9$2$2 in a manner that is not li,ely to be injurious to health or to cause damage topropertyI

9$2$: in a manner consistent ith the Huality PlansI

9$2$6 Je(cept to the e(tent e(pressly stated to the contrary in the AuthorityGs5onstruction 7e4uirements in compliance ith all applicable 0S7e4uirementsIK6

9$2$9 in a manner consistent ith the Authority discharging its statutory duties andother functions underta,en by it as the same may be notified to hubco from

time to timeI and

6 ;here the Authority or a 5ommunity Services Provider is a health board$


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9$2$8 in so far as not in conflict ith an e(press obligation of hubco under thisAgreement or here in relation to a matter there is no e(press obligation orstandard imposed on hubco under this Agreement in accordance ith =oodndustry Practice$

n the event that any ambiguity uncertainty dispute or discrepancy arises in the nature

and scope of hubcoGs obligations under this 5lause 9$2 &(eneral $tandards' theprovisions of this 5lause 9$2 &(eneral $tandards'ill be given meaning and haveeffect in descending order of precedence set out in this 5lause9$2 &(eneral$tandards'$

A$t#r,t- Underta5,n*

9$: The Authority underta,es to hubco that it shall not ilfully impede hubco in theperformance of its obligations under this Agreement having regard alays to theinteractive nature of the activities of the Authority and of hubco and to the AuthorityGsand any 5ommunity Services ProviderGs use of the 'acilities to provide the relevant5ommunity Services and any other operations or activities carried out by the Authorityor other 5ommunity Services Provider on or at the Site for the purposes contemplated

by this Agreement and any other of the AuthorityGs or other 5ommunity ServicesProviderGs statutory functions!$

C*4erat,n

9$6 @ach party agrees to co*operate at its on e(pense ith the other party in thefulfilment of the purposes and intent of this Agreement$ To avoid doubt neither partyshall be under any obligation to perform any of the otherGs obligations under thisAgreement$

8$ 8GENERAL OBLIGATIONS AND RESPONSIBILITIES O/ HUBCO

#$b" Part,e)

8$1 Subject to the provision of 5lause2:$1$8 hubco shall not be relieved or e(cused ofany responsibility liability or obligation under this Agreement by the appointment ofany hubco Party$ hubco shall as beteen itself and the Authority be responsible forthe selection pricing performance acts defaults omissions breaches andnegligence of all hubco Parties$ All references in this Agreement to any act defaultomission breach or negligence of hubco shall be construed accordingly to include anysuch act default omission breach or negligence of a hubco Party$

Sa6et-

8$2 hubco shall in carrying out the ;or,s have full regard for the safety of all persons onthe Site hether lafully or not! and shall ,eep the Site the ;or,s and the 'acilitiesin an orderly state appropriate in accordance ith =ood ndustry Practice to avoiddanger to such persons$

"$ "AUTHORITY7S DATA

N (,ab,(,t-

"$1 JSubject to 5lause :?)arranties!K the Authority shall not be liable to hubco for andhubco shall not see, to recover from the Authority or from any Authority Party! anydamages losses costs liabilities or e(penses hich may arise hether in contractdelict or otherise! from the adoption use or application of the Disclosed Data by oron behalf of hubco or any hubco Party$

N warrant-


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"$2 JSubject to 5lause :?)arranties!K the Authority gives no arranty or underta,ing ofhatever nature in respect of the Disclosed Data and specifically but ithoutlimitation! the Authority does not arrant that the Disclosed Data represents all of theinformation in its possession or poer relevant or material to or in connection ith theProject or the obligations of hubco under this Agreement or under any of the ProjectDocuments$ n addition Jsubject to 5lause:?)arranties!K the Authority shall not be

liable to hubco in respect of any failure to disclose or ma,e available to hubcohether before on or after the e(ecution of this Agreement! any informationdocuments or data nor any failure to revie or to update the Disclosed Data nor anyfailure to inform hubco hether before on or after e(ecution of this Agreement! of anyinaccuracy error omission defects or inade4uacy in the Disclosed Data$

#$b" ,n2e)t,*at,n

"$: J;ithout prejudice to its rights and remedies under 5lause:? )arranties!K hubcoac,noledges and confirms that)*

"$:$1 it has conducted its on analysis and revie of the Disclosed Data and hasbefore the e(ecution of this Agreement satisfied itself as to the accuracy

completeness and fitness for purpose of any such Disclosed Data uponhich it places relianceI and

"$:$2 it shall not be entitled to and shall not and shall procure that no hubco Partyshall! ma,e any claim against the Authority or any Authority Party hether incontract delict or otherise including ithout limitation any claim indamages for e(tensions of time or for additional payments under thisAgreement on the grounds)*

a! of any misunderstanding or misapprehension in respect of theDisclosed DataI or

b! that incorrect or insufficient information relating to the Disclosed

Data as given to it by any person hether or not an AuthorityParty

nor shall hubco be relieved from any obligation imposed on or underta,enby it under this Agreement on any such ground$

?$ ?REPRESENTATIVES

Re4re)entat,2e) 6 t#e A$t#r,t-

?$1 The AuthorityGs 7epresentative shall be J K or such other person appointedpursuant to this 5lause *$ The AuthorityGs 7epresentative shall e(ercise the functionsand poers of the Authority in relation to the ;or,s hich are identified in thisAgreement as functions or poers to be carried out by the AuthorityGs 7epresentative$The AuthorityGs 7epresentative shall also e(ercise such other functions and poers ofthe Authority under this Agreement as may be notified to hubco from time to time$

?$2 The AuthorityGs 7epresentative shall be entitled at any time by notice to hubco toauthorise any other person to e(ercise the functions and poers of the Authoritydelegated to him pursuant to this 5lause either generally or specifically$ Any act ofany such person shall for the purposes of this Agreement constitute an act of theAuthorityGs 7epresentative and all references to the #AuthorityGs 7epresentative# in thisAgreement apart from this 5lause! shall be ta,en as references to such person so faras they concern matters ithin the scope of such personGs authority$

?$: The Authority may by notice to hubco change the AuthorityGs 7epresentative$ TheAuthority shall as far as practicable! consult ith hubco prior to the appointment ofany replacement for the AuthorityGs 7epresentative ta,ing account of the need for


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liaison and continuity in respect of the Project$ Such change shall have effect on thedate specified in the ritten notice hich date shall other than in the case ofemergency be such date as ill not cause material inconvenience to hubco in thee(ecution of its obligations under this Agreement!$

?$6 During any period hen no AuthorityGs 7epresentative has been appointed or hen

the AuthorityGs 7epresentative is unable through illness incapacity or any other reasonhatsoever to carry out or e(ercise his functions under this Agreement! the Authorityshall carry out the functions hich ould otherise be performed by the AuthorityGs7epresentative$

?$9 0o act or omission of the Authority the AuthorityGs 7epresentative or any officeremployee or other person engaged by the Authority shall e(cept as otherisee(pressly provided in this Agreement)*

?$9$1 in any ay relieve or absolve hubco from modify or act as a aiver orpersonal bar of any liability responsibility obligation or duty under thisAgreementI or

?$9$2 in the absence of an e(press order or authorisation under Schedule Part 1:+ariation Procedure! constitute or authorise a Cariation$

?$8 @(cept as previously notified in riting before such act by the Authority to hubcohubco and hubcoGs 7epresentative shall be entitled to treat any act of the AuthorityGs7epresentative hich is authorised by this Agreement as being e(pressly authorisedby the Authority and hubco and hubcoGs 7epresentative shall not be re4uired todetermine hether an e(press authority has in fact been given$

Re4re)entat,2e 6 #$b"

?$" hubcoGs 7epresentative shall be J K or such other person appointed pursuant to5lause?$?$ hubcoGs 7epresentative shall have full authority to act on behalf of hubco

for all purposes of this Agreement$ @(cept as previously notified in riting before suchact by hubco to the Authority the Authority and the AuthorityGs 7epresentative shall beentitled to treat any act of hubcoGs 7epresentative in connection ith this Agreementas being e(pressly authorised by hubco and the Authority and the AuthorityGs7epresentative shall not be re4uired to determine hether any e(press authority hasin fact been given$

?$? hubco may by notice to the Authority change hubcoLs 7epresentative$ ;here hubcoishes to do so it shall by ritten notice to the Authority propose a substitute forapproval ta,ing account of the need for liaison and continuity in respect of the Project$Such appointment shall be subject to the approval of the Authority not to beunreasonably ithheld or delayed!$

?$/ hubcoGs Fey ;or,s Personnel are identified in Schedule Part : ,e )or-sPersonnel!$ hubco shall as far as it is ithin hubcoGs control ensure that suchpersons retain their involvement in the ;or,s and in particular ill not for theduration of the ;or,s re4uire or re4uest any of them to be involved in any otherproject on behalf of hubco or any of the Shareholders or its or their Associated5ompanies if in the reasonable opinion of the Authority this ould adversely affectthe Project$


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PART 8. LAND ISSUES

/$ /NATURE O/ LAND INTERESTS

A""e)) D$r,n* Cn)tr$"t,n

/$1 'rom the @(ecution Date until the Actual 5ompletion Date or if earlier! theTermination Date the Authority shall grant to hubco and hubco Parties or procure thathubco and the hubco Parties are granted)*

/$1$1 access to the Site9Iand

/$1$2 the Ancillary 7ights

in each case subject only to the 7eserved 7ights the Title 5onditions and theAuthorityLs rights under this Agreement and solely for the purposes of implementingthe ;or,s and carrying out hubcoGs Pre*5ompletion 5ommissioning$

A""e)) /((w,n* Cn)tr$"t,n

/$2 After the occurrence of the Actual 5ompletion Date the Authority shall grant to hubcoand hubco Parties or procure that hubco and hubco Parties are granted access to the'acilities subject only to the 7eserved 7ights the Title 5onditions and the provisionsof this Agreement and solely for the purposes of)*

/$2$1 carrying out hubcoGs Post 5ompletion 5ommissioning during the periodpermitted therefor and subject to the terms of the 'inal 5ommissioningProgrammeI

/$2$2 remedying of Defects pursuant to 5lause 1" &Defects' during the Defects3iability Period and the period of J K months specified in5lause 1"$2I and

/$2$: the carrying out of Snagging Eatters during the period specified therefor in5lause 18$1:$

E9tent 6 A""e))

/$: The rights referred to at 5lauses /$1 &Access During Construction' and/$2 &Access.ollo#ing Construction'shall not operate or be deemed to operate as a lease of the'acilities or the Site or any part of the 'acilities or the Site and hubco shall not have orbe entitled to e(clusive possession save to the e(tent e(pressly included ithin theAncillary 7ights! or any estate right title or interest in and to the Site or the 'acilitiesbut shall occupy the Site as a licensee only$

/$6 The rights referred to at 5lauses /$1 &Access During Construction' and/$2 &Access.ollo#ing Construction'are personal to hubco and the hubco Parties$

/$9 hubco shall procure that)*

/$9$1 all ;or,s carried out at the Site by or on behalf of hubco hether beforeduring or after the completion of the ;or,s! shall be carried out in a mannerhich does not breach any of the Title 5onditions or 7eserved 7ightsI and

/$9$2 there shall be no action or omission to act by hubco or a hubco Party hichshall give rise to a right for any person to obtain title to the Site or any part ofit$

9


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/$8 0otithstanding the terms of 5lauses /$1and /$2 or any other rights granted underthis Agreement the Authority shall if it is the heritable proprietor of the Site! or if it isnot the heritable proprietor of the Site! shall procure that the heritable proprietor of theSite shall enter into such ayleaves deeds of servitudes or other similararrangements ith any third party that hubco or any hubco Party may re4uire to begranted in favour of or by any third party in order to e(ercise its rights or perform its

obligations under this Agreement$ The Authority shall enter into or hereappropriate shall procure that the heritable proprietor of the Site shall enter into! anysuch ayleave deed of servitude or other similar agreement as soon as reasonablypracticable after hubco has provided to the Authority all relevant information inconnection thereith provided alays that hubco has obtained at its on cost the prioragreement of the third party in terms acceptable to the Authority acting reasonably!$hubco shall reimburse the Authority for all costs and e(penses reasonably andproperly incurred by the Authority and>or the JScottish Einisters>heritable proprietor ofthe SiteK! in connection ith entering into such ayleaves deeds of servitude or othersimilar agreements at the re4uest of hubco$8

1.$ 1.THE SITE"

1.$1 ;ithout prejudice to 5lause1"the condition of the Site Jsubject to 5lauses 1.$: and1.$6K beteen the @(ecution Date and the Actual 5ompletion Date shall be the soleresponsibility of hubco$ Accordingly ithout prejudice to any other obligation of hubcounder this Agreement! hubco shall be deemed to have)*

1.$1$1 carried out a =round Physical and =eophysical nvestigation and to haveinspected and e(amined the Site and its surroundings and hereapplicable! any e(isting structures or or,s on over or under the SiteI

1.$1$2 satisfied itself as to the nature of the Site 5onditions the ground and thesubsoil the form and nature of the Site the load bearing and other relevantproperties of the Site the ris, of injury or damage to property affecting theSite the nature of the materials hether natural or otherise! to be

e(cavated and the nature of the design or, and materials necessary forthe e(ecution of the ;or,sI

1.$1$: satisfied itself as to the e(tent and ade4uacy of the Site and of the rights ofaccess to and through the Site granted hereunder and any accommodation itmay re4uire for the purposes of fulfilling its obligations under this Agreementsuch as additional land or buildings outside the Site! ithout prejudice tohubcoLs rights under this Agreement in respect of a breach by the Authorityof its obligations under 5lause /$1 and>or 5lause /$2I

1.$1$6 satisfied itself as to the precautions times and methods of or,ingnecessary to prevent any nuisance or interference hether public or privatebeing caused to any third partiesI and

8 5lause/$8 assumes that the Site is oned by the Authority or the Scottish Einisters here the Authority is a

health board!$ To be revieed here that is not the case$"

This template assumes that hubco is able to ma,e any necessary investigation$ To the e(tent that it is not

practical for hubco to investigate areas of the Site for e(ample due to Authority occupation of facilities on Site!then 5lause 1.$: ill provide relief$ The Authority should bear any additional costs arising out of unforeseenconditions in areas hich hubco cannot investigate and hich cannot be reasonably identified by hubco$ Areas ofthe Site to hich this carve out applies should be clearly identified in the Agreement$

The ris, of asbestos on a site should be considered on a case by case basis and only here there is a significant,non ris, of asbestos remaining on a site should the Authority ta,e any ris, in this area$ t should be clear thathubco are responsible for any ,non 5ontamination disclosed on the asbestos register and areas capable ofsurvey hether this be for removal or treatment in accordance ith legislation$ Such treatment should be in

accordance ith current legislation$ This should be programmed into the construction programme$ There shouldbe a process for underta,ing additional surveys re4uired on a project specific basis$ The Authority ill ta,eresponsibility for dealing ith asbestos hich is discovered under an e(isting facility during construction hichas incapable of survey$


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1.$1$9 satisfied itself as to the conditions burdens restrictions and reservations setout in the Title 5onditions and the 7eserved 7ights$

1.$2 To avoid doubt hubco accepts full responsibility for all matters referred to in5lause1.$1Jand subject to 5lause 1.$: 5lause 1.$6 and J5lause:?)arranties!KKhubco shall)*

1.$2$1 not be entitled to ma,e any claim against the Authority of any naturehatsoever &save if applicable as e(pressly provided in 5lause22 DelaEvents!! on any grounds including ithout limitation! the fact that incorrector insufficient information on any matter relating to the Site as given to it byany person hether or not the Authority or an Authority PartyI and

1.$2$2 be responsible for and hold the Authority harmless from cleaning up and>orotherise dealing ith any 5ontamination at the Site prior to the Actual5ompletion Date so that it shall at all times comply ith its obligations underthis Agreement including ithout limitation! complying ith at its on costany applicable 3as and any 5onsents orders notices or directions of anyregulatory body hether made against the Authority or hubco!$

[Responsibility for Ground Conditions and Contamination

1.$: To t!e e/tent t!at unforeseen ground conditions and0or Contamination e/ist in anparts of t!e $ite #!ic! are under e/isting buildings as at t!e E/ecution Date and#!ic! it is not practical for !ubco to investigate or surve1 !ubco s!all not beresponsible for t!em1 unless t!e #ere discovered b t!e (round P!sical and(eop!sical Investigation and accordingl identified in $ection 2 &Aut!orit3sConstruction "e4uirements' of $c!edule Part 5&Construction Matters' or unless t!es!ould reasonabl !ave been discoverable if t!e (round P!sical and (eop!sicalInvestigation !ad been properl carried out or unless t!e #ould !ave been identified!ad !ubco carried out suc! additional surves as it #ould !ave been reasonable toe/pect an e/perienced contractor to !ave carried out in t!e circumstances*6 T!e

Aut!orit s!all be responsible for an ground conditions and0or Contamination for#!ic! !ubco is not responsible b virtue of t!is Clause 7862 T!is Clause 7862appliesto t!e follo#ing areas9 : ;

1.$6 )!ere pursuant to Clause7862t!e Aut!orit is responsible for an of t!e mattersreferred to t!en not#it!standing Clause 786


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11$ 11CONSENTS ' PLANNING APPROVAL:

11$1 1.hubco shall be responsible for)*

11$1$1 obtaining all 5onsents hich may be re4uired for the performance of the;or,sI and

11$1$2 implementing each 5onsent ithin the period of its validity in accordanceith its terms$

:Aut!orit to include an project specific provisions relating to planning agreementsetc6 >B9 costs associated #it! suc! agreements s!ould be for t!e account of!ubco6;77

11$2 n the event that)

11$2$1 a 5onsent that has been granted is subse4uently amended repealedrevo,ed or otherise ceases to be in full force and effect in accordance ithits terms as a conse4uence of any action by a 7elevant AuthorityI

11$2$2 affected persons are entitled to claim compensation for the adverse effectsof such action under a statutory scheme of compensationI and

11$2$: hubco is not entitled in its on name to claim under that scheme but theAuthority is so entitled

the Authority must use all reasonable endeavours at the re4uest and at the cost ofhubco to claim or to include ithin its claim such sums as hubco acting reasonablyre4uests and shall pay to hubco the part of any compensation that it receives underthat scheme that relates to the sums claimed at the re4uest of hubco$

/ The Template Project Agreement assumes that detailed Planning Permission ill have been obtained and that

sufficient time has elapsed to minimise the ris, of judicial revie prior to contract signature$ ;here this is not thecase the Authority may consider including judicial revie drafting on a project by project basis hichappropriately and on a value for money basis! allocates the ris, of judicial revie$ 0o ris, should be passed tothe Authority to the e(tent arising out of the conduct of the planning process by or on behalf of hubco$

1. ;here on a project specific basis it is appropriate for the Authority to accept responsibility for obtaining

certain 5onsents hich only they can obtain or to provide input hich is re4uired for hubco to obtain the consentsuch drafting should be included in this 5lause 11 and cross referred to in 5lause9$2$1$ A similar approachshould be folloed here there are legislative re4uirements in relation to the 'acilities hich can be compliedith only by or re4uire the input or co*operation of the Authority as occupier or user of the 'acilities or any part ofthem$ Any such acceptance of responsibility by the Authority should be narroly prescribed$

11 n the event that detailed planning permission includes obligations ith hich it is the Authority as

oner>occupier of the facility! ho must comply it ill be necessary to include appropriate drafting to reflect anysuch obligations$


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PART . DESIGN AND CONSTRUCTION

12$ 12THE DESIGN CONSTRUCTION AND COMMISSIONING PROCESS

O2era(( Re)4n),b,(,t-

12$1 hubco shall carry out the ;or,s)*

12$1$1 so as to procure satisfaction of the AuthorityGs 5onstruction 7e4uirementsI

12$1$2 in accordance ith hubcoGs ProposalsI and

12$1$: in accordance ith the terms of this Agreement$

12$2 To avoid doubt the obligations in 5lauses12$1$1 12$1$2 and12$1$: are independentobligations$ n particular)*

12$2$1 the fact that hubco has complied ith hubcoGs Proposals shall not be adefence to an allegation that hubco has not satisfied the AuthorityGs

5onstruction 7e4uirementsI and

12$2$2 the fact that hubco has satisfied the AuthorityGs 5onstruction 7e4uirementsshall not be a defence to an allegation that hubco has failed to comply ithhubcoGs Proposals$

De),*n re)4n),b,(,t-

12$: hubco arrants that it has used and ill continue to use the degree of s,ill and carein the design of the 'acilities that ould reasonably be e(pected of a competentprofessional designer e(perienced in carrying out design activities of a similar naturescope and comple(ity to those comprised in the ;or,s$

Cr4rate Ident,t- and S,*na*e

12$6 The parties ac,noledge that the Authority may from time to time during the5onstruction Phase be re4uired to procure the erection of hoarding site boardspla4ues and>or other signage in connection ith the Project$ Accordingly)*

12$6$1 here re4uested by the Authority acting reasonably hubco shall procure theerection and maintenance of such hoarding site boards pla4ues and>orother signage as the Authority may re4uireI and

12$6$2 the siMe design information disclosed position and materials used inconnection ith such hoarding site boards pla4ues or other signage shall

be approved by the Authority such approval not to be unreasonablyithheldJI and

12$6$: Jfor the purposes of this 5lause12$6 &Corporate Identit and $ignage' theAuthority shall be deemed to be acting reasonably here any proposalsmade by it and>or any approvals e(ercised by it conform ith any relevantguidance issued to 0S Boards by the Scottish =overnment ealthDirectorate or any successor Department! in relation to such mattershether by @(ecutive 3etter or otheriseK12$

12 ;here the Authority is a health board$


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A$t#r,t- de),*n a44r2a(

12$9 The Authority confirms that as at the date of this Agreement it has revieed such ofhubcoGs Proposals as have been initialled by the Authority and that subject to any4ualifications and>or comments notified by the Authority to hubco in riting and set outin J K1: such proposals satisfy the AuthorityGs re4uirements in respect of

or print copies of such Design Data$ n the event ofthe AuthorityGs 7epresentative being unable to access such designdatabase hubco shall procure that it is made available for inspection by theAuthorityGs 7epresentative or any other person authorised by the AuthorityGs7epresentative$

1: Specify here 4ualifications are set out$ Authority must have right to notify hubco of its comments$16

t is vital that Authorities revie the final version of hubcoLs Proposals shortly before contract signature in

order to ensure that hubcoLs Proposals satisfy the AuthorityLs re4uirements for


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Re"t,6,"at,n 6 #$b"7) Pr4)a()

12$" ;ithout prejudice to 5lause12$1 if it should be found that hubcoGs Proposals do notfulfil the AuthorityGs 5onstruction 7e4uirements hubco shall at its on e(pense and inaccordance ith 5lause 12$? belo amend hubcoGs Proposals and rectify the ;or,sor any part affected$ Such amendment and rectification shall have the effect that)*

12$"$1 hubcoGs Proposals shall satisfy the AuthorityGs 5onstruction 7e4uirementsIand

12$"$2 folloing the amendment or rectification the structural mechanical andelectrical performance of the 'acilities ill be of an e4uivalent standard ofperformance to that set out in hubcoGs Proposals prior to their amendment orrectification for the purpose of this comparison disregarding the fault hichre4uired the amendment or rectification to be made!$

12$? ;here 5lause 12$" applies hubco shall submit its proposal for amending hubcoLsProposals and rectifying the ;or,s or any part affected! to the AuthorityLs7epresentative for revie under Schedule Part " "evie# Procedure! and shall not

amend hubcoLs Proposals or commence or allo the commencement of therectification of the ;or,s or any part affected! until it is permitted to proceed inaccordance ith Schedule Part " "evie# Procedure!$

1:$ 1:RIGHT O/ ACCESS O/ AUTHORITY7S REPRESENTATIVE

A""e)) t t#e S,te

1:$1 hubco shall procure that)*

1:$1$1 subject to complying ith all relevant safety procedures hich shall includeany relevant construction phase plans and health and safety plans for theconstruction of the 'acilities the 5ontractorGs Site 7ules from time to time

and any reasonable directions ith regard to site safety that may be issuedby or on behalf of the 5ontractorGs Site Eanager from time to time theAuthorityGs 7epresentative18shall have unrestricted access at all reasonabletimes during normal or,ing hours to)*

a! vie the ;or,s at the Site on reasonable prior notice appropriateto the circumstances provided that the notice procedures in this5lause above shall not apply to the right of access for theAuthorityGs 7epresentative and his staff and visitors to the officeand other facilities provided at the Site for his useI and

b! subject to obtaining the consent of the relevant manufacturer orsupplier hich hubco agrees to use all reasonable endeavours toobtain! visit any site or or,shop here materials plant or@4uipment are being manufactured prepared or stored for use inthe ;or,s for the purposes of general inspection and of attendingany test or investigation being carried out in respect of the ;or,sI

1:$1$2 the AuthorityGs 7epresentative shall have such rights of access to the Site inan emergency as he acting reasonably! considers suitable in thecircumstancesI and

1:$1$: monthly progress meetings and site meetings are held and that theAuthorityGs 7epresentative shall have the right to attend such monthlyprogress meetings and site meetings and to attend such other meetings as

the AuthorityGs 7epresentative may reasonably re4uest$18


20/179

In"rea)ed ;n,tr,n*

1:$2 f folloing any vieing visit or inspection made pursuant to 5lause 1:$1$1Accessto $ite! it is discovered that there are Defects in the ;or,s or that hubco has failed tocomply ith the AuthorityGs 5onstruction 7e4uirements or hubcoGs Proposals theAuthorityGs 7epresentative may ithout prejudice to any other right or remedy

available to the Authority! by notice to hubco increase the level of monitoring of hubcountil such time as hubco shall have demonstrated to the satisfaction of the Authoritythat it is capable of performing and ill perform all its obligations to the Authority underthis Agreement$ hubco shall compensate the Authority for any reasonable additionalcosts incurred as a result of such increased monitoring$

R,*#t t O4en U4

1:$: Subject to 5lause 1:$6 the AuthorityGs 7epresentative shall have the right at any timeprior to the Actual 5ompletion Date to re4uest hubco to open up and inspect any partor parts of the ;or,s here the AuthorityGs 7epresentative reasonably believes thatsuch part or parts of the ;or,s is or are defective and hubco shall comply ith suchre4uest$

1:$6 Prior to e(ercising his right pursuant to 5lause1:$: above the AuthorityGs7epresentative shall notify hubco of his intention to e(ercise such right setting outdetailed reasons$

1:$9 f folloing the e(ercise by the AuthorityGs 7epresentative of his right pursuant to5lause1:$: the inspection shos that the relevant part or parts of the ;or,s are notdefective then 5lause 22$:$6 shall apply$ $

1:$8 f folloing the e(ercise by the AuthorityGs 7epresentative of his right pursuant to5lause1:$: the inspection shos that the relevant part or parts of the ;or,s is or aredefective hubco shall rectify and ma,e good such Defects! and any conse4uence ofsuch rectification and>or ma,ing good Defects! shall be carried out by hubco at no

cost to the Authority and hubco shall not be entitled to any e(tension of time in relationto such rectification and ma,ing good of the ;or,s$

1:$" f folloing the e(ercise by the AuthorityGs 7epresentative of his right pursuant to5lause1:$: the AuthorityGs 7epresentative is of the opinion that the inspection shosthat the relevant part or parts of the ;or,s is or are defective and hubco does notagree ith such opinion the matter shall be determined in accordance ith SchedulePart 19Dispute "esolution Procedure!$

1:$? ;ithout prejudice to the rights of the AuthorityGs 7epresentative pursuant to this5lause1: &"ig!ts of Access of Aut!orit3s "epresentative' the parties ac,noledgethat the e(ercise of such rights shall not in any ay affect the obligations of hubcounder this Agreement save as e(pressly set out in this 5lause 1:&"ig!ts of Access ofAut!orit3s "epresentative'$

Sa6et- D$r,n* Cn)tr$"t,n

1:$/ The provisions of Section 2 &$afet During Construction' of Schedule Part 9Construction Matters! shall apply to matters of safety$

16$ 16PROGRAMME AND DATES /OR COMPLETION

16$1 Date) 6r C;4(et,n

hubco shall complete the ;or,s by the 5ompletion Date$


21/179

16$2 L,


22/179

16$/$1 to produce and submit to the AuthorityGs 7epresentative in accordance ithSchedule Part " "evie# Procedure! a revised Programme shoing themanner and the periods in hich the ;or,s ill be carried out to ensurecompletionI and>or

16$/$2 to produce and submit to the AuthorityGs 7epresentative in accordance ith

Schedule Part " "evie# Procedure! a revised Programme shoing thesteps hich are to be ta,en to eliminate or reduce the delay$

Ear(- ";4(et,n1"

16$1. 0otithstanding that the ;or,s may have been completed in accordance ith thisAgreement the Actual 5ompletion Date may only occur on a date on or after the5ompletion Date unless the Authority in its absolute discretion agrees otherise inriting$

16$11 hubco shall notify the AuthorityGs 7epresentative if at any time the actual progress ofthe ;or,s is significantly ahead of the Programme such that hubco anticipates that theActual 5ompletion Date could occur earlier than the 5ompletion Date in hich case

the AuthorityGs 7epresentative shall be entitled to re4uire hubco to produce and submitto the AuthorityGs 7epresentative a revised Programme shoing the manner and theperiods in hich the ;or,s ill be carried out and hat the revised date for completionould be to enable)*

16$11$1 the Authority to consider at its absolute discretion! hether to agree anearlier date for completion if re4uested by hubco to do soI and

16$11$2 the parties to consider hat modifications if any! ill be re4uired to theAgreement in order to accommodate such earlier date for completion ifagreed to by the Authority pursuant to 5lause 16$11$

19$ 19E=UIPMENT

19$1 E


23/179

on the Authority than those set out in the


24/179

18$? hubco shall or shall procure that the 5ontractor shall! give the Authority access to the;or,s at such times as may be set out in the 'inal 5ommissioning Programme toenable the Authority to underta,e the AuthorityGs 5ommissioning in accordance iththe 'inal 5ommissioning Programme for the period prior to completion$ ;hene(ercising such rights the Authority shall comply ith all relevant safety procedureshich shall include any relevant construction phase plans and health and safety plans

for the construction of the 'acilities the 5ontractorGs Site 7ules from time to time andany reasonable directions ith regard to site safety that may be issued by or on behalfof the 5ontractorGs Site Eanager from time to time$

Pre>C;4(et,n ,n)4e"t,n

18$/ hubco shall give the AuthorityGs 7epresentative not less than J K BusinessDaysG notice and not more than J K Business DaysG notice of the date uponhich hubco considers that the ;or,s ill be complete and the tests on completion tobe performed in accordance ith the 'inal 5ommissioning Programme ill be carriedout$ J'olloing receipt of the notice specified in this 5lause 18$/ &Pre%CompletionInspection'K the AuthorityGs 7epresentative shall be entitled to inspect the ;or,s onthe date or dates reasonably specified by hubco in accordance ith this 5lause 18$/

&Pre%Completion Inspection' and to attend any of the tests on completion$ hubcoshall if so re4uested accompany the AuthorityGs 7epresentative on any suchinspection$

Pre>C;4(et,n ;atter)

18$1. The AuthorityGs 7epresentative shall ithin J K Business Days of anyinspection made pursuant to 5lause 18$/&Pre%Completion Inspection' notify hubco ofany outstanding matters including ithout limitation the repetition of any of the testson completion hich are re4uired to be carried out and passed in accordance ith the'inal 5ommissioning Programme! hich are re4uired to be attended to before the;or,s can be considered to be complete in accordance ith the AuthorityGs5onstruction 7e4uirements and hubcoGs Proposals$ hubco shall attend to such

matters and shall if necessary give the AuthorityGs 7epresentative further notices inaccordance ith 5lause18$/ &Pre%Completion Inspection'1 but dealing only ithmatters raised in the notification under this 5lause 18$1.! so that the procedures in5lause18$/ &Pre%Completion Inspection' and this 5lause18$1. 'Pre%CompletionMatters'are repeated as often as may be necessary to ensure that all outstandingmatters in relation to the ;or,s are attended to$

C;4(et,n Cert,6,"ate

18$11 Subject to 5lause 16$1. the AuthorityGs 7epresentative shall hen he is satisfiedacting reasonably that completion has occurred in accordance ith this Agreementissue a 5ertificate of Practical 5ompletion to that effect stating the date upon hich inhis opinion the Actual 5ompletion Date occurred$ Subject to 5lauses 18$16

and 18$19 the issue of the 5ertificate of Practical 5ompletion shall in the absence ofmanifest error bad faith or fraud be conclusive evidence that the Actual 5ompletionDate has occurred on the date stated in such certificate$

18$12 The AuthorityGs 7epresentative shall issue the 5ertificate of Practical 5ompletionnotithstanding that there are Snagging Eatters$ ;here there are Snagging Eattersthe AuthorityGs 7epresentative shall ithin J K Business Days of the date of issue ofthe 5ertificate of Practical 5ompletion issue a Snagging 0otice hich shall specifythe Snagging Eatters and an estimate of the cost of rectifying such Snagging Eatters$

18$1: 'olloing the issue of a Snagging 0otice hubco shall in consultation ith theAuthorityGs 7epresentative and in such manner as to cause as little disruption asreasonably practicable to the AuthorityGs Post 5ompletion 5ommissioning and theAuthorityGs use of the 'acilities rectify all Snagging Eatters ithin J KBusiness Days of the issue of the Snagging 0otice$


25/179

18$16 f ithin J K Business Days of the issue of the Snagging 0otice hubco hasfailed to rectify the Snagging Eatters specified in the Snagging 0otice the Authoritymay by itself or engage others to! carry out the or,s necessary to rectify theSnagging Eatters at the ris, and cost of hubco$

18$19 The issue of the 5ertificate of Practical 5ompletion shall in no ay affect the

obligations of hubco under this Agreement including in respect of any Defects$

A)*b$,(t )4e",6,"at,n

18$18 As soon as it is available after the issue of the 5ertificate of Practical 5ompletionhubco shall provide to the Authority a copy of the as*built building specificationtogether ith all Jdraings relating to the ;or,sK$22

1"$ 1"DE/ECTS

#$b" t Ma5e Gd

1"$1 hubco shall procure that all Defects hich are present or shall appear in the ;or,s

during the Defects 3iability Period for the ;or,s shall be made good by hubco to thestandards re4uired by this Agreement ithin a reasonable time$ The Authority andhubco both acting reasonably shall agree a programme for access for this purposeith the intention to cause the least practicable disruption to users of the 'acilities$

S"#ed$(e 6 De6e"t)

1"$2 ;ithout prejudice to 5lause1"$1!ubco to Ma-e (ood! not later than J K BusinessDays after the e(piry of the Defects 3iability Period2: the Authority shall procure thatthe AuthorityGs 7epresentative shall prepare a schedule of Defects #S"#ed$(e 6De6e"t)#! specifying any Defects apparent as at the date of e(piry of the Defects3iability Period hich have not been made good by hubco by such date in accordanceith 5lause 1"$1and shall deliver such Schedule of Defects to hubco$ Subject alays

to 5lause 1"$: !ubco .ailure to Compl! hubco shall at its on e(pense as soon asreasonably practicable after the date of issue of such Schedule of Defects and in anyevent ithin a period of J K of such date! ma,e good all such Defects$

#$b" /a,($re t C;4(-

1"$: ;here hubco fails to comply ith the provisions of 5lause 1"$1 !ubco to Ma-e (ood!or 5lause 1"$2 $c!edule of Defects! the Authority may appoint or instruct any thirdparty contractor to e(ecute and complete the remedial repair or other or,s as maybe necessary to ma,e good any Defect in hich event hubco shall reimburse theAuthority on demand its reasonable costs of doing so$

Cert,6,"ate 6 Ma5,n* Gd De6e"t)

1"$6 ;ithout prejudice to hubcoGs continuing obligations under this Agreement henfolloing the Actual 5ompletion Date all Defects in the Schedule of Defects havebeen made good the AuthorityGs 7epresentative shall issue a statement to that effectto hubco a #Cert,6,"ate 6 Ma5,n* Gd De6e"t)#!$

L,ab,(,t-

1"$9 'olloing the e(piry of the Defects 3iability Period hubco shall be liable to theAuthority for the reasonable costs of and reasonably foreseeable e(penses properlyincurred in procuring the repair of Defects$ 'or the avoidance of doubt the provisions

22To be specified on a project by project basis$ Documents might include for e(ample) the appropriate section of

any health and safety fileI as*built draings and maintenance manualsI and results of technical commissioning$2:

The definition provides for a period of 12 months$ Authorities may ish to consider longer periods for

specific aspects eg E&@$


26/179

of this 5lause 1" shall not be construed as limiting or e(cluding in any ay theAuthorityGs general right to claim damages for any breach of this Agreement by hubco$

L,;,tat,n

1"$8 'or the avoidance of doubt the provisions of this 5lause 1"shall not in any manner or

ay serve to limit reduce satisfy discharge negate avoid or otherise affect theobligations and>or liability including in respect of Defects! of hubco to the Authorityspecified or referred to elsehere in this Agreement$

1?$ 1?POST COMPLETION COMMISSIONING26

C;;,)),n,n*

1?$1 hubco and the Authority shall ithin J K Business Days folloing the Actual5ompletion Date respectively underta,e and complete hubcoGs Post 5ompletion5ommissioning and the AuthorityGs Post 5ompletion 5ommissioning in accordanceith the 'inal 5ommissioning Programme29$ Both parties shall at all times and inparticular in the period beteen the Actual 5ompletion Date and the 5ommissioning

@nd Date use reasonable endeavours to assist the other party to ensure complianceith the 'inal 5ommissioning Programme$

In6r;at,n

1?$2 hubco shall ensure that the AuthorityGs 7epresentative is provided ith all theinformation he may reasonably re4uire in relation to hubcoGs Post 5ompletion5ommissioning and the Authority shall ensure that hubco is provided ith allinformation hubco may reasonably re4uire in relation to the AuthorityGs Post5ompletion 5ommissioning$

1?$: f the AuthorityGs 7epresentative acting reasonably ma,es any comment in relation tothe carrying out of hubcoGs Post 5ompletion 5ommissioning such comments shall be

ta,en into account by hubco and if hubco acting reasonably ma,es any comment inrelation to the carrying out of the AuthorityGs Post 5ompletion 5ommissioning suchcomment shall be ta,en into account by the Authority$

1?$6 :On t!e occurrence of t!e Commissioning End Date t!e Aut!orits "epresentatives!all issue t!e Commissioning Completion Certificate6;


27/179

1?$9$2 on or before the Actual 5ompletion Date J K Jpaper>electronicK copies of afinal draft operation and maintenance manual in sufficient detail to allo theAuthority to operate and use the 'acilities safely and efficientlyI

1?$9$: ithin J K ee,s folloing the Actual 5ompletion Date the principal operationand maintenance manualI

in each case including all manufacturersG instructions relating to @4uipment installedby hubco and JAut!orit to list an ot!er manuals re4uiredK$

1?$8 hubco shall provide to the Authority such information after the Actual 5ompletion Dateas relates to any Snagging Eatters or rectification of Defects as is reasonablynecessary to allo for the updating of any of the items listed in 5lause 1?$9$

1?$"


28/179

reasonable directions ith regard to site safety that may be issued by or on behalf ofthe 5ontractorGs Site Eanager from time to time$

1/$8 f in relation to such discovery the Authority re4uires hubco to carry out or,s beingany or, of alteration addition demolition or e(tension or Cariation in the ;or,s!hich are not or,s hich ould be necessary for the purpose of compliance ith

3a or any 5onsents such or,s shall be deemed to be a Authority ;or,s Cariationand the provisions of Schedule Part 1: +ariation Procedure! shall apply as if suchinstruction ere a Cariation @n4uiry issued by the Authority in accordance ith theprovisions ofSection 1 of SchedulePart 1:+ariation Procedure!$2?

2?

A discovery of fossils and anti4uities is treated as a 7elief @vent entitling hubco to an e(tension of time inaccordance ith 5lause22 Dela Events'but leaving the financial ris,s of such discovery ith hubco$ f there isa ,non problem on site the provisions relating to discoveries may need to be revieed and amended on aproject specific basis$


29/179

PART ?. =UALITY ASSURANCE

2.$ 2.=UALITY ASSURANCE

=$a(,t- P(an) and S-)te;)

2.$1 hubco shall procure that all aspects of the ;or,s are the subject of 4ualitymanagement systems in accordance ith the provisions of this 5lause 2. &ualitAssurance'$

2.$2 The 4uality management systems referred to in 5lause 2.$1above shall be reflectedin appropriate Huality Plans the standard of hich shall be consistent ithBS @0 S< /..1 or /..2 as the case may be! or any e4uivalent standard hich isgenerally recognised as having replaced them or either of them!$

2.$: ;ithout limitation to the generality of 5lause2.$2 there shall be)*

2.$:$1 a Design Huality PlanI and

2.$:$2 a 5onstruction Huality Plan

provided that the Design Huality Plan and the 5onstruction Huality Plan may beincorporated into one document$

2.$6 hubco shall procure that the ;or,s are carried out in compliance ith the HualityPlans$ All Huality Plans shall be submitted to the AuthorityGs 7epresentative inaccordance ith Schedule Part ""evie# Procedure! and hubco shall not be entitledto implement or procure the implementation of any Huality Plan unless hubco isentitled to proceed ith such implementation pursuant to Schedule Part " "evie#Procedure!$

2.$9 hubco shall implement the 4uality management systems referred to in 5lause 2.$1and shall procure that)*

2.$9$1 the 5ontractor implements the Design Huality PlanI

2.$9$2 the 5ontractor implements the 5onstruction Huality PlanI

2.$8 ;here any aspect of the ;or,s is performed by more than one contractor orsub*contractor then the provisions of this 5lause 2. &ualit Assurance'in so far asrelevant or appropriate to the activities to be performed by such contractor orsub*contractor! shall apply in respect of each of such contractors or sub*contractorsand references in this 5lause 2. &ualit Assurance' to the #5ontractor# shall beconstrued accordingly$ To avoid doubt this 5lause shall not be construed as re4uiring

sub*contractors of the 5ontractor to have their on 4uality plans but only to complyith the Design Huality Plan and the 5onstruction Huality Plan$

2.$" hubco shall from time to time submit to the AuthorityGs 7epresentative in accordanceith Schedule Part " "evie# Procedure! any changes to any of the Huality Plansre4uired for such Huality Plan to continue to comply ith the re4uirements set out in5lause2.$2$ The AuthorityGs 7epresentative may raise comments on any suchproposed change only on the grounds set out in paragraph :$" of Schedule Part" "evie# Procedure!$

2.$? f there is no objection under Schedule Part ""evie# Procedure! to a change to anyHuality Plan proposed pursuant to 5lause 2.$" the Huality Plan shall be amended toincorporate such change$

=$a(,t- Man$a() and Pr"ed$re)


30/179

2.$/ f any Huality Plan refers to relies on or incorporates any 4uality manual or procedurethen such 4uality manual or procedure or the relevant parts of it shall be submitted tothe AuthorityGs 7epresentative at the time that the relevant Huality Plan or part of orchange to! a Huality Plan is submitted in accordance ith Schedule Part " "evie#Procedure! and the contents of such 4uality manual or procedure shall be ta,en intoaccount in the consideration of the relevant Huality Plan or part of or change to! a

Huality Plan in accordance ith Schedule Part ""evie# Procedure!$

=$a(,t- Mana*e;ent8:

2.$1. hubco shall maintain a 4uality management system hich shall)*

2.$1.$1 ensure the effective operation of the 4uality systems described in this5lause 2. &ualit Assurance'I

2.$1.$2 cause an audit of the 4uality systems at regular intervals and the findings ofsuch audit ill be reported to the AuthorityGs 7epresentativeI

2.$1.$: re4uire revie of all 4uality systems at intervals agreed ith the AuthorityGs

7epresentative to ensure their continued suitability and effectivenessI

2.$1.$6 re4uire liaison ith the AuthorityGs 7epresentative on all matters relating to4uality managementI and

2.$1.$9 re4uire production of reports and their delivery to hubco$

=$a(,t- Mn,tr,n*

2.$11 The AuthorityGs 7epresentative may carry out audits of hubcoGs 4uality managementsystem including all relevant Huality Plans and any 4uality manuals and procedures!to establish that hubco is complying ith 5lauses 2.$1 and2.$:$ The AuthorityGs7epresentative may carry out such audits at appro(imate intervals of three :! monthsand may carry out other periodic monitoring spot chec,s and auditing of hubcoGs4uality management systems$ hubco shall procure that the AuthorityGs 7epresentativeshall have an e4uivalent right in respect of the 5ontractorLs 4uality managementservices$ hubco shall co*operate and shall procure that any Sub*5ontractorco*operates ith the AuthorityGs 7epresentative including providing him ith allinformation and documentation hich he reasonably re4uires in connection ith hisrights under this 5lause$

2/ Amendments to reflect the concept that the management system rather than the 4uality manager is

important$


31/179

PART @. IN/ORMATION TECHNOLOGY

21$ 21IN/ORMATION TECHNOLOGY

JP"OECT $PECI.ICK


32/179

PART . DELAY EVENTS RELIE/ EVENTS AND /ORCE MA%EURE

22$ 22DELAY EVENTS:.

22$1 f at any time hubco becomes aare that there ill be or is li,ely to be! a delay incompletion of the ;or,s hubco shall forthith give notice to the AuthorityGs

7epresentative to that effect specifying the relevant delay or impediment$ n relationto any such delay or impediment if the AuthorityGs 7epresentative is satisfied or it isdetermined in accordance ith Schedule Part 19 Dispute "esolution Procedure! thatsuch delay or impediment has arisen as a result of the occurrence of a Delay @ventthen subject to 5lause2:$6 Mitigation! the AuthorityGs 7epresentative shall allohubco an e(tension of time e4ual to the delay or impediment caused by such Delay@vent ta,ing into account reasonably foreseeable conse4uences of the Delay @vent!and shall revise the 5ompletion Date$

22$2 f hubco is or claims to be! affected by a Delay @vent)*

22$2$1 it shall and shall procure that the hubco Parties shall! ta,e and continue tota,e all reasonable steps to eliminate or mitigate the conse4uences of such

an event upon the performance of its obligations under this Agreement andhere relevant resume performance of its obligations affected by the Delay@vent as soon as practicableI and

22$2$2 it shall neither be relieved from liability under this Agreement nor entitled toany e(tension of time for the purpose of 5lause 22$1 Dela Event! to thee(tent that it is delayed or impeded due to its failure if any! to comply ithits obligations under 5lause 22$2$1above$

22$: 'or the purposes of this Agreement a Delay @vent means any of the folloing to thee(tent in each case that there ill be or is li,ely to be! a delay in completion of the;or,s)*

22$:$1 an AuthorityGs ;or,s Cariation initiated by an AuthorityGs ;or,s Cariation@n4uiry in accordance ith paragraph 2 of Section 1 of Schedule Part 1:+ariation Procedure! in relation to hich hubco has issued a responsepursuant to paragraph :$2$2b! of Section 1 of Schedule Part 1: +ariationProcedure! specifying and providing evidence that implementation of theAuthorityGs ;or,s Cariation ould delay the completion of the 'acilities if thishas been agreed beteen the parties or determined to be the case inaccordance ith SchedulePart 19Dispute "esolution Procedure!I

22$:$2 any breach by the Authority and>or any Authority Party of any of theAuthorityGs e(press obligations under this Agreement to the e(tent in eachcase that any such breach is not caused or contributed to by hubco or anyhubco PartyI

22$:$: the e(ecution of or,s on the Site not forming part of this Agreement by theAuthority or any contractors employed by the AuthorityI

22$:$6 opening up of the ;or,s pursuant to 5lauses1:$:to1:$"inclusive! "ig!tto open up! here such ;or,s are not subse4uently found to be defectiveunless it is agreed or determined in accordance ith Schedule Part 19Dispute "esolution Procedure! that the opening up of the ;or,s asreasonable in the light of other defects previously discovered by theAuthority!I

:. Delay @vents give rise to an e(tension of time for completion of construction$ 5ompensation is payable for

all Delay @vents other than 'orce Eajeure or 7elief @vents! as follos)*

Authority Cariations) Cariation Procedure

Authority breach 22$:$222$:$:22$:$6 and22$:$")5ompensation @vent


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22$:$9 'orce EajeureI

22$:$8 a 7elief @ventI or

22$:$" the suspension by hubco pursuant to 5lause 2"$/of any or all obligations asa result of the non*payment by the Authority of sums properly due to hubco

under this AgreementI Jor

22$:$? the occurrence of circumstances deemed to be a 5ompensation @ventpursuant to 5lause 1.$6$K

22$6 ;ithout prejudice to the generality of 5lause 22 &Dela Events' hubco shall givenotice in riting to the AuthorityGs 7epresentative as soon as it or the 5ontractor! canreasonably foresee a Delay @vent occurring or if the same is not reasonablyforeseeable as soon as it or the 5ontractor! shall become aare of a Delay @vent$hubco shall ithin J K Business Days after such notification give further rittendetails to the AuthorityGs 7epresentative hich shall include)*

22$6$1 a statement of hich Delay @vent the claim is based uponI

22$6$2 details of the circumstances from hich the Delay @vent arisesI

22$6$: details of the contemporary records hich hubco ill maintain to substantiateits claim for e(tra timeI

22$6$6 details of the conse4uences hether direct or indirect financial ornon*financial! hich such Delay @vent may have upon completion of the'acilitiesI and

22$6$9 details of any measures hich hubco proposes to adopt to mitigate theconse4uences of such Delay @vent$

22$9 As soon as possible but in any event ithin J K Business Days of hubco or the5ontractor! receiving or becoming aare of any supplemental information hich mayfurther substantiate or support hubcoGs claim then provided that the 5ompletion Datehas not otherise been revised pursuant to 5lause 22$" hubco shall submit furtherparticulars based on such information to the AuthorityGs 7epresentative$

22$8 The AuthorityGs 7epresentative shall after receipt of ritten details under 5lause 22$6or of further particulars under 5lause 22$9 be entitled by notice in riting to re4uirehubco to provide such further supporting particulars as he may reasonably considernecessary$ hubco shall afford the AuthorityGs 7epresentative reasonable facilities forinvestigating the validity of hubcoGs claim including ithout limitation on*siteinspection$

22$" Subject to the provisions of this 5lause the AuthorityGs 7epresentative shall revise the5ompletion Date in accordance ith 5lause 22$1 &Dela Events! as soon asreasonably practicable and in any event ithin J K Business Days of thelater of)*

22$"$1 the date of receipt by the AuthorityGs 7epresentative of hubcoGs notice givenin accordance ith 5lause 22$6 and the date of receipt of any furtherparticulars if such are re4uired under 5lause22$8! hichever is the laterIand

22$"$2 the date of receipt by the AuthorityGs 7epresentative of any supplementalinformation supplied by hubco in accordance ith 5lause 22$9and the date

of receipt of any further particulars if such are re4uired under 5lause 22$8!hichever is the later$


34/179

f hubco has failed to comply ith the re4uirements as to the giving of notice under5lause22$6 or has failed to maintain records or afford facilities for inspection to theAuthorityGs 7epresentative then hubco shall not be entitled to any e(tension of timeand the 5ompletion Date shall not be revised! in respect of any period of delay byhubco in giving notice or providing information under 5lause 22$6 and>or to the e(tentthat its failure to maintain records or afford facilities for inspection to the AuthorityLs

7epresentative has prevented the AuthorityLs 7epresentative from assessing theconse4uences of the Delay @vent$

22$? f)*

22$?$1 the AuthorityGs 7epresentative declines to fi( a revised 5ompletion DateI or

22$?$2 hubco considers that a different 5ompletion Date should be fi(edI or

22$?$: there is a disagreement as to hether a Delay @vent has occurred

then hubco shall be entitled to refer the matter for determination in accordance ithSchedule Part 19 Dispute "esolution Procedure!$

C;4en)at,n

22$/ f the Delay @vent is a #C;4en)at,n E2ent# hubcoGs sole right to compensationshall be as provided for in 5lauses 22$/ to 22$1: inclusive$ To avoid doubt no otherDelay @vent shall entitle hubco to receive any compensation save as otherisee(pressly provided in Schedule Part 1: Cariation Procedure! in the case of a Delay@vent referred to in 5lause 22$:$1$

22$1. 'or the purposes of 5lause 22$/ a 5ompensation @vent meansI

22$1.$1 any Delay @vent referred to in 5lause22$:$2 Breac!! 5lause22$:$:E/ecution of non%project related #or-s! 5lause 22$:$6 Opening up of)or-s! or 5lause 22$:$" $uspension for non%pament! for hich in eachcase it has been agreed or determined pursuant to this 5lause 22 thathubco is entitled to an e(tension of timeI Jor

22$1.$2 in the period prior to the Actual 5ompletion Date in circumstances herethere is no delay in completion of the ;or,s Kany breach by the Authorityand>or any Authority Party of any of the AuthorityGs e(press obligations underthis Agreement to the e(tent that such breach is not caused or contributedto by hubco or any hubco PartyI or

22$1.$: the occurrence of the circumstances deemed to be a 5ompensation @ventpursuant to 5lause 1.$6K$

22$11 Subject to 5lause 22$12 if it is agreed or determined that there has been a5ompensation @vent and hubco has incurred loss including loss of revenue! and>ore(pense as a direct result of such 5ompensation @vent hubco shall be entitled tosuch compensation as ould place hubco in no better or no orse position than itould have been in had the relevant 5ompensation @vent not occurred$ hubco shallpromptly provide the AuthorityGs 7epresentative ith any additional information he mayre4uire in order to determine the amount of such compensation$

22$12 hubco shall ta,e all reasonable steps so as to minimise the loss or e(pense referred toin 5lause 22$11 in relation to any 5ompensation @vent and any compensation payableshall)*

22$12$1 e(clude any amounts incurred or to be incurred as a result of any failure ofhubco or any hubco Party! to comply ith this 5lause 22$12I and


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22$12$2 be reduced by any amount hich hubco has recovered or ill recover underany insurance policy or ould have recovered if it had complied ith there4uirements of this Agreement or of any policy of insurance re4uired underthis Agreement! hich amount to avoid doubt shall not include any e(cessor deductibles or any amount over the ma(imum amount insured applicableto any such insurance policy$

22$1: The amount of any compensation due to hubco under 5lause 22$11 shall be agreedbeteen the parties or failing agreement determined pursuant to Schedule Part19Dispute "esolution Procedure! and such compensation shall be payable ithinJtenty 2.!K Business Days of ritten demand by hubco folloing agreement ordetermination of the amount due$

2:$ 2:RELIE/ EVENTS

2:$1 'or the purposes of this Agreement subject to 5lause 2:$6 Mitigation! 7elief @vents

mean any of the folloing events)*:1

2:$1$1 fire e(plosion lightning storm tempest flood bursting or overfloing of

ater tan,s apparatus or pipes ionising radiation to the e(tent it does notconstitute 'orce Eajeure! earth4ua,e riot or civil commotionI:2

2:$1$2 failure by any statutory underta,er utility company local authority or otherli,e body to carry out or,s or provide servicesI

2:$1$: accidental loss or damage to the ;or,s and>or 'acilities or any roadsservicing the sameI

2:$1$6 bloc,ade or embargo falling short of 'orce EajeureI

2:$1$9 the discovery of fossils anti4uities and human remains re4uiring action inaccordance ith 5lause 1/ .ossils and Anti4uities!I or

2:$1$8 official or unofficial stri,e loc,out go slo or other dispute in each casegenerally affecting the construction or building maintenance industry or asignificant sector of that industry!

provided in each case that such event does not arise directly or indirectly! as a resultof any ilful act or default of the party claiming relief and>or i! in the case of hubcoclaiming relief any hubco Party and ii! in the case of the Authority claiming relief anyAuthority Party$

2:$2 Subject to 5lauses 2:$: and 2:$6 no right of termination shall arise under thisAgreement by reason of any failure by a party to perform any of its obligations under

this Agreement to the e(tent that such failure to perform occurs because of theoccurrence of a 7elief @vent and to avoid doubt and ithout prejudice to5lause2:$/ >o Compensation! unless e(pressly stated to the contrary in thisAgreement it is ac,noledged that all other rights and obligations of the parties underthis Agreement remain unaffected by the occurrence of a 7elief @vent!$

2:$: ;ithout prejudice to hubcoGs rights under 5lause 22Dela Events! hubco shall onlybe relieved of its obligations under 5lauses 12 T!e Design1 Construction and

:1 To the e(tent that it ill not be possible for hubco to investigate the Site 5onditions of any area of the Site

prior to contract signature due for e(ample to occupation of the relevant site by the Authority! 5lause 1.$:provides relief to hubco$ n addition should particular project specific circumstances arrant the list of eventscould be e(tended to include other similar events ith S'T approval$ oever Authorities should not permit theinclusion of a #catch*all# provision to the e(tent that any event outside the control of the parties should be a 7elief@vent$


36/179

Commissioning Process! 1: "ig!t of Access of Aut!orits "epresentative!16Programme and Dates for Completion! 18Pre%Completion Commissioning andCompletion! and 22Dela Events! by Delay @vents in accordance ith 5lause 22Dela Events!$

M,t,*at,n

2:$6 ;here a party is or claims to be! affected by a 7elief @vent)*

2:$6$1 it shall ta,e all reasonable steps to mitigate the conse4uences of such anevent upon the performance of its obligations under this Agreement resumeperformance of its obligations affected by the 7elief @vent as soon aspracticable and use all reasonable endeavours to remedy its failure toperformI and

2:$6$2 it shall not be entitled to rely upon the relief afforded to it pursuant to5lause 2:$2of this Agreement to the e(tent that it is not able to perform orhas not in fact performed its obligations under this Agreement due to itsfailure if any! to comply ith its obligations under 5lause 2:$6$1above$

2:$9 The party claiming relief shall serve ritten notice on the other party ithin five 9!Business Days of it becoming aare of the relevant 7elief @vent$ Such initial noticeshall give sufficient details to identify the particular event claimed to be a 7elief @vent$

2:$8 A subse4uent ritten notice shall be served by the party claiming relief on the otherparty ithin a further five 9! Business Days of the notice referred to in 5lause 66&Mitigation' hich shall contain such relevant information relating to the failure toperform or delay in performing! as is available including ithout limitation! the effectof the 7elief @vent on the ability of the party to perform the action being ta,en inaccordance ith 5lause 66 Mitigation! the date of the occurrence of the 7elief @ventand an estimate of the period of time re4uired to overcome it and>or its effects!$

2:$" The party claiming relief shall notify the other as soon as the conse4uences of the7elief @vent have ceased and of hen performance of its affected obligations can beresumed$

2:$? f folloing the issue of any notice referred to in 5lause2:$8 the party claiming reliefreceives or becomes aare of any further information relating to the 7elief @ventand>or any failure to perform! it shall submit such further information to the otherparty as soon as reasonably possible$

2:$/ To avoid doubt the occurrence of a 7elief @vent shall not entitle hubco to anycompensation$

26$ 26/ORCE MA%EURE

26$1 'or the purposes of this Agreement 'orce Eajeure means any of the folloing eventsor circumstances)*

26$1$1 ar civil ar armed conflict or terrorismI or

26$1$2 nuclear 5ontamination unless in any case hubco and>or any hubco Party isthe source or the cause of the 5ontaminationI or

26$1$: chemical or biological 5ontamination of the ;or,s and>or the 'acilitiesand>or the Site from any of the events referred to in 5lause 26$1$1aboveI or

26$1$6 pressure aves caused by devices travelling at supersonic speeds


37/179

hich directly causes either party to be unable to comply ith all or a material part ofits obligations under this Agreement$

26$2 Subject to 5lauses26$: and 26$6 the party claiming relief shall be relieved fromliability under this Agreement to the e(tent that by reason of the 'orce Eajeure it is notable to perform its obligations under this Agreement$ 'or the avoidance of doubt but

ithout prejudice to 5lause:: &Termination "esulting from .orce Majeure'! theAuthority shall not be entitled to terminate this Agreement for a hubco @vent of Defaultif such hubco @vent of Default arises from an event of 'orce Eajeure$

26$: ;here a party is or claims to be! affected by an event of 'orce Eajeure)*

26$:$1 it shall ta,e all reasonable steps to mitigate the conse4uences of such anevent upon the performance of its obligations under this Agreement resumeperformance of its obligations affected by the event of 'orce Eajeure assoon as practicable and use all reasonable endeavours to remedy its failureto performI and

26$:$2 it shall not be relieved from liability under this Agreement to the e(tent that it

is not able to perform or has not in fact performed its obligations under thisAgreement due to its failure if any! to comply ith its obligations under5lause 26$:$1$

26$6 ;ithout prejudice to hubcoGs rights under 5lause 22Dela Events! hubco shall onlybe relieved from its obligations under 5lauses 12 T!e Design1 Construction andCommissioning Process! 1: "ig!t of Access of Aut!orits "epresentative!16Programme and Dates for Completion! and 22 Dela Events! by Delay @vents inaccordance ith 5lause22Dela Events!$

26$9 The party claiming relief shall serve ritten notice on the other party ithin five9! Business Days of it becoming aare of the relevant event of 'orce Eajeure$ Suchinitial notice shall give sufficient details to identify the particular event claimed to be an

event of 'orce Eajeure$

26$8 A subse4uent ritten notice shall be served by the party claiming relief on the otherparty ithin a further five 9! Business Days hich shall contain such relevantinformation relating to the failure to perform or delay in performing! as is availableincluding ithout limitation! the effect of the event of 'orce Eajeure on the ability ofthe party to perform the action being ta,en in accordance ith 5lause 26$:the dateof the occurrence of the event of 'orce Eajeure and an estimate of the period of timere4uired to overcome it and>or its effects!$

26$" The party claiming relief shall notify the other as soon as the conse4uences of theevent of 'orce Eajeure have ceased and of hen performance of its affectedobligations can be resumed$

26$? f folloing the issue of any notice referred to in 5lause26$8 the party claiming reliefreceives or becomes aare of any further information relating to the event of 'orceEajeure and>or any failure to perform! it shall submit such further information to theother party as soon as reasonably possible$

Md,6,"at,n)

26$/ The parties shall endeavour to agree any modifications to the Agreement hich maybe e4uitable having regard to the nature of an event or events of 'orce Eajeure$Schedule Part 19 Dispute "esolution Procedure! shall not apply to a failure of theAuthority and hubco to reach agreement pursuant to this 5lause 26$/$

Cn)e


38/179

26$1. ;ithout prejudice to 5lause :9$"the occurrence of an event of 'orce Eajeure shallnot entitle hubco to any compensation$


39/179

PART . CHANGES IN LA+ ' VARIATIONS

29$ 29CHANGES IN LA+

Genera(

29$1 hubco shall ta,e all steps necessary to ensure that the Project


40/179

PART . /INANCIAL

2"$ 2"PAYMENT

De2e(4;ent A;$nt

2"$1$1 The Authority shall in accordance ith the provisions of this 5lause 2" payto hubco the Development Amount in consideration of the performance byhubco of its obligations under this Agreement in accordance ith thisAgreement$

2"$1$2 The Development Amount shall be a lump sum fi(ed price for the carryingout of hubcoGs obligations under the Agreement and shall not be altered oradjusted in any ay hatsoever and hubco shall not be entitled to anypayment in respect of the ;or,s or this Agreement! e(cept in accordanceith the e(press provisions of this Agreement$

Pr!e"t De2e(4;ent /ee

2"$1$: The Authority shall pay the Project Development 'ee to hubco ithin J KBusiness Days of the later of the @(ecution Date and receipt by the Authorityof a valid invoice therefor$::

2"$1$:A The due date for payment of the Project Development 'ee shall be the dateof the AuthorityGs receipt of the invoice$ ;ithin 9 days after the due date forpayment the AuthorityGs 7epresentative shall issue a payment noticedetailing the sum that the payer considers to be or to have been due at thepayment due date and the basis on hich that sum is calculated$ The finaldate for payment shall be 9 days after the due date

A44(,"at,n) 6r Pa-;ent

2"$2 0o earlier than J K:6each calendar month until and including! the calendarmonth after the calendar month in hich the 5ertificate of Practical 5ompletion isissued each a Nre(e2ant ;nt#O! hubco shall ma,e an application #A44(,"at,n 6rPa-;ent#! to the AuthorityLs 7epresentative for an interim certificate of payment inrespect of that relevant month$ @ach Application for Payment shall include suchsupporting information and documentation as is reasonably re4uired by the Authorityin order to prepare and issue an nterim 5ertificate as defined in clause 2"$9!$ Thedate of receipt by the AuthorityGs 7epresentative of the Application for Payment andsupporting information and documentation in accordance ith this clause 2"$2 andclause 2"$: belo shall be the payment due date the #D$e Date#!$

/r; 6 A44(,"at,n

2"$: ;ithout prejudice to 5lause 2"$6 +alue of (oods and Materials! each Application forPayment shall specify)

2"$:$1 the cumulative value claimed by hubco of ;or,s properly e(ecuted up to theend of the relevant month as set out in Schedule Part 11 DevelopmentAmount Analsis! as amended from time to time in accordance ith thisAgreementI

2"$:$2 the cumulative amount of any other payments to hich hubco claims to beentitled under this Agreement up to the end of the relevant monthI

:: To be revieed on a project by project basis to reflect the Stage 2 Project Development 'ee payable in terms of

Schedule Part 9 >e# Project Approval Process! of the TPA in respect of the Project$:6

Authorities to insert period in month hen applications should be submitted$ This ill vary and often may depend

on ho hubco can manage cashflo ith contractors$


41/179

2"$:$: here 5lause 2"$8 applies the applicable 7etentionI and

2"$:$6 the amount hubco considers is due on the Due Date and the basis uponhich that amount has been calculated including a brea,don of thecumulative value of ;or,s properly e(ecuted up to the end of the relevantmonth by specific reference to each of the elements set out in the

Development Amount Analysis$

Va($e 6 Gd) and Mater,a()

2"$6 f an Application for Payment includes any amount in respect of payment for goods ormaterials before incorporation thereof in the ;or,s the folloing provisions shallapply)

2"$6$1 hubco shall provide the Authority ith proof that property in such goods ormaterials is vested in hubcoI

2"$6$2 hubco shall ensure that the goods or materials are set apart from othergoods or materials at the place here they are manufactured or stored and

that they are clearly identified as being the property of the Authority ithoutdamaging or defacing them and shall provide proof of compliance ith thisre4uirement$ hubco shall bear the ris, of loss or damage to such materialsor goodsI

2"$6$: unless and until hubco has complied ith paragraphs2"$6$1 and2"$6$2above hubco shall not be entitled to any payment in respect of such goodsor materialsI

2"$6$6 such goods or materials shall become the property of the Authority uponpayment thereforI

2"$6$9 hubco shall permit the Authority the AuthorityGs 7epresentative and any

other persons authorised by the Authority at any time upon reasonablenotice to inspect the materials or goods hich have become the property ofthe Authority and shall grant or procure the grant of access to the Authoritythe AuthorityGs 7epresentative and any other person authorised by theAuthority for such purpose to the premises here such goods or materialsmay be locatedI

2"$6$8 payment by the Authority for such goods or materials shall not prejudice therights of the Authority in relation to goods or materials hich are not inaccordance ith this Agreement$

I))$e 6 Inter,; Cert,6,"ate

2"$9 ;ithin five 9! days of the Due Date the AuthorityLs 7epresentative shall issue aninterim certificate of payment an # Inter,; Cert,6,"ate#! setting out the sum that theAuthority or the AuthorityGs 7epresentative considers to be or to have been due at theDue Date and the basis on hich that sum is calculated including)

2"$9$1 the cumulative value of ;or,s properly e(ecuted as at the end of therelevant month in 4uestionI

2"$9$2 the cumulative value of any Cariation instructed in accordance ith5lause 28+ariation Procedure!I and

2"$9$: the cumulative amount of any other payments to hich hubco is entitled

under this Agreement as at the end of the relevant month in 4uestion to thee(tent not paid under another provision of this AgreementI


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3@SS

2"$9$6 here 5lause 2"$8 applies the applicable 7etentionI

2"$9$9 any sums due from hubco to the Authority or deductions to be made underthis AgreementI and

2"$9$8 the amounts certified for payment in nterim 5ertificates previously issued

and stating the balance if any! due from the Authority to hubco or from hubco to theAuthority$

t is immaterial that the sum referred to in this clause 2"$9 may be Mero$ f the Authorityfails to give an nterim 5ertificate in accordance ith 5lause 2"$9 and hubco havegiven an Application for Payment in accordance ith 5lause 2"$2 and 2"$: the sum tobe paid by the Authority shall subject to any Pay 3ess 0otice given under 5lause2"$11 be the sum specified in the Application for Payment$

2"$8 Retent,n@

2"$8$1 n the event that the party providing the 7etention Bond repudiates the7etention Bond the 7etention Bond is deemed to be invalid orunenforceable or the long*term rating of such party is rated at loer than Aby S&P or A1 by EoodyLs the provisions of this 5lause 2"$8shall apply$

2"$8$2 The Authority shall be entitled to deduct and retain J K per cent J KQ! ofthe total aggregate amounts specified in 5lause 2"$9 to 2"$9$:from time totime provided that credit shall be given in respect of amounts retainedpreviously! the #Retent,n#!$ n the event that the Authority is unable toretain from the first payment due to hubco after the occurrence of thematters specified in 5lause2"$8$1a sum e4ual to the 7etention applicablein terms of the first nterim 5ertificate after such date the shortfall shall be

due by hubco as a debt$

2"$8$: The folloing provisions shall apply to the 7etention:8)*

a! the Authority shall oe no fiduciary duty to hubco in respect of the7etentionI

b! any interest earned on the 7etention shall be permanently retainedby the AuthorityI

c! no later than 1. Business Days after the Actual 5ompletion Datethe Authority shall pay to hubco one*half of the 7etention deducted

and retained less any amounts or liabilities duly paid or incurredby the Authority in accordance ith 5lause 2"$8$6!I

d! no later than 1. Business Days after the issue of the 5ertificate ofEa,ing =ood Defects the Authority shall pay to hubco the balanceof the 7etention deducted and retained less any amounts orliabilities duly paid or incurred by the Authority in accordance ith5lause 2"$8$6!$

:9 The drafting contained in 5lause2"$8is for use here a retention bond is the AuthorityGs preferred solution$

Should the Authority ish to operate a cash retention the drafting of 5lause2"$9 and the relative definitionsshould be amended as appropriate$ t is e(pected that any such cash retention ould reflect the principles setout in 5lauses 2"$8$2to2"$8$6 inclusive$

:8 Authorities to consider on a project by project basis hether to lin, payment of the 7etention first or second

instalment! to receipt of operation and maintenance manual and>or the health and safety file$


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2"$8$6 n the event that hubco fails to comply ith its obligations under 5lause 1"Defects! to rectify a Defect the Authority shall be entitled to deduct from thebalance of the 7etention from time to time such amounts as are e4ual to thecosts reasonably and properly incurred by the Authority in rectifying orprocuring the rectification of any such Defect$

2"$8$9 'olloing the occurrence of any of the matters specified in 5lause 2"$8$1hubco shall be entitled to provide the Authority a retention bond hich is noless beneficial to the Authority than the 7etention Bond and hoselong*term rating is rated at no loer than JAK by S&P and A1 by EoodyLs inlieu of its right to apply the 7etention$ n e(change for such a replacementretention bond duly e(ecuted the Authority shall repay all sums retained bythe Authority under 5lause 2"$8$2and subject to 5lause 2"$8$8 the terms ofthis 5lause2"$8shall not apply and no 7etention shall be deducted from anyfurther payment due to hubco$

2"$8$8 The provisions of this 5lause 2"$8 shall apply mutatis mutandis to anyreplacement retention bond provided by hubco from time to time$

Nn>C;4(,ant +r5)

2"$" By each nterim 5ertificate the Authority gives notice to hubco specifying the amountof the payment proposed to be made and the basis upon hich it is calculated$ 'orthe avoidance of doubt no sum shall be included in any nterim 5ertificate if in thereasonable opinion of the Authority any ;or,s to hich the nterim 5ertificate relatesdo not comply ith the provisions of this Agreement in hich event the amountrelating to such non*compliant ;or,s shall be omitted from such nterim 5ertificateand such sum shall only be included in an nterim 5ertificate folloing rectification ofsuch ;or,s by hubco to the satisfaction of the Authority acting reasonably!$

Date 6r 4a-;ent

2"$? 'olloing receipt of an nterim 5ertificate from the Authority hubco shall submit aninvoice to the Authority for the amount certified in such nterim 5ertificate$ The finaldate for payment of such amount the #'inal Date#! shall be Jthirteen 1:!K BusinessDays after the AuthorityLs receipt of hubcoLs invoice$

R,*#t t )$)4end

2"$/ ;ithout prejudice to any other rights and remedies hich hubco may possess if)*

2"$/$1 the Authority fails to pay any sum due pursuant to 5lause 2"$? by the 'inalDateI and

2"$/$2 it has not given a notice pursuant to 5lause 2"$11 in respect of such sum)and

2"$/$: such failure continues for a period of seven "! days after hubco has given tothe Authority ritten notice of its intention to suspend performance of any orall of its obligations under this agreement and the ground or grounds onhich it is intended to suspend performance

then hubco may folloing the e(piry of such seven "! day period suspendperformance of any or all