Standard Form

Project Agreement
(hub D&B Projects)
Version 2: Jul 2!"2
DESIGN AND BUILD DEVELOPMENT AGREEMENT
between
[AUTHORITY]
and
[HUBCO
1
]
[Pr!e"t]
[Date]
1
Adjust to reflect identity of Project Service Provider is a subsidiary of hubco
#$b TEMPLATE PRO%ECT AGREEMENT & D'B PRO%ECTS
VERSION 1
IMPORTANT NOTICE
This is the Template Project Agreement for D&B Projects as referred to in and set out in
Section 2 Design and Build Development Agreement! of Schedule Part " Template Project
Agreements! of the Territory Partnering Agreement #TPA#!$ %nder the terms of the TPA the
parties are obliged to use this Template Project Agreement subject to amendment as described
belo&! &here the 'acility is to be publicly financed and &here hubco is procuring design and
construction only$ A suitably e(tended version of this form &ill be used &here a 'acility is to be
publicly financed but facilities management is also to be done by hubco$
%sers should be a&are of the follo&ing points)*
1$ This Template Project Agreement for D&B Projects has been derived as follo&s +
The bul, of the clauses e(cept for definitions used for parties! are ta,en from the
current as at -une 2../! Scottish 01S standard form PPP contract insofar as
relevant$
A number of additional clauses2 or amendments to standard clauses have been
included to reflect the absence of private funding and long term hubco
involvement$
These include)*
o 3i4uidated Damages 5lause 16$2!
o Application for Payments 5lause 2"$2 et se4!
o 7etentions 5lause 2"$8!
o Defects 5orrection 5lause 1"!
Title ris, other than the ris, of complying &ith disclosed title information and
reserved rights! is ta,en by the public sector 5lause / and Schedule Part 6!
2$ 5hanges to the Template Project Agreement2 other than project specific and minor
drafting such as completion of time periods! or to reflect the issues discussed at
paragraph 9 belo&2 re4uire prior approval of the S'T$ 0ormally approval &ill only be
given to changes re4uired to reflect changing guidance or demonstrable changing
mar,et circumstances$
:$ ;here there &ill be more than one user of the 'acility2 one authority from among the
7elevant Participants as defined in the TPA!! &ill be lead authority$ <nly the lead
authority &ill enter into agreement &ith hubco$ The lead authority &ill in turn have
appropriate bac, to bac, contractual arrangements including leases! &ith the other
users$ hubco &ill be re4uired to procure collateral &arranties in favour of the other
authorities as &ell as those in favour of the lead authority$
6$ The Schedule to this Template Project Agreement contains standard form collateral
&arranties and sample certificates$ They are included as templates and their use is
not mandatory but justification for deviations from the suggested form must be
provided to the S'T if they are not used$
9$ The Template Project Agreement contains a number of footnotes &hich identify certain
,ey issues &hich parties &ill need to consider &hen using it$ This is not an e(haustive
list2 and the agreement &ill therefore need to be analysed and revie&ed in detail to
ensure that it is tailored to the re4uirements of each project and that its terms and
their impact! are clearly understood by the parties$ 5ustomisation should not ho&ever
e(tend to parties see,ing to change the substance of commercial terms or ma,ing
unnecessary drafting amendments$
8$ This Template Project Agreement is not a replacement for independent2 specialist
advice and parties must ensure that they have ta,en appropriate legal2 financial and
technical advice before using this document$
"$ This Template Project Agreement should be used in conjunction &ith the =uidance
issued>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 of
the document for issue for a specific project$
/$ Should you have any 4uestions on the standard form please contact the S'T hub
team http)>>&&&$scottishfuturestrust$org$u,!$
CONTENTS
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PA7T 1/ * 7@T@0TA<0 B<0D
BET+EEN)
1! [ ] the #A$t#r,t-#!I and
2! [ ] LIMITED registered under number J K! &hose registered
office is J K ##$b"#
2
!$
+HEREAS.
JTO BE COMPLETEDK
NO+ IT IS HEREBY AGREED as follo&s)*
PART 1. GENERAL
1$ 1DE/INITIONS AND INTERPRETATION
Schedule Part 1 Definitions and Interpretation! shall apply$
2$ 2E0ECUTION AND DELIVERY O/ DOCUMENTS
1
2$1 <n or prior to e(ecution of this Agreement)*
2$1$1 hubco shall deliver to the Authority the documents referred to in Section 1
Documents to be delivered b !ubco! of Schedule Part 2 Completion
Documents! unless the re4uirement to deliver any such document is &aived
by the Authority by &ritten notice to hubco!I and
2$1$2 the Authority shall deliver to hubco the documents referred to in Section 2
Documents to be delivered b t!e Aut!orit! of Schedule Part 2
Completion Documents! unless the re4uirement to deliver any such
document is &aived by hubco by &ritten notice to the Authority!$
:$ :COMMENCEMENT AND DURATION
This Agreement and the rights and obligations of the parties2 shall commence on the
@(ecution Date and2 &ithout prejudice to 5lause :9$62 shall terminate on the
Termination Date$
6$ 6PRO%ECT DOCUMENTS
6$1 hubco shall perform its obligations under2 and observe all of the provisions of2 the
Project Documents to &hich it is a party and shall not)*
6$1$1 terminate or agree to the termination of all or part of any Project DocumentI
6$1$2 ma,e or agree to any material variation of any Project DocumentI
2
Adjust to reflect identity of the Project Service Provider &here a subsidiary of hubco is to be used$
:
Af there are project specific reasons &hy a condition or event cannot be satisfied until after contract
signature2 the Agreement &ill need to be amended accordingly$ An those circumstances2 any conditions precedent
#5Ps#! should be limited as far as possible to items of real project significance that cannot be satisfied prior to
signature$ This approach is necessary to minimise the ris, of a party terminating the Agreement for failure to
satisfy a trivial or insignificant 5P$
6$1$: in any material respect depart from its obligations or &aive or allo& to lapse
any rights it may have in a material respect!2 or procure that others in any
material respect depart from their obligations or &aive or allo& to lapse any
rights they may have in a material respect!2 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 other&ise materially and adversely affecting the
interpretation of! any Project Document2
unless the proposed course of action and any relevant documentation! has been
submitted to the AuthorityGs 7epresentative for revie& under Schedule Part " "evie#
Procedure! and either i! there has been no objection in accordance &ith section :$2 of
Schedule Part " "evie# Procedure! &ithin t&enty 2.! Business Days of receipt by
the AuthorityGs 7epresentative of the submission of the proposed course of action and
any relevant documentation!2 or such shorter period as may be agreed by the partiesI
or ii! hubco is acting in accordance &ith the comments of the Authority as provided in
paragraph 6$2 of Schedule Part " "evie# Procedure!I and2 in the circumstances
specified in 5lause 6$1$12 hubco has complied &ith 5lause 6: Assignation and
$ub%contracting!$
De(,2er-
6$2 ;ithout prejudice to the provisions of this 5lause 6 &Project Documents'2 if at any time
an amendment is made to any Project Document2 or hubco enters into a ne& Project
Document or any agreement &hich affects the interpretation or application of any
Project Document!2 hubco shall deliver to the Authority a conformed copy of each such
amendment or agreement &ithin ten 1.! Business Days of the date of its e(ecution or
creation2 certified as a true copy by an officer of hubco$
9$ 9THE +OR3S
S"4e
9$1 Subject to2 and in accordance &ith2 the provisions of this Agreement2 hubco shall
perform its duties under this Agreement at its o&n cost and ris, &ithout recourse to the
Authority e(cept as other&ise e(pressly provided in this Agreement$
Genera( )tandard)
9$2 hubco shall at its o&n cost be solely responsible for procuring that the ;or,s are at all
times performed)*
9$2$1 in compliance &ith all 3a& and 5onsents including &ithout limitation the
giving of notices and the obtaining of any such 5onsents! and so as not to
prejudice the rene&al of any such 5onsentsI
9$2$2 in a manner that is not li,ely to be injurious to health or to cause damage to
propertyI
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 AuthorityGs
5onstruction 7e4uirements2 in compliance &ith all applicable 01S
7e4uirementsIK
6
9$2$9 in a manner consistent &ith the Authority discharging its statutory duties and
other functions underta,en by it as the same may be notified to hubco from
time to timeI and
6
;here the Authority or a 5ommunity Services Provider is a health board$
9$2$8 in so far as not in conflict &ith an e(press obligation of hubco under this
Agreement2 or &here in relation to a matter there is no e(press obligation or
standard imposed on hubco under this Agreement2 in accordance &ith =ood
Andustry Practice$
An the event that any ambiguity2 uncertainty2 dispute or discrepancy arises in the nature
and scope of hubcoGs obligations under this 5lause 9$2 &(eneral $tandards'2 the
provisions of this 5lause 9$2 &(eneral $tandards' &ill be given meaning and have
effect in descending order of precedence set out in this 5lause 9$2 &(eneral
$tandards'$
A$t#r,t- Underta5,n*
9$: The Authority underta,es to hubco that it shall not &ilfully impede hubco in the
performance of its obligations under this Agreement having regard al&ays to the
interactive nature of the activities of the Authority and of hubco and to the AuthorityGs
and any 5ommunity Services ProviderGs use of the 'acilities to provide the relevant
5ommunity Services and any other operations or activities carried out by the Authority
or 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 Services
ProviderGs statutory functions!$
C*4erat,n
9$6 @ach party agrees to co*operate2 at its o&n e(pense2 &ith the other party in the
fulfilment of the purposes and intent of this Agreement$ To avoid doubt2 neither party
shall be under any obligation to perform any of the otherGs obligations under this
Agreement$
8$ 8GENERAL OBLIGATIONS AND RESPONSIBILITIES O/ HUBCO
#$b" Part,e)
8$1 Subject to the provision of 5lause 2:$1$8 hubco shall not be relieved or e(cused of
any responsibility2 liability or obligation under this Agreement by the appointment of
any hubco Party$ hubco shall2 as bet&een itself and the Authority2 be responsible for
the selection2 pricing2 performance2 acts2 defaults2 omissions2 breaches and
negligence of all hubco Parties$ All references in this Agreement to any act2 default2
omission2 breach or negligence of hubco shall be construed accordingly to include any
such act2 default2 omission2 breach or negligence of a hubco Party$
Sa6et-
8$2 hubco shall in carrying out the ;or,s have full regard for the safety of all persons on
the Site &hether la&fully or not! and shall ,eep the Site2 the ;or,s and the 'acilities
in an orderly state2 appropriate in accordance &ith =ood Andustry Practice2 to avoid
danger to such persons$
"$ "AUTHORITY7S DATA
N (,ab,(,t-
"$1 JSubject to 5lause :? )arranties!K the Authority shall not be liable to hubco for and
hubco shall not see, to recover from the Authority or from any Authority Party! any
damages2 losses2 costs2 liabilities or e(penses &hich may arise &hether in contract2
delict or other&ise! from the adoption2 use or application of the Disclosed Data by2 or
on behalf of2 hubco or any hubco Party$
N warrant-
"$2 JSubject to 5lause :? )arranties!K2 the Authority gives no &arranty or underta,ing of
&hatever nature in respect of the Disclosed Data and2 specifically but &ithout
limitation!2 the Authority does not &arrant that the Disclosed Data represents all of the
information in its possession or po&er relevant or material to or in connection &ith the
Project or the obligations of hubco under this Agreement or under any of the Project
Documents$ An addition2 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 hubco
&hether before2 on or after the e(ecution of this Agreement! any information2
documents or data2 nor any failure to revie& or to update the Disclosed Data2 nor any
failure to inform hubco &hether before2 on or after e(ecution of this Agreement! of any
inaccuracy2 error2 omission2 defects or inade4uacy in the Disclosed Data$
#$b" ,n2e)t,*at,n
"$: J;ithout prejudice to its rights and remedies under 5lause :? )arranties!K hubco
ac,no&ledges and confirms that)*
"$:$1 it has conducted its o&n analysis and revie& of the Disclosed Data and has2
before the e(ecution of this Agreement2 satisfied itself as to the accuracy2
completeness and fitness for purpose of any such Disclosed Data upon
&hich it places relianceI and
"$:$2 it shall not be entitled to and shall not and shall procure that no hubco Party
shall! ma,e any claim against the Authority or any Authority Party &hether in
contract2 delict or other&ise including2 &ithout limitation2 any claim in
damages2 for e(tensions of time or for additional payments under this
Agreement on the grounds)*
a! of any misunderstanding or misapprehension in respect of the
Disclosed DataI or
b! that incorrect or insufficient information relating to the Disclosed
Data &as given to it by any person2 &hether or not an Authority
Party2
nor shall hubco be relieved from any obligation imposed on2 or underta,en
by it2 under this Agreement on any such ground$
?$ ?REPRESENTATIVES
Re4re)entat,2e) 6 t#e A$t#r,t-
?$1 The AuthorityGs 7epresentative shall be J K or such other person appointed
pursuant to this 5lause *$ The AuthorityGs 7epresentative shall e(ercise the functions
and po&ers of the Authority in relation to the ;or,s &hich are identified in this
Agreement as functions or po&ers to be carried out by the AuthorityGs 7epresentative$
The AuthorityGs 7epresentative shall also e(ercise such other functions and po&ers of
the Authority under this Agreement as may be notified to hubco from time to time$
?$2 The AuthorityGs 7epresentative shall be entitled at any time2 by notice to hubco2 to
authorise any other person to e(ercise the functions and po&ers of the Authority
delegated to him pursuant to this 5lause2 either generally or specifically$ Any act of
any such person shall2 for the purposes of this Agreement2 constitute an act of the
AuthorityGs 7epresentative and all references to the #AuthorityGs 7epresentative# in this
Agreement apart from this 5lause! shall be ta,en as references to such person so far
as they concern matters &ithin the scope of such personGs authority$
?$: The Authority may by notice to hubco change the AuthorityGs 7epresentative$ The
Authority shall as far as practicable! consult &ith hubco prior to the appointment of
any replacement for the AuthorityGs 7epresentative2 ta,ing account of the need for
liaison and continuity in respect of the Project$ Such change shall have effect on the
date specified in the &ritten notice &hich date shall2 other than in the case of
emergency2 be such date as &ill not cause material inconvenience to hubco in the
e(ecution of its obligations under this Agreement!$
?$6 During any period &hen no AuthorityGs 7epresentative has been appointed or &hen
the AuthorityGs 7epresentative is unable through illness2 incapacity or any other reason
&hatsoever to carry out or e(ercise his functions under this Agreement! the Authority
shall carry out the functions &hich &ould other&ise be performed by the AuthorityGs
7epresentative$
?$9 0o act or omission of the Authority2 the AuthorityGs 7epresentative or any officer2
employee or other person engaged by the Authority shall2 e(cept as other&ise
e(pressly provided in this Agreement)*
?$9$1 in any &ay relieve or absolve hubco from2 modify2 or act as a &aiver or
personal bar of2 any liability2 responsibility2 obligation or duty under this
AgreementI or
?$9$2 in the absence of an e(press order or authorisation under Schedule Part 1:
+ariation Procedure!2 constitute or authorise a Cariation$
?$8 @(cept as previously notified in &riting before such act by the Authority to hubco2
hubco and hubcoGs 7epresentative shall be entitled to treat any act of the AuthorityGs
7epresentative &hich is authorised by this Agreement as being e(pressly authorised
by the Authority and hubco and hubcoGs 7epresentative shall not be re4uired to
determine &hether an e(press authority has in fact been given$
Re4re)entat,2e 6 #$b"
?$" hubcoGs 7epresentative shall be J K or such other person appointed pursuant to
5lause ?$?$ 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 such
act by hubco to the Authority2 the Authority and the AuthorityGs 7epresentative shall be
entitled to treat any act of hubcoGs 7epresentative in connection &ith this Agreement
as being e(pressly authorised by hubco and the Authority and the AuthorityGs
7epresentative shall not be re4uired to determine &hether any e(press authority has
in fact been given$
?$? hubco may by notice to the Authority change hubcoLs 7epresentative$ ;here hubco
&ishes to do so it shall by &ritten notice to the Authority propose a substitute for
approval2 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 be
unreasonably &ithheld or delayed!$
?$/ hubcoGs Fey ;or,s Personnel are identified in Schedule Part : ,e )or-s
Personnel!$ hubco shall2 as far as it is &ithin hubcoGs control2 ensure that such
persons retain their involvement in the ;or,s and2 in particular2 &ill not2 for the
duration of the ;or,s re4uire or re4uest any of them to be involved in any other
project on behalf of hubco or any of the Shareholders or its or their Associated
5ompanies if2 in the reasonable opinion of the Authority2 this &ould adversely affect
the Project$
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! the
Termination Date2 the Authority shall grant to hubco and hubco Parties or procure that
hubco and the hubco Parties are granted)*
/$1$1 access to the Site
9
I and
/$1$2 the Ancillary 7ights2
in each case subject only to the 7eserved 7ights2 the Title 5onditions and the
AuthorityLs rights under this Agreement and solely for the purposes of implementing
the ;or,s and carrying out hubcoGs Pre*5ompletion 5ommissioning$
A""e)) /((w,n* Cn)tr$"t,n
/$2 After the occurrence of the Actual 5ompletion Date the Authority shall grant to hubco
and hubco Parties or procure that hubco and hubco Parties are granted access to the
'acilities subject only to the 7eserved 7ights2 the Title 5onditions and the provisions
of this Agreement and solely for the purposes of)*
/$2$1 carrying out hubcoGs Post 5ompletion 5ommissioning during the period
permitted therefor and subject to the terms of the 'inal 5ommissioning
ProgrammeI
/$2$2 remedying of Defects pursuant to 5lause 1" &Defects' during the Defects
3iability Period and the period of J K months specified in
5lause 1"$2I and
/$2$: the carrying out of Snagging Eatters during the period specified therefor in
5lause 18$1:$
E9tent 6 A""e))
/$: The rights referred to at 5lauses /$1 &Access During Construction' and /$2 &Access
.ollo#ing Construction' shall not operate or be deemed to operate as a lease of the
'acilities or the Site or any part of the 'acilities or the Site and hubco shall not have or
be entitled to e(clusive possession save to the e(tent e(pressly included &ithin the
Ancillary 7ights! or any estate2 right2 title or interest in and to the Site or the 'acilities
but shall occupy the Site as a licensee only$
/$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 before2
during or after the completion of the ;or,s! shall be carried out in a manner
&hich does not breach any of the Title 5onditions or 7eserved 7ightsI and
/$9$2 there shall be no action2 or omission to act by hubco or a hubco Party2 &hich
shall give rise to a right for any person to obtain title to the Site or any part of
it$
9
<n a project specific basis &here there is a phased construction or refurbishment project2 this &ill have to
be revie&ed$ 5onsider &hether a phased programme of access may be re4uired$
/$8 0ot&ithstanding the terms of 5lauses /$1 and /$22 or any other rights granted under
this Agreement2 the Authority shall if it is the heritable proprietor of the Site!2 or if it is
not the heritable proprietor of the Site! shall procure that the heritable proprietor of the
Site shall2 enter into such &ayleaves2 deeds of servitudes or other similar
arrangements &ith any third party that hubco or any hubco Party may re4uire to be
granted in favour of or by any third party2 in order to e(ercise its rights or perform its
obligations under this Agreement$ The Authority shall enter into or2 &here
appropriate2 shall procure that the heritable proprietor of the Site shall enter into! any
such &ayleave2 deed of servitude or other similar agreement as soon as reasonably
practicable after hubco has provided to the Authority all relevant information in
connection there&ith provided al&ays that hubco has obtained at its o&n cost the prior
agreement of the third party in terms acceptable to the Authority acting reasonably!$
hubco shall reimburse the Authority for all costs and e(penses reasonably and
properly incurred by the Authority and>or the JScottish Einisters>heritable proprietor of
the SiteK! in connection &ith entering into such &ayleaves2 deeds of servitude or other
similar agreements at the re4uest of hubco$
8
1.$ 1.THE SITE
"
1.$1 ;ithout prejudice to 5lause 1"2 the condition of the Site Jsubject to 5lauses 1.$: and
1.$6K bet&een the @(ecution Date and the Actual 5ompletion Date shall be the sole
responsibility of hubco$ Accordingly &ithout prejudice to any other obligation of hubco
under this Agreement!2 hubco shall be deemed to have)*
1.$1$1 carried out a =round Physical and =eophysical Anvestigation and to have
inspected and e(amined the Site and its surroundings and &here
applicable! any e(isting structures or &or,s on2 over or under the SiteI
1.$1$2 satisfied itself as to the nature of the Site 5onditions2 the ground and the
subsoil2 the form and nature of the Site2 the load bearing and other relevant
properties of the Site2 the ris, of injury or damage to property affecting the
Site2 the nature of the materials &hether natural or other&ise! to be
e(cavated and the nature of the design2 &or, and materials necessary for
the e(ecution of the ;or,sI
1.$1$: satisfied itself as to the e(tent and ade4uacy of the Site and of the rights of
access to and through the Site granted hereunder and any accommodation it
may re4uire for the purposes of fulfilling its obligations under this Agreement
such as additional land or buildings outside the Site! &ithout prejudice to
hubcoLs rights under this Agreement in respect of a breach by the Authority
of its obligations under 5lause /$1 and>or 5lause /$2I
1.$1$6 satisfied itself as to the precautions2 times and methods of &or,ing
necessary to prevent any nuisance or interference2 &hether public or private2
being caused to any third partiesI and
8
5lause /$8 assumes that the Site is o&ned by the Authority or the Scottish Einisters &here the Authority is a
health board!$ To be revie&ed &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(ample2 due to Authority occupation of facilities on Site!2
then 5lause 1.$: &ill provide relief$ The Authority should bear any additional costs arising out of unforeseen
conditions in areas &hich hubco cannot investigate and &hich cannot be reasonably identified by hubco$ Areas of
the 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
,no&n ris, of asbestos remaining on a site should the Authority ta,e any ris, in this area$ At should be clear that
hubco are responsible for any ,no&n 5ontamination disclosed on the asbestos register and areas capable of
survey2 &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 should
be a process for underta,ing additional surveys re4uired on a project specific basis$ The Authority &ill ta,e
responsibility for dealing &ith asbestos &hich is discovered under an e(isting facility during construction &hich
&as incapable of survey$
1.$1$9 satisfied itself as to the conditions2 burdens2 restrictions and reservations set
out in the Title 5onditions and the 7eserved 7ights$
1.$2 To avoid doubt2 hubco accepts full responsibility for all matters referred to in
5lause 1.$1 Jand2 subject to 5lause 1.$:2 5lause 1.$6 and J5lause :? )arranties!K2K
hubco shall)*
1.$2$1 not be entitled to ma,e any claim against the Authority of any nature
&hatsoever &save2 if applicable2 as e(pressly provided in 5lause 22 Dela
Events!!2 on any grounds including &ithout limitation! the fact that incorrect
or insufficient information on any matter relating to the Site &as given to it by
any person2 &hether or not the Authority or an Authority PartyI and
1.$2$2 be responsible for2 and hold the Authority harmless from2 cleaning up and>or
other&ise dealing &ith any 5ontamination at the Site prior to the Actual
5ompletion Date so that it shall at all times comply &ith its obligations under
this Agreement including &ithout limitation! complying &ith2 at its o&n cost2
any applicable 3a&s and any 5onsents2 orders2 notices or directions of any
regulatory body &hether made against the Authority or hubco!$
[Responsibility for Ground Conditions and Contamination
1.$: To t!e e/tent t!at unforeseen ground conditions and0or Contamination e/ist in an
parts 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 be
responsible 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!orit3s
Construction "e4uirements' of $c!edule Part 5 &Construction Matters' or unless t!e
s!ould reasonabl !ave been discoverable if t!e (round P!sical and (eop!sical
Investigation !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 to
e/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 7862 applies
to t!e follo#ing areas9 : ;
1.$6 )!ere pursuant to Clause 7862 t!e Aut!orit is responsible for an of t!e matters
referred to t!en not#it!standing Clause 786<1 t!e follo#ing provisions s!all appl9%
1.$6$1 An suc! matter s!all be deemed to be a Compensation Event for t!e
purposes of t!is Agreement= and
1.$6$2 #!ere an suc! matter is Contamination t!e Aut!orit s!all furt!er !old
!ubco !armless from cleaning up and ot!er#ise dealing #it! t!e
Contamination and s!all indemnif !ubco in respect of all Direct Losses
incurred b !ubco resulting from suc! Contamination6K
1.$9 ;ithout prejudice to 5lause 1"2 follo&ing the Actual 5ompletion Date hubco shall be
responsible for the costs of cleaning up and>or other&ise dealing &ith any
5ontamination &hich subse4uently occurs on any parts! of the Sites &hether arising
from a source on or off Site! to the e(tent that such 5ontamination has been caused
by hubco either by a breach of its obligations under this Agreement or other&ise due
to its act or omission in carrying out the Project <perations and shall reimburse the
Authority &ithin J K Business Days in respect of all Direct 3osses resulting from such
5ontamination$
?
At may be appropriate2 &here additional surveys are recommended by hubco acting in accordance &ith good
industry practice and in good faith during the 0e& Project Approval Process but &ere not instructed by the
Authority or permitted by the Authority to be carried out2 that these should be specifically carved out of this
5lause$
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$2 implementing each 5onsent &ithin the period of its validity in accordance
&ith its terms$
:Aut!orit to include an project specific provisions relating to planning agreements
etc6 >B9 costs associated #it! suc! agreements s!ould be for t!e account of
!ubco6;
77

11$2 An the event that)
11$2$1 a 5onsent that has been granted is subse4uently amended2 repealed2
revo,ed or other&ise ceases to be in full force and effect in accordance &ith
its terms as a conse4uence of any action by a 7elevant AuthorityI
11$2$2 affected persons are entitled to claim compensation for the adverse effects
of such action under a statutory scheme of compensationI and
11$2$: hubco is not entitled in its o&n name to claim under that scheme but the
Authority is so entitled2
the Authority must use all reasonable endeavours2 at the re4uest and at the cost of
hubco2 to claim or to include &ithin its claim such sums as hubco acting reasonably
re4uests and shall pay to hubco the part of any compensation that it receives under
that scheme that relates to the sums claimed at the re4uest of hubco$
/
The Template Project Agreement assumes that detailed Planning Permission &ill have been obtained2 and that
sufficient time has elapsed to minimise the ris, of judicial revie&2 prior to contract signature$ ;here this is not the
case2 the Authority may consider including judicial revie& drafting on a project by project basis &hich
appropriately and on a value for money basis! allocates the ris, of judicial revie&$ 0o ris, should be passed to
the Authority to the e(tent arising out of the conduct of the planning process by or on behalf of hubco$
1.
;here2 on a project specific basis2 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 consent2
such drafting should be included in this 5lause 11 and cross referred to in 5lause 9$2$1$ A similar approach
should be follo&ed &here there are legislative re4uirements in relation to the 'acilities &hich can be complied
&ith only by or re4uire the input or co*operation of the Authority as occupier or user of the 'acilities or any part of
them$ Any such acceptance of responsibility by the Authority should be narro&ly prescribed$
11
An the event that detailed planning permission includes obligations &ith &hich it is the Authority as
o&ner>occupier of the facility! &ho must comply2 it &ill be necessary to include appropriate drafting to reflect any
such obligations$
PART 1. 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 doubt2 the obligations in 5lauses 12$1$12 12$1$2 and 12$1$: are independent
obligations$ An particular)*
12$2$1 the fact that hubco has complied &ith hubcoGs Proposals shall not be a
defence to an allegation that hubco has not satisfied the AuthorityGs
5onstruction 7e4uirementsI and
12$2$2 the fact that hubco has satisfied the AuthorityGs 5onstruction 7e4uirements
shall not be a defence to an allegation that hubco has failed to comply &ith
hubcoGs Proposals$
De),*n re)4n),b,(,t-
12$: hubco &arrants that it has used2 and &ill continue to use2 the degree of s,ill and care
in the design of the 'acilities that &ould reasonably be e(pected of a competent
professional designer e(perienced in carrying out design activities of a similar nature2
scope and comple(ity to those comprised in the ;or,s$
Cr4rate Ident,t- and S,*na*e
12$6 The parties ac,no&ledge that the Authority may2 from time to time during the
5onstruction Phase2 be re4uired to procure the erection of hoarding2 site boards2
pla4ues and>or other signage in connection &ith the Project$ Accordingly)*
12$6$1 &here re4uested by the Authority acting reasonably2 hubco shall procure the
erection and maintenance of such hoarding2 site boards2 pla4ues and>or
other signage as the Authority may re4uireI and
12$6$2 the siMe2 design2 information disclosed2 position and materials used in
connection &ith such hoarding2 site boards2 pla4ues or other signage shall
be approved by the Authority2 such approval not to be unreasonably
&ithheldJI and
12$6$: Jfor the purposes of this 5lause 12$6 &Corporate Identit and $ignage'2 the
Authority shall be deemed to be acting reasonably &here any proposals
made by it and>or any approvals e(ercised by it conform &ith any relevant
guidance issued to 01S Boards by the Scottish =overnment 1ealth
Directorate or any successor Department! in relation to such matters
&hether by @(ecutive 3etter or other&iseK
12
$
12
;here the Authority is a health board$ <ther Participants to consider additional re4uirements they may have on
a project by project basis$
A$t#r,t- de),*n a44r2a(
12$9 The Authority confirms that2 as at the date of this Agreement2 it has revie&ed such of
hubcoGs Proposals as have been initialled by the Authority and that2 subject to any
4ualifications and>or comments notified by the Authority to hubco in &riting and set out
in J K
1:
such proposals satisfy the AuthorityGs re4uirements in respect of
<perational 'unctionality2 so far as can reasonably be determined given the level of
detail of Design Data &hich has been disclosed to the Authority$
16
12$8 hubco shall develop and finalise the design and specification of the ;or,s and the
Authority shall revie& the 7evie&able Design Data in accordance &ith Schedule Part
" "evie# Procedure! and the provisions of this 5lause 12$8)*
12$8$1 hubco shall submit the 7evie&able Design Data and the design of any
Cariations developed in accordance &ith the procedure set out in the
Schedule Part 1: +ariation Procedure! to the AuthorityGs 7epresentative for
revie& under Schedule Part " "evie# Procedure!$ hubco shall not
commence or permit the commencement of construction of the part or parts
of the 'acilities to &hich such 7evie&able Design Data relates until it has
submitted the appropriate 7evie&able Design Data and either it is confirmed
by the AuthorityGs 7epresentative that hubco is entitled to proceed &ith
construction in accordance &ith paragraph :$: of Schedule Part " "evie#
Procedure! or hubco is)*
a! disputing the status of such 7evie&able Design Data pursuant to
paragraph 1$:$1 or paragraph 6$: of Schedule Part " "evie#
Procedure!I and
b! proceeding at ris, pursuant to paragraph 1$:$2 of Schedule Part "
"evie# Procedure!$
12$8$2 &ith effect from the date at &hich any item of 7evie&able Design Data is or
becomes an Approved 7DD Atem in accordance &ith Schedule Part
" "evie# Procedure!2 such Approved 7DD Atem shall for the purposes of
this Agreement be deemed to have satisfied the re4uirements of the
Authority in the manner and to the e(tent set out in Appendi( 12 Table A of
Schedule Part " "evie# Procedure!I
12$8$: hubco shall allo& the AuthorityGs 7epresentative
19
2 at any time2 a reasonable
opportunity to vie& any items of Design Data2 &hich shall be made available
to the AuthorityGs 7epresentative as soon as practicable follo&ing receipt of
any &ritten re4uest from the AuthorityGs 7epresentativeI and
12$8$6 hubco shall procure that the 5ontractor establishes and maintains a
computerised design database &hich hubco and the AuthorityGs
7epresentative may access remotely by computer to vie& dra&ings
comprised &ithin the Design Data including 7evie&able Design Data! and
electronically store and>or print copies of such Design Data$ An the event of
the AuthorityGs 7epresentative being unable to access such design
database2 hubco shall procure that it is made available for inspection by the
AuthorityGs 7epresentative2 or any other person authorised by the AuthorityGs
7epresentative$
1:
Specify &here 4ualifications are set out$ Authority must have right to notify hubco of its comments$
16
At 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 <perational 'unctionality and that
it is therefore happy to give its sign off to them$
19
<n Projects &here there is more than one 7elevant Participant2 the Participants may re4uire that
representatives of each have similar rights as referred to in here and in 5lause 12$8$6$
Re"t,6,"at,n 6 #$b"7) Pr4)a()
12$" ;ithout prejudice to 5lause 12$12 if it should be found that hubcoGs Proposals do not
fulfil the AuthorityGs 5onstruction 7e4uirements2 hubco shall at its o&n e(pense and in
accordance &ith 5lause 12$? belo&2 amend hubcoGs Proposals and rectify the ;or,s
or any part affected$ Such amendment and rectification shall have the effect that)*
12$"$1 hubcoGs Proposals shall satisfy the AuthorityGs 5onstruction 7e4uirementsI
and
12$"$2 follo&ing the amendment or rectification2 the structural2 mechanical and
electrical performance of the 'acilities &ill be of an e4uivalent standard of
performance to that set out in hubcoGs Proposals prior to their amendment or
rectification for the purpose of this comparison disregarding the fault &hich
re4uired the amendment or rectification to be made!$
12$? ;here 5lause 12$" applies2 hubco shall submit its proposal for amending hubcoLs
Proposals and rectifying the ;or,s or any part affected! to the AuthorityLs
7epresentative for revie& under Schedule Part " "evie# Procedure! and shall not
amend hubcoLs Proposals or commence or allo& the commencement of the
rectification of the ;or,s or any part affected! until it is permitted to proceed in
accordance &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 procedures2 &hich shall include
any relevant construction phase plans and health and safety plans for the
construction of the 'acilities2 the 5ontractorGs Site 7ules from time to time
and any reasonable directions &ith regard to site safety that may be issued
by or on behalf of the 5ontractorGs Site Eanager from time to time2 the
AuthorityGs 7epresentative
18
shall have unrestricted access at all reasonable
times during normal &or,ing hours to)*
a! vie& the ;or,s at the Site on reasonable prior notice appropriate
to the circumstances2 provided that the notice procedures in this
5lause above shall not apply to the right of access for the
AuthorityGs 7epresentative and his staff and visitors to the office
and other facilities provided at the Site for his useI and
b! subject to obtaining the consent of the relevant manufacturer or
supplier &hich hubco agrees to use all reasonable endeavours to
obtain!2 visit any site or &or,shop &here materials2 plant or
@4uipment are being manufactured2 prepared or stored for use in
the ;or,s for the purposes of general inspection and of attending
any 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 in
an emergency as he acting reasonably! considers suitable in the
circumstancesI and
1:$1$: monthly progress meetings and site meetings are held and that the
AuthorityGs 7epresentative shall have the right to attend such monthly
progress meetings and site meetings and to attend such other meetings as
the AuthorityGs 7epresentative may reasonably re4uest$
18
<n Projects &here there is more than one 7elevant Participant2 the Participants may re4uire that representatives of
each have similar rights as referred to in this 5lause 1:$1$
In"rea)ed ;n,tr,n*
1:$2 Af2 follo&ing any vie&ing2 visit or inspection made pursuant to 5lause 1:$1$1 Access
to $ite!2 it is discovered that there are Defects in the ;or,s or that hubco has failed to
comply &ith the AuthorityGs 5onstruction 7e4uirements or hubcoGs Proposals2 the
AuthorityGs 7epresentative may &ithout prejudice to any other right or remedy
available to the Authority! by notice to hubco increase the level of monitoring of hubco
until such time as hubco shall have demonstrated to the satisfaction of the Authority
that it is capable of performing and &ill perform all its obligations to the Authority under
this Agreement$ hubco shall compensate the Authority for any reasonable additional
costs incurred as a result of such increased monitoring$
R,*#t t O4en U4
1:$: Subject to 5lause 1:$62 the AuthorityGs 7epresentative shall have the right at any time
prior to the Actual 5ompletion Date to re4uest hubco to open up and inspect any part
or parts of the ;or,s &here the AuthorityGs 7epresentative reasonably believes that
such part or parts of the ;or,s is or are defective and hubco shall comply &ith such
re4uest$
1:$6 Prior to e(ercising his right pursuant to 5lause 1:$: above2 the AuthorityGs
7epresentative shall notify hubco of his intention to e(ercise such right2 setting out
detailed reasons$
1:$9 Af2 follo&ing the e(ercise by the AuthorityGs 7epresentative of his right pursuant to
5lause 1:$:2 the inspection sho&s that the relevant part or parts of the ;or,s are not
defective then 5lause 22$:$6 shall apply$ $
1:$8 Af2 follo&ing the e(ercise by the AuthorityGs 7epresentative of his right pursuant to
5lause 1:$:2 the inspection sho&s that the relevant part or parts of the ;or,s is or are
defective 2 hubco shall rectify and ma,e good such Defects! and any conse4uence of
such 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 relation
to such rectification and ma,ing good of the ;or,s$
1:$" Af2 follo&ing the e(ercise by the AuthorityGs 7epresentative of his right pursuant to
5lause 1:$:2 the AuthorityGs 7epresentative is of the opinion that the inspection sho&s
that the relevant part or parts of the ;or,s is or are defective and hubco does not
agree &ith such opinion2 the matter shall be determined in accordance &ith Schedule
Part 19 Dispute "esolution Procedure!$
1:$? ;ithout prejudice to the rights of the AuthorityGs 7epresentative pursuant to this
5lause 1: &"ig!ts of Access of Aut!orit3s "epresentative' the parties ac,no&ledge
that the e(ercise of such rights shall not in any &ay affect the obligations of hubco
under this Agreement save as e(pressly set out in this 5lause 1: &"ig!ts of Access of
Aut!orit3s "epresentative'$
Sa6et- D$r,n* Cn)tr$"t,n
1:$/ The provisions of Section 2 &$afet During Construction' of Schedule Part 9
Construction Matters! shall apply to matters of safety$
16$ 16PROGRAMME AND DATES /OR COMPLETION
16$1 Date) 6r C;4(et,n
hubco shall complete the ;or,s by the 5ompletion Date$
16$2 L,<$,dated Da;a*e) 6r De(a-
Af the Actual 5ompletion Date is not achieved by or on the 5ompletion Date2 then
hubco shall immediately become liable to pay or allo& to the Authority &hether by
payment2 set*off or deduction!2 on demand2 li4uidate and ascertained damages at the
rate calculated in accordance &ith Schedule Part 1? Li4uidated and Ascertained
Damages! for each day from and including the 5ompletion Date until but e(cluding the
Actual 5ompletion Date #L,<$,dated Da;a*e)#!$
16$: Gen$,ne Pre*E)t,;ate
The Authority and hubco agree that the 3i4uidated Damages represent a genuine and
reasonable pre*estimate of the losses2 damages2 costs and e(penses that the
Authority &ould suffer or incur as a result of any such delay in completion of the
;or,s$
16$6 A$t#r,t- +a,2er
The right of the Authority to recover 3i4uidated Damages may only be &aived by
&ritten notice from the Authority to hubco$
16$9 L,<$,dated Da;a*e) He(d Unen6r"eab(e
An the event that the right of the Authority to recover 3i4uidated Damages pursuant to
5lause 16$2 Li4uidated Damages for Dela! is held to be unenforceable in &hole or in
part and the Authority is therefore not entitled to the relevant 3i4uidated Damages in
respect of any delay to the ;or,s2 the Authority and hubco specifically ac,no&ledge
and agree that the Authority shall be entitled to recover damages at 3a& &hich &ould
other&ise have been payable in respect of the conse4uences of any delay in obtaining
the 5ertificate of Practical 5ompletion on the 5ompletion Date$
16$8 E66e"t 6 L,<$,dated Da;a*e)
The payment or allo&ance by hubco of 3i4uidated Damages or damages pursuant to
5lause 16$9 to the Authority pursuant to this 5lause 16 &Programme and Dates for
Completion' shall not relieve hubco of any other of its duties2 liabilities or obligations
under this Agreement$
T#e Pr*ra;;e
16$" Any Programme submitted in accordance &ith the provisions set out belo& shall be
prepared in accordance &ith =ood Andustry Practice and shall be in sufficient detail so
as to enable the AuthorityGs 7epresentative to monitor the progress including all
commissioning activities and li,ely future progress of the ;or,s$
16$? The initial Programme is set out at Schedule Part 8 T!e Programme!$ Any change to
the Programme shall only be made in accordance &ith this 5lause 16 &Programme
and Dates for Completion' and Schedule Part " "evie# Procedure!$ hubco shall
promptly submit to the AuthorityGs 7epresentative a copy of any version of the
Programme varied in accordance &ith this 5lause 16 &Programme and Dates for
Completion' and Schedule Part " "evie# Procedure!$
16$/ Af it appears to the AuthorityGs 7epresentative at any time that the actual progress of
the ;or,s has significantly fallen behind the Programme2 then the AuthorityGs
7epresentative shall be entitled to re4uire hubco to submit to the AuthorityGs
7epresentative a report identifying the reasons for the delay and2 unless the event
causing the delay is still subsisting and it is not possible to predict &ith any certainty
&hen the delay might come to an end2 re4uire hubco at the AuthorityGs option!)*
16$/$1 to produce and submit to the AuthorityGs 7epresentative in accordance &ith
Schedule Part " "evie# Procedure! a revised Programme sho&ing the
manner and the periods in &hich the ;or,s &ill be carried out to ensure
completionI and>or
16$/$2 to produce and submit to the AuthorityGs 7epresentative in accordance &ith
Schedule Part " "evie# Procedure! a revised Programme sho&ing the
steps &hich are to be ta,en to eliminate or reduce the delay$
Ear(- ";4(et,n
1"
16$1. 0ot&ithstanding that the ;or,s may have been completed in accordance &ith this
Agreement2 the Actual 5ompletion Date may only occur on a date on or after the
5ompletion Date unless the Authority2 in its absolute discretion2 agrees other&ise in
&riting$
16$11 hubco shall notify the AuthorityGs 7epresentative if at any time the actual progress of
the ;or,s is significantly ahead of the Programme such that hubco anticipates that the
Actual 5ompletion Date could occur earlier than the 5ompletion Date2 in &hich case
the AuthorityGs 7epresentative shall be entitled to re4uire hubco to produce and submit
to the AuthorityGs 7epresentative a revised Programme sho&ing the manner and the
periods in &hich the ;or,s &ill be carried out and &hat the revised date for completion
&ould be to enable)*
16$11$1 the Authority to consider at its absolute discretion! &hether to agree an
earlier 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 the
Agreement in order to accommodate such earlier date for completion if
agreed to by the Authority pursuant to 5lause 16$11$
19$ 19E=UIPMENT
19$1 E<$,4;ent
JA?T@O"ITA TO I>CL?DE P"OBECT $PECI.IC P"O+I$IO>$K$
18$ 18PRE>COMPLETION COMMISSIONING AND COMPLETION
1?
18$1 0ot less than J K months before the 5ompletion Date the Authority shall
provide hubco &ith a draft of the 'inal 5ommissioning Programme as jointly
developed by the Authority and hubco in accordance &ith the provisions of
5lauses 18$2 and 18$:$ hubco shall provide the Authority &ith comments on the draft
'inal 5ommissioning Programme submitted to it &ithin J K$ The parties
shall2 &ithin J K Business Days of receipt by the Authority of hubcoGs
comments agree the terms of the 'inal 5ommissioning Programme provided that the
Authority may by prior notice to hubco change the scope and time of the AuthorityGs
5ommissioning and reimburse hubco its reasonable costs incurred as a result of such
change in scope or time$ Af the parties are unable to agree the 'inal 5ommissioning
Programme or the change in scope or time of the AuthorityGs 5ommissioning by
J K the matter shall be referred for determination in accordance &ith
Schedule Part 19 Dispute "esolution Procedure!$
18$2 The 'inal 5ommissioning Programme shall be in accordance &ith the <utline
5ommissioning Programme and shall impose no greater or more onerous obligations
1"
Provision for notification of early completion has been included to enable the parties at their discretion! to
consider early occupation by the Authority of the 'acilities$ The conse4uential amendments re4uired as a result of
agreeing to that option &ould have to be considered and agreed on a project specific basis at the time$ 'or
e(ample2 dealing &ith ,noc, on effect on commissioning programmes2 @4uipment procurement2 payment etc!$
1?
Project Specific$
on the Authority than those set out in the <utline 5ommissioning Programme unless
other&ise agreed by the Authority in its absolute discretion!$ The 'inal 5ommissioning
Programme shall then replace the <utline 5ommissioning Programme$
18$: The 'inal 5ommissioning Programme shall describe the steps necessary2 the party
responsible for ta,ing each of such steps and the timing and se4uence of each of
such steps to ensure)*
18$:$1 that hubcoGs Pre*5ompletion 5ommissioning and the AuthorityGs
5ommissioning
1/
&ill not delay the Actual 5ompletion Date from occurring by
the 5ompletion DateI and
18$:$2 that hubcoGs Post 5ompletion 5ommissioning and the AuthorityGs Post
5ompletion 5ommissioning is completed by the 5ommissioning @nd Date$
18$6 The parties shall procure that the steps that they are responsible for carrying out and
completing pursuant to the 'inal 5ommissioning Programme include2 Jin the case of
hubcoGs activities2 the activities described at paragraph J K of the AuthorityGs
5onstruction 7e4uirementsK$
2.
18$9 hubco shall notify the AuthorityGs 7epresentative of the date &hen hubco acting
reasonably! considers that the ;or,s &ill be complete in accordance &ith the
AuthorityGs 5onstruction 7e4uirements and this Agreement not less than
J K months prior to such anticipated completion$
C;;,)),n,n* 4r,r t C;4(et,n Date
18$8 hubco shall)*
18$8$1 underta,e hubcoGs Pre*5ompletion 5ommissioning in accordance &ith the
'inal 5ommissioning ProgrammeI and
18$8$2 permit the Authority to underta,e the AuthorityGs 5ommissioning including
Jpermitting specialist contractors engaged b t!e Aut!orit to deliver and
install E4uipmentK on such dates as agreed bet&een the Authority and
hubco2 in accordance &ith the 'inal 5ommissioning Programme2
21
and the Authority shall underta,e the AuthorityGs 5ommissioning in accordance &ith
the 'inal 5ommissioning Programme and so as not to cause material damage to the
;or,s$
18$" hubco shall give &ritten notice to the Authority and the AuthorityGs 7epresentative of
the commencement of hubcoGs Pre*5ompletion 5ommissioning and shall ensure that
the AuthorityGs 7epresentative is invited to &itness all of2 and is provided &ith all
information they may reasonably re4uire in relation to2 hubcoGs Pre*5ompletion
5ommissioning and that the AuthorityGs 7epresentative is invited to comment on
hubcoGs Pre*5ompletion 5ommissioning$
1/
The Template Project Agreement assumes that each of the Authority and hubco &ill underta,e inspection
and commissioning activities both prior to and after completion$ Parties need to consider &hich commissioning
activities have to occur before and &hich after completion and2 in each case2 by &hom! on a project specific
basis$ The Template Project Agreement envisages that the '5P &ill set out all re4uirements and obligations in
relation to the development2 nature2 principles and performance of the completion tests to be performed to enable
certification of completion to ta,e place$ This Template Project Agreement should be amended as necessary to
reflect any particular project arrangements$
2.
Authority to describe any other core re4uirements to be complied &ith in relation to hubcoGs commissioning
activities$
21
Project specific$ Authorities &ill need to consider &hat the AuthorityGs commissioning activities &ill entail$
Parties &ill need to consider &hen the AuthorityGs commissioning activities including2 for e(ample2 installing of its
o&n e4uipment! &ill be carried out$
18$? hubco shall or shall procure that the 5ontractor shall! give the Authority access to the
;or,s at such times as may be set out in the 'inal 5ommissioning Programme to
enable the Authority to underta,e the AuthorityGs 5ommissioning in accordance &ith
the 'inal 5ommissioning Programme for the period prior to completion$ ;hen
e(ercising such rights the Authority shall comply &ith all relevant safety procedures2
&hich shall include any relevant construction phase plans and health and safety plans
for the construction of the 'acilities2 the 5ontractorGs Site 7ules from time to time and
any reasonable directions &ith regard to site safety that may be issued by or on behalf
of the 5ontractorGs Site Eanager from time to time$
Pre>C;4(et,n ,n)4e"t,n
18$/ hubco shall give the AuthorityGs 7epresentative not less than J K Business
DaysG notice and not more than J K Business DaysG notice of the date upon
&hich hubco considers that the ;or,s &ill be complete and the tests on completion to
be performed in accordance &ith the 'inal 5ommissioning Programme &ill be carried
out$ J'ollo&ing receipt of the notice specified in this 5lause 18$/ &Pre%Completion
Inspection'K the AuthorityGs 7epresentative shall be entitled to inspect the ;or,s on
the date or dates reasonably specified by hubco in accordance &ith this 5lause 18$/
&Pre%Completion Inspection'2 and to attend any of the tests on completion$ hubco
shall2 if so re4uested2 accompany the AuthorityGs 7epresentative on any such
inspection$
Pre>C;4(et,n ;atter)
18$1. The AuthorityGs 7epresentative shall2 &ithin J K Business Days of any
inspection made pursuant to 5lause 18$/ &Pre%Completion Inspection'2 notify hubco of
any outstanding matters including2 &ithout limitation2 the repetition of any of the tests
on 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 AuthorityGs
5onstruction 7e4uirements and hubcoGs Proposals$ hubco shall attend to such
matters and shall2 if necessary2 give the AuthorityGs 7epresentative further notices in
accordance &ith 5lause 18$/ &Pre%Completion Inspection'1 but dealing only &ith
matters raised in the notification under this 5lause 18$1.! so that the procedures in
5lause 18$/ &Pre%Completion Inspection' and this 5lause 18$1. 'Pre%Completion
Matters' are repeated as often as may be necessary to ensure that all outstanding
matters in relation to the ;or,s are attended to$
C;4(et,n Cert,6,"ate
18$11 Subject to 5lause 16$1. the AuthorityGs 7epresentative shall2 &hen he is satisfied2
acting reasonably2 that completion has occurred in accordance &ith this Agreement2
issue a 5ertificate of Practical 5ompletion to that effect stating the date upon &hich2 in
his opinion2 the Actual 5ompletion Date occurred$ Subject to 5lauses 18$16
and 18$192 the issue of the 5ertificate of Practical 5ompletion shall2 in the absence of
manifest error2 bad faith or fraud2 be conclusive evidence that the Actual 5ompletion
Date has occurred on the date stated in such certificate$
18$12 The AuthorityGs 7epresentative shall issue the 5ertificate of Practical 5ompletion
not&ithstanding that there are Snagging Eatters$ ;here there are Snagging Eatters2
the AuthorityGs 7epresentative shall2 &ithin J K Business Days of the date of issue of
the 5ertificate of Practical 5ompletion2 issue a Snagging 0otice &hich shall specify
the Snagging Eatters and an estimate of the cost of rectifying such Snagging Eatters$
18$1: 'ollo&ing the issue of a Snagging 0otice2 hubco shall2 in consultation &ith the
AuthorityGs 7epresentative and in such manner as to cause as little disruption as
reasonably practicable to the AuthorityGs Post 5ompletion 5ommissioning and the
AuthorityGs use of the 'acilities2 rectify all Snagging Eatters &ithin J K
Business Days of the issue of the Snagging 0otice$
18$16 Af2 &ithin J K Business Days of the issue of the Snagging 0otice hubco has
failed to rectify the Snagging Eatters specified in the Snagging 0otice the Authority
may by itself or engage others to! carry out the &or,s necessary to rectify the
Snagging Eatters2 at the ris, and cost of hubco$
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$18 As soon as it is available2 after the issue of the 5ertificate of Practical 5ompletion2
hubco shall provide to the Authority a copy of the as*built building specification2
together &ith all Jdra&ings relating to the ;or,sK$
22
1"$ 1"DE/ECTS
#$b" t Ma5e Gd
1"$1 hubco shall procure that all Defects &hich are present or shall appear in the ;or,s
during the Defects 3iability Period for the ;or,s shall be made good by hubco to the
standards re4uired by this Agreement &ithin a reasonable time$ The Authority and
hubco2 both acting reasonably2 shall agree a programme for access for this purpose
&ith the intention to cause the least practicable disruption to users of the 'acilities$
S"#ed$(e 6 De6e"t)
1"$2 ;ithout prejudice to 5lause 1"$1 !ubco to Ma-e (ood!2 not later than J K Business
Days after the e(piry of the Defects 3iability Period
2:
2 the Authority shall procure that
the AuthorityGs 7epresentative shall prepare a schedule of Defects #S"#ed$(e 6
De6e"t)#! specifying any Defects apparent as at the date of e(piry of the Defects
3iability Period &hich have not been made good by hubco by such date in accordance
&ith 5lause 1"$1 and shall deliver such Schedule of Defects to hubco$ Subject al&ays
to 5lause 1"$: !ubco .ailure to Compl!2 hubco shall2 at its o&n e(pense2 as soon as
reasonably practicable after the date of issue of such Schedule of Defects and in any
event &ithin a period of J K of such date! ma,e good all such Defects$
#$b" /a,($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 $c!edule of Defects!2 the Authority may appoint or instruct any third
party contractor to e(ecute and complete the remedial2 repair or other &or,s as may
be necessary to ma,e good any Defect2 in &hich event hubco shall reimburse the
Authority2 on demand2 its reasonable costs of doing so$
Cert,6,"ate 6 Ma5,n* Gd De6e"t)
1"$6 ;ithout prejudice to hubcoGs continuing obligations under this Agreement2 &hen2
follo&ing the Actual 5ompletion Date2 all Defects in the Schedule of Defects have
been made good2 the AuthorityGs 7epresentative shall issue a statement to that effect
to hubco a #Cert,6,"ate 6 Ma5,n* Gd De6e"t)#!$
L,ab,(,t-
1"$9 'ollo&ing the e(piry of the Defects 3iability Period2 hubco shall be liable to the
Authority for the reasonable costs of2 and reasonably foreseeable e(penses properly
incurred in2 procuring the repair of Defects$ 'or the avoidance of doubt2 the provisions
22
To be specified on a project by project basis$ Documents might include2 for e(ample) the appropriate section of
any health and safety fileI as*built dra&ings 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&@$
of this 5lause 1" shall not be construed as limiting or e(cluding in any &ay the
AuthorityGs general right to claim damages for any breach of this Agreement by hubco$
L,;,tat,n
1"$8 'or the avoidance of doubt2 the provisions of this 5lause 1" shall not in any manner or
&ay serve to limit2 reduce2 satisfy2 discharge2 negate2 avoid or other&ise affect the
obligations and>or liability including in respect of Defects! of hubco to the Authority
specified or referred to else&here in this Agreement$
1?$ 1?POST COMPLETION COMMISSIONING
26
C;;,)),n,n*
1?$1 hubco and the Authority shall2 &ithin J K Business Days follo&ing the Actual
5ompletion Date2 respectively underta,e and complete hubcoGs Post 5ompletion
5ommissioning and the AuthorityGs Post 5ompletion 5ommissioning2 in accordance
&ith the 'inal 5ommissioning Programme
29
$ Both parties shall2 at all times2 and in
particular in the period bet&een the Actual 5ompletion Date and the 5ommissioning
@nd Date2 use reasonable endeavours to assist the other party to ensure compliance
&ith the 'inal 5ommissioning Programme$
In6r;at,n
1?$2 hubco shall ensure that the AuthorityGs 7epresentative is provided &ith all the
information he may reasonably re4uire in relation to hubcoGs Post 5ompletion
5ommissioning and the Authority shall ensure that hubco is provided &ith all
information hubco may reasonably re4uire in relation to the AuthorityGs Post
5ompletion 5ommissioning$
1?$: Af the AuthorityGs 7epresentative2 acting reasonably2 ma,es any comment in relation to
the carrying out of hubcoGs Post 5ompletion 5ommissioning2 such comments shall be
ta,en into account by hubco and if hubco2 acting reasonably2 ma,es any comment in
relation to the carrying out of the AuthorityGs Post 5ompletion 5ommissioning2 such
comment shall be ta,en into account by the Authority$
1?$6 :On t!e occurrence of t!e Commissioning End Date t!e Aut!oritCs "epresentative
s!all issue t!e Commissioning Completion Certificate6;
<D
O4erat,na( Man$a()
2"
1?$9 hubco shall provide to the Authority)
1?$9$1 at least J K &ee,s prior to the anticipated Actual 5ompletion Date2 J K
Jpaper>electronicK copies of a draft operation and maintenance manual in
sufficient detail to allo& the Authority to plan for the safe and efficient
operation of the facilitiesI
26
Authority to consider &hat commissioning>services start*up activities &ill be carried out by hubco and &hat
commissioning activities &ill be carried out by the Authority during this period$
29
Authorities to ensure that hubcoGs activities in this regard remain covered by the insurance to be procured
under this Agreement$
28
This provision may not be necessary$ At &ill depend on the significance of each partyGs activities during this
period and &ill depend on ho& release of retentions during this period are structured$
2"
To be amended on a project by project basis$ 'or e(ample2 operational manuals may need to be made
available at an earlier date depending on the timing of commissioning activities$ 'urthermore2 it may be possible2
for hubco to provide draft manuals to the Authority for comment prior to finalisation and suitable amendments
should be made to the 5lause &here relevant$
1?$9$2 on or before the Actual 5ompletion Date2 J K Jpaper>electronicK copies of a
final draft operation and maintenance manual in sufficient detail to allo& the
Authority to operate and use the 'acilities safely and efficientlyI
1?$9$: &ithin J K &ee,s follo&ing the Actual 5ompletion Date2 the principal operation
and maintenance manualI
in each case including all manufacturersG instructions relating to @4uipment installed
by 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 Date
as relates to any Snagging Eatters or rectification of Defects as is reasonably
necessary to allo& for the updating of any of the items listed in 5lause 1?$9$
1?$" <n termination of this Agreement ho&soever arising! prior to the provision by hubco
in accordance &ith 5lause 1?$9 of the items listed therein2 hubco shall &ithin J K
Business Days of such termination provide a copy of any operating and maintenance
manual not yet provided completed as appropriate to the date of termination! to the
Authority$
1/$ 1//OSSILS AND ANTI=UITIES
Pr4ert-
1/$1 As bet&een the parties2 all fossils2 anti4uities2 and other objects having artistic2 historic
or monetary value and human remains &hich may be found on or at the Site are or
shall become2 upon discovery2 the absolute property of the Authority$
D,)"2er-
1/$2 %pon the discovery of any such item during the course of the ;or,s2 hubco shall)*
1/$2$1 immediately notify the AuthorityGs 7epresentative of such discoveryI
1/$2$2 ta,e all steps not to disturb the object and2 if necessary2 cease any ;or,s in
so far as the carrying out of such ;or,s &ould endanger the object or
prevent or impede its e(cavationI and
1/$2$: ta,e all necessary steps to preserve the object in the same position and
condition in &hich it &as found$
A"t,n
1/$: The Authority shall procure that the AuthorityGs 7epresentative promptly2 and in any
event &ithin J K Business Days of receipt of notice pursuant to 5lause
1/$2$12 issues an instruction to hubco specifying &hat action the AuthorityGs
7epresentative re4uires hubco to ta,e in relation to such discovery$
1/$6 hubco shall promptly and diligently comply &ith any instruction issued by the
AuthorityGs 7epresentative referred to in 5lause 1/$: above e(cept and to the e(tent
that such instruction constitutes a Authority ;or,s Cariation pursuant to 5lause 1/$8
belo& in &hich case the provisions of Schedule Part 1: +ariation Procedure! shall
apply!2 at its o&n cost$
1/$9 Af directed by the AuthorityGs 7epresentative2 hubco shall allo& representatives of the
Authority to enter the Site for the purposes of removal or disposal of such discovery
provided that such entry shall be subject to the Authority complying &ith all relevant
safety procedures2 &hich shall include any relevant health and safety plans for the
construction of the 'acilities2 the 5ontractorGs Site 7ules from time to time and any
reasonable directions &ith regard to site safety that may be issued by or on behalf of
the 5ontractorGs Site Eanager from time to time$
1/$8 Af in relation to such discovery2 the Authority re4uires hubco to carry out &or,s being
any &or, of alteration2 addition2 demolition or e(tension or Cariation in the ;or,s!
&hich are not &or,s &hich &ould be necessary for the purpose of compliance &ith
3a& or any 5onsents2 such &or,s shall be deemed to be a Authority ;or,s Cariation
and the provisions of Schedule Part 1: +ariation Procedure! shall apply as if such
instruction &ere a Cariation @n4uiry issued by the Authority in accordance &ith the
provisions of Section 1 of Schedule Part 1: +ariation Procedure!$
2?
2?
A discovery of fossils and anti4uities is treated as a 7elief @vent entitling hubco to an e(tension of time in
accordance &ith 5lause 22 Dela Events' but leaving the financial ris,s of such discovery &ith hubco$ Af there is
a ,no&n problem on site the provisions relating to discoveries may need to be revie&ed and amended on a
project specific basis$
PART ?. =UALITY ASSURANCE
2.$ 2.=UALITY ASSURANCE
=$a(,t- P(an) and S-)te;)
2.$1 hubco shall procure that all aspects of the ;or,s are the subject of 4uality
management systems in accordance &ith the provisions of this 5lause 2. &Eualit
Assurance'$
2.$2 The 4uality management systems referred to in 5lause 2.$1 above shall be reflected
in appropriate Huality Plans2 the standard of &hich shall be consistent &ith
BS @0 AS< /..1 or /..2 as the case may be! or any e4uivalent standard &hich is
generally recognised as having replaced them or either of them!$
2.$: ;ithout limitation to the generality of 5lause 2.$22 there shall be)*
2.$:$1 a Design Huality PlanI and
2.$:$2 a 5onstruction Huality Plan2
provided that the Design Huality Plan and the 5onstruction Huality Plan may be
incorporated into one document$
2.$6 hubco shall procure that the ;or,s are carried out in compliance &ith the Huality
Plans$ All Huality Plans shall be submitted to the AuthorityGs 7epresentative in
accordance &ith Schedule Part " "evie# Procedure! and hubco shall not be entitled
to implement or procure the implementation of any Huality Plan unless hubco is
entitled 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.$1
and shall procure that)*
2.$9$1 the 5ontractor implements the Design Huality PlanI
2.$9$2 the 5ontractor implements the 5onstruction Huality PlanI
2.$8 ;here any aspect of the ;or,s is performed by more than one contractor or
sub*contractor2 then the provisions of this 5lause 2. &Eualit Assurance' in so far as
relevant or appropriate to the activities to be performed by such contractor or
sub*contractor! shall apply in respect of each of such contractors or sub*contractors2
and references in this 5lause 2. &Eualit Assurance' to the #5ontractor# shall be
construed accordingly$ To avoid doubt2 this 5lause shall not be construed as re4uiring
sub*contractors of the 5ontractor to have their o&n 4uality plans but only to comply
&ith the Design Huality Plan and the 5onstruction Huality Plan$
2.$" hubco shall from time to time submit to the AuthorityGs 7epresentative in accordance
&ith Schedule Part " "evie# Procedure! any changes to any of the Huality Plans
re4uired for such Huality Plan to continue to comply &ith the re4uirements set out in
5lause 2.$2$ The AuthorityGs 7epresentative may raise comments on any such
proposed change only on the grounds set out in paragraph :$" of Schedule Part
" "evie# Procedure!$
2.$? Af there is no objection under Schedule Part " "evie# Procedure! to a change to any
Huality Plan proposed pursuant to 5lause 2.$"2 the Huality Plan shall be amended to
incorporate such change$
=$a(,t- Man$a() and Pr"ed$re)
2.$/ Af any Huality Plan refers to2 relies on or incorporates any 4uality manual or procedure2
then such 4uality manual or procedure or the relevant parts of it shall be submitted to
the AuthorityGs 7epresentative at the time that the relevant Huality Plan or part of or
change to! a Huality Plan is submitted in accordance &ith Schedule Part " "evie#
Procedure!2 and the contents of such 4uality manual or procedure shall be ta,en into
account 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;ent
8:
2.$1. hubco shall maintain a 4uality management system &hich shall)*
2.$1.$1 ensure the effective operation of the 4uality systems described in this
5lause 2. &Eualit Assurance'I
2.$1.$2 cause an audit of the 4uality systems at regular intervals and the findings of
such 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 to
4uality 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 management
system including all relevant Huality Plans and any 4uality manuals and procedures!
to establish that hubco is complying &ith 5lauses 2.$1 and 2.$:$ The AuthorityGs
7epresentative may carry out such audits at appro(imate intervals of three :! months
and may carry out other periodic monitoring2 spot chec,s and auditing of hubcoGs
4uality management systems$ hubco shall procure that the AuthorityGs 7epresentative
shall have an e4uivalent right in respect of the 5ontractorLs 4uality management
services$ hubco shall co*operate and shall procure that any Sub*5ontractor
co*operates &ith the AuthorityGs 7epresentative including providing him &ith all
information and documentation &hich he reasonably re4uires in connection &ith his
rights under this 5lause$
2/
Amendments to reflect the concept that the management system2 rather than the 4uality manager2 is
important$
PART @. IN/ORMATION TECHNOLOGY
21$ 21IN/ORMATION TECHNOLOGY
JP"OBECT $PECI.ICK
PART A. DELAY EVENTSB RELIE/ EVENTS AND /ORCE MA%EURE
22$ 22DELAY EVENTS
:.
22$1 Af2 at any time2 hubco becomes a&are that there &ill be or is li,ely to be! a delay in
completion of the ;or,s2 hubco shall forth&ith give notice to the AuthorityGs
7epresentative to that effect specifying the relevant delay or impediment$ An relation
to any such delay or impediment if the AuthorityGs 7epresentative is satisfied2 or it is
determined in accordance &ith Schedule Part 19 Dispute "esolution Procedure!2 that
such delay or impediment has arisen as a result of the occurrence of a Delay @vent2
then2 subject to 5lause 2:$6 Mitigation! the AuthorityGs 7epresentative shall allo&
hubco an e(tension of time e4ual to the delay or impediment caused by such Delay
@vent ta,ing into account reasonably foreseeable conse4uences of the Delay @vent!
and shall revise the 5ompletion Date$
22$2 Af 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 to
ta,e all reasonable steps to eliminate or mitigate the conse4uences of such
an event upon the performance of its obligations under this Agreement and2
&here relevant2 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 to
any e(tension of time for the purpose of 5lause 22$1 Dela Event! to the
e(tent that it is delayed or impeded due to its failure if any! to comply &ith
its obligations under 5lause 22$2$1 above$
22$: 'or the purposes of this Agreement2 a Delay @vent means any of the follo&ing to the
e(tent in each case that there &ill be or is li,ely to be! a delay in completion of the
;or,s)*
22$:$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 response
pursuant to paragraph :$2$2b! of Section 1 of Schedule Part 1: +ariation
Procedure! specifying and providing evidence that implementation of the
AuthorityGs ;or,s Cariation &ould delay the completion of the 'acilities if this
has been agreed bet&een the parties or determined to be the case in
accordance &ith Schedule Part 19 Dispute "esolution Procedure!I
22$:$2 any breach by the Authority and>or any Authority Party of any of the
AuthorityGs e(press obligations under this Agreement to the e(tent in each
case that any such breach is not caused2 or contributed to2 by hubco or any
hubco PartyI
22$:$: the e(ecution of &or,s on the Site not forming part of this Agreement by the
Authority or any contractors employed by the AuthorityI
22$:$6 opening up of the ;or,s pursuant to 5lauses 1:$: to 1:$" inclusive! "ig!t
to open up! &here such ;or,s are not subse4uently found to be defective
unless it is agreed or determined in accordance &ith Schedule Part 19
Dispute "esolution Procedure! that the opening up of the ;or,s &as
reasonable in the light of other defects previously discovered by the
Authority!I
:.
Delay @vents give rise to an e(tension of time for completion of construction$ 5ompensation is payable for
all Delay @vents other than 'orce Eajeure or 7elief @vents! as follo&s)*
Authority Cariations) Cariation Procedure
Authority breach 22$:$22 22$:$: 222$:$6 and 22$:$") 5ompensation @vent
22$:$9 'orce EajeureI
22$:$8 a 7elief @ventI or
22$:$" the suspension by hubco pursuant to 5lause 2"$/ of any or all obligations as
a 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 @vent
pursuant to 5lause 1.$6$K
22$6 ;ithout prejudice to the generality of 5lause 22 &Dela Events'2 hubco shall give
notice in &riting to the AuthorityGs 7epresentative as soon as it or the 5ontractor! can
reasonably foresee a Delay @vent occurring or2 if the same is not reasonably
foreseeable2 as soon as it or the 5ontractor! shall become a&are of a Delay @vent$
hubco shall &ithin J K Business Days after such notification2 give further &ritten
details 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 substantiate
its claim for e(tra timeI
22$6$6 details of the conse4uences &hether direct or indirect2 financial or
non*financial! &hich such Delay @vent may have upon completion of the
'acilitiesI and
22$6$9 details of any measures &hich hubco proposes to adopt to mitigate the
conse4uences of such Delay @vent$
22$9 As soon as possible but in any event &ithin J K Business Days of hubco or the
5ontractor! receiving2 or becoming a&are of2 any supplemental information &hich may
further substantiate or support hubcoGs claim then2 provided that the 5ompletion Date
has not other&ise been revised pursuant to 5lause 22$"2 hubco shall submit further
particulars based on such information to the AuthorityGs 7epresentative$
22$8 The AuthorityGs 7epresentative shall2 after receipt of &ritten details under 5lause 22$62
or of further particulars under 5lause 22$92 be entitled by notice in &riting to re4uire
hubco to provide such further supporting particulars as he may reasonably consider
necessary$ hubco shall afford the AuthorityGs 7epresentative reasonable facilities for
investigating the validity of hubcoGs claim including2 &ithout limitation2 on*site
inspection$
22$" Subject to the provisions of this 5lause2 the AuthorityGs 7epresentative shall revise the
5ompletion Date in accordance &ith 5lause 22$1 &Dela Events! as soon as
reasonably practicable and in any event &ithin J K Business Days of the
later of)*
22$"$1 the date of receipt by the AuthorityGs 7epresentative of hubcoGs notice given
in accordance &ith 5lause 22$6 and the date of receipt of any further
particulars if such are re4uired under 5lause 22$8!2 &hichever is the laterI
and
22$"$2 the date of receipt by the AuthorityGs 7epresentative of any supplemental
information supplied by hubco in accordance &ith 5lause 22$9 and the date
of receipt of any further particulars if such are re4uired under 5lause 22$8!2
&hichever is the later$
Af hubco has failed to comply &ith the re4uirements as to the giving of notice under
5lause 22$62 or has failed to maintain records or afford facilities for inspection to the
AuthorityGs 7epresentative2 then hubco shall not be entitled to any e(tension of time
and the 5ompletion Date shall not be revised! in respect of any period of delay by
hubco in giving notice or providing information under 5lause 22$6 and>or to the e(tent
that its failure to maintain records or afford facilities for inspection to the AuthorityLs
7epresentative has prevented the AuthorityLs 7epresentative from assessing the
conse4uences of the Delay @vent$
22$? Af)*
22$?$1 the AuthorityGs 7epresentative declines to fi( a revised 5ompletion DateI or
22$?$2 hubco considers that a different 5ompletion Date should be fi(edI or
22$?$: there is a disagreement as to &hether a Delay @vent has occurred2
then hubco shall be entitled to refer the matter for determination in accordance &ith
Schedule Part 19 Dispute "esolution Procedure!$
C;4en)at,n
22$/ Af the Delay @vent is a #C;4en)at,n E2ent#2 hubcoGs sole right to compensation
shall be as provided for in 5lauses 22$/ to 22$1: inclusive$ To avoid doubt2 no other
Delay @vent shall entitle hubco to receive any compensation save as other&ise
e(pressly provided in Schedule Part 1: Cariation Procedure! in the case of a Delay
@vent referred to in 5lause 22$:$1$
22$1. 'or the purposes of 5lause 22$/2 a 5ompensation @vent meansI
22$1.$1 any Delay @vent referred to in 5lause 22$:$2 Breac!!2 5lause 22$:$:
E/ecution of non%project related #or-s!2 5lause 22$:$6 Opening up of
)or-s! or 5lause 22$:$" $uspension for non%pament!2 for &hich2 in each
case2 it has been agreed or determined pursuant to this 5lause 22 that
hubco is entitled to an e(tension of timeI Jor
22$1.$2 in the period prior to the Actual 5ompletion Date2 in circumstances &here
there is no delay in completion of the ;or,s2 Kany breach by the Authority
and>or any Authority Party of any of the AuthorityGs e(press obligations under
this Agreement to the e(tent that such breach is not caused2 or contributed
to2 by hubco or any hubco PartyI or
22$1.$: the occurrence of the circumstances deemed to be a 5ompensation @vent
pursuant to 5lause 1.$6K$
22$11 Subject to 5lause 22$122 if it is agreed2 or determined2 that there has been a
5ompensation @vent2 and hubco has incurred loss including loss of revenue! and>or
e(pense as a direct result of such 5ompensation @vent2 hubco shall be entitled to
such compensation as &ould place hubco in no better or no &orse position than it
&ould have been in had the relevant 5ompensation @vent not occurred$ hubco shall
promptly provide the AuthorityGs 7epresentative &ith any additional information he may
re4uire 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 to
in 5lause 22$11 in relation to any 5ompensation @vent and any compensation payable
shall)*
22$12$1 e(clude any amounts incurred or to be incurred as a result of any failure of
hubco or any hubco Party! to comply &ith this 5lause 22$12I and
22$12$2 be reduced by any amount &hich hubco has recovered or &ill recover under
any insurance policy or &ould have recovered if it had complied &ith the
re4uirements of this Agreement or of any policy of insurance re4uired under
this Agreement! &hich amount2 to avoid doubt2 shall not include any e(cess
or deductibles or any amount over the ma(imum amount insured applicable
to any such insurance policy$
22$1: The amount of any compensation due to hubco under 5lause 22$11 shall be agreed
bet&een the parties or2 failing agreement2 determined pursuant to Schedule Part
19 Dispute "esolution Procedure!2 and such compensation shall be payable &ithin
Jt&enty 2.!K Business Days of &ritten demand by hubco follo&ing agreement or
determination of the amount due$
2:$ 2:RELIE/ EVENTS
2:$1 'or the purposes of this Agreement2 subject to 5lause 2:$6 Mitigation!2 7elief @vents
mean any of the follo&ing events)*
:1
2:$1$1 fire2 e(plosion2 lightning2 storm2 tempest2 flood2 bursting or overflo&ing of
&ater tan,s2 apparatus or pipes2 ionising radiation to the e(tent it does not
constitute 'orce Eajeure!2 earth4ua,e2 riot or civil commotionI
:2
2:$1$2 failure by any statutory underta,er2 utility company2 local authority or other
li,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 roads
servicing the sameI
2:$1$6 bloc,ade or embargo falling short of 'orce EajeureI
2:$1$9 the discovery of fossils2 anti4uities and human remains re4uiring action in
accordance &ith 5lause 1/ .ossils and Anti4uities!I or
2:$1$8 official or unofficial stri,e2 loc,out2 go slo& or other dispute in each case
generally affecting the construction or building maintenance industry or a
significant sector of that industry!2
provided in each case that such event does not arise directly or indirectly! as a result
of any &ilful act or default of the party claiming relief and>or i! in the case of hubco
claiming relief2 any hubco Party and ii! in the case of the Authority claiming relief2 any
Authority Party$
2:$2 Subject to 5lauses 2:$: and 2:$62 no right of termination shall arise under this
Agreement by reason of any failure by a party to perform any of its obligations under
this Agreement to the e(tent that such failure to perform occurs because of the
occurrence of a 7elief @vent and2 to avoid doubt2 and &ithout prejudice to
5lause 2:$/ >o Compensation!2 unless e(pressly stated to the contrary in this
Agreement2 it is ac,no&ledged that all other rights and obligations of the parties under
this Agreement remain unaffected by the occurrence of a 7elief @vent!$
2:$: ;ithout prejudice to hubcoGs rights under 5lause 22Dela Events!2 hubco shall only
be relieved of its obligations under 5lauses 12 T!e Design1 Construction and
:1
To the e(tent that it &ill not be possible for hubco to investigate the Site 5onditions of any area of the Site
prior to contract signature due2 for e(ample2 to occupation of the relevant site by the Authority! 5lause 1.$:
provides relief to hubco$ An addition2 should particular project specific circumstances &arrant2 the list of events
could be e(tended to include other similar events &ith S'T approval$ 1o&ever2 Authorities should not permit the
inclusion of a #catch*all# provision to the e(tent that any event outside the control of the parties should be a 7elief
@vent$ <nly approved specified events should be listed$ @4ually2 Authorities are free2 on a project specific basis2
to delete any item from this list if project specific circumstances merit although e(amples of this have been2 and
are e(pected to remain2 e(tremely rare$
:2
To be revie&ed in light of project specific insurance arrangements$
Commissioning Process!2 1: "ig!t of Access of Aut!oritCs "epresentative!2
16 Programme and Dates for Completion!2 18 Pre%Completion Commissioning and
Completion! and 22 Dela Events! by Delay @vents in accordance &ith 5lause 22
Dela 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 an
event upon the performance of its obligations under this Agreement2 resume
performance of its obligations affected by the 7elief @vent as soon as
practicable and use all reasonable endeavours to remedy its failure to
performI and
2:$6$2 it shall not be entitled to rely upon the relief afforded to it pursuant to
5lause 2:$2 of this Agreement to the e(tent that it is not able to perform2 or
has not in fact performed2 its obligations under this Agreement due to its
failure if any! to comply &ith its obligations under 5lause 2:$6$1 above$
2:$9 The party claiming relief shall serve &ritten notice on the other party &ithin five 9!
Business Days of it becoming a&are of the relevant 7elief @vent$ Such initial notice
shall give sufficient details to identify the particular event claimed to be a 7elief @vent$
2:$8 A subse4uent &ritten notice shall be served by the party claiming relief on the other
party &ithin a further five 9! Business Days of the notice referred to in 5lause 66
&Mitigation' &hich shall contain such relevant information relating to the failure to
perform or delay in performing! as is available2 including &ithout limitation! the effect
of the 7elief @vent on the ability of the party to perform2 the action being ta,en in
accordance &ith 5lause 66 Mitigation!2 the date of the occurrence of the 7elief @vent
and an estimate of the period of time re4uired to overcome it and>or its effects!$
2:$" The party claiming relief shall notify the other as soon as the conse4uences of the
7elief @vent have ceased and of &hen performance of its affected obligations can be
resumed$
2:$? Af2 follo&ing the issue of any notice referred to in 5lause 2:$82 the party claiming relief
receives or becomes a&are of any further information relating to the 7elief @vent
and>or any failure to perform!2 it shall submit such further information to the other
party as soon as reasonably possible$
2:$/ To avoid doubt2 the occurrence of a 7elief @vent shall not entitle hubco to any
compensation$
26$ 26/ORCE MA%EURE
26$1 'or the purposes of this Agreement2 'orce Eajeure means any of the follo&ing events
or circumstances)*
26$1$1 &ar2 civil &ar2 armed conflict or terrorismI or
26$1$2 nuclear 5ontamination unless in any case hubco and>or any hubco Party is
the source or the cause of the 5ontaminationI or
26$1$: chemical or biological 5ontamination of the ;or,s and>or the 'acilities
and>or the Site from any of the events referred to in 5lause 26$1$1 aboveI or
26$1$6 pressure &aves caused by devices travelling at supersonic speeds2
&hich directly causes either party to be unable to comply &ith all or a material part of
its obligations under this Agreement$
26$2 Subject to 5lauses 26$: and 26$6 the party claiming relief shall be relieved from
liability under this Agreement to the e(tent that by reason of the 'orce Eajeure it is not
able to perform its obligations under this Agreement$ 'or the avoidance of doubt but
&ithout prejudice to 5lause :: &Termination "esulting from .orce Majeure'! the
Authority shall not be entitled to terminate this Agreement for a hubco @vent of Default
if such hubco @vent of Default arises from an event of 'orce Eajeure$
26$: ;here a party is or claims to be! affected by an event of 'orce Eajeure)*
26$:$1 it shall ta,e all reasonable steps to mitigate the conse4uences of such an
event upon the performance of its obligations under this Agreement2 resume
performance of its obligations affected by the event of 'orce Eajeure as
soon as practicable and use all reasonable endeavours to remedy its failure
to performI and
26$:$2 it shall not be relieved from liability under this Agreement to the e(tent that it
is not able to perform2 or has not in fact performed2 its obligations under this
Agreement due to its failure if any! to comply &ith its obligations under
5lause 26$:$1$
26$6 ;ithout prejudice to hubcoGs rights under 5lause 22 Dela Events!2 hubco shall only
be relieved from its obligations under 5lauses 12 T!e Design1 Construction and
Commissioning Process!2 1: "ig!t of Access of Aut!oritCs "epresentative!2
16 Programme and Dates for Completion! and 22 Dela Events! by Delay @vents in
accordance &ith 5lause 22 Dela Events!$
26$9 The party claiming relief shall serve &ritten notice on the other party &ithin five
9! Business Days of it becoming a&are of the relevant event of 'orce Eajeure$ Such
initial notice shall give sufficient details to identify the particular event claimed to be an
event of 'orce Eajeure$
26$8 A subse4uent &ritten notice shall be served by the party claiming relief on the other
party &ithin a further five 9! Business Days &hich shall contain such relevant
information relating to the failure to perform or delay in performing! as is available2
including &ithout limitation! the effect of the event of 'orce Eajeure on the ability of
the party to perform2 the action being ta,en in accordance &ith 5lause 26$:2 the date
of the occurrence of the event of 'orce Eajeure and an estimate of the period of time
re4uired to overcome it and>or its effects!$
26$" The party claiming relief shall notify the other as soon as the conse4uences of the
event of 'orce Eajeure have ceased and of &hen performance of its affected
obligations can be resumed$
26$? Af2 follo&ing the issue of any notice referred to in 5lause 26$82 the party claiming relief
receives or becomes a&are of any further information relating to the event of 'orce
Eajeure and>or any failure to perform!2 it shall submit such further information to the
other party as soon as reasonably possible$
Md,6,"at,n)
26$/ The parties shall endeavour to agree any modifications to the Agreement &hich may
be e4uitable having regard to the nature of an event or events of 'orce Eajeure$
Schedule Part 19 Dispute "esolution Procedure! shall not apply to a failure of the
Authority and hubco to reach agreement pursuant to this 5lause 26$/$
Cn)e<$en"e) 6 ter;,nat,n
26$1. ;ithout prejudice to 5lause :9$"2 the occurrence of an event of 'orce Eajeure shall
not entitle hubco to any compensation$
PART C. CHANGES IN LA+ ' VARIATIONS
29$ 29CHANGES IN LA+
Genera(
29$1 hubco shall ta,e all steps necessary to ensure that the Project <perations are
performed in accordance &ith the terms of this Agreement including2 &ithout
limitation2 5lause 9$2$1 Compliance #it! applicable la#!! follo&ing any 5hange in
3a&$
Var,at,n t be a*reed
29$2 @ither party may give notice to the other of the need for a Cariation &hich is necessary
in order to enable hubco to comply &ith any 5hange in 3a& in &hich event)
29$2$1 the parties shall meet &ithin J K Business Days to consult in
respect of the effect of the 5hange in 3a& and any Cariation re4uired as a
conse4uenceI and
29$2$2 &ithin J K Business Days of the meeting referred to in
5lause 29$2$1 above the AuthorityGs 7epresentative shall2 if a Cariation is
re4uired in order to comply &ith the 5hange in 3a&2 issue a Cariation
@n4uiry and the relevant provisions of Part 1: of the Schedule +ariation
Procedure! shall apply e(cept that)
29$2$: hubco may give notice to the AuthorityGs 7epresentative that it objects to
such a Cariation @n4uiry only on the grounds that the implementation of the
Cariation &ould not implement the 5hange in 3a&I
29$2$6 the Authority shall issue a Cariation 5onfirmation in respect of the Cariation
in accordance &ith the relevant provisions of Part 1: of the Schedule
+ariation Procedure!I
29$2$9 the provisions of 5lause 11 Consents and Planning Approval! shall apply
and2 to avoid doubt2 the provisions of paragraph 9 of Section 2 of Part 1: of
the Schedule +ariation Procedure! shall not applyI
29$2$8 the Authority shall not be entitled to &ithdra& any Cariation @n4uiry or
Cariation 5onfirmation issued in accordance &ith this 5lause 29$2I and
29$2$" hubco shall not be entitled to any payment or other compensation or relief
from any performance of its obligations under this Agreement in respect of
such 5hange in 3a& or associated Cariation or the conse4uences of either!$
28$ 28VARIATION PROCEDURE
The provisions of Schedule Part 1: +ariation Procedure! shall have effect in respect
of Cariations e(cept as other&ise e(pressly provided in this Agreement$
PART D. /INANCIAL
2"$ 2"PAYMENT
De2e(4;ent A;$nt
2"$1$1 The Authority shall2 in accordance &ith the provisions of this 5lause 2"2 pay
to hubco the Development Amount in consideration of the performance by
hubco of its obligations under this Agreement in accordance &ith this
Agreement$
2"$1$2 The Development Amount shall be a lump sum fi(ed price for the carrying
out of hubcoGs obligations under the Agreement and shall not be altered or
adjusted in any &ay &hatsoever and hubco shall not be entitled to any
payment in respect of the ;or,s or this Agreement! e(cept in accordance
&ith the e(press provisions of this Agreement$
Pr!e"t De2e(4;ent /ee
2"$1$: The Authority shall pay the Project Development 'ee to hubco &ithin J K
Business Days of the later of the @(ecution Date and receipt by the Authority
of a valid invoice therefor$
::
2"$1$:A The due date for payment of the Project Development 'ee shall be the date
of the AuthorityGs receipt of the invoice$ ;ithin 9 days after the due date for
payment the AuthorityGs 7epresentative shall issue a payment notice
detailing the sum that the payer considers to be or to have been due at the
payment due date and the basis on &hich that sum is calculated$ The final
date for payment shall be 9 days after the due date
A44(,"at,n) 6r Pa-;ent
2"$2 0o earlier than J K
:6
each calendar month until and including! the calendar
month after the calendar month in &hich the 5ertificate of Practical 5ompletion is
issued each a Nre(e2ant ;nt#O!2 hubco shall ma,e an application #A44(,"at,n 6r
Pa-;ent#! to the AuthorityLs 7epresentative for an interim certificate of payment in
respect of that relevant month$ @ach Application for Payment shall include such
supporting information and documentation as is reasonably re4uired by the Authority
in order to prepare and issue an Anterim 5ertificate as defined in clause 2"$9!$ The
date of receipt by the AuthorityGs 7epresentative of the Application for Payment and
supporting information and documentation in accordance &ith this clause 2"$2 and
clause 2"$: belo& shall be the payment due date the #D$e Date#!$
/r; 6 A44(,"at,n
2"$: ;ithout prejudice to 5lause 2"$6 +alue of (oods and Materials!2 each Application for
Payment shall specify)
2"$:$1 the cumulative value claimed by hubco of ;or,s properly e(ecuted up to the
end of the relevant month as set out in Schedule Part 11 Development
Amount Analsis! as amended from time to time in accordance &ith this
AgreementI
2"$:$2 the cumulative amount of any other payments to &hich hubco claims to be
entitled under this Agreement up to the end of the relevant monthI
::
To be revie&ed on a project by project basis to reflect the Stage 2 Project Development 'ee payable in terms of
Schedule Part 9 >e# Project Approval Process! of the TPA in respect of the Project$
: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$
2"$:$: &here 5lause 2"$8 applies the applicable 7etentionI and
2"$:$6 the amount hubco considers is due on the Due Date and the basis upon
&hich that amount has been calculated including a brea,do&n of the
cumulative value of ;or,s properly e(ecuted up to the end of the relevant
month by specific reference to each of the elements set out in the
Development Amount Analysis$
Va($e 6 Gd) and Mater,a()
2"$6 Af an Application for Payment includes any amount in respect of payment for goods or
materials before incorporation thereof in the ;or,s2 the follo&ing provisions shall
apply)
2"$6$1 hubco shall provide the Authority &ith proof that property in such goods or
materials is vested in hubcoI
2"$6$2 hubco shall ensure that the goods or materials are set apart from other
goods or materials at the place &here they are manufactured or stored and
that they are clearly identified as being the property of the Authority &ithout
damaging or defacing them2 and shall provide proof of compliance &ith this
re4uirement$ hubco shall bear the ris, of loss or damage to such materials
or goodsI
2"$6$: unless and until hubco has complied &ith paragraphs 2"$6$1 and 2"$6$2
above2 hubco shall not be entitled to any payment in respect of such goods
or materialsI
2"$6$6 such goods or materials shall become the property of the Authority upon
payment thereforI
2"$6$9 hubco shall permit the Authority2 the AuthorityGs 7epresentative and any
other persons authorised by the Authority at any time upon reasonable
notice to inspect the materials or goods &hich have become the property of
the Authority and shall grant or procure the grant of access to the Authority2
the AuthorityGs 7epresentative and any other person authorised by the
Authority for such purpose to the premises &here such goods or materials
may be locatedI
2"$6$8 payment by the Authority for such goods or materials shall not prejudice the
rights of the Authority in relation to goods or materials &hich are not in
accordance &ith this Agreement$
I))$e 6 Inter,; Cert,6,"ate
2"$9 ;ithin five 9! days of the Due Date2 the AuthorityLs 7epresentative shall issue an
interim certificate of payment an #Inter,; Cert,6,"ate#! setting out the sum that the
Authority or the AuthorityGs 7epresentative considers to be or to have been due at the
Due Date2 and the basis on &hich that sum is calculated2 including)
2"$9$1 the cumulative value of ;or,s properly e(ecuted as at the end of the
relevant month in 4uestionI
2"$9$2 the cumulative value of any Cariation instructed in accordance &ith
5lause 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 the
e(tent not paid under another provision of this AgreementI
3@SS
2"$9$6 &here 5lause 2"$8 applies2 the applicable 7etentionI
2"$9$9 any sums due from hubco to the Authority or deductions to be made under
this AgreementI and
2"$9$8 the amounts certified for payment in Anterim 5ertificates previously issued2
and stating the balance if any! due from the Authority to hubco or from hubco to the
Authority$
At is immaterial that the sum referred to in this clause 2"$9 may be Mero$ Af the Authority
fails to give an Anterim 5ertificate in accordance &ith 5lause 2"$92 and hubco have
given an Application for Payment in accordance &ith 5lause 2"$2 and 2"$:2 the sum to
be paid by the Authority shall2 subject to any Pay 3ess 0otice given under 5lause
2"$112 be the sum specified in the Application for Payment$
2"$8 Retent,n
1@
2"$8$1 An the event that the party providing the 7etention Bond repudiates the
7etention Bond2 the 7etention Bond is deemed to be invalid or
unenforceable or the long*term rating of such party is rated at lo&er than AP
by S&P or A1 by EoodyLs the provisions of this 5lause 2"$8 shall apply$
2"$8$2 The Authority shall be entitled to deduct and retain J K per cent J KQ! of
the total aggregate amounts specified in 5lause 2"$9 to 2"$9$: from time to
time provided that credit shall be given in respect of amounts retained
previously! the #Retent,n#!$ An the event that the Authority is unable to
retain2 from the first payment due to hubco after the occurrence of the
matters specified in 5lause 2"$8$12 a sum e4ual to the 7etention applicable
in terms of the first Anterim 5ertificate after such date the shortfall shall be
due by hubco as a debt$
2"$8$: The follo&ing provisions shall apply to the 7etention
:8
)*
a! the Authority shall o&e no fiduciary duty to hubco in respect of the
7etentionI
b! any interest earned on the 7etention shall be permanently retained
by the AuthorityI
c! no later than 1. Business Days after the Actual 5ompletion Date2
the Authority shall pay to hubco one*half of the 7etention deducted
and retained less any amounts or liabilities duly paid or incurred
by the Authority in accordance &ith 5lause 2"$8$6!I
d! no later than 1. Business Days after the issue of the 5ertificate of
Ea,ing =ood Defects2 the Authority shall pay to hubco the balance
of the 7etention deducted and retained less any amounts or
liabilities duly paid or incurred by the Authority in accordance &ith
5lause 2"$8$6!$
:9
The drafting contained in 5lause 2"$8 is for use &here a retention bond is the AuthorityGs preferred solution$
Should the Authority &ish to operate a cash retention2 the drafting of 5lause 2"$9 and the relative definitions
should be amended as appropriate$ At is e(pected that any such cash retention &ould reflect the principles set
out in 5lauses 2"$8$2 to 2"$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$
2"$8$6 An the event that hubco fails to comply &ith its obligations under 5lause 1"
Defects! to rectify a Defect2 the Authority shall be entitled to deduct from the
balance of the 7etention from time to time such amounts as are e4ual to the
costs2 reasonably and properly incurred by the Authority in rectifying2 or
procuring the rectification of any such Defect$
2"$8$9 'ollo&ing the occurrence of any of the matters specified in 5lause 2"$8$12
hubco shall2 be entitled to provide the Authority a retention bond &hich is no
less beneficial to the Authority than the 7etention Bond2 and &hose
long*term rating is rated at no lo&er than JAPK by S&P and A1 by EoodyLs in
lieu of its right to apply the 7etention$ An e(change for such a replacement
retention bond duly e(ecuted2 the Authority shall repay all sums retained by
the Authority under 5lause 2"$8$2 and2 subject to 5lause 2"$8$82 the terms of
this 5lause 2"$8 shall not apply and no 7etention shall be deducted from any
further payment due to hubco$
2"$8$8 The provisions of this 5lause 2"$8 shall apply mutatis mutandis to any
replacement retention bond provided by hubco from time to time$
Nn>C;4(,ant +r5)
2"$" By each Anterim 5ertificate the Authority gives notice to hubco specifying the amount
of the payment proposed to be made and the basis upon &hich it is calculated$ 'or
the avoidance of doubt2 no sum shall be included in any Anterim 5ertificate if2 in the
reasonable opinion of the Authority2 any ;or,s to &hich the Anterim 5ertificate relates
do not comply &ith the provisions of this Agreement2 in &hich event the amount
relating to such non*compliant ;or,s shall be omitted from such Anterim 5ertificate
and such sum shall only be included in an Anterim 5ertificate follo&ing rectification of
such ;or,s by hubco to the satisfaction of the Authority acting reasonably!$
Date 6r 4a-;ent
2"$? 'ollo&ing receipt of an Anterim 5ertificate from the Authority2 hubco shall submit an
invoice to the Authority for the amount certified in such Anterim 5ertificate$ The final
date for payment of such amount the #'inal Date#! shall be Jthirteen 1:!K Business
Days after the AuthorityLs receipt of hubcoLs invoice$
R,*#t t )$)4end
2"$/ ;ithout prejudice to any other rights and remedies &hich hubco may possess2 if)*
2"$/$1 the Authority fails to pay any sum due pursuant to 5lause 2"$? by the 'inal
DateI and
2"$/$2 it has not given a notice pursuant to 5lause 2"$11 in respect of such sum)
and
2"$/$: such failure continues for a period of seven "! days after hubco has given to
the Authority &ritten notice of its intention to suspend performance of any or
all of its obligations under this agreement and the ground or grounds on
&hich it is intended to suspend performance2
then hubco may2 follo&ing the e(piry of such seven "! day period2 suspend
performance of any or all of its obligations under this Agreement until payment in full of
the sum payable occurs$
2"$/A$1 ;here hubco e(ercises its right of suspension under 5lause 2/$/$:2 it shall be entitled
to a reasonable amount in respect of costs and e(penses reasonably incurred by it as
a result of the e(ercise of the right$
2/$/A$2 Applications in respect of any such costs and e(penses shall be made to the Authority
and hubco shall &ith its Application for Payment provided for in 5lause 2"$22 in the
month follo&ing the month in &hich the right arose2 submit such details of the costs
and e(penses as are reasonably necessary to enable hubcoGs entitlement to be
ascertained
2"$1. State;ent 6 /,na( A""$nt and ,))$e 6 Pa-;ent Cert,6,"ate
2"$1.$1 ;ithout prejudice to 5lause 2"$2 Applications for Pament!2 &ithin Jone
monthK
:"
of the date of issue of the 5ertificate of Practical 5ompletion2 hubco
shall submit to the AuthorityGs 7epresentative a statement of final account
and supporting documents sho&ing in detail the value in accordance &ith
this Agreement of all &or, e(ecuted and all further sums &hich hubco
considers to be due to it in respect of the ;or,s in accordance &ith this
Agreement$
2"$1.$2 Af hubco has not submitted a statement of final account to the AuthorityGs
7epresentative by the date Jone monthK after the date on &hich it &as
re4uired to do so pursuant to 5lause 2"$1.$12 the AuthorityGs 7epresentative
may give notice to hubco in &riting that if such a statement of final account is
not prepared and submitted by hubco after a further Jone monthK the
AuthorityGs 7epresentative may do so itself$ %pon the e(piry of that Jone
monthK period of notice or &ithin Jone monthK of the issue of the 5ertificate of
Ea,ing =ood Defects2 &hichever is the later2 if hubco has not prepared and
submitted a statement of final account and supporting documents! the
AuthorityGs 7epresentative may prepare a statement of final account and
issue it to hubco$
2"$1.$: The due date for payment of the final account shall be &ithin J K
Business Days after &hichever is the later of i! the date of issue of the
5ertificate of Ea,ing =ood Defects2 ii! receipt of hubcoGs statement of final
account pursuant to 5lause 2"$1.$1 or iii! the Authority issuing a statement
of final account under 5lause 2"$1.$2 the NPa-;ent Cert,6,"ate D$e DateE!$
;ithin 9 days of the Payment 5ertificate Due Date the AuthorityGs
7epresentative shall issue to hubco a certificate a #Pa-;ent Cert,6,"ate#!
stating the sum that the Authority or the AuthorityGs 7epresentative considers
to be or have been due at the Payment 5ertificate Due Date and the basis
on &hich that sum is calculated including the value in accordance &ith this
Agreement2 of all ;or,s carried out by hubco and all the sums due to hubco
in accordance &ith this Agreement less the sum of the amounts already
certified by Anterim 5ertificates and all sums due from hubco to the Authority
or deductions to be made under this Agreement2 and sho&ing the balance
payable from hubco to the Authority or from the Authority to hubco2 as the
case may be$ At is immaterial that the sum referred to in this 5lause 2"$1.$:
may be Mero$
2"$1.$:A Af the Authority fails to issue the Payment 5ertificate in accordance &ith
5lause 2"$1.$:2 and if hubco have submitted a hubco statement of final
account pursuant to 5lause 2"$1.$12 hubcoGs statement of final account shall
ta,e effect as if it &ere the Payment 5ertificate$
2"$1.$:B Af the Payment 5ertificate under 5lause 2"$1.$: provides that hubco re4uires
to ma,e a payment to the Authority2 the Authority may recover the same as a
debt$
2"$1.$6 'ollo&ing receipt of a Payment 5ertificate hubco shall submit an invoice to
the Authority for the amount certified in such Payment 5ertificate$ The final
date for payment of such amount the #Pa-;ent Cert,6,"ate /,na( Date#!
:"
t&o months may be a more appropriate period$ To be considered on a project by project basis$
shall be fifteen 19! Business Days after the AuthorityLs receipt of hubcoLs
invoice$
2"$1.$9 A Payment 5ertificate issued pursuant to this 5lause 2"$1. shall at the
e(piry of one month after it is issued save in respect of fraud! have effect in
any proceedings arising out of or in connection &ith this Agreement as)
a! conclusive evidence that all and only such e(tensions of time2 if
any2 as are due have been givenI and
b! conclusive evidence that the payment to hubco of all and any
additions to or increases in the Development Amount shall be in full
and final settlement of all and any claims &hich hubco has or may
have arising out of or in connection &ith this Agreement or in
relation to the ;or,s &hether such claims may be for breach of
contract2 in delict2 for breach of statutory duty or other&ise$
2"$11 Pa- Le)) Nt,"e
Af the Authority intends in good faith to pay less than the sum notified pursuant to a
Payment 5ertificate or Anterim 5ertificate or Application for Payment if the final
sentence of 5lause 2"$9 applies!2 the Authority or the AuthorityLs 7epresentative shall2
at least t&o 2! Business Days before the 'inal Date or Payment 5ertificate 'inal Date
give a notice a NPay 3ess 0oticeO! to hubco$ Such Pay 3ess 0otice shall specify both
the sum that it considers to be due to hubco at the date the Pay 3ess 0otice is given
and the basis on &hich that sum has been calculated$ At is immaterial that the sum
referred to in this 5lause 2"$11 may be Mero$
Ad!$)t;ent) t Cert,6,"ate)
2"$12 Af any sum shall become due to hubco under this Agreement other&ise than for &or,
e(ecuted2 the amount thereof shall provided hubco has submitted an Application for
Payment therefore in accordance &ith 5lause 2"$2! be included in the ne(t Anterim
5ertificate$ Af any sum shall become payable under this Agreement by hubco to the
Authority2 &hether by deduction from the Development Amount or other&ise2 the same
shall become due on the date on &hich hubco receives a &ritten demand for the same
from the Authority and shall be paid by hubco to the Authority &ithin 2. Business Days
being the final date for payment! of such &ritten demand or2 at the option of the
Authority2 the amount thereof may be deducted from the ne(t Anterim 5ertificateor
Application for Payment if the final sentence of 5lause 2"$9 applies! and if necessary!
from subse4uent Anterim 5ertificates or Applications for Payment if the final sentence
of 5lause 2"$9 applies!$
Crre"t,n 6 Cert,6,"ate)
2"$1: The Authority may in any Anterim 5ertificate or Payment 5ertificate ma,e any
correction or modification that should properly have been made in respect of any
previous Anterim 5ertificate$
E66e"t 6 Cert,6,"ate)
2"$16 0o certificate shall of itself be conclusive evidence that any design2 &or,s2 materials or
goods to &hich it relates are in accordance &ith this Agreement and2 &ithout prejudice
to the generality of the foregoing2 the issue of an Anterim 5ertificate or of the Payment
5ertificate shall not prejudice any right of the Authority against hubco in respect of any
defect in the ;or,s including the AuthorityGs rights under 5lause 1" Defects!!$
Manner 6 4a-;ent
2"$19 All payments under this Agreement shall be made in pounds sterling by electronic
transfer of funds for value on the day in 4uestion
:?
to the ban, account of the recipient
located in the %nited Fingdom! specified in the relevant invoice2 4uoting the invoice
number against &hich payment is made$
D,)4$te)
2"$18 Af either party acting in good faith! disputes all or any part of the Anterim 5ertificate
calculated in accordance &ith this 5lause 2" &Pament' or the Payment 5ertificate
subject to 5lause 2"$1.$9!2 the undisputed amount of the Anterim 5ertificate or
Payment 5ertificate as the case may be! shall be paid by the Authority in accordance
&ith 5lause 2"$? or 2"$1.$6 as the case may be! and the provisions of this
5lause 2"$18 shall apply$ The parties shall use all reasonable endeavours to resolve
the dispute in 4uestion &ithin J K Business Days of the dispute arising$ Af
they fail so to resolve it2 either party may refer the matter to the Dispute 7esolution
Procedure$ 'ollo&ing resolution of the dispute2 any amount agreed or determined to
have been payable shall be paid forth&ith by the Authority to hubco2 together &ith
interest on such amount calculated in accordance &ith 5lause 2"$1"&Late Paments'$
Late Pa-;ent)
2"$1" @ach party shall be entitled2 &ithout prejudice to any other right or remedy2 to receive
interest on any payment not duly made pursuant to the terms of this Agreement on the
'inal Date or Payment 5ertificate 'inal Date as the case may be! calculated from day
to day at a rate per annum e4ual to the Default Anterest 7ate from the 'inal Date or
Payment 5ertificate 'inal Date as the case may be! up to and including the date of
payment$
Set*O66
2"$1? ;henever any sum of money shall be agreed2 or determined2 as due and payable by
hubco to the Authority2 such sum may at the AuthorityGs discretion be deducted from or
applied to reduce the amount of any sum then due2 or &hich at any time after&ards
may become due2 to hubco from the Authority under this Agreement provided that the
Authority has issued a Pay 3ess 0otice$
2"$1/ ;henever any sum of money shall be agreed2 or determined2 as due and payable by
the Authority to hubco2 such sum may at hubcoGs discretion be deducted from or
applied to reduce the amount of any sum then due2 or &hich at any time after&ards
may become due2 from hubco to the Authority under this Agreement provided that
hubco has given the Authority not less than J K Business DaysG notice of its
intention to deduct or apply such sum$
2?$ 2?VAT
2?$1 All amounts stated to be payable by either party under this Agreement shall be
e(clusive of any CAT properly chargeable on any amount$
2?$2 @ach party shall pay to the other party any CAT properly chargeable on any supply
made to it under this Agreement provided that it shall first have received from the other
party a valid ta( invoice in respect of that supply &hich complies &ith the re4uirements
of Part AAA CAT 7egulations 1//9$
2?$: Af either party referred to in this 5lause as the #/,r)t Part-#! shall consider that any
CAT &hich the other party referred to in this 5lause as the #Se"nd Part-#! claims to
be properly chargeable to the 'irst Party in connection &ith this Agreement is not in
fact properly so chargeable2 the 'irst Party shall be entitled to re4uire the Second
Party to obtain a ruling from the 5ommissioners for 5ustoms and @(cise or2 if
:?
hubco to specify$
relevant2 such other body as is charged at the time &ith the collection and
management of CAT! referred to in this 5lause as the #C;;,)),ner)#! as to the
CAT if any! properly so chargeable$ The Second Party shall forth&ith re4uest the
5ommissioners for such a ruling$
2?$6 The follo&ing further provisions shall apply in respect of the application for a ruling in
accordance &ith 5lause 2?$:)*
2?$6$1 prior to submitting its re4uest for such a ruling and any further
communication to the 5ommissioners in connection &ith the obtaining of the
ruling2 the Second Party shall first obtain the agreement of the 'irst Party to
the contents of such re4uest and any such further communication2 such
agreement not to be unreasonably &ithheld or delayedI
2?$6$2 the Second Party shall provide to the 'irst Party copies of all
communications received from the 5ommissioners in connection &ith the
application for a ruling as soon as practicable after receiptI and
2?$6$: the Second Party shall use all reasonable endeavours including &ithout
limitation the provision of such additional information as the 5ommissioners
may re4uire! to obtain such a ruling as soon as reasonably practicable
follo&ing the initial re4uest$
2?$9 Af a ruling is re4uired by the 'irst Party under 5lause 2?$:2 the 'irst Party shall not be
obliged to pay the CAT so claimed by the Second Party unless and until a ruling is
received from the 5ommissioners &hich states that a sum of CAT the #VAT S$;#! is
properly so chargeable or the 5ommissioners state that they are not prepared to give
any ruling on the matter$ An this case2 then subject to 5lauses 2?$8 and 2?$" and
provided that the 'irst Party shall first have received a valid ta( invoice &hich complies
&ith the re4uirements of Part AAA CAT 7egulations 1//9 and &hich states the CAT Sum
to be the amount of CAT chargeable to the 'irst Party2 the 'irst Party shall pay the CAT
Sum and any interest or penalties attributable to the CAT Sum! to the Second Party$
2?$8 Af the 'irst Party disagrees &ith any ruling obtained pursuant to 5lause 2?$: by the
Second Party from the 5ommissioners2 then the Second Party provided that it is
indemnified to its reasonable satisfaction against all costs and e(penses including
interest and penalties &hich it may incur in relation thereto! shall ta,e such action and
give such information and assistance to the 'irst Party as the 'irst Party may re4uire
to challenge such ruling or other&ise to resist or avoid the imposition of CAT on the
relevant supply$
2?$" The follo&ing further provisions shall apply if the 'irst Party shall e(ercise its rights
under 5lause 2?$8)*
2?$"$1 the action &hich the 'irst Party shall be entitled to re4uire the Second Party
to ta,e shall include &ithout limitation! contesting any assessment to CAT or
other relevant determination of the 5ommissioners before any CAT tribunal
or court of competent jurisdiction and appealing any judgement or decision
of any such tribunal or courtI
2?$"$2 if the Second Party shall be re4uired to pay to or deposit &ith the
5ommissioners a sum e4ual to the CAT assessed as a condition precedent
to its pursuing any appeal2 the 'irst Party shall2 at its election2 either pay
such sum to the 5ommissioners on behalf of the Second Party or on receipt
of proof in a form reasonably satisfactory to the 'irst Party that the Second
Party has paid such sum to or deposited such sum &ith the 5ommissioners
the 'irst Party shall pay such sum to the Second PartyI
2?$"$: save as specifically provided in 5lause 2?$62 the 'irst Party shall not be
obliged to pay to the Second Party any sum in respect of the CAT in dispute
to the Second Party or in respect of CAT on any further supplies made by the
Second Party to the 'irst Party &hich are of the same type and raise the
same issues as the supplies &hich are the subject of the relevant dispute
unless and until the final outcome of the relevant dispute is that it is either
determined or agreed that CAT is properly chargeable on the relevant supply
or suppliesI and
2?$"$6 the Second Party shall account to the 'irst Party for any costs a&arded to
the Second Party on any appeal2 for any sum paid to or deposited &ith the
5ommissioners in accordance &ith 5lause 2?$"$2 &hich is repayable to the
Second Party and for any interest to &hich the Second Party is entitled in
respect of such sums$
C#an*e) ,n re"2erab,(,t- 6 VAT
2?$? Subject to 5lause 2?$/2 if2 follo&ing a 5hange in 3a&2 hubco becomes unable to
recover CAT attributable to supplies to be made to the Authority by hubco pursuant to
this Agreement2 the Authority shall ensure that hubco is left in no better and no &orse
position than it &ould have been had such 5hange in 3a& not occurred including but
not limited to ma,ing such amendments to the Agreement as hubco and the Authority
shall agree acting reasonably!2 provided that hubco shall use all reasonable
endeavours to mitigate the adverse effects of any such 5hange in 3a&$
2?$/ The provisions of 5lause 2?$? shall apply only if and to the e(tent that! the 5hange in
3a& &as not reasonably foreseeable at the date of this Agreement by an e(perienced
contractor performing operations similar to the relevant Project <perations on the
basis of draft bills published in =overnment green or &hite papers or other
=overnment departmental consultation papers2 bills2 draft statutory instruments or
draft instruments or proposals published in the <fficial -ournal of the @uropean %nion2
in each case published)
2?$/$1 prior to the date of this AgreementI and
2?$/$2 in substantially the same form as the 5hange in 3a&$
2/$ 2/CONSTRUCTION INDUSTRY TA0 DEDUCTION SCHEME
2/$1 This 5lause 2/$1 relates to the 5onstruction Andustry Ta( Deduction Scheme)*
2/$1$1 in this 5lause 2/$1 but not other&ise!)*
a! #t#e A"t# means the 'inance Act 2..6I
b! #t#e Re*$(at,n)# means the Ancome Ta( 5onstruction Andustry
Scheme! 7egulations 2..9 SA 2..9>2.69!I
c! Nt#e Le*,)(at,nO means 5hapter : Part : of the Act and the
7egulations2 ta,en togetherI
d! #Cntra"tr# means a person &ho is a contractor for the purposes
of 5hapter : Part : of the ActI and
e! #)$b>"ntra"tr# means a person &ho is a sub*contractor for the
purposes of 5hapter : Part : of the Act2
2/$1$2 @ach of the Authority and hubco shall comply &ith the 3egislation$
2/$1$: Af any payment due from the Authority to hubco under this Agreement is a
contract payment under section 8.1! of the Act2 then the Authority2 as
5ontractor2 shall not later than fifteen 19! Business days before the first
such payment is due to be made! verify2 in accordance &ith paragraph 8 of
the 7egulations2 &hether the sub*contractor is registered for gross payment
or for payment under deduction or is not registered under 5hapter : Part :
of the Act$
2/$1$6 Af any payment due from the Authority to hubco under this Agreement is a
contract payment under section 8.1! of the Act2 then)*
a! if hubco is registered for gross payment under section 8:2! of the
Act2 the Authority shall ma,e a payment to hubco &ithout any
deductionI
b! if hubco is not registered for gross payments under section 8:2! of
the Act2 the Authority shall ma,e a payment to hubco2 subject to
the deduction of the relevant percentage in accordance &ith
section 811! of the Act2 and thereupon 5lause 2/$1$" belo& shall
apply$
2/$1$9 Af any dispute arises bet&een the Authority and hubco as to &hether any
payment due by the Authority to hubco under this Agreement is or is not a
contract payment by virtue of the e(emption in 7egulation 2: of the
7egulations2 the parties &ill jointly apply to 1E 7evenue and 5ustoms for a
&ritten ruling and until such ruling is received it shall be assumed that such
payment is a contract payment and the provisions of this 5lause 2/$1
&Construction Industr Ta/ Deduction $c!eme' shall apply accordingly$
2/$1$8 The Authority shall be entitled to ma,e a deduction at the rate specified in
section 811! of the Act or at such other rate as may be in force from time to
time from the &hole of any payment to hubco and not just that part of such
payment &hich does not represent the direct cost to hubco or any other
person of materials used or to be used in carrying out the construction
operations to &hich the relevant payment relates! unless prior to ma,ing
such payment the Authority shall have received &ritten confirmation from 1E
7evenue and 5ustoms obtained by and at the e(pense of hubco! in a form
&hich is reasonably satisfactory to the Authority directing the Authority to
ma,e the deduction against only a specified amount or proportion of any
such payment to hubco$
2/$1$" ;here any error or omission has occurred in calculating or ma,ing any
payment under this 5lause 2/$1 &Construction Industr Ta/ Deduction
$c!eme' then)*
a! in the case of an over deduction2 the Authority shall correct that
error by repayment of the sum over deducted to hubcoI and
b! in the case of an under deduction2 hubco shall correct that error or
omission by repayment of the sum under deducted to the Authority$
2/$1$? The Authority shall send promptly to 1E 7evenue & 5ustoms any returns
re4uired by the 3egislation2 and shall provide to hubco a payment statement
&here appropriate! and>or such other information as may be re4uired by the
3egislation in relation to any contract payment$
2/$1$/ Af compliance &ith this 5lause 2/$1 involves the Authority or hubco in not
complying &ith any other of the terms of this Agreement2 then the provisions
of this 5lause shall prevail$
:.$ :.RECORDS AND OPEN BOO3 ACCOUNTING
Re"rd) and Re4rt)
The provisions of Schedule Part 16 "ecord Provisions! shall apply to the ,eeping of
records and the ma,ing of reports$
PART :. TERMINATION
:1$ :1AUTHORITY EVENTS O/ DE/AULT
:1$1 'or the purposes of this Agreement2 an Authority @vent of Default means any of the
follo&ing events or circumstances)*
:1$1$1 the Authority is in material breach of its obligations under 5lause / >ature
of Land Interests' other than as a conse4uence of a breach by hubco of its
obligations under this Agreement! and such breach materially adversely
affects the ability of hubco to perform its material obligations under this
Agreement for a continuous period of not less than thirty :.! Business
DaysI
:1$1$2 the Authority fails to pay any sum or sums due to hubco under this
Agreement &hich sums are not in dispute! &hich2 either singly or in
aggregate2 e(ceeds! JR K from time to time and such failure continues for
thirty :.! Business Days from receipt by the Authority of a notice of
non*payment from hubcoI or
:1$1$: the Authority is in breach of its obligations under 5lause 6:$:$
#$b"7) 4t,n)
:1$2 <n the occurrence of a Authority @vent of Default2 or &ithin a reasonable time after
hubco becomes a&are of the same2 and &hile the same is still subsisting2 hubco may2
at its option)*
:1$2$1 suspend performance by it of its obligations under this Agreement until such
time as the Authority shall have demonstrated to the reasonable satisfaction
of hubco that it is capable of performing2 and &ill perform2 its obligations
under this AgreementI or
:1$2$2 serve notice on the Authority or such other party as may be notified in
advance in &riting by the Authority to hubco! of the occurrence and
specifying details! of such Authority @vent of Default$ Af the relevant matter
or circumstance has not been rectified or remedied by the Authority or
other&ise! in respect of 5lauses :1$1$1 or 5lause :1$1$: &ithin si(ty 8.!
Business Days of such notice2 and in respect of 5lause :1$1$2 &ithin thirty
:.! Business Days of such notice2 hubco may serve a further notice on the
Authority or its substitute notified in accordance &ith this 5lause :1$2$2!
terminating this Agreement &ith immediate effect$
:1$: hubco shall not e(ercise or purport to e(ercise any right to terminate this Agreement
or accept any repudiation of this Agreement! e(cept as e(pressly set out in this
Agreement$
:2$ :2HUBCO DE/AULT
#$b" E2ent) 6 De6a$(t
:2$1 'or the purposes of this Agreement2 hubco @vent of Default means any of the
follo&ing events or circumstances)*
In)(2en"-
:2$1$1 the occurrence of any of the follo&ing events in respect of hubco2 namely)*
a! any arrangement or composition &ith or for the benefit of creditors
including any voluntary arrangement as defined in the Ansolvency
Act 1/?8! being entered into by or in relation to hubcoI
b! a receiver2 administrator2 administrative receiver or other
encumbrance ta,ing possession of or being appointed over2 or any
distress2 e(ecution or other process being levied or enforced and
not being discharged &ithin ten 1.! Business Days! upon2 the
&hole or any material part of the assets of hubcoI
c! hubco ceasing to carry on businessI
d! a petition being presented and not being discharged &ithin t&enty
2.! Business Days!2 or a resolution being passed or an order
being made for the administration or the &inding*up2 ban,ruptcy or
dissolution of hubcoI or
e! Jif hubco shall suffer any event analogous to the events set out in
5lauses :2$1$1a!*d! in any jurisdiction in &hich it is incorporated
or resident
:/
KI
Ln* )t4
:2$1$2 hubco failing to achieve the Actual 5ompletion Date &ithin a period of
J K after the 5ompletion Date
6.
I
De6a$(t
:2$1$: hubco committing a material breach of its obligations under this AgreementI
:2$1$6 hubco abandoning the ;or,s other than as a conse4uence of a breach by
the Authority of its obligations under this Agreement!I
A)),*nat,n
:2$1$9 hubco failing to comply &ith the provisions of 5lauses 6:$2 or 6:$6
Assignation and $ub%contracting!I
Pa-;ent
:2$1$8 hubco failing to pay any sum or sums due to the Authority under this
Agreement &hich sums are not in dispute! &hich2 either singly or in
aggregate2 e(ceeds! RJ K inde( lin,ed! and such failure
continues for si(ty 8.! Business Days from receipt by hubco of a notice of
non payment from the AuthorityI or
In)$ran"e
:2$1$" a breach by hubco of its obligation to ta,e out and maintain the insurances
re4uired by 5lauses :/$1 and :/$2
Nt,6,"at,n
:2$2 hubco shall notify the Authority of the occurrence2 and details2 of any hubco @vent of
Default and of any event or circumstance &hich is li,ely2 &ith the passage of time or
:/
Delete if relevant parties are incorporated and resident in Scotland$
6.
Af it is critical for project specific reasons to meet the scheduled date for completion2 the Authority may need
to include an earlier trigger &hich &ould enable it to terminate prior to the longstop date if it became clear at a
given point in time that the longstop date &as incapable of being met$
other&ise2 to constitute or give rise to a hubco @vent of Default2 in either case
promptly on hubco becoming a&are of its occurrence$
A$t#r,t-7) 4t,n)
:2$: <n the occurrence of a hubco @vent of Default2 or &ithin a reasonable time after the
Authority becomes a&are of the same2 and &hile the same is subsisting2 the Authority
may)*
:2$:$1 in the case of the hubco @vents of Default referred to in 5lauses :2$1$1
&Insolvenc'2 :2$1$2 &Long stop'2 :2$1$9 &Assignation' or :2$1$8 &Pament'2
terminate this Agreement in its entirety by notice in &riting having immediate
effectI
:2$:$2 in the case of any hubco @vent of Default referred to in 5lause :2$1$:
and :2$1$62 serve notice of default on hubco re4uiring hubco at hubcoGs
option either)*
a! to remedy the hubco @vent of Default referred to in such notice of
default if the same is continuing! &ithin t&enty 2.! Business Days
of such notice of defaultI or
b! to put for&ard &ithin t&enty 2.! Business Days of such notice of
default a reasonable programme set out2 if appropriate2 in stages!
for remedying the hubco @vent of Default$ The programme shall
specify in reasonable detail the manner in2 and the latest date by2
&hich such hubco @vent of Default is proposed to be remedied
hubco shall only have the option of putting for&ard a programme
in accordance &ith this 5lause :2$:$2b! if it first notifies the
Authority &ithin ten 1.! Business Days of such notice of default
that it proposes to do so!I and
:2$:$: in the case of any hubco @vent of Default referred to in 5lause :2$1$"
Insurance!2 serve notice of default on hubco re4uiring hubco to remedy the
hubco @vent of Default if the same is continuing! &ithin t&enty 2.!
Business Days of such notice of default
Re;ed- 4r2,),n)
:2$6 ;here hubco puts for&ard a programme in accordance &ith 5lause :2$:$2b!2 the
Authority shall have t&enty 2.! Business Days from receipt of the same &ithin &hich
to notify hubco acting reasonably! that it does not accept the programme2 failing
&hich the Authority shall be deemed to have accepted the programme$ ;here the
Authority notifies hubco that it does not accept the programme as being reasonable2
the parties shall endeavour &ithin the follo&ing five 9! Business Days to agree any
necessary amendments to the programme put for&ard$ An the absence of agreement
&ithin five 9! Business Days2 the 4uestion of &hether the programme as the same
may have been amended by agreement! &ill remedy the hubco @vent of Default in a
reasonable manner and &ithin a reasonable time period and2 if not2 &hat &ould be a
reasonable programme! may be referred by either party for resolution in accordance
&ith Schedule Part 19 Dispute "esolution Procedure!$
:2$9 Af)*
:2$9$1 the hubco @vent of Default notified in a notice of default served under
5lause :2$:$2 or 5lause :2$:$: as the case may be! is not remedied before
the e(piry of the period referred to in 5lause :2$:$2a! or 5lause :2$:$: as
appropriate!I or
:2$9$2 &here hubco puts for&ard a programme pursuant to 5lause :2$:$2b! &hich
has been accepted by the Authority or has been determined to be
reasonable and hubco fails to achieve any element of the programme or the
end date for the programme as the case may be!I or
:2$9$: any programme put for&ard by hubco pursuant to 5lause :2$:$2b! is
rejected by the Authority as not being reasonable2 and the Dispute
7esolution Procedure does not find against that rejection2
then the Authority may terminate this Agreement in its entirety by &ritten notice to
hubco &ith immediate effect$ Provided that for the purposes of 5lause :2$9$: if
hubcoGs performance of the programme is adversely affected by the occurrence of
'orce Eajeure or a 7elief @vent then2 subject to hubco complying &ith the mitigation
and other re4uirements in this Agreement concerning 'orce Eajeure or a 7elief @vent
as the case may be!2 the time for performance of the programme or any relevant
element of it shall be deemed to be e(tended by a period e4ual to the delay caused by
'orce Eajeure or the 7elief @vent as the case may be! &hich is agreed by the parties
or determined in accordance &ith Schedule Part 19 Dispute "esolution Procedure!$
A$t#r,t-7) ")t)
:2$8 hubco shall reimburse the Authority for all reasonable costs incurred by the Authority
in e(ercising any of its rights pursuant to this 5lause :2 &!ubco Event of Default'
including2 &ithout limitation2 any relevant increased administrative e(penses!$ The
Authority shall ta,e reasonable steps to mitigate such costs$
:2$" The Authority shall not e(ercise2 or purport to e(ercise2 any right to terminate this
Agreement e(cept as e(pressly set out in this Agreement$ The rights of the Authority
to terminate or other&ise! under this 5lause are in addition and &ithout prejudice! to
any other right &hich the Authority may have to claim the amount of loss or damage
suffered by the Authority on account of the acts or omissions of hubco or to ta,e any
action other than termination of this Agreement!$
::$ ::TERMINATION RESULTING /ROM /ORCE MA%EURE
Af2 in the circumstances referred to in 5lause 26 .orce Majeure!2 the parties have
failed to reach agreement on any modification to this Agreement pursuant to
5lause 26 .orce Majeure! &ithin si( 8! calendar months of the date on &hich the
party affected serves notice on the other party in accordance &ith 5lause 26 .orce
Majeure! either party may at any time after&ards terminate this Agreement by &ritten
notice to the other party having immediate effect provided al&ays that the effects of
the relevant event of 'orce Eajeure continues to prevent either party from performing
any material obligation under this Agreement$
:6$ :6CORRUPT GI/TS AND PAYMENTS
Pr#,b,t,n n "rr$4t,n
:6$1 The term #Pr#,b,ted A"t# means)*
:6$1$1 offering2 giving or agreeing to give to the Authority or any other public body
or to any person employed by or on behalf of the Authority or any other
public body any gift or consideration of any ,ind as an inducement or
re&ard)*
a! for doing or not doing or for having done or not having done! any
act in relation to the obtaining or performance of this Agreement or
any other agreement &ith the Authority or any other public bodyI or
b! for sho&ing or not sho&ing favour or disfavour to any person in
relation to this Agreement or any other agreement &ith the
Authority or any other public bodyI
:6$1$2 entering into this Agreement or any other agreement &ith the Authority or
any other public body in connection &ith &hich commission has been paid or
has been agreed to be paid by hubco or on its behalf2 or to its ,no&ledge2
unless before the relevant agreement is entered into particulars of any such
commission and of the terms and conditions of any such agreement for the
payment of such commission have been disclosed in &riting to the AuthorityI
:6$1$: committing any offence)*
a! under the Bribery Act 2.1.I
b! under any 3a& creating offences in respect of fraudulent actsI or
c! at common la&2 in respect of fraudulent acts in relation to this
Agreement or any other agreement &ith the Authority or any other
public bodyI or
:6$1$6 defrauding or attempting to defraud or conspiring to defraud the Authority or
any other public body$
+arrant-
:6$2 hubco &arrants that in entering into this Agreement it has not committed any
Prohibited Act$
Re;ed,e)
:6$: Af hubco or any hubco Party or anyone employed by or acting on behalf of them!
commits any Prohibited Act2 then the Authority shall be entitled to act in accordance
&ith 5lauses :6$:$1 to :6$:$8 belo&)*
:6$:$1 if a Prohibited Act is committed by hubco or by an employee not acting
independently of hubco
61
2 then the Authority may terminate this Agreement
&ith immediate effect by giving &ritten notice to hubcoI
:6$:$2 if the Prohibited Act is committed by an employee of hubco acting
independently of hubco2 then the Authority may give &ritten notice to hubco
of termination and this Agreement &ill terminate2 unless &ithin t&enty 2.!
Business Days of receipt of such notice hubco terminates the employeeGs
employment and if necessary! procures the performance of the relevant part
of the ;or,s by another personI
:6$:$: if the Prohibited Act is committed by a 5ontracting Associate or by an
employee of that 5ontracting Associate not acting independently of that
5ontracting Associate
62
then the Authority may give &ritten notice to hubco
of termination and this Agreement &ill terminate2 unless &ithin t&enty 2.!
Business Days of receipt of such notice hubco terminates the relevant
Sub*5ontract and procures the performance of the relevant part of the
;or,s by another person2 &here relevant2 in accordance &ith 5lause 6:
Assignation and $ubcontracting!I
61
This means the employee acts under the authority of or &ith the ,no&ledge of any one or more directors of
hubco$
62
This means the employee acts under the authority of or &ith the ,no&ledge of any one or more directors of
the 5ontracting Associate$
:6$:$6 if the Prohibited Act is committed by an employee of a 5ontracting Associate
acting independently of that 5ontracting Associate2 then the Authority may
give notice to hubco of termination and this Agreement &ill terminate2 unless
&ithin t&enty 2.! Business Days of receipt of such notice hubco procures
the termination of the employeeGs employment and if necessary! procures
the performance of the relevant part of the ;or,s by another personI
:6$:$9 if the Prohibited Act is committed by any other person not specified in
5lauses :6$:$1 to :6$:$6 above2 then the Authority may give notice to hubco
of termination and this Agreement &ill terminate unless &ithin t&enty 2.!
Business Days hubco procures the termination of such personGs employment
and of the appointment of their employer &here the employer is not the
Authority and &here such person is not employed by hubco or the
5ontracting Associate! and if necessary! procures the performance of the
relevant part of the ;or,s by another personI and
:6$:$8 any notice of termination under this 5lause shall specify)*
a! the nature of the Prohibited ActI
b! the identity of the party &ho the Authority believes has committed
the Prohibited ActI and
c! the date on &hich the Agreement &ill terminate in accordance &ith
the applicable provisions of this 5lause$
:6$6 ;ithout prejudice to its other rights or remedies under this 5lause2 the Authority shall
be entitled to recover from hubco)*
:6$6$1 the amount or value of any such gift2 consideration or commissionI and
:6$6$2 any other loss sustained in conse4uence of any breach of this 5lause$
:6$9 <n termination of hubcoGs employment under this Agreement in accordance &ith
5lause :6$:2 the Authority shall pay hubco in accordance &ith the provisions of
5lause :9$9 Paments follo#ing termination upon !ubco Default!$
Per;,tted 4a-;ent)
:6$8 0othing contained in this 5lause shall prevent hubco from paying any proper
commission or bonus to its employees &ithin the agreed terms of their employment$
Nt,6,"at,n
:6$" hubco shall notify the Authority of the occurrence and details! of any Prohibited Act
promptly on hubco becoming a&are of its occurrence$
:9$ :9CONSE=UENCES O/ TERMINATION
Cnt,n$ed 4er6r;an"e
:9$1 Subject to any e(ercise by the Authority of its rights to perform2 or to procure a third
party to perform2 the obligations of hubco2 the parties shall continue to perform their
obligations under this Agreement2 not&ithstanding the giving of any notice of default or
notice of termination2 until the Termination Date$
Tran)6er t A$t#r,t- 6 A))et)B Cntra"t) et"F
?1
6:
Authority to include project specific provisions e$g$ relating to @4uipment2 AT2 planning2 land and Authority
Assets or information etc!$ Authority to consider &hat protection is re4uired to ensure compliance &ith the
handover provisions on a project specific basis ta,ing into account the nature2 importance and value of the
:9$2 <n the service of a notice of termination in accordance &ith this Agreement for any
reason)*
:9$2$1 in so far as any transfer shall be necessary fully and effectively to transfer
property to the Authority2 hubco shall transfer to2 and there shall vest in2 the
Authority2 such part of the ;or,s and>or the 'acilities as shall have been
constructed and such items of the Plant and JAut!orit to add ot!er project
specific itemsK as shall have been procured by hubco if the Authority so
electsI
:9$2$2 all goods and all materials on or near to the Site not yet incorporated in the
;or,s shall remain available to the Authority for the purposes of completing
the ;or,s and if the cost of such goods and materials has not been reflected
in payments made by the Authority to hubco prior to the service of a notice of
termination subject to the payment by the Authority determined as bet&een
a &illing vendor and &illing purchaser &ith any disputes determined pursuant
to 5lause 62 Dispute "esolution Procedure!!I
:9$2$: the construction plant shall remain available to the Authority for the purposes
of completing the ;or,s2 subject to payment of the 5ontractorGs reasonable
chargesI
:9$2$6 if the Authority so elects2 hubco shall procure that any of the 5onstruction
5ontract shall be novated or assigned to the Authority2 provided that &here
termination occurs under 5lause :1 Aut!orit Events of Default! the consent
of the 5ontractor shall be re4uiredI
:9$2$9 hubco shall deliver to the Authority as far as not already delivered to the
Authority! one complete set of)
a! #as built dra&ings# sho&ing all alterations made to the 'acilities
since the commencement of operation of the 'acilitiesI and
b! maintenance2 operation and training manuals for the 'acilitiesI
:9$2$8
66
hubco shall use all reasonable endeavours to procure that the benefit of all
manufacturerGs &arranties in respect of mechanical and electrical plant and
e4uipment used or made available by hubco under this Agreement and
included in the 'acilities are assigned2 or other&ise transferred2 to the
Authority &ith full title guaranteeI and
hubco shall ensure that provision is made in all contracts of any description
&hatsoever to ensure that the Authority &ill be in a position to e(ercise its rights2 and
hubco &ill be in a position to comply &ith its obligations2 under this 5lause :9$2$
Tran),t,na( arran*e;ent)
:9$: <n the termination of this Agreement for any reason2 for a reasonable period both
before and after any such termination2 hubco shall have the follo&ing duties)
:9$:$1 hubco shall as soon as practicable remove from the Site all property not
ac4uired by the Authority pursuant to 5lause :9$2 or not belonging to the
Authority or any Authority Party! and if it has not done so &ithin forty
6.! Business Days after any notice from the Authority re4uiring it to do so
the Authority may &ithout being responsible for any loss2 damage2 costs or
e(penses! remove and sell any such property and shall hold any proceeds
less all costs incurred to the credit of hubcoI
assets that the handover provisions &ill apply to!$
66
<nly if termination is prior to completion * other&ise the completion re4uirements should include guarantees etc
subject to defects correction!$
:9$:$2 hubco shall forth&ith deliver to the AuthorityGs 7epresentative)
a! any security pass&ords2 access codes and other ,eys to the
'acilities and the @4uipmentI and
b! &ithout prejudice to 5lause 61 Intellectual Propert!2 any copyright
licences for any computer programmes or licences to use the
same! necessary for the operation of the 'acilities but e(cluding
computer programmesI and
:9$:$: hubco shall as soon as practicable vacate the Site and shall leave the Site
and the 'acilities in a safe2 clean and orderly condition$
Cnt,n$,n* Ob(,*at,n)
:9$6 Save as other&ise e(pressly provided in this Agreement)
:9$6$1 termination of this Agreement shall be &ithout prejudice to any accrued
rights and obligations under this Agreement as at the date of terminationI
and
:9$6$2 termination of this Agreement shall not affect the continuing rights and
obligations of hubco and the Authority under 5lauses 26 .orce Majeure!2
2" Pament!2 :. "ecords and Open Boo- Accounting!2 :6 Corrupt (ifts!2
:9$: Transitional Arrangements!2 :9$9 Paments follo#ing termination
upon !ubco Default!2 :9$8 Paments follo#ing termination upon Aut!orit
Default!2 :9$? Paments under Clauses 25651 256D and 256F to be
e/!austive!2 :8 Indemnities!2 :" Ta/ation!2 :/ Insurance!2 6. E/clusions
and Limits on Liabilit!2 61 Intellectual Propert!2 62 Dispute "esolution
Procedure!2 66 Mitigation!2 68 Confidentialit!2 6/ >otices!2 and 5lause 9"
(overning La# and Burisdiction! or under any other provision of this
Agreement &hich is e(pressed to survive termination or &hich is re4uired to
give effect to such termination or the conse4uences of such termination$
Pa-;ent) 6((w,n* ter;,nat,n $4n #$b" De6a$(t
:9$9 Af the Authority terminates hubcoGs employment under this Agreement in accordance
&ith 5lause :2 !ubco Default! or 5lause :6 Corrupt (ifts!I
:9$9$1 hubco shall indemnify the Authority and ,eep the Authority fully indemnified
against all reasonable e(pense2 loss2 damage and liabilities suffered or
incurred by the Authority associated &ith or arising from the termination
including any additional e(pense above the amount that &ould reasonably
have been paid to hubco had its employment not been terminated! incurred
by the Authority in completing the ;or,s if applicable! including the cost of
finding an alternative contractor or contractors and any additional amounts
charged by them for completing the ;or,sI and
:9$9$2 hubco shall be entitled to be paid the total value of &or, properly e(ecuted
at2 and of any design &or, properly carried out before2 the Termination Date2
ascertained in accordance &ith this Agreement2 together &ith any other
amounts due to hubco under this Agreement less any amounts previously
paid to hubco under this Agreement$
:9$9$: 0o payment shall be made to hubco in respect of 5lause :9$9$2 until such
time as the ;or,s are complete$
Pa-;ent) 6((w,n* ter;,nat,n $4n A$t#r,t- De6a$(t
:9$8 Af this Agreement is terminated pursuant to 5lause :1 Aut!orit Events of Default!
hubco shall be entitled to be paid)
:9$8$1 the total value of the ;or,s properly e(ecuted at the Termination Date2
ascertained in accordance &ith this Agreement under deduction of all
amounts certified for payment in Anterim 5ertificates previously issued under
5lause 2"$9I
:9$8$2 the reasonable cost of removal of hubcoGs property from the SiteI
:9$8$: any Direct 3osses caused to hubco by the terminationI and
:9$8$6 to the e(tent not already included in the amount calculated in accordance
&ith 5lause :9$8$12 the cost of materials or goods properly ordered for the
;or,s for &hich hubco shall have paid or for &hich hubco is legally bound to
pay2 and on such payment in full by the Authority such materials or goods
shall become the property of the Authority provided al&ays that hubco
arranges for any such goods or materials to be delivered to the Site$
Pa-;ent) 6((w,n* ter;,nat,n $4n /r"e Ma!e$re
:9$" Af this agreement is terminated pursuant to 5lause :: Termination resulting from
.orce Majeure!2 hubco shall be entitled to be paid)
:9$"$1 the total value of the ;or,s properly e(ecuted at the Termination Date2
ascertained in accordance &ith this Agreement under deduction of all
amounts certified for payment in Anterim 5ertificates previously issued under
5lause 2"$9I and
:9$"$2 to the e(tent not already included in the amount calculated in accordance
&ith 5lause :9$"$12 the cost of materials or goods properly ordered for the
;or,s for &hich hubco shall have paid or for &hich hubco is legally bound to
pay2 and on such payment in full by the Authority such materials or goods
shall become the property of the Authority provided al&ays that hubco
arranges for any such goods or materials to be delivered to the Site$
Pa-;ent) $nder C(a$)e) 1@F@B 1@FA and 1@FC t be e9#a$)t,2e
:9$? ;ithout prejudice to 5lause :9$6$12 the ma,ing of those payments follo&ing a
termination &hich are re4uired to be made by 5lauses :9$9 Paments follo#ing
termination upon !ubco Default!2 :9$8 Paments follo#ing termination upon Aut!orit
Default! and :9$" Paments follo#ing termination upon .orce Majeure! shall be in full
satisfaction of any claim in respect of the termination of2 and the circumstances
leading to2 the termination of this Agreement or hubcoGs employment under this
Agreement and neither hubco nor the Authority shall be entitled to any other rights or
remedies in that regard$
PART 1G. INDEMNITIESB +ARRANTIES ' INSURANCE
:8$ :8INDEMNITIES
?@
#$b" ,nde;n,t,e) t A$t#r,t-
:8$1 hubco shall indemnify and ,eep the Authority indemnified at all times from and against
all Direct 3osses sustained by the Authority in conse4uence of)
:8$1$1 any claim for2 or in respect of2 the death and>or personal injury of any
employee of2 or person engaged by2 hubco or any hubco Party
not&ithstanding any act or omission of the Authority or any Authority PartyI
:8$1$2 any claim for2 or in respect of2 the death and>or personal injury of any third
party other than a person referred to in 5lause :8$2$1 Aut!orit Part
emploees!! arising out of2 or in the course of2 the ;or,s2 save to the e(tent
caused or contributed to! by the Authority or any Authority Party2 breach of
any e(press provision of this Agreement by the Authority or any Authority
Party or any deliberate or negligent act or omission of the Authority or any
Authority PartyI
68
:8$1$: any physical loss of or damage to Authority Assets arising by reason of any
act or omission of hubco or any hubco Party2 save to the e(tent that such
loss or damage arises out of the breach of any e(press provision of this
Agreement by the Authority or any Authority Party or any deliberate or
negligent act or omission of the Authority or any Authority PartyI and
:8$1$6 any loss of or damage to property or assets of any third party arising by
reason of any act or omission of hubco or any hubco Party2 save to the
e(tent that such loss or damage arises out of the breach of any e(press
provision of this Agreement by the Authority or any Authority Party or any
deliberate or negligent act or omission of the Authority or any Authority Party$
A$t#r,t- ,nde;n,t,e) t #$b"
:8$2 The Authority shall indemnify and ,eep hubco indemnified at all times from and
against all Direct 3osses sustained by hubco in conse4uence of)
:8$2$1 any claim for2 or in respect of2 the death and>or personal injury of any
employee of2 or person engaged by2 the Authority or any Authority Party
not&ithstanding any act or omission of hubco or any hubco PartyI
:8$2$2 any claim for2 or in respect of2 the death and>or personal injury of any third
party other than a person referred to in 5lause :8$1$1! arising by reason of
any act or omission of the Authority or any Authority Party in the course of
the provision of the 5ommunity Services2 any %nreasonable Act by the
Authority or any Authority Party2 breach of any e(press provision of this
Agreement by the Authority or any Authority Party or any deliberate act or
omission of the Authority or any Authority Party2 save to the e(tent caused
or contributed to! by any act or omission of hubco or any hubco PartyI
:8$2$: any physical damage to any part of the ;or,s or any assets or other
property of hubco or any hubco Party arising by reason of any breach of any
e(press provision of this Agreement by the Authority or any Authority Party or
any deliberate act or omission of the Authority or any Authority Party2 save to
69
To be revie&ed on a project specific basis in light of insurance arrangements$
68
Deliberate acts or omissions do not include acts or omissions &hich are &ithin the contemplation of the
parties or provided for in this Agreement see 2$11 of Schedule Part 1 JDefinitions and InterpretationK!$
the e(tent caused or contributed to! by any act or omission of hubco or any
hubco Party
6"
I and
:8$2$6 any loss of or damage to property or assets of any third party arising by
reason of any breach of any e(press provision of this Agreement by the
Authority or any Authority Party or any deliberate act or omission of the
Authority or any Authority Party2 save to the e(tent caused or contributed to!
by any act or omission of hubco or any hubco Party$
provided that in the case of 5lauses :8$2$: and :8$2$6 there shall be e(cluded from
the indemnity given by the Authority any liability)*
a! for the occurrence of ris,s against &hich and to the e(tent to &hich hubco is
obliged to insure under this Agreement but for the avoidance of doubt2 not such
liability to the e(tent &ithin any applicable e(cess or deductible or over the
ma(imum amount insured or to be insured under such insurance!I or
b! in respect of a matter &hich is a 5ompensation @vent$
6?
Cnd$"t 6 "(a,;)
:8$: This 5lause :8$: &Conduct of Claims' shall apply to the conduct2 by a party from
&hom an indemnity is sought under this Agreement2 of claims made by a third person
against a party having or claiming to have! the benefit of the indemnity$ The party
having2 or claiming to have2 the benefit of the indemnity is referred to as the
#Bene6,",ar-# and the party giving the indemnity is referred to as the #Inde;n,6,er#$
Accordingly)
:8$:$1 if the Beneficiary receives any notice2 demand2 letter or other document
concerning any claim for &hich it appears that the Beneficiary is2 or may
become2 entitled to indemnification under this Agreement2 the Beneficiary
shall give notice in &riting to the Andemnifier as soon as reasonably
practicable and in any event &ithin t&enty 2.! Business Days of receipt of
the sameI
:8$:$2 subject to 5lauses :8$:$:2 :8$:$6 and :8$:$9 belo&2 on the giving of a notice
by the Beneficiary pursuant to 5lause :8$:$1 above2 &here it appears that
the Beneficiary is or may be entitled to indemnification from the Andemnifier
in respect of all but not part only! of the liability arising out of the claim2 the
Andemnifier shall subject to providing the Beneficiary &ith an indemnity to its
reasonable satisfaction against all costs and e(penses that it may incur by
reason of such action! be entitled to dispute the claim in the name of the
Beneficiary at the AndemnifierGs o&n e(pense and ta,e conduct of any
defence2 dispute2 compromise2 or appeal of the claim and of any incidental
negotiations$ The Beneficiary shall give the Andemnifier all reasonable
co*operation2 access and assistance for the purposes of considering and
resisting such claimI
:8$:$: &ith respect to any claim conducted by the Andemnifier pursuant to
5lause :8$:$2 above)
a! the Andemnifier shall ,eep the Beneficiary fully informed and
consult &ith it about material elements of the conduct of the claimI
6"
The Authority indemnities relating to physical damage in 5lauses :8$2$: and 5lause :8$2$6 do not cover
physical damage caused by negligent acts or omissions$ hubco should insure against that ris,$ Authorities
should not act as insurers of last resort in those circumstances$
6?
A general indemnity has not been included in relation to Authority breach$ hubco has its e(press rights under the
agreement for e(ample2 Delay @vents! and its rights to sue for breach of contract in order to recover any
additional loss$
b! the Andemnifier shall not bring the name of the Beneficiary into
disreputeI and
c! the Andemnifier shall not pay or settle such claims &ithout the prior
consent of the Beneficiary2 such consent not to be unreasonably
&ithheld or delayedI
:8$:$6 the Beneficiary shall be free to pay or settle any claim on such terms as it
thin,s fit and &ithout prejudice to its rights and remedies under this
Agreement if)
a! the Andemnifier is not entitled to ta,e conduct of the claim in
accordance &ith 5lause :8$:$: aboveI or
b! the Andemnifier fails to notify the Beneficiary of its intention to ta,e
conduct of the relevant claim &ithin t&enty 2.! Business Days of
the notice from the Beneficiary under 5lause :8$:$: above or
notifies the Beneficiary that it does not intend to ta,e conduct of the
claimI or
c! the Andemnifier fails to comply in any material respect &ith the
provisions of 5lause :8$:$: aboveI
:8$:$9 the Beneficiary shall be free at any time to give notice to the Andemnifier that
it is retaining or ta,ing over as the case may be! the conduct of any
defence2 dispute2 compromise or appeal of any claim or of any incidental
negotiations! to &hich 5lause :8$:$: above applies$ <n receipt of such
notice the Andemnifier shall promptly ta,e all steps necessary to transfer the
conduct of such claim to the Beneficiary2 and shall provide to the Beneficiary
all reasonable co*operation2 access and assistance for the purposes of
considering and resisting such claim$ Af the Beneficiary gives any notice
pursuant to this 5lause :8$:$9 then the Andemnifier shall be released from
any liability under its indemnity under 5lause :8$1 &!ubco Indemnities to
Aut!orit' or 5lause :8$2 &Aut!orit Indemnities to !ubco' as the case may
be! and2 &ithout prejudice to any accrued liabilities2 any liability under its
indemnity given pursuant to 5lause :8$:$: in respect of such claimI
:8$:$8 if the Andemnifier pays to the Beneficiary an amount in respect of an
indemnity and the Beneficiary subse4uently recovers &hether by payment2
discount2 credit2 saving2 relief or other benefit or other&ise! a sum &hich is
directly referable to the fact2 matter2 event or circumstances giving rise to the
claim under the indemnity2 the Beneficiary shall forth&ith repay to the
Andemnifier &hichever is the lesser of)*
a! an amount e4ual to the sum recovered or the value of the saving
or benefit obtained! less any out*of*poc,et costs and e(penses
properly incurred by the Beneficiary in recovering the sameI and
b! the amount paid to the Beneficiary by the Andemnifier in respect of
the claim under the relevant indemnity2
:8$:$" provided that there shall be no obligation on the Beneficiary to pursue such
recovery and that the Andemnifier is repaid only to the e(tent that the amount
of such recovery aggregated &ith any sum recovered from the Andemnifier
e(ceeds any loss sustained by the Beneficiary including for this purpose
indirect or conse4uential losses or claims for loss of profits &hich are
e(cluded by this Agreement from being recovered from the Andemnifier!I and
:8$:$? any person ta,ing any of the steps contemplated by 5lauses :8$1 to :8$:$9
shall comply &ith the re4uirements of any insurer &ho may have an
obligation to provide an indemnity in respect of any liability arising under this
Agreement$
M,t,*at,n & ,nde;n,t- "(a,;)
:8$6 To avoid doubt the provisions of 5lause 66 Mitigation! apply to any indemnity given
under this Agreement and any such indemnity shall not apply to the e(tent that such
part or parts of Direct 3osses could have been reduced or avoided by the Beneficiary
complying &ith the provisions of such 5lause 66 Mitigation!$
:"$ :"TA0 ON INDEMNITY PAYMENTS
Af any payment by one party under an indemnity in this Agreement is subject to
corporation ta( or any ta( replacing it! in the hands of the recipient2 the recipient may
demand in &riting to the party ma,ing the payment that the payment shall be
increased by such amount as &ould ensure that2 after ta,ing into account any such ta(
payable in respect of such additional amount2 the recipient receives and retains a net
sum e4ual to the amount it &ould have other&ise received had the payment not been
subject to such ta($ The party ma,ing the payment shall pay such additional amount
&ithin ten 1.! Business Days of receipt of such demand$
:?$ :?+ARRANTIES
:?$1 JT< B@ 5<EP3@T@DK
6/
:/$ :/INSURANCE
#$b" In)$ran"e)
@G
:/$1 hubco shall2 at its o&n cost2 ta,e out the Ansurances2 details of &hich are set out in
Section 1 of Schedule Part 12 Insurance "e4uirements!2 prior to the commencement
of the ;or,s and maintain for the periods specified in Section 1 of Schedule Part
12 Insurance "e4uirements!$
:/$2 ;ithout prejudice to the other provisions of this 5lause :/ &Insurance' hubco shall2 at
all relevant times2 at its o&n cost2 effect and maintain in full force any insurances
&hich it is re4uired to effect by any applicable 3a&$
6/
Any &arranties to be given by the Authority must be justified on a project specific basis it is e(pected that
such circumstances &ill be limited for e(ample2 &here the Authority is the only source of the information and
hubco has no means of obtaining or verifying that information itself!$
9.
The insurance drafting assumes that insurance is placed on a project specific basis$ 1o&ever2 it is possible that
hubco may &ish to use a corporate>group policy to effect insurance$ ;hilst in principle such an approach may be
acceptable2 it &ill be important for the Authority2 in conjunction &ith its insurance advisers and S'T2 to revie& in
detail hubcoGs proposals and ensure that the level of protection afforded to the Authority is ade4uate and broadly
consistent &ith the protection available &here insurance is placed on a project specific basis$ An particular)
S The Authority should al&ays be named as a co*insured under the material damage policy
S Af the Authority is not named as a co*insured under the third party liability policy2 then the policy should
include an appropriately &orded Tindemnity to principalsL clause and a &aiver of subrogation to the benefit
of the Authority$
S This clause must re4uire hubco to provide immediate notification to the Authority of any cancellation or
material change in the terms and conditions of the policy$ This underta,ing should be reflected in the
bro,erLs letter of underta,ing$
S Af insurers are un&illing to pay insurance proceeds into the -oint Ansurance Account2 this clause should
specify that they are paid into the -oint Ansurance Account upon receipt by hubco2 &ith the proceeds held
on trust for the benefit of the Authority prior to transfer$
S ;here a corporate policy is used revisions to the bro,erGs letter of underta,ing in @rror) 7eference source
not found of Schedule Part 12 may be re4uired$ At &ill be important for the AuthorityLs legal and
insurance advisers to consider the acceptability of the proposed changes and to ,eep any changes to a
minimum$
S The indemnities may also need to be amended$
:/$: All Ansurances referred to in 5lause :/$1shall)*
:/$:$1 be maintained in the names of the parties specified in Schedule Part 12
Insurance "e4uirements! and shall be composite policies of insurance and
not joint! unless stated other&ise in Schedule Part 12 Insurance
"e4uirements!!I
:/$:$2 be placed &ith insurers &ho are acceptable to the Authority such
acceptance not to be unreasonably &ithheld or delayed!I
:/$:$: in so far as they relate to damage to assets including the 'acilities!2 cover
the same for the full reinstatement valueI
:/$:$6 comply &ith the relevant provisions of Section 1 of Schedule Part 12
Insurance "e4uirements!I and
:/$:$9 provide for :. days prior &ritten notice of their cancellation2 non+rene&al or
amendment to be given to the Authority in accordance &ith @ndorsement 1
in Section : of Schedule Part 12 &Insurance "e4uirements'$
:/$6 hubco shall ensure that its bro,ers give the Authority a letter of underta,ing in the form
set out in Section 6 &Bro-er3s Letter of ?nderta-ing' of Schedule Part 12 &Insurance
"e4uirements' at 'inancial 5lose$
S$br*at,n and V,t,at,n
:/$9 hubco shall)*
:/$9$1 Jprocure that all policies of insurance to be effected by it pursuant to this
5lause shall contain a provision to the effect that the insurers have agreed to
&aive all rights of subrogation against the Authority and all Authority Parties!
in accordance &ith @ndorsement 2 in Section : &Endorsements' of Schedule
Part 12 &Insurance "e4uirements'
91
KI and
:/$9$2 Jprovide for non*vitiation protection in respect of any claim made by the
Authority as co*insured in accordance &ith @ndorsement J2K in Section :
&Endorsements' of Schedule Part 12 &Insurance "e4uirements'IK
92
provided that2 to avoid doubt2 this 5lause :/$9 shall not by itself prevent hubco from
claiming against the Authority or any Authority Party! under an e(press provision of
this Agreement for any loss or damage not covered because of the level of deductibles
under such insurance permitted by this Agreement or to the e(tent such loss or
damage e(ceeds the ma(imum of such insurance re4uired by this Agreement$
:/$8 0either party shall ta,e any action or fail to ta,e any reasonable action or in so far as
it is reasonably &ithin its po&er! permit or allo& others to ta,e or fail to ta,e any action
including failure to disclose any fact! as a result of &hich any of the Ansurances may
be rendered void2 voidable2 unenforceable or suspended or impaired in &hole or in
part or &hich may other&ise render any sum paid out under any relevant policy
repayable in &hole or in part$
91
Af insurers are un&illing to &aive subrogation rights against unnamed Authority Parties2 Authority to
consider including specified named Authority Parties especially sub*contractors!$ Authorities should2 ho&ever2
resist a suggestion that :
rd
parties should automatically be carved out from this clause$
92
This clause may not be amended but an obligation may be put in Schedule Part 12 as follo&s)*
The Ansurers hereby &aive all rights of subrogation ho&ever arising &hich they may have or ac4uire against the
Authority2 Authority Parties and its or their respective parents2 affiliates2 directors2 officers employees and assigns
arising out of any occurrence in respect of &hich any claim is admitted under this Policy e(cept &here the rights
of subrogation or recourse are ac4uired in conse4uence of a Citiating Act in &hich circumstance insurers may
enforce such rights against the vitiating party not&ithstanding the continuing or former status of the vitiating party
as an Ansured$
E2,den"e 6 #$b" In)$ran"e
:/$" 0ot less than thirty :.! Business Days prior to the amendment or e(piry of any
relevant insurance policy2 hubco shall submit to the Authority a re4uest for approval
from the Authority of the insurer and the principal terms and conditions of such
insurance policy and any revision to such terms and conditions or change in identity
of such insurer!2 such approval not to be unreasonably &ithheld or delayed$
:/$? hubco shall provide to the Authority)*
:/$?$1 copies on re4uest of all insurance policies referred to in 5lauses :/$1 to :/$:
together &ith any other information reasonably re4uested by the Authority
relating to such insurance policies! and the Authority shall be entitled to
inspect them during ordinary business hoursI and
:/$?$2 evidence that the premiums payable under all insurance policies have been
paid and that the Ansurances are in full force and effect in accordance &ith
the re4uirements of this 5lause :/ &Insurance' and Schedule Part 12
&Insurance "e4uirements'6
:/$/ 7ene&al certificates in relation to the Ansurances shall be obtained as and &hen
necessary and copies certified in a manner acceptable to the Authority! shall be
for&arded to the Authority as soon as possible but in any event &ithin 2. Business
Days of the rene&al date$
:/$1. Af hubco defaults in insuring or continuing to maintain the Ansurances2 the Authority
may insure against any ris, in respect of &hich such default has occurred and recover
any premiums from hubco as a debt$
A""e4tan"e and ";4(,an"e
:/$11 The supply to the Authority of any draft insurance policy or certificate of insurance or
other evidence of compliance &ith this 5lause :/ shall not imply acceptance by the
Authority or the AuthorityGs 7epresentative! that the e(tent of insurance cover is
sufficient and its terms are satisfactory$
:/$12 0either failure to comply nor full compliance &ith the insurance provisions of this
Agreement shall relieve hubco of its liabilities and obligations under this Agreement$
R,)5 Mana*e;ent
:/$1: ;ith effect from the date of this Agreement2 the Authority and hubco shall each
designate or appoint an insurance and ris, manager and notify details of the same to
the other party$ Such person shall)*
:/$1:$1 be responsible for dealing &ith all ris, management matters on behalf of its
appointing or designating party including &ithout limitation! ensuring
compliance by that party &ith this 5lause :/$1:$1I
:/$1:$2 advise and report to that party on such mattersI and
:/$1:$: ensure that any report or survey conducted by any insurer of any relevant
procedures in relation to the Project is disclosed to the parties$
:/$16 ;ithout prejudice to the provisions of 5lause :/$1:2 the parties shall notify one
another2 and in hubcoGs case the relevant insurer2 of any circumstances &hich may
give rise to a claim of a value e4ual to or in e(cess of J K pounds RJ K!
inde(*lin,ed! under the Ansurances &ithin J K Business Days of becoming a&are
of the same or earlier2 if so re4uested by the terms of the relevant insurance policy!$
Af any insurer disputes any such claim2 hubco shall provide the Authority &ith full
details of any disputed claim and the parties shall liaise &ith one another to ensure
that the relevant claim is preserved or pursued$
A44(,"at,n 6 Pr"eed)
:/$19 All insurance proceeds received by hubco under the Ansurances referred to
in Schedule Part 1 &Definitions and Interpretation' and J K of Section

1
9:
of
Schedule Part 12 Insurance "e4uirements! shall be paid into the Ansurance Proceeds
Account and shall be applied in accordance &ith this Agreement and in accordance
&ith the Ansurance Proceeds Accounts Agreement$
:/$18 hubco shall apply any proceeds of any policies of Ansurance)*
:/$18$1 in the case of third party legal liability or employersG liability insurance2 in
satisfaction of the claim2 demand2 proceeding or liability in respect of &hich
such proceeds are payableI and
:/$18$2 in the case of any other insurance2 so as to ensure the performance by
hubco of its obligations under this Agreement2 including &here necessary the
reinstatement2 restoration or replacement of the facilities2 assets2 materials
or goods affected by the event giving rise to the insurance claim and
conse4uent payment of proceeds$
:/$1" ;here reinstatement monies are re4uired to be released from the Ansurance Proceeds
Account hubco shall obtain the AuthorityGs consent in accordance &ith the Ansurance
Proceeds Account Agreement$ The Authority shall give its consent or confirm that it is
&ithholding its consent! to the release of monies from the Ansurance Proceeds
Account &ithin one 1! Business Day of a re4uest from hubco provided that such
consent must not be unreasonably &ithheld!$
:/$1? Af the proceeds of any insurance claim are insufficient to cover the settlement of such
claims2 hubco &ill ma,e good any deficiency forth&ith$
Re,n)tate;ent
:/$1/ J;ithout prejudice to 5lause :8 Indemnities! hubco shall be responsible for repairing2
rectifying and>or reinstating all damage caused to the 'acilities by hubco or a hubco
Party in the conduct of the Project <perations after the Actual 5ompletion Date$K
96
:/$2. ;here a claim is made or proceeds of insurance are received or are receivable under
any Physical Damage Policy in respect of a single event or a series of related events!
the #Re(e2ant In",dent#! in an amount in e(cess of RJ K Jinde(edK!)
:/$2.$1 hubco shall deliver to the Authority as soon as practicable and in any event
&ithin 2. Business Days after the ma,ing of the claim! a plan prepared by
hubco for the carrying out of the &or,s necessary the #Re,n)tate;ent
+r5)#! to repair2 reinstate or replace the #Re,n)tate;ent O$t(,ne#! the
relevant ;or,s &hich is or are the subject of the relevant claim or claims in
accordance &ith 5lause :/$21 )or-s carried out!$ The 7einstatement
<utline shall set out)
a! the identity of the person proposed to effect the 7einstatement
;or,s2 &hich if not hubco or a hubco Party! shall be subject to the
prior &ritten approval of the AuthorityI and
b! the proposed terms and timetable or2 if not then established2 the
reasonably anticipated terms and timetable upon &hich the
9:
To refer to only such Ansurances2 the proceeds of &hich are to be paid into the Ansurance Proceeds Account$
96
Authorities to consider on a project specific basis$ Authorities may prefer to rely on the indemnity 5lause :8$
7einstatement ;or,s are to be effected including the date by
&hich the 7einstatement ;or,s &ill be completed!2 the final terms
of &hich shall be subject to the prior &ritten approval of the
Authority such approval not to be unreasonably &ithheld or
delayed!I
:/$2.$2 the Authority shall &ithin 1. Business Days of receipt of the 7einstatement
<utline notify hubco in &riting that)
a! it is satisfied that the 7einstatement <utline &ill enable hubco to
comply &ith its obligations to carry out the 7einstatement ;or,s
&ithin a reasonable timetable2 and if not hubco or a hubco Party!
that the identity of any person set out in the 7einstatement
<utline! that may be appointed to effect the 7einstatement ;or,s
is approvedI
b! the identity of any person set out in the 7einstatement <utline!
that may be appointed to effect the 7einstatement ;or,s if not
hubco or a hubco Party! is not approved together &ith its reasons
for such non*approval in sufficient detail to enable hubco to
understand the nature and e(tent of such non*approval and to
assess &hether the AuthorityLs approval under 5lause :/$2.$1b!
has been unreasonably &ithheldI
c! it does not approve the 7einstatement <utline together &ith its
reasons for such non*approval2 in sufficient detail so as to enable
hubco to understand the nature and e(tent of such non*approval
and to assess &hether the AuthorityLs approval under
5lause :/$2.$1b! has been unreasonably &ithheldI or
d! if the Authority does not ma,e one of the above responses &ithin
the period specified in 5lause :/$2.$22 it shall be deemed to have
approved the 7einstatement <utline2 save &here the Authority has
reasonably re4uested any further information from hubco2 in &hich
case the time limit outlined in 5lause :/$2.$2 &ill be deemed to
commence upon receipt of such information by the Authority$
:/$2.$: Af the Authority gives notice of non*approval in accordance &ith
5lauses :/$2.$2b! or :/$2.$2c!2 hubco may amend and re*submit the
7einstatement <utline the #A;ended Re,n)tate;ent O$t(,ne#! to the
Authority for its reconsideration and the Authority shall give its approval or
non*approval &ithin 9 Business Days of the submission of the Amended
7einstatement <utline to the Authority$ Af the Authority does not approve the
Amended 7einstatement <utline2 it shall provide reasons for such non*
approval in sufficient detail so as to enable hubco to understand the nature
and e(tent of such non*approval and to assess &hether the AuthorityLs
approval has been unreasonably &ithheld$
:/$2.$6 Af the Amended 7einstatement <utline or a person proposed to carry out the
7einstatement ;or,s is not approved by the Authority in accordance &ith
5lause :/$2.$:2 hubco may submit the Amended 7einstatement <utline to
the Dispute 7esolution Procedure in order for it to be determined &hether
the AuthorityLs approval under 5lause :/$2.$: &as unreasonably &ithheld$
:/$2.$9 The 7einstatement <utline or the Amended 7einstatement <utline as the
case may be! as approved by the Authority pursuant to this 5lause :/$2. or
as determined pursuant to the Dispute 7esolution Procedure shall become
the 7einstatement Plan$
:/$2.$8 hubco shall effect the 7einstatement ;or,s in accordance &ith the
7einstatement Plan2 and)
a! hubco shall enter into contractual arrangements to effect the
7einstatement ;or,s &ith the persons! identified in the
7einstatement PlanI
b! the insurance proceeds received under any Physical Damage
Policy in respect of the 7elevant Ancident together &ith any
interest accrued! may be applied by hubco as re4uired to enable it
to ma,e payments in accordance &ith the terms of the contractual
arrangements entered into to effect the 7einstatement ;or,s and
to meet any other reasonable costs and e(penses of hubco for the
sole purposes of financing the 7einstatement ;or,sI
c! the Authority agrees and underta,es that2 subject to compliance by
hubco &ith its obligations under this 5lause :/$2.2 and provided
that hubco procures that the 7einstatement ;or,s are carried out
and completed in accordance &ith this 5lause :/$2.2 the Authority
shall not e(ercise any right &hich it might other&ise have to
terminate this Agreement by virtue of the event &hich gave rise to
the claim under the Physical Damages PolicyI
d! the Authority underta,es to use all reasonable endeavours to assist
hubco in the carrying out of the 7einstatement PlanI and
e! subject to 5lause :8 Indemnities!2 hubco shall be solely
responsible for the payment of any deficiency bet&een the
insurance proceeds and the cost of carrying out the 7einstatement
;or,s$
+r5) "arr,ed $t
:/$21 ;here insurance proceeds are to be used in accordance &ith this Agreement to
repair2 reinstate or replace the &hole or any part of the ;or,s or 'acility2 hubco shall
carry out the &or, in accordance &ith the AuthorityLs 5onstruction 7e4uirements so
that on completion of the &or, the provisions of this Agreement are complied &ith$
Cntra"tr7) In)$ran"e
:/$22 hubco shall procure that the 5ontractor at its o&n cost ta,es out2 or procures the
ta,ing out of2 professional indemnity insurance &ith reputable insurers carrying on
business in the @uropean %nion &ith a limit of indemnity of not less than RJ K2...2...
J K million pounds! Jon an each and every claim basisKJin the annual aggregateK &ith
at least one annual reinstatement2 in relation to the ;or,s2 provided al&ays that)
:/$22$1 such insurance shall be in place from the commencement of the ;or,s until
no less than 12 years after the Actual 5ompletion Date or2 if earlier2 after the
date of termination of the 5onstruction 5ontractI
:/$22$2 the insurance premiums in respect of the insurance shall2 as bet&een the
Authority and hubco at all times be the responsibility of hubcoI
:/$22$: if such insurance is not available to the 5ontractor and>or design and build
contractors engaged in projects of a similar scope2 siMe2 nature and
comple(ity as the 5ontractor! at commercially reasonable rates and terms
e(cluding any increase in premiums attributable to the actions2 omissions2
errors or defaults of the 5ontractor!2 the 5ontractor2 hubco and the Authority
&ill meet and the 5ontractor &ill outline the steps it intends to ta,e to
manage such ris,s$ Af the steps proposed by the 5ontractor are not
acceptable to the Authority acting reasonably!2 the 5ontractor2 hubco and
the Authority shall agree an alternative method of managing such ris,$
:/$2: hubco &ill procure that the 5ontractor &ill2 upon re4uest2 provide the Authority &ith
reasonable evidence that the policy referred to in 5lause :/$22 is in full force and
effect in accordance &ith the re4uirements of 5lause :/$22$
6.$ 6.E0CLUSIONS AND LIMITATIONS ON LIABILITY
E9"($),n)
6.$1 The indemnities under this Agreement shall not apply and there shall be no right to
claim damages for breach of this Agreement2 in delict or on any other basis
&hatsoever to the e(tent that any loss claimed by either party is for loss of profits2 loss
of use2 loss of production2 loss of business or loss of business opportunity or is a claim
for conse4uential loss or for indirect loss of any nature #Ind,re"t L))e)#! suffered or
allegedly suffered by either party$ The Authority agrees that2 not&ithstanding the
foregoing2 any losses of hubco arising under the 5onstruction 5ontract as originally
e(ecuted or as amended in accordance &ith and subject to 5lause 6$1 Project
Documents!! &hich are not Andirect 3osses shall not be e(cluded from such a claim
solely by reason of this 5lause$
99
6.$2 The Authority shall not be liable in delict to hubco or any hubco Party in respect of any
negligent act or omission of the Authority or any Authority Party relating to or in
connection &ith this Agreement and hubco shall procure that no hubco Party shall
bring such a claim against the Authority$ hubco has accepted this on the basis that it
and each hubco Party &ill cover the ris, of negligent acts or omissions by insurance or
in such other manner as it or they! may thin, fit$
6.$: 0othing in 5lause 6.$1 shall e(clude any right of the Authority to see, damages from
hubco for breach of contract in respect of any losses it incurs as a direct result of the
loss of use of all or any part of the 'acilities arising out of any Defect$
N D$b(e Re"2er-
6.$6 0ot&ithstanding any other provision of this Agreement2 neither party shall be entitled
to recover compensation or ma,e a claim under this Agreement or any other
agreement in relation to the Project in respect of any loss that it has incurred or any
failure of the other party! to the e(tent that it has already been compensated in respect
of that loss or failure pursuant to this Agreement or other&ise$
6.$9 Subject to 5lause :1 Aut!orit Events of Default! and any other e(press right of
hubco pursuant to this Agreement2 hubcoGs sole remedy in respect of any breach of
this Agreement &hich is a 5ompensation @vent shall be pursuant to 5lause 22 Dela
Events!$
6.$8 0either party shall have the right to terminate this Agreement for breach of contract
save as e(pressly set out in this Agreement$
L,;,tat,n n L,ab,(,t-
6.$" JSubject to 5lause 6.$?2 but not&ithstanding any other provision of this Agreement the
ma(imum aggregate liability of hubco to the Authority pursuant to and arising out of
this Agreement shall not e(ceed the 3iability 5ap$K
98
6.$? JThe limitation of hubcoGs liability under 5lause 6.$" shall not apply to)
99
As a matter of good practice2 Authorities should revie& the relevant subcontracts to ensure that they
contain mirror provisions e(cluding the right to claim Andirect 3osses$
98
At is for Authorities to consider &hether inclusion of a liability cap and the level of such cap &here included!
represents value for money to the Authority or is other&ise acceptable$
6.$?$1 any liability in relation to death or personal injuryI or
6.$?$2 any liability &here such is caused or contributed to by)
a! the &ilful default of hubco and>or any hubco Party or abandonment
by hubco and>or any hubco PartyI
b! fraud of hubco and>or any hubco PartyI
6.$?$: any liability2 &here and to the e(tent that hubco ma,es recovery from any
other third party or from insurances maintained by either party pursuant to
5lause :/ Insurance! in respect of such liability or &here hubco &ould have
made recovery)
a! had the relevant third party or insurer met its obligations under the
relevant agreement or policyI or
b! had hubco complied &ith its obligations under this Agreement
and>or the terms of any applicable insurance policyI or
c! had hubco diligently pursued such recoveryI or
d! had hubco or a hubco 7elated Party2 through its acts or omissions2
not caused the relevant insurance policy to become void2 voidable2
unenforceable2 suspended or impaired2
and e(cluding in each case any non*recovery to the e(tent such non*
recovery has occurred as a direct result of the act2 omission2 breach or
negligence of the Authority to the e(tent such breach or negligence &as not
caused by the act or omission of hubco or a hubco Party!I
6.$?$6 any liability of hubco arising under paragraph 8$: of Schedule Part 19
Dispute "esolution Procedure! or in respect of any indemnity arising out of
breach of 3a& by hubco or a hubco Party
9"
$K
6.$/ hubcoGs liability under this Agreement shall
6.$/$1 end on the date falling t&elve 12! years after the Actual 5ompletion DateI or
6.$/$2 if2 earlier2 end on the date falling t&elve 12! years after the Termination
Date2
save2 in each case2 in respect of claims &hich have been made prior to such date and
in respect of &hich actions or proceedings have been commenced &ithin si( months
of such date$
9"
Authorities may consider e(panding the list of e(clusions$
PART 11. MISCELLANEOUS
61$ 61INTELLECTUAL PROPERTY
Pr!e"t Data
61$1 hubco shall ma,e available to the Authority free of charge and hereby irrevocably
licences the Authority to use! all Project Data that might reasonably be re4uired by the
Authority and hubco shall ensure that it obtains all necessary licences2 permissions
and consents to ensure that it can ma,e the Project Data available to the Authority on
these terms2 for such purposes as the Authority at its sole discretion may re4uire2 and
in this 5lause #use# shall include the acts of copying2 modifying2 adapting and
translating the material in 4uestion and>or incorporating them &ith other materials and
the term #the right to use# shall be construed accordingly$ 0either hubco nor any
hubco Party shall be liable to the Authority in respect of use by or on behalf of the
Authority of the Project Data other than in relation to the Project$
Inte((e"t$a( Pr4ert- R,*#t)
61$2 hubco)*
61$2$1 hereby grants to the Authority2 free of charge2 an irrevocable2 non*e(clusive
and transferable but only to any assignee or transferee of any rights or
benefits under this Agreement or upon or at any time follo&ing termination of
this Agreement! licence carrying the right to grant sub*licences! to use the
Antellectual Property 7ights &hich are or become vested in hubcoI and
61$2$2 shall2 &here any Antellectual Property 7ights are or become vested in a third
party2 use all reasonable endeavours to procure the grant of a li,e licence to
that referred to in 5lause 61$2$1 above to the Authority2
in both cases2 for such purposes as the Authority may at its sole discretion re4uire$
hubco shall use all reasonable endeavours to ensure that any Antellectual Property
7ights created2 brought into e(istence or ac4uired during the term of this Agreement
vest2 and remain vested throughout the term of this Agreement2 in hubco and hubco
shall enter into appropriate agreements &ith any hubco Party or other third parties!
that may create or bring into e(istence2 or from &hich it may ac4uire2 any Antellectual
Property 7ights$
Ma,ntenan"e 6 data
@D
61$: To the e(tent that any of the data2 materials and documents referred to in this 5lause
are generated by or maintained on a computer or similar system2 hubco shall use all
reasonable endeavours to procure for the benefit of the Authority2 at no charge or at
the lo&est reasonable fee2 the grant of a licence or sub*licence for any relevant
soft&are to enable the Authority or its nominee to access and other&ise use subject
to the payment by the Authority of the relevant fee2 if any! such data for such purposes
as the Authority may at its sole discretion re4uire$ As an alternative2 hubco may
provide such data2 materials or documents in a format &hich may be read by soft&are
generally available in the mar,et at the relevant time or in hard copy format$
61$6 hubco shall ensure the bac,*up and storage in safe custody of the data2 materials and
documents referred to in 5lause 61$: in accordance &ith =ood Andustry Practice$
;ithout prejudice to this obligation2 hubco shall submit to the AuthorityGs
7epresentative for approval its proposals for the bac,*up and storage in safe custody
9?
Af either party is to be given access to any of the other partyGs computer systems2 as a matter of good
practice and also to clarify potential liability for unauthorised access to those systems under the 5omputer Eisuse
Act 1//.2 the scope of each partyGs authorisation to access each otherGs computer systems &ill need to be
defined clearly$ The terms of such authorisation &ill be project specific$
of such data2 materials and documents and the Authority shall be entitled to object if
the same is not in accordance &ith =ood Andustry Practice$ hubco shall comply2 and
shall cause all hubco Parties to comply2 &ith all procedures to &hich the AuthorityGs
7epresentative has given its approval$ hubco may vary its procedures for such
bac,*up and storage subject to submitting its proposals for change to the AuthorityGs
7epresentative2 &ho shall be entitled to object on the basis set out above$
C(a,;)
61$9 ;here a claim or proceeding is made or brought against the Authority &hich arises out
of the infringement of any rights in or to any Antellectual Property other than any
Disclosed Data! or because the use of any materials2 Plant2 machinery or @4uipment
in connection &ith the ;or,s infringes any rights in or to any Antellectual Property of a
third party then2 unless such infringement has arisen out of the use of any Antellectual
Property by or on behalf of the Authority other&ise than in accordance &ith the terms
of this Agreement Jor in respect of a use of the Antellectual Property for a purpose
other than that for &hich it &as producedK
9/
2 hubco shall indemnify the Authority at all
times from and against all such claims and proceedings and the provisions of
5lause :8$: Conduct of Claims! shall apply$
62$ 62DISPUTE RESOLUTION PROCEDURE
62$1 @(cept &here e(pressly provided other&ise in this Agreement2 any dispute arising out
of or in connection &ith this Agreement shall be resolved in accordance &ith the
procedure set out in Schedule Part 19 Dispute "esolution Procedure!$
6:$ 6:ASSIGNATION AND SUBCONTRACTING
A)),*nat,n
6:$1 This Agreement and any other agreement in connection &ith the Project to &hich both
the Authority and hubco are a party shall be binding on2 and shall enure to the benefit
of2 hubco and the Authority and their respective statutory successors and permitted
transferees and assignees$ JAn the case of the Authority2 its successors shall include
any person to &hom the Scottish Einisters2 in e(ercising their statutory po&ers to
transfer property2 rights and liabilities of the Authority upon the Authority ceasing to
e(ist2 transfers the property2 rights and obligations of the Authority under this
Agreement2 and such other agreements in connection &ith the Project to &hich the
Authority and hubco are both a partyK
8.
$
6:$2 hubco shall not2 &ithout the prior &ritten consent of the Authority2 assign2 transfer2 sub*
contract or other&ise dispose of any interest in this Agreement2 the 5onstruction
5ontract2 and Jany other contractK entered into by hubco for the purposes of
performing its obligations under this Agreement$
6:$: The Authority shall be entitled to assign2 transfer or dispose of the &hole of this
Agreement and>or of any agreement entered into in connection &ith this Agreement to
&hich the Authority and hubco are both party)
6:$:$1 Jto the Scottish Einisters2 another 1ealth Authority or any other person or
body replacing any of the foregoing or to &hom the Scottish Einisters
e(ercising his statutory rights &ould be entitled to transfer such benefits!
covered by the 0ational 1ealth Service 7esidual 3iabilities! Act 1//8I orK
81
6:$:$2 to any other Participant &hich has sufficient financial standing or financial
resources to perform the obligations of the Authority under this Agreement
9/
Authorities to consider on a project by project basis$
8.
;here the Authority is a health board$
81
;here the Authority is a health board$ Appropriate &ording to be used &here the Authority is a local authority or
other Participant$
and any other agreements to &hich such assignation2 transfer or disposal
relates2
&ithout the consent of hubco$ The prior &ritten consent of hubco not to be
unreasonably &ithheld or delayed! shall be re4uired for any other assignation2 transfer
or disposal by the Authority of the &hole or any part of this Agreement or of any
agreement entered into in connection &ith this Agreement to &hich the Authority and
hubco are both party2 Jprovided that nothing in this 5lause shall restrict the rights of
the Scottish Einisters to effect a statutory transferK
82
$
S$b*"ntra"tr)
6:$6 hubco shall)*
6:$6$1 &ithout prejudice to 5lause 6:$1 Assignation!2 procure that none of the
persons listed belo& shall sub*contract all or substantially all! of their
obligations under or in the agreement set out ne(t to its name)*
Per)n Cntra"t
5ontractor 5onstruction 5ontract
&ithout2 in each case2 the prior &ritten consent of the Authority such consent not to be
unreasonably &ithheld or delayed!$ To avoid doubt2 i! any failure to comply &ith
5lause 6:$8 shall be a reasonable ground for &ithholding consent and ii! consent
shall2 &ithout prejudice to the other provisions of 5lause 6:$62 not be re4uired in
respect of the appointment of any party currently approved by the Authority as a
suitable replacement$
6:$9 Af the contract set out ne(t to the name of any person referred to in 5lause 6:$6 shall
at any time lapse2 terminate or other&ise cease to be in full force and effect &hether
by reason of e(piry or other&ise!2 &ith the effect that such person shall cease to act in
relation to the Project2 hubco shall forth&ith appoint a replacement subject to
compliance &ith 5lause 6:$6 $ub%contractors!!$
6:$8 hubco shall procure that any replacement for any person referred to in 5lause 6:$6
shall enter into a contract upon the same or substantially similar terms as the person
so replaced and shall also enter into a collateral agreement on the same or
substantially the same terms as the 5ollateral Agreement entered into by the person
so replaced$
6:$" ;here hubco enters into a contract &ith a sub*contractor for the purposes of carrying
out the Project <perations or any part of the Project <perations under this Agreement2
hubco shall cause a term to be included in such contract)
6:$"$1 &hich re4uires payment to be made to the sub*contractor &ithin a specified
period not e(ceeding :. days from receipt of a valid invoice as defined by
the contract re4uirements and provides that2 for the purpose of payment
alone2 &here the Authority has made payment to hubco and the sub*
contractorGs invoice includes Project <perations in relation to &hich payment
has been made by the Authority then2 to the e(tent that it relates to such
Project <perations2 the invoice shall be treated as valid and payment shall
be made to the subcontractor &ithout deduction but &ithout prejudice to any
right to deduct or set off validly arising under the terms of the contract &ith
the sub*contractor!I and
82
;here the Authority is a health board$ Appropriate &ording to be used &here the Authority is a local authority or
other Participant$
6:$"$2 &hich notifies the sub*contractor that the contract forms part of a larger
contract for the benefit of the Authority and that should the sub*contractor
have any difficulty in securing the timely payment of an invoice that matter
may be referred by the subcontractor to the AuthorityGs 7epresentativeI and
6:$"$: in the same terms as this 5lause 6:$" including for the avoidance of doubt
this 5lause 6:$"$:! subject only to modification to refer to the correct
designation of the e4uivalent party as the supplier and recipient of the
relevant Project <perations as the case may be$
66$ 66MITIGATION
66$1 @ach of the Authority and hubco shall at all times ta,e all reasonable steps to minimise
and mitigate any loss for &hich the relevant party is entitled to bring a claim against
the other party pursuant to this Agreement$
69$ 69DATA PROTECTION
Data Prte"t,n
A1
69$1 'or the purpose of the follo&ing 5lauses2 the term #personal data# shall have the
meaning given to it in the Data Protection Act 1//?$
69$2 hubco underta,es to the Authority that it shall comply &ith the obligations of a #data
controller# under the provisions of the Seventh Data Protection Principle as set out in
Schedule 1 of the Data Protection Act 1//?$ An addition2 hubco)*
69$2$1 &arrants that it has2 or &ill have at all material times2 and it shall use best
endeavours to procure that all Sub*5ontractors and their agents and
sub*contractors of any tier! have or &ill have at all material times! the
appropriate technical and organisational measures in place against
unauthorised or unla&ful processing of personal data and against accidental
loss or destruction of2 or damage to2 personal data held or processed by it
and that it has ta,en2 or &ill ta,e at all material times2 all reasonable steps to
ensure the reliability of any of its staff &hich &ill have access to personal
data processed as part of the ;or,sI
69$2$2 underta,es that it &ill act only on the instructions of the Authority in relation
to the processing of any personal data made available by or on behalf of the
Authority as part of the ;or,sI
69$2$: underta,es that it &ill only obtain2 hold2 process2 use2 store and disclose
personal data as is necessary to perform its obligations under this
Agreement and &ithout prejudice to 5lause 9$2(eneral standards!! that
such data &ill be held2 processed2 used2 stored and disclosed only in
accordance &ith the Data Protection Act 1//? and any other applicable 3a&I
and
69$2$6 underta,es to allo& the Authority access to any relevant premises on
reasonable notice to inspect its procedures described at 69$2$1above$
68$ 68CON/IDENTIALITY
68$1 The Authority shall2 subject to 5lause 68$2 be entitled to ma,e the documents and
information listed in this 5lause 68$1 freely available to the public &hich may include2
&ithout limitation2 publication on the AuthorityLs &ebsite!)
8:
Authorities should revie& the scope of this provision in the light of project specific data processing
re4uirements$
68$1$1 this AgreementI
68$1$2 the 5ollateral AgreementsI and
68$1$: J K2
and hubco ac,no&ledges and agrees that2 subject to the e(clusion of information
referred to in 5lause 68$2$22 the provision or publication of the documents listed in the
5lause 68$1 shall not give rise to any liability under the terms of this Agreement or
other&ise$ The Authority shall notify hubco in &riting not less than ten 1.! Business
Days prior to any intended provision or publication of information pursuant to this
5lause 68$1
68$2
68$2$1 The parties agree that the provisions of this Agreement and each Project
Document shall2 subject to 5lause 68$2$2 belo&2 not be treated as
5onfidential Anformation and may be disclosed &ithout restriction and hubco
ac,no&ledges that the Authority shall2 subject to 5lause 68$2$2 belo&2 be
entitled to ma,e this Agreement and each Project Document available in the
public domain$
68$2$2 5lause 68$2$1 above shall not apply to provisions of this Agreement or a
Project Document designated as 5ommercially Sensitive Anformation and
listed in Schedule Part 1" Commerciall $ensitive Information!K to this
Agreement &hich shall2 subject to 5lause 6?$22 be ,ept confidential for the
periods specified in that Part$
68$2$: The parties shall ,eep confidential all 5onfidential Anformation received by
one party from the other party relating to this Agreement and Project
Documents or the Project and shall use all reasonable endeavours to
prevent their employees and agents from ma,ing any disclosure to any
person of any such 5onfidential Anformation$
Per;,tted D,)"()$re
68$: 5lauses 68$2$2 and 68$2$: shall not apply to)*
86
68$:$1 any disclosure of information that is reasonably re4uired by any person
engaged in the performance of their obligations under this Agreement for the
performance of those obligationsI
68$:$2 any matter &hich a party can demonstrate is already or becomes generally
available and in the public domain other&ise than as a result of a breach of
this 5lauseI
68$:$: any disclosure to enable a determination to be made under Schedule Part
19 Dispute "esolution Procedure! or in connection &ith a dispute bet&een
hubco and any of its sub*contractorsI
68$:$6 any disclosure &hich is re4uired pursuant to any 3a& or Parliamentary
obligation placed upon the party ma,ing the disclosure or the rules of any
stoc, e(change or governmental or regulatory authority having the force of
3a& or2 if not having the force of 3a&2 compliance &ith &hich is in
86
Authorities should ,eep this e(emption strictly limited and should be mindful of '<AS!A and <=5 guidance &hen
agreeing &hat parts of the documents should be treated as 5ommercially Sensitive Anformation$ Proper due
diligence is re4uired here in order to avoid the Authority being in a position &here it is re4uired to disclose
information under '<AS!A &hich has been designated as 5ommercially Sensitive$
accordance &ith the general practice of persons subject to the stoc,
e(change or governmental or regulatory authority concernedI
68$:$9 any disclosure of information &hich is already la&fully in the possession of
the receiving party2 prior to its disclosure by the disclosing partyI
68$:$8 any provision of information to the partiesL o&n professional advisers or
insurance advisers or2 &here it is proposed that a person should or may
provide funds &hether directly or indirectly and &hether by loan2 e4uity
participation or other&ise! to hubco to enable it to carry out its obligations
under this Agreement2 or may &ish to ac4uire shares in hubco in accordance
&ith the provisions of this Agreement to that person or their respective
professional advisers but only to the e(tent reasonably necessary to enable
a decision to be ta,en on the proposalI
68$:$" any disclosure by the Authority of information relating to the design2
construction2 operation and maintenance of the Project and such other
information as may be reasonably re4uired for the purpose of conducting a
due diligence e(ercise2 to any proposed ne& contractor2 its advisers and
lenders2 should the Authority decide to retender this AgreementI
68$:$? any registration or recording of the 5onsents and property registration
re4uiredI
68$:$/ any disclosure of information by the Authority to any other department2 office
or agency of the =overnment or their respective advisers or to the Scottish
'utures Trust or to any person engaged in providing services to the Authority
for any purpose related to or ancillary to this AgreementI
68$:$1. any disclosure for the purpose of)*
a! the e(amination and certification of the AuthorityGs or hubcoGs
accountsI
b! any e(amination pursuant to Section 81! of the 0ational Audit Act
1/?: of the economy2 efficiency and effectiveness &ith &hich the
Authority has used its resourcesI
c! complying &ith a proper re4uest from either partyLs insurance
adviser2 or insurer on placing or rene&ing any insurance policiesI
or
d! &ithout prejudice to the generality of 5lause 68$:$6 above!
compliance &ith the '<AS!A and>or the @nvironmental Anformation
Scotland! 7egulationsI
68$:$11 disclosure pursuant to 5lause 68$11 Department of @ealt! Disclosure!
89
I or
68$:$12 disclosure to the e(tent re4uired pursuant to 5lause 6? Information and
Audit Access!
68$:$1: JIdentif !ere disclosure re4uirements to ot!er public bodies #!ere .acilities
are joint facilitiesK2
provided that2 to avoid doubt2 neither 5lause 68$:$1.d! nor 5lause 68$:$6 above shall
permit disclosure of 5onfidential Anformation other&ise prohibited by 5lause 68$2$:
89
;here the Authority is a health board$ Appropriate &ording to be used &here the Authority is a local authority or
other Participant$
Confidential Information! &here that information is e(empt from disclosure under
section :8 of the '<AS!A$
68$6 ;here disclosure is permitted under 5lause 68$: Permitted disclosure!2 other than
under 5lauses 68$:$22 68$:$62 68$:$92 68$:$? and 68$112 the party providing the
information shall procure that the recipient of the information shall be subject to the
same obligation of confidentiality as that contained in this Agreement$
68$9 hubco shall not ma,e use of this Agreement or any information issued or provided by
or on behalf of the Authority in connection &ith this Agreement other&ise than for the
purpose of this Agreement2 e(cept &ith the &ritten consent of the Authority$
68$8 ;here hubco2 in carrying out its obligations under this Agreement2 is provided &ith
information relating to any Authority Party2 hubco shall not disclose or ma,e use of any
such information other&ise than for the purpose for &hich it &as provided2 unless
hubco has sought the prior &ritten consent of that person and has obtained the prior
&ritten consent of the Authority$
68$" <n or before the @(piry Date2 hubco shall ensure that all documents or computer
records in its possession2 custody or control2 &hich contain information relating to any
patient or Authority Party including any documents in the possession2 custody or
control of a hubco Party2 are delivered up to the Authority$
68$? The parties ac,no&ledge that Audit Scotland has the right to publish details of this
Agreement including 5ommercially Sensitive Anformation! in its relevant reports to
Parliament$
68$/ The provisions of this 5lause 68 &Confidentialit' are &ithout prejudice to the
application of the <fficial Secrets Acts 1/11 to 1/?/$
Ann$n"e;ent)
68$1. %nless other&ise re4uired by any 3a& or any regulatory or governmental authority
but only to that e(tent!2 neither party shall ma,e or permit or procure to be made any
public announcement or disclosure &hether for publication in the press2 the radio2
television screen or any other medium! of any 5onfidential Anformation or in the case
of hubco of its or any hubco PartyGs! interest in the Project or2 in any such case2 any
matters relating thereto2 &ithout the prior &ritten consent of the other party &hich
shall not be unreasonably &ithheld or delayed!$
De4art;ent 6 Hea(t# D,)"()$re
AA
68$11 Subject to 5lause 68$122 the Authority shall be free to disclose the terms of this
Agreement2 and the 5ollateral Agreements to the Scottish =overnment 1ealth
Directorates and>or 1E Treasury and the parties agree that the Authority shall be free
to use and disclose such information on such terms and in such manner as the
Scottish =overnment and>or 1E Treasury see fit$
68$12 The Authority shall notify hubco in &riting not less than ten 1.! Business Days prior to
any intended disclosure of the terms of any of the documents referred to in
5lause 68$11 to the Scottish =overnment and>or 1E Treasury$ hubco shall notify the
Authority in &riting of any terms of such documents the #Sen),t,2e In6r;at,n#! that
hubco objects to being disclosed &ithin five 9! Business Days of any such notification
by the Authority failing &hich hubco shall be deemed to have notified the Authority
that it has no objection to any such disclosure!$ ;ithout prejudice to the AuthorityGs
right to disclose the Sensitive Anformation pursuant to 5lause 6"$92 the Authority shall
consult &ith hubco follo&ing receipt of a notification from hubco that it objects to
88
68$11 and 68$12 only to be used &here the Authority is a health board$ <ther Authorities may &ish to
consider alternative &ording$
disclosure of such Sensitive Anformation &ith a vie& to agreeing &hether or not part or
all of the Sensitive Anformation can be removed from the information to be disclosed$
6"$ 6"/REEDOM O/ IN/ORMATION
6"$1 hubco ac,no&ledges that the Authority is subject to the re4uirements of the '<AS!A
and the @nvironmental Anformation Scotland! 7egulations and shall assist and co*
operate &ith the Authority to facilitate the AuthorityGs compliance &ith its Anformation
disclosure re4uirements pursuant to the same in the manner provided for in
5lauses 6"$2 to 6"$?$
6"$2 ;here the Authority receives a 7e4uest for Anformation in relation to Anformation that
hubco is holding on its behalf
8"
and &hich the Authority does not hold itself the
Authority shall refer to hubco such 7e4uest for Anformation as soon as practicable and
in any event &ithin five 9! Business Days of receiving such 7e4uest for Anformation
and hubco shall)*
6"$2$1 provide the Authority &ith a copy of all such Anformation in the form that the
Authority re4uires as soon as practicable and in any event &ithin five 9!
Business Days or such other period as the Authority acting reasonably may
specify! of the AuthorityGs re4uestI and
6"$2$2 provide all necessary assistance as reasonably re4uested by the Authority in
connection &ith any such Anformation2 to enable the Authority to respond to
the 7e4uest for Anformation &ithin the time for compliance set out in
section 1. of the '<AS!A or 7egulation 9 of the @nvironmental Anformation
Scotland! 7egulations$
6"$: 'ollo&ing notification under 5lause 6"$22 and up until such time as hubco has
provided the Authority &ith all the Anformation specified in 5lause 6"$2$1 hubco may
ma,e representations to the Authority as to &hether or not or on &hat basis
Anformation re4uested should be disclosed2 and &hether further information should
reasonably be provided in order to identify and locate the information re4uested2
provided al&ays that the Authority shall be responsible for determining at its absolute
discretion)*
6"$:$1 &hether Anformation is e(empt from disclosure under the '<AS!A and the
@nvironmental Anformation Scotland! 7egulationsI
6"$:$2 &hether Anformation is to be disclosed in response to a 7e4uest for
Anformation2 and
in no event shall hubco respond directly2 or allo& its Sub*5ontractors to respond
directly2 to a 7e4uest for Anformation unless e(pressly authorised to do so by the
Authority$
6"$6 hubco shall ensure that all Anformation held on behalf of the Authority is retained for
disclosure for at least the number of years from the date it is ac4uired! Jspecified in
t!e Aut!orit Polic relating to records retention
8?
K and shall permit the Authority to
inspect such Anformation as re4uested from time to time$
6"$9 hubco shall transfer to the Authority any 7e4uest for Anformation received by hubco as
soon as practicable and in any event &ithin t&o 2! Business Days of receiving it$
6"$8 hubco ac,no&ledges that any lists provided by it listing or outlining 5onfidential
Anformation are of indicative value only and that the Authority may nevertheless be
8"
This should enable the Authority to comply &ith its obligations under the '<AS!A$ Af the Authority &ished to go
beyond this2 for instance by referring in addition to other information or to information held by first tier
subcontractors on behalf of hubco2 this can be specified + but this may have cost>vfm implications$
8?
Authorities should ensure that the appropriate policy is in place$
obliged to disclose 5onfidential Anformation in accordance &ith the re4uirements of
'<AS!A and the @nvironmental Scotland! 7egulations$
6"$" An the event of a re4uest from the Authority pursuant to 5lause 6"$22 hubco shall as
soon as practicable2 and in any event &ithin five 9! Business Days of receipt of such
re4uest2 inform the Authority of hubcoGs estimated costs of complying &ith the re4uest
to the e(tent these &ould be recoverable2 if incurred by the Authority2 under
Section 1:1! of the '<AS!A and the 'ees 7egulations$ ;here such costs either on
their o&n or in conjunction &ith the AuthorityGs o&n such costs in respect of such
7e4uest for Anformation! &ill e(ceed the appropriate limit referred to in Section 121!
of the '<AS!A and as set out in the 'ees 7egulations the #A44r4r,ate L,;,t#! the
Authority shall inform hubco in &riting &hether or not it still re4uires hubco to comply
&ith the re4uest and &here it does re4uire hubco to comply &ith the re4uest the ten
1.! Business Days period for compliance shall be e(tended by such number of
additional days for compliance as the Authority is entitled to under Section 1. of the
'<AS!A$ An such case2 the Authority shall notify hubco of such additional days as
soon as practicable after becoming a&are of them and shall reimburse hubco for such
costs as hubco incurs in complying &ith the re4uest to the e(tent it is itself entitled to
reimbursement of such costs in accordance &ith its o&n '<AS!A policy from time to
time$
8/
6"$? hubco ac,no&ledges that not&ithstanding the provisions of 5lause 68
Confidentialit!! the Authority may2 acting in accordance &ith the Scottish Einisters
5ode of Practice on the Discharge of 'unctions of Public Authorities under Part 8 of
the 'reedom of Anformation Scotland! Act 2..2 the #Cde#!2 and>or having full regard
to any guidance or briefings issued by the Scottish Anformation 5ommissioner or the
Scottish Einisters2 be obliged under the '<AS!A2 or the @nvironmental Anformation
Scotland! 7egulations to disclose Anformation concerning hubco or the Project)*
6"$?$1 in certain circumstances &ithout consulting &ith hubcoI or
6"$?$2 follo&ing consultation &ith hubco and having ta,en their vie&s into account2
provided al&ays that &here 5lause 6"$?$1 above applies the Authority shall2 in
accordance &ith the recommendations of the 5ode2 dra& this to the attention of hubco
prior to any disclosure$
6"$/ An the event that hubco is or becomes subject to @nvironmental Anformation Scotland!
7egulations or '<AS!A it shall comply &ith its obligations under @nvironmental
Anformation Scotland! 7egulations and '<AS!A$ An doing so2 it &ill use reasonable
endeavours to consult the Authority before disclosing Anformation about them or any
agreement entered into bet&een the Authority and hubco$
6?$ 6?IN/ORMATION AND AUDIT ACCESS
6?$1 hubco shall provide to the AuthorityGs 7epresentative all information2 documents2
records and the li,e in the possession of2 or available to2 hubco and to this end hubco
shall use all reasonable endeavours to procure that all such items in the possession of
the 5ontractor shall be available to it and hubco has included2 or shall include2
relevant terms in all contracts &ith the 5ontractor to this effect! as may be reasonably
re4uested by the AuthorityGs 7epresentative for any purpose in connection &ith this
Agreement$
6?$2 'or the purpose of)*
8/
At is up to the parties to decide &hether costs associated &ith any future change in the AuthorityLs '<AS!A cost
recovery policy should go through Schedule Part 1: +ariation Procedure'$
Af the @nvironmental Anformation Scotland! 7egulations are relevant to the project2 the parties may include
broadly e4uivalent provisions in the Agreement dealing &ith costs and based upon the AuthorityLs policy to&ards
reimbursement of such costs under Section ? of the @nvironmental Anformation Scotland! 7egulations$
6?$2$1 the e(amination and certification of the AuthorityGs accountsI or
6?$2$2 any e(amination pursuant to Section 2: of the Public 'inance and
Accountability Scotland! Act 2... of the economy2 efficiency and
effectiveness &ith &hich the Authority has used its resources2
the Auditor =eneral for Scotland may e(amine such documents as he may reasonably
re4uire &hich are o&ned2 held or other&ise &ithin the control of hubco and hubco
shall procure that any person acting on its behalf &ho has such documents and>or
other information shall also provide access! and may re4uire hubco to produce such
oral or &ritten e(planations as he considers necessary$
6?$: hubco shall provide and shall procure that its Sub*5ontractors shall provide such
information as the Authority may reasonably re4uire from time to time to enable it to
meet its obligations to provide reports and returns pursuant to regulations2 directions
or guidance applicable to the Authority including2 &ithout limitation2 reports and returns
regarding the physical condition of buildings occupied by the Authority2 health and
safety2 under the firecode2 relating to environmental health and to comply &ith
Jre4uirements for the provision of information relating to achievement of customer
service targetsK
".
$
6/$ 6/NOTICES
6/$1 All notices under this Agreement shall be in &riting and all certificates2 notices or
&ritten instructions to be given under the terms of this Agreement shall be served by
sending the same by first class post2 facsimile or by hand2 leaving the same at)*
Af to hubco Address)
'a( 0o)
Af to the Authority Address)
'a( 0o)
;here any information or documentation
is to be provided or submitted to the
AuthorityGs 7epresentative or the hubco
7epresentative it shall be provided or
submitted by sending the same by first
class post2 facsimile or by hand2 leaving
the same at)
Af to hubcoLs 7epresentative Address)
'a( 0o)
Af to the AuthorityGs 7epresentative Address)
'a( 0o)
copied in each case to the Authority!
6/$2 @ither party to this Agreement may change its nominated address or facsimile number
by prior notice to the other party$
".
Authority to consider if appropriate$
6/$: 0otices given by post shall be effective upon the earlier of i! actual receipt2 and ii!
five 9! Business Days after mailing$ 0otices delivered by hand shall be effective upon
delivery$ 0otices given by facsimile shall be deemed to have been received &here
there is confirmation of uninterrupted transmission by a transmission report and &here
there has been no telephonic communication by the recipient to the senders to be
confirmed in &riting! that the facsimile has not been received in legible form)*
6/$:$1 &ithin t&o 2! hours after sending2 if sent on a Business Day bet&een the
hours of /am and 6pmI or
6/$:$2 by 11am on the ne(t follo&ing Business Day2 if sent after 6pm2 on a
Business Day but before /am on that ne(t follo&ing Business Day$
9.$ 9.NO +AIVER
9.$1 Any rela(ation2 forbearance2 indulgence or delay together #indulgence#! of any party
in e(ercising any right shall not be construed as a &aiver of the right and shall not
affect the ability of that party subse4uently to e(ercise that right or to pursue any
remedy2 nor shall any indulgence constitute a &aiver of any other right &hether
against that party or any other person!$
Cnt,n$ed E66e"t & n wa,2er
0ot&ithstanding any breach of this Agreement by either party2 and &ithout prejudice to
any other rights &hich the party may have in relation to it2 the other party may elect to
continue to treat this Agreement as being in full force and effect and to enforce its
rights under this Agreement$ The failure of any party to e(ercise any right under this
Agreement2 including any right to terminate this Agreement and any right to claim
damages2 shall not be deemed a &aiver of such right for any continuing or subse4uent
breach$
91$ 91NO AGENCY
91$1 0othing in this Agreement shall be construed as creating a partnership or as a
contract of employment bet&een the Authority and hubco$
91$2 Save as e(pressly provided other&ise in this Agreement2 hubco shall not be2 or be
deemed to be2 an agent of the Authority and hubco shall not hold itself out as having
authority or po&er to bind the Authority in any &ay$
91$: ;ithout limitation to its actual ,no&ledge2 hubco shall for all purposes of this
Agreement2 be deemed to have such ,no&ledge in respect of the Project as is held or
ought reasonably to be held! by any hubco Party$
92$ 92ENTIRE AGREEMENT
92$1 @(cept &here e(pressly provided other&ise in this Agreement2 this Agreement
constitutes the entire agreement bet&een the parties in connection &ith its subject
matter and supersedes all prior representations2 communications2 negotiations and
understandings concerning the subject matter of this Agreement$
92$2 @ach of the parties ac,no&ledges that)*
92$2$1 it does not enter into this Agreement on the basis of and does not rely2 and
has not relied2 upon any statement or representation &hether negligent or
innocent! or &arranty or other provision in any case &hether oral2 &ritten2
e(press or implied! made or agreed to by any person &hether a party to this
Agreement or not! e(cept those e(pressly repeated or referred to in this
Agreement and the only remedy or remedies available in respect of any
misrepresentation or untrue statement made to it shall be any remedy
available under this AgreementI and
92$2$2 this 5lause shall not apply to any statement2 representation or &arranty
made fraudulently2 or to any provision of this Agreement &hich &as induced
by fraud2 for &hich the remedies available shall be all those available under
the 3a& governing this Agreement$
9:$ 9:THIRD PARTY RIGHTS
9:$1 Save to the e(tent e(pressly provided in this Agreement and2 to avoid doubt2 &ithout
prejudice to the rights of any permitted successor to the rights of hubco or of any
permitted assignee2 it is e(pressly declared that no rights shall be conferred under and
arising out of this Agreement upon any person other than the Authority and hubco and
&ithout prejudice to the generality of the foregoing2 there shall not be created by this
Agreement a jus 4uaesitum tertio in favour of any person &hatsoever$
96$ 96SEVERABILITY
96$1 Af any provision of this Agreement shall be declared invalid2 unenforceable or illegal by
the courts of any jurisdiction to &hich it is subject2 such provision may be severed and
such invalidity2 unenforceability or illegality shall not prejudice or affect the validity2
enforceability and legality of the remaining provisions of this Agreement$
99$ 99CON/LICTS O/ AGREEMENTS
99$1 An the event of any conflict bet&een this Agreement and the Project Documents2 the
provisions of this Agreement shall prevail$
98$ 98COSTS AND E0PENSES
98$1 @ach party shall be responsible for paying its o&n costs and e(penses incurred in
connection &ith the negotiation2 preparation and e(ecution of this Agreement$
9"$ 9"GOVERNING LA+ AND %URISDICTION
9"$1 This Agreement shall be considered as a contract made in Scotland and shall be
subject to the 3a&s of Scotland$
9"$2 Subject to the provisions of the Dispute 7esolution Procedure2 both parties agree that
the courts of Scotland shall have e(clusive jurisdiction to hear and settle any action2
suit2 proceeding or dispute in connection &ith this Agreement and irrevocably submit
to the jurisdiction of those courts$
9?$ 9?/URTHER ASSURANCE
9?$1 @ach party shall do all things and e(ecute all further documents necessary to give full
effect to this Agreement$
IN +ITNESS +HEREO/ these presents type&ritten on this and the preceding J K pages
together &ith the Schedule in J K Parts are e(ecuted by the parties hereto as follo&s)
SCHEDULE
PA#$ "
DE/INITIONS AND INTERPRETATION
1$ DE/INITIONS
An this Agreement unless the conte(t other&ise re4uires)*
#Actual 5ompletion Date# means the later of)
a! the date of the 5ertificate of Practical
5ompletionI and
b! subject to 5lause 16$1.2 the 5ompletion DateI
or
c! in the event of a dispute as such date may be
determined in accordance &ith Schedule Part 19
Dispute "esolution Procedure!
#Adjudication Panel# has the meaning given in paragraph 6$2$1of
Schedule Part 19 Dispute "esolution Procedure!
#Adjudicator# means such person selected in accordance &ith
paragraph 6 of Schedule Part 19 Dispute
"esolution Procedure!
#Amended 7einstatement
<utline#
has the meaning given in 5lause :/$2.$:
#Ancillary 7ights# means such rights set out in Section : Ancillar
"ig!ts' of Schedule Part 6 Land Matters! as the
same may be varied &ith the approval of the
Authority such approval not to be unreasonably
&ithheld
#Application for Payment# has the meaning given in 5lause 2"$2 Applications
for Pament!
#Appropriate 3imit# has the meaning given in 5lause 6"$"
#Approved 7DD Atem# means an item of 7evie&able Design Data &hich
has been returned or has been deemed to have
been returned endorsed either #3evel A + no
comment# or #3evel B + proceed subject to
amendment as noted# by the AuthorityGs
7epresentative pursuant to the provisions of
5lause 12 Design1 Construction and
Commissioning Process! and Schedule Part "
"evie# Procedure! provided that in the case of
any item of 7evie&able Design Data &hich has
been returned or has been deemed to have been
returned endorsed #3evel B + proceed subject to
amendment as noted# hubco has ta,en account of
the AuthorityGs 7epresentativeGs comments!2 as
such item of 7evie&able Design Data may be
varied or amended from time to time in accordance
&ith Schedule Part 1: +ariation Procedure!
#Associated 5ompanies# means2 in respect of a relevant company2 a
company &hich is a Subsidiary2 a 1olding
5ompany or a company that is a Subsidiary of the
ultimate 1olding 5ompany of that relevant
company2 and in the case of hubco shall include
each of the Shareholders2 and the term #Associate#
shall be interpreted accordingly
#Authority Assets# means the 'acilities and any assets and @4uipment
or other property used by2 or on behalf of2 the
Authority or any Authority Party
#Authority @vents of Default# has the meaning given in 5lause :1
#Authority Party# means any of the AuthorityGs agents2 contractors
and sub*contractors of any tier and its or their
directors2 officers and employees and>or Jother
5ommunity Services ProvidersK at the 'acilities
&ith the authority of the Authority but e(cluding
hubco2 any hubco Party and statutory underta,ers
and utilities and #Authority Parties# shall be
construed accordingly
#Authority ;or,s Cariation# has the meaning given in Schedule Part 1:
+ariation Procedure!
#AuthorityGs 5ommissioning# means the AuthorityGs pre*completion
commissioning activities to be carried out by the
Authority in accordance &ith 5lause 18
Pre%Completion Commissioning and Completion!
#AuthorityGs 5onstruction
7e4uirements#
means the re4uirements of the Authority set out or
identified in Section : &Aut!orit3s Construction
"e4uirements' of Schedule Part 9 Construction
Matters! as amended from time to time in
accordance &ith the terms of this Agreement
#AuthorityGs Post 5ompletion
5ommissioning#
means the AuthorityGs post*completion
commissioning activities to be carried out by the
Authority in accordance &ith 5lause 1?$1 Post
Completion Commissioning!
#AuthorityGs 7epresentative# means the person so appointed by the Authority
pursuant to 5lause ? "epresentatives!
#Beneficiary# has the meaning given in 5lause :8$: Conduct of
Claims!
#Business Day# means a day other than a Saturday2 Sunday or a
ban, holiday in @dinburgh
#5DE 7egulations# has the meaning given in Section 2 of Schedule
Part 9 Construction Matters!
#5ertificate of Ea,ing =ood
Defects#
has the meaning given in 5lause 1"$6 and in the
form set out in Section : of Schedule Part 18
Certificates!
#5ertificate of Practical
5ompletion#
means the certificate to be issued by the AuthorityGs
7epresentative in accordance &ith 5lause 18$/
Pre%Completion Commissioning and Completion!
in the form set out in Section 1 of Schedule Part
18 Certificates!
a!
#5hange in 3a&# means the coming into effect or repeal &ithout re*
enactment or consolidation! in Scotland of any 3a&2
or any amendment or variation to any 3a&2 or any
judgement of a relevant court of la& &hich changes
binding precedent in Scotland in each case after
the date of this Agreement
#5ode# has the meaning given in 5lause 6"$?
#5ollateral Agreements# means the 5ontractorGs 5ollateral Agreement and
the
"1
Jcollateral #arranties re4uired b t!e Aut!orit
as at t!e date of t!is Agreement
F<
in t!e form
contained in $ection < of $c!edule Part *K
#5ommercially Sensitive
Anformation#
means the sub set of 5onfidential Anformation listed
in Jcolumn 7 of $ection 7 &Commerciall $ensitive
Contractual Provisions' and column 7 of $ection <
&Commerciall $ensitive Material' of $c!edule Part
7F &Commerciall $ensitive Information' in eac!
case for t!e period specified in column < of $ection
7 and $ection < of $c!edule Part 7FK
#5ommissioners# has the meaning given in 5lause 2? +AT!
#5ommissioning 5ompletion
5ertificate#
means the certificate to be issued by the AuthorityGs
7epresentative in accordance &ith 5lause 1?$6 in
the form set out in Section 2 of Schedule Part 18
Certificates!
#5ommissioning @nd Date# means the date by &hich the partiesG
commissioning activities are to be completed in
accordance &ith the 'inal 5ommissioning
Programme
#5ommunity Services# means JAut!orit to complete on a project specific
basis to reflect services &#!et!er public facing or
administrative or support services' being provided
at t!e .acilitiesK and such other services as may be
notified to hubco by the Authority from time to time
#5ommunity Services Provider# means any organisation e(cluding for the
avoidance of doubt the Authority! providing any of
the 5ommunity Services at the 'acilities from time
to time
#5ompensation @vent# has the meaning given in 5lause 22$/
"1
0ote) Authorities to specify on a project by project basis &hat professional team collateral &arranties and ,ey
subcontractor ie &ith design responsibility! collateral &arranties are re4uired$
"2
Drafting to reflect &arranties to be received by the Authority at signing eg professional team$
#5ompletion Date# means J K or such revised date as may be
specified by the AuthorityLs 7epresentative
pursuant to 5lause 22 or such other dates as may
be agreed by the parties
#5onfidential Anformation# means)*
a! information that ought to be considered
as confidential ho&ever it is conveyed or
on &hatever media it is stored! and may
include information &hose disclosure
&ould2 or &ould be li,ely to2 prejudice the
commercial interests of any person2 trade
secrets2 Antellectual Property 7ights and
,no&*ho& of either party and all personal
data and sensitive personal data &ithin
the meaning of the Data Protection Act
1/?? and
b! 5ommercially Sensitive Anformation
":
$
#5onsents# means all permissions2 consents2 approvals2
certificates2 permits2 licences2 statutory agreements
and authorisations re4uired by 3a&2 and all
necessary consents and agreements from any third
parties including2 &ithout limitation2 any Planning
Permission!2 needed to carry out the Project
<perations in accordance &ith this Agreement
#5onsolidated Adjudication
5osts#
has the meaning given in paragraph 6$12$: of
Schedule Part 19 Dispute "esolution Procedure'
#5onstruction 5ontract# means the design and build contract dated the
same date as this Agreement bet&een hubco and
the 5ontractor &hich2 as at the date of this
Agreement2 is in the Agreed 'orm! as amended
from time to time in accordance &ith this
Agreement
#5onstruction 5ontract Dispute# has the meaning given in paragraph 8$1 of
Schedule Part 19 Dispute "esolution Procedure'
#5onstruction Phase# means the period from and including the @(ecution
Date to and including the 5ommissioning @nd Date
#5onstruction Huality Plan# means the document at Section ? of Schedule Part
9 Construction Matters!
#5ontamination# means all or any pollutants or contaminants2
including any chemical or industrial2 radioactive2
dangerous2 to(ic or haMardous substance2 &aste or
residue &hether in solid2 semi*solid or li4uid form
or a gas or vapour! and including &ithout limitation
":
Any information or classes of information that the parties agree should be treated as 5ommercially Sensitive
Anformation should be included in Schedule 1" entitled 5ommercially Sensitive Anformation$ The Authority should
be mindful of guidance on this issue &hen agreeing &hich information should be categorised as commercially
sensitive$ This can cover specific bid information for specific periods! or other types of generic information but
broad blan,et categorisations are not appropriate$
genetically modified organisms
#5ontracting Associate#
"6
means the 5ontractor2 Jan ot!er entit #!ic!
performs on be!alf of !ubco an material function
in connection #it! t!is Agreement or t!e Project
OperationsK
#5ontractor# means Jinsert t!e name of ContractorK engaged by
hubco to carry out the ;or,s and any substitute
design and>or building contractor engaged by
hubco as may be permitted by this Agreement
#5ontractorGs 5ollateral
Agreement#
means the collateral agreement among the
Authority2 hubco and the 5ontractor set out in
Section 1 of Schedule Part ? &Collateral
Agreement'
#5ontractorGs Site Eanager# means the manager to be appointed by the
5ontractor for purposes of supervision of all
day*to*day activities on Site
#5ontractorGs Site 7ules# means the 5ontractorGs rules2 applicable on Site to
the Authority2 hubco2 the 5ontractor and their
respective sub*contractors and suppliers of every
tier during the construction of the 'acilities
#Default Anterest 7ate# means 2Q over 3AB<7
#Defects# means any defect or fault in the ;or,s and>or the
'acilities not being a Snagging Eatter! &hich
occurs due to a failure by hubco to meet the
AuthorityGs 5onstruction 7e4uirements and>or
hubcoGs Proposals or other&ise to comply &ith its
obligations under this Agreement
#Defects 3iability Period# means the period of 12 months from the Actual
5ompletion Date
"9
#Delay @vent# has the meaning given in 5lause 22 Dela Events!
#Design Data# means all dra&ings2 reports2 documents2 plans2
soft&are2 formulae2 calculations and other data
relating to the design2 construction2 testing and>or
operation of the 'acilities
#Design Huality Plan# means the document at Section ? of Schedule Part
9 Construction Matters!
#Development Amount# means the sum of RJI>$E"T $?MK
#Development Amount Analysis# means the development amount analysis set out at
Schedule Part 11 Development Amount Analsis!
#Direct 3osses# means2 subject to the provisions of 5lause 6.
Limits on liabilit!2 all damage2 losses2 liabilities2
claims2 actions2 costs2 e(penses including the cost
"6
0B) This provision should be drafted on a project specific basis to encompass any principal sub*contractors to
hubco
"9
Authorities may re4uest longer periods on a project specific basis$
of legal or professional services2 legal costs being
on an agent>client2 client paying basis!2
proceedings2 demands and charges &hether
arising under statute2 contract or at common la&
but2 to avoid doubt2 e(cluding Andirect 3osses
#Disclosed Data# means any Design Data and any other &ritten
information2 data and documents made available or
issued to hubco or any hubco Party in connection
&ith the Project by or on behalf of the Authority or
any Authority Party! &hether before or after the
e(ecution of this Agreement$
#Dispute# has the meaning given in paragraph 1 of Schedule
Part 19 Dispute "esolution Procedure!
#Dispute 7esolution Procedure# means the procedure set out in Schedule Part 19
Dispute "esolution Procedure!
#Due Date# has the meaning given in 5lause 2"$2
#@nvironmental Anformation
Scotland! 7egulations#
means the @nvironmental Anformation Scotland!
7egulations 2..6 together &ith any guidance
and>or codes of practice issued by the Scottish
Anformation 5ommissioner or relevant =overnment
Department in relation to such regulations
#@4uipment# means JI>$E"T P"OBECT $PECI.IC
DE.I>ITIO>K
#@(ecution Date# means the last date of e(ecution of this AgreementI
#@(ecutive# has the meaning given in Schedule Part 1:
+ariation Procedure!
#'acilities# means JI>$E"T O> P"OBECT $PECI.IC BA$I$K
together &ith all supporting infrastructure including
the Plant and amenities located on the Site as
re4uired to enable hubco to comply &ith its
obligations under this Agreement2 all as the same
may be varied2 amended or supplemented from
time to time in accordance &ith this Agreement
#'ees 7egulations# means the 'reedom of Anformation 'ees for
7e4uired Disclosure Scotland! 7egulations 2..6
#'inal 5ommissioning
Programme#
means the programme to be jointly developed and
agreed by the Authority and hubco in accordance
&ith the provisions of 5lause 18$2 Pre*Completion
Commissioning and Completion!
#'inal Date# has the meaning given in 5lause 2"$?
#'inishes# means the finishes listed in the table set out in
paragraph 1$2$: of Schedule Part " "evie#
Procedure!
#'<AS!A# means the 'reedom of Anformation Scotland!
Act 2..2 and any subordinate legislation as
defined in section ": of the 'reedom of Anformation
Scotland! Act 2..2! made under the 'reedom of
Anformation Scotland! Act 2..2 from time to time
together &ith any guidance and>or codes of practice
issued by the Scottish Anformation 5ommissioner or
relevant =overnment department in relation to such
Act
#'orce Eajeure# has the meaning given in 5lause 26 .orce
Majeure!
#=ood Andustry Practice# means using standards2 practices2 methods and
procedures conforming to the 3a& and e(ercising
that degree of s,ill and care2 diligence2 prudence
and foresight &hich &ould reasonably and
ordinarily be e(pected from a s,illed and
e(perienced person engaged in a similar type of
underta,ing under the same or similar
circumstances
#=overnment# means the government of the %nited Fingdom or
the Scottish Einisters
#=round Physical and
=eophysical Anvestigation#
means the investigation of all the conditions of and
surrounding the Site and of any e(traneous
materials in2 on or under the Site including its
surface and subsoil! to enable the 'acilities to be
designed and constructed and the ;or,s to be
carried out &ith due regard for those conditions and
the seismic activity if any! in the region of the Site
#1ealth Authority# means a 1ealth Authority established under
Section 2 of the 0ational 1ealth Service Scotland!
Act 1/"? or any successor body to any such body
established &ith substantially the same po&ers or
duties!I
#1olding 5ompany# has the meaning given to it in Section 119/ of the
5ompanies Act 2..8
#hubco @vent of Default# has the meaning given to it in 5lause :2$1
#hubco Party# means hubcoLs agents and contractors including
&ithout limitation the 5ontractor! and sub*licensees
and its or their sub*contractors of any tier and its or
their directors2 officers2 employees and &or,men in
relation to the Project and any Project <perations2
and Nhubco PartiesO shall be construed accordingly
#hubcoGs Post 5ompletion
5ommissioning#
means hubcoGs post*completion commissioning
activities to be carried out by hubco in accordance
&ith 5lause 1?$1 Post Completion Commissioning!
#hubcoGs Pre*5ompletion
5ommissioning#
means hubcoGs pre*completion commissioning
activities to be carried out by hubco in accordance
&ith 5lause 18$8
#hubcoGs Proposals# means the proposals of hubco to deliver the Project
to satisfy the AuthorityGs 5onstruction
7e4uirements2 as set out in Section 6 of Schedule
Part 9
#Andemnifier# has the meaning given in 5lause :8$: Conduct of
Claims!
#Andirect 3osses# has the meaning given in 5lause 6. Limits on
Liabilit!$
#Anformation# has the meaning given under Section ": of the
'reedom of Anformation Scotland! Act 2..2
#Ansurance Proceeds Account# means the account numbered JI>$E"T >?MBE"K
in the joint names of hubco and the Authority
NAnsurance TermO means any terms and>or conditions re4uired to be
included in a policy of insurance by 5lause :/
and>or Schedule Part 12 Insurance "e4uirements!
but e(cluding any ris,
#Ansurances# means2 as the conte(t re4uires2 all or any of the
insurances re4uired to be maintained by hubco
pursuant to this Agreement
#Antellectual Property# means all registered or unregistered trade mar,s2
service mar,s2 patents2 registered designs2 utility
models2 applications for any of the foregoing2
copyrights2 unregistered designs2 the sui generis
rights of e(traction relating to databases2 trade
secrets and other confidential information or
,no&*ho&
#Antellectual Property 7ights# means the Antellectual Property &hich or the
subject matter of &hich! is created2 brought into
e(istence2 ac4uired2 used or intended to be used by
hubco2 any hubco Party or by other third parties for
the use by or on behalf of or for the benefit of
hubco! for the purposes of the design or
construction of the 'acilities2 the operation2
maintenance2 improvement and>or testing of the
'acilities or the conduct of any other Project
<peration or other&ise for the purposes of this
Agreement
#Anterim 5ertificate# has the meaning given in 5lause 2"$9
N-oint Ansurance AccountO means the joint ban, account in the names of the
Authority and the 5ontractor2 having account
number JI>$E"T >?MBE"K2 or any replacement
account held by the Parties from time to time
#3a&# means)*
a! any applicable statute or proclamation or
any delegated or subordinate legislationI
b! any enforceable community right &ithin
the meaning of section 21! of the
@uropean 5ommunities Act 1/"2I
c! any applicable guidance2 direction or
determination &ith &hich the Authority
and>or hubco is bound to comply to the
e(tent that the same are published and
publicly available or the e(istence or
contents of them have been notified to
hubco by the AuthorityI and
d! any applicable judgement of a relevant
court of la& &hich is a binding precedent
in Scotland2
in each case in force in Scotland
J#3iability 5ap# means JJ KQ of the Development AmountKK
"8
#3i4uidated Damages# has the meaning given in 5lause 16$2
J#01S# means the 0ational 1ealth ServiceK
""
J#01S 7e4uirement# means in relation to the ;or,s2 1ealth Building
0otes and 1ealth Technical Eemoranda and such
other re4uirements as are designated as 01S
7e4uirements in the AuthorityGs 5onstruction
7e4uirements$K
"?
#0otice of Adjudication# has the meaning given in paragraph 6$1 of
Schedule Part 19 Dispute "esolution Procedure!
#<perational 'unctionality#
"/
means JTO BE DE.I>ED O> A P"OBECT
$PECI.IC BA$I$K
#<utline 5ommissioning
Programme#
means the programme setting out the standards2
specifications2 procedures and other re4uirements
for the carrying out and completion of the
commissioning activities of the parties set out in
outline in Schedule Part / Outline Commissioning
Programme!
#Participant# has the meaning given in the Territory Partnering
Agreement
NPay 3ess 0oticeO has the meaning given in 5lause 2"$11
#Payment 5ertificate# has the meaning given in 5lause 2"$1.$:
#Payment 5ertificate Due Date# has the meaning given in 5lause 2"$1.$:
#Payment 5ertificate 'inal Date# has the meaning given in 5lause 2"$1.$6
#Performance =uarantees!# means the guarantees to hubco in respect of the
5onstruction 5ontract Jinsert details of an ot!er
"8
To be completed by Authority on a project specific basis$
""
;here the Authority is a health board$
"?
;here the Authority is a health board$
"/
This &ould include matters such as points of access2 adjacencies of rooms2 4uantity description and areas of
rooms etc$ To be developed on a project specific basis$
guarantees to be givenK &hich2 as at the date of this
Agreement are in the Agreed 'orm
NPhysical Damage PoliciesO means the policies of insurance referred to in
paragraph 1 of Section 1 Schedule Part 12
&Insurance "e4uirements' and in 5lause :/$1
#Planning Approval# means detailed planning consent for the Project
listed in Section 1 of Schedule Part 9 Construction
Matters!
#Planning Permission# means any planning permission2 approval of
reserved matters2 listed building consent2
conservation areas consent and>or other consent or
approval reasonably re4uired from time to time for
construction and>or operation of the 'acilities
including &ithout limitation for any Authority ;or,s
Cariation and the Planning Approval!
#Plant# means the plant and @4uipment to be provided
and>or maintained by hubco pursuant to this
Agreement
#Post 5ompletion
5ommissioning#
means2 as appropriate2 hubcoGs Post 5ompletion
5ommissioning and>or the AuthorityGs Post
5ompletion 5ommissioning
#Programme# means the programme set out in Schedule Part
8 T!e Programme! as revised and issued by
hubco or on its behalf! from time to time pursuant
to 5lause 16 Programme and Dates for
Completion!
#Prohibited Act# has the meaning given in 5lause :6 Corrupt (ifts!
#Project# means JCOMPLETE O> A P"OBECT $PECI.IC
BA$I$ G MAA BE C"O$$%"E.E"E>CE TO
"ECITAL$K
#Project Data# means)*
a! all Design DataI
b! all dra&ings2 reports2 documents2 plans2
soft&are2 formulae2 calculations and other
data relating to the provision of the
;or,sI and
c! any other materials2 documents and or
data ac4uired2 brought into e(istence or
used in relation to the Project <perations
or this AgreementI
#Project Development 'ee# means Jcorrect figure reflecting terms of Territor
Partnering Agreement to be inserted on a project
b project basisK
#Project Documents# means the 5onstruction 5ontract2 the Performance
=uarantees JAut!orit to consider if t!ere are an
ot!er project significant documentsK2 all as the
same may be amended or replaced from time to
timeI
#Project <perations# means the carrying out of the ;or,s2 the carrying
out of hubcoGs Pre*5ompletion 5ommissioning and
hubcoGs Post*5ompletion 5ommissioning and the
performance of all other obligations of hubco under
this Agreement from time to time
#Huality Plans# means the Design Huality Plan and 5onstruction
Huality Plan2 prepared in accordance &ith Section
? of Schedule Part 9 Construction Matters!2as
re4uired to be implemented by hubco in
accordance &ith 5lause 2. Eualit Assurance!
#7ange of 'inishes# has the meaning given in paragraph 1$2$:a!of
Schedule Part " "evie# Procedure!
#7eferral# has the meaning given in paragraph 6$: of
Schedule Part 19 Dispute "esolution Procedure!
#7eferral 0otice# has the meaning given in paragraph 6$: of
Schedule Part 19 Dispute "esolution Procedure!
#7eferring Party# has the meaning given in paragraph 6$1 of
Schedule Part 19 Dispute "esolution Procedure!
#7einstatement <utline# has the meaning given in 5lause :/$2.$1
#7einstatement Plan# has the meaning given in 5lause :/$2.$9
#7einstatement ;or,s# has the meaning given in 5lause :/$2.$1
#7elated Adjudication# has the meaning given in paragraph 6$11 of
Schedule Part 19 Dispute "esolution Procedure!
#7elated Adjudicator# has the meaning given in paragraph 6$11 of
Schedule Part 19 Dispute "esolution Procedure!
#7elated Agreements# has the meaning given in paragraph 6$11 of
Schedule Part 19 Dispute "esolution Procedure!
#7elevant Ancident# has the meaning given in 5lause :/$2.
#7elief @vents# has the meaning given to it in 5lause 2: "elief
Events!
#7e4uest for Anformation# has the meaning set out in the '<AS!A or the
@nvironmental Anformation Scotland! 7egulations
as relevant &here the meaning set out for the term
#re4uest# shall apply!
#7eserved 7ights# means the rights referred to in Section 2 of
Schedule Part 6 Land Matters!
#7esponding Party# has the meaning given in paragraph 6$: of
Schedule Part 19 Dispute "esolution Procedure!
#7etention# has the meaning given to in 5lause 2"$8$2
#7etention Bond# means the bond in the form attached at Schedule
Part 1/ by JI>$E"T $?"ETAK in favour of the
Authority
#7evie& Procedure# means the procedure set out in Schedule Part "
"evie# Procedure!
#7evie&able Design Data# means the Design Data listed at Section 9 of
Schedule Part 9 Construction Matters!
?.
#7oom Data Sheets# has the meaning given in Schedule Part 1:
+ariation Procedure!
#Schedule of Defects# has the meaning given in 5lause 1"$2
NScottish 'utures TrustO means Scottish 'utures Trust 3imited 5ompany
0umber S5:6?:?2!2 having its registered office at
1
st
'loor2 11 + 19 Thistle Street2 @dinburgh @12
1D'
#Sensitive Anformation# has the meaning given in 5lause 68$12
&Confidentialit'
#Shareholders!# means any entity holding an e4uity sta,e in hubco
from time to time
#Site# means the land made available to hubco for the
Project and outlined in red on Jinsert details of
relevant planK
#Site 5onditions# means the condition of the Site including but not
limited to! climatic2 hydrological2 hydrogeological2
ecological2 environmental2 geotechnical and
archaeological conditions
#Snagging Eatters# means minor items of outstanding &or, including
in relation to landscaping! &hich &ould not
materially impair the AuthorityGs use and enjoyment
of the 'acilities or the carrying out by the Authority
or a 5ommunity Services Provider of the
5ommunity Services
#Snagging 0otice# means the notice to be issued by the AuthorityGs
7epresentative in accordance &ith 5lause 18$12
Completion Certificate!
#Sub*5ontract# means any contract into2 by or bet&een the
5ontractor and other third parties in relation to any
aspect of the ;or,s
#Sub*5ontractor# means any third party including the 5ontractor!
&ho enters into any Sub*5ontract
#Subsidiary# has the meaning given to it in Section 119/ of the
5ompanies Act 2..8
?.
This is not intended to encompass design material agreed prior to signature$
#Termination Date# means the date on &hich termination of this
Agreement ta,es effect in accordance &ith its terms
#Territory Partnering Agreement#
or #TPA#
means the agreement entered into bet&een hubco
and the Participants dated JI>$E"T DATE O. TPAK
#Title 5onditions# means the Title 5onditions set out in Section 1 of
Schedule Part 6 Land Matters!
#%nreasonable Act# means any act or omission &hich is contrary to any
reasonable instruction2 guidance or rules for the
operation or management of the 'acilities
#Cariation# has the meaning given in Schedule Part 1:
+ariation Procedure!
NCariation 5onfirmationO has the meaning given in Schedule Part 1:
+ariation Procedure!
#Cariation @n4uiry# has the meaning given in Schedule Part 1:
+ariation Procedure!
#Cariation Procedure# means the procedure set out in Schedule Part 1:
+ariation Procedure!
#CAT# means value added ta( at the rate prevailing at the
time of the relevant supply charged in accordance
&ith the provisions of the Calue Added Ta( Act 1//6
#CAT Sum# has the meaning given in 5lause 2? +AT!
#Citiating Act# has the meaning given in @ndorsement 22 Section :
of Schedule Part 12
#;or,s# means the design including the preparation of all
Design Data!2 construction2 testing2 commissioning
and completion of the 'acilities including any
temporary &or,s! Jand t!e installation of (roup 7
E4uipmentK to be performed by hubco in
accordance &ith this Agreement as varied2
amended or supplemented from time to time in
accordance &ith this Agreement!
2$ INTERPRETATION
This Agreement shall be interpreted according to the follo&ing provisions2 unless the
conte(t re4uires a different meaning)*
2$1 The headings and marginal notes and references to them in this Agreement
shall be deemed not to be part of this Agreement and shall not be ta,en into
consideration in the interpretation of this Agreement$
2$2 @(cept &here the conte(t e(pressly re4uires other&ise2 references to
5lauses2 Sub*clauses2 paragraphs2 sub*paragraphs2 parts2 Schedule Parts
and Schedule are references to 5lauses2 Sub*clauses2 paragraphs2
sub*paragraphs and parts of and Schedule Parts and the Schedule to this
Agreement and references to Sections2 Appendices and Attachments if any!
are references to Sections2 Appendices and Attachments to or contained in
this Agreement$
2$: The Schedule to this Agreement and attachments if any! are integral parts
of this Agreement and a reference to this Agreement includes a reference to
the Schedule and attachments if any!$
2$6 ;ords importing persons shall2 &here the conte(t so re4uires or admits2
include individuals2 firms2 partnerships2 trusts2 corporations2 governments2
governmental bodies2 authorities2 agencies2 unincorporated bodies of
persons or associations and any organisations having legal capacity$
2$9 ;here the conte(t so re4uires &ords importing the singular only also include
the plural and vice versa and &ords importing the masculine shall be
construed as including the feminine or the neuter or vice versa$
2$8 The language of this Agreement is @nglish$ All correspondence2 notices2
dra&ings2 Design Data2 test reports2 certificates2 specifications and
information shall be in @nglish$ All operating and maintenance instructions2
name plates2 identification labels2 instructions and notices to the public and
staff and all other &ritten2 printed or electronically readable matter re4uired in
accordance &ith2 or for purposes envisaged by2 this Agreement shall be in
@nglish$
2$" Save &here stated to the contrary2 references to any agreement or
document include subject to all relevant approvals and any other provisions
of this Agreement concerning amendments to agreements or documents! a
reference to that agreement or document as amended2 supplemented2
substituted2 novated or assigned$
2$? 7eferences to any 3a& are to be construed as references to that 3a& as
from time to time amended or to any 3a& from time to time replacing2
e(tending2 consolidating or amending the same$
2$/ ;ithout prejudice to 5lause 6:$12 references to a public organisation other
than the Authority! shall be deemed to include a reference to any successor
to such public organisation or any organisation or entity &hich has ta,en
over either or both the relevant functions and relevant responsibilities of such
public organisation$
2$1. ;ithout prejudice to 5lause 6:$12 references to other persons other than the
Authority! shall include their successors and assignees$
2$11 7eferences to a deliberate act or omission of the Authority or any Authority
Party shall be construed having regard to the interactive nature of the
activities of the Authority and of hubco and the e(pression shall e(clude acts
or omissions &hich &ere &ithin the contemplation of the parties or &hich
&ere other&ise provided for in this Agreement$
2$12 The &ords in this Agreement shall bear their natural meaning$ The parties
have had the opportunity to ta,e legal advice on this Agreement and no term
shall2 therefore2 be construed contra proferentem$
2$1: 7eference to #parties# means the parties to this Agreement and references
to #a party# mean one of the parties to this Agreement$
2$16 An construing this Agreement2 the rule ,no&n as the ejusdem generis rule
shall not apply nor shall any similar rule or approach to the construction of
this Agreement and accordingly general &ords introduced or follo&ed by the
&ord #other# or #including# or #in particular# shall not be given a restrictive
meaning because they are follo&ed or preceded as the case may be! by
particular e(amples intended to fall &ithin the meaning of the general &ords$
2$19 All of hubcoGs obligations2 duties and responsibilities shall be construed as
separate obligations2 duties and responsibilities o&ed to the Authority and to
be performed at hubcoGs o&n cost and e(pense$
2$18 7eference to a document being in the Agreed 'orm is a reference to the
form of the relevant document agreed bet&een the parties and for the
purpose of identification initialled by each of them or on their behalf$
2$1" ;here this Agreement states that an obligation shall be performed #no later
than# or #&ithin# or #by# a stipulated date or event &hich is a prescribed
number of Business Days after a stipulated date or event the latest time for
performance shall be noon on the last Business Day for performance of the
obligations concerned$
2$1? ;ords in parenthesis or italics appearing after a 5lause reference or
reference to a Schedule Part are inserted for ease of reference only$ Af there
is any discrepancy bet&een the 5lause reference and the &ord appearing in
parenthesis and italics after the 5lause reference2 the 5lause reference shall
prevail$
2$1/ ;here this Agreement states that an obligation shall be performed #no later
than# or #by# a prescribed number of Business Days before a base date or
#by# a date &hich is a prescribed number of Business Days before a base
date2 the latest time for performance shall be J9pmK on the last Business Day
for performance of the obligations concerned$
PA#$ 2
COMPLETION DOCUMENTS
D1
S%&$'() "
DOCUMENTS TO BE DELIVERED BY HUBCO
%nless an original document is specifically re4uested2 a copy certified by an officer of hubco as
being a true copy! of each of the follo&ing documents is to be delivered by hubco to the
Authority in accordance &ith 5lause 2$1 &E/ecution and Deliver of Documents' of this
Agreement)
1$ The 5onsents and other authorisations2 licences2 permits2 and approvals listed belo&)
[P"OBECT $PECI.IC ITEM$ TO BE LI$TED]F
2$ The 5onstruction 5ontract2 the Performance =uarantees and the 5ollateral
Agreements e(ecuted by the parties to such agreements$
:$ An original of the Ansurance Proceeds Account Agreement and the bro,ers letters of
underta,ing relating to the Ansurances referred to in paragraph 8 belo& in the Agreed
'orm2 e(ecuted by the parties to such agreements other than the Authority!$
6$ @(tracts from the minutes of the meeting of the board of directors certified as true and
accurate by a director of the relevant company! of hubco and each of the other parties
to the documents listed in Section 1 &Documents to be Delivered b !ubco' of
Schedule Part 2 &Completion Documents'2 at &hich resolutions &ere passed
approving the e(ecution2 delivery and performance of each relevant document to
&hich such person is e(pressed to be a party and in each case authorising a named
person or persons to e(ecute and deliver each such document and any other
documents to be delivered by it pursuant to it$
9$ A certificate of a director of each of the companies referred to in paragraph 6 above
setting out the names and specimen signatures of the person or persons named in the
relevant certified e(tract$
8$ The insurance bro,erLs letter of underta,ing2 evidence of the insurances re4uired in
accordance &ith 5lause :/ &Insurances' having been ta,en out by hubco and that the
policies comply &ith the re4uirements of this Agreement$
"$ @vidence that an election has been made for hubco to act as #client# for the Project for
the purposes of the 5DE 7egulations$
?$ @vidence that the Ansurance Proceeds Account has been opened$
/$ JA?T@O"ITA TO I>DICATE OT@E" P"OBECT $PECI.IC DOC?ME>T$1
I>CL?DI>( A>A OT@E" P"OBECT DOC?ME>T1 PLA>>I>( A>D P"OPE"TA
"ELATED A("EEME>T$K
1.$ An original duly e(ecuted version of this Agreement$
?1
This Schedule Part contains a generic list of the sort of completion documents the parties &ould e(pect to see
produced$ This should be amended on a project specific basis to reflect the particular documents re4uired in
each case$
S%&$'() 2
DOCUMENTS TO BE DELIVERED BY THE AUTHORITY
The Authority shall deliver to hubco the follo&ing documents)
1$ A certified copy of the resolution of the Authority approving the e(ecution2 delivery and
performance of the documents referred to in paragraph 2 of Section 1 Documents to be
Delivered b !ubco! above and in each case authorising a named person or persons to
e(ecute and deliver each such document and any documents to be delivered pursuant
hereto$
2$ A certificate of the relevant officer of the Authority setting out the names and specimen
signatures of the person or persons named in the resolution of the Authority referred to in
paragraph 1 of this Section 2 Documents to be delivered b t!e Aut!orit!$
:$ JA0D <T1@7 0@5@SSA7D APP7<CA3 D<5%E@0TS A55<7DA0= T<
5A75%ESTA05@SK
PA#$ *
3EY +OR3S PERSONNEL
JTO BE COMPLETED O> A P"OBECT $PECI.IC BA$I$K
?2
?2
Anclude details re4uired in accordance &ith 5lause ?$/ "epresentatives!$
PA#$ +
LAND MATTERS
S%&$'() "
TITLE CONDITIONS
D1
JTO BE I>$E"TEDK
S%&$'() 2
RESERVED RIGHTS
D?
:TO BE I>$E"TED;
S%&$'() *
ANCILLARY RIGHTS
D@
JTO BE I>$E"TEDK
?:
This should include any restrictions on the use of any part of the Site$
?6
This should include any rights over any part of the Site &hich have been or are being reserved for the Authority and>or any
third party eg rights of access2 &ayleaves$
?9
This should include any areas and periods &ithin &hich the 5ontractor should have e(clusive possession to parts of the
Site$
PA#$ ,
CONSTRUCTION MATTERS
S%&$'() "
PLANNINGHCONSENTS
JT!e contents of t!is $c!edule Part 5 are project specific and s!ould be prepared b eac! Aut!orit on a
project basisK$
?8
?8
This section of Schedule Part 9 should include a list of the Planning Permissions>5onsents and any additional>supplemental
Planning Permission>5onsents re4uired to be obtained by hubco or the Authority as the case may be!$
S%&$'() 2
SA/ETY DURING CONSTRUCTION
1$ An this Section 2 &$afet During Construction' of Schedule Part 9 &Construction Matters' and
&herever used else&here in this Agreement)
1$1 #CDM Re*$(at,n)# means the 5onstruction Design and Eanagement! 7egulations 2.." and
#5DE 7egulation# shall be construed accordingly!I and
1$2 #t#e "(,ent#2 #t#e CDM C>rd,natr# and #t#e E9e"$t,2e# shall have the same meanings as are
ascribed to them in the 5DE 7egulations$
2$ An so far as not already done2 &ithin JI>$E"T >?MBE"K Business Days of the date of e(ecution of
this Agreement2 hubco shall ma,e and serve on the Authority a declaration pursuant to and in the
form if any! re4uired by 5DE 7egulation ? that hubco &ill act as the client in relation to the ;or,s
for all the purposes of the 5DE 7egulations$ 0ot&ithstanding the election made by hubco in
relation to 5DE 7egulation ?2 the Authority &ill comply &ith its remaining obligations as set out in
5DE 7egulation ?$ During the term of this Agreement2 hubco shall not2 and shall not see, to2
&ithdra&2 terminate or in any manner derogate from its declaration that it &ill act as2 and its
acceptance of its responsibilities as2 the client in relation to the ;or,s for all the purposes of the
5DE 7egulations$ The Authority &ill endorse its consent2 in &riting2 to such election on the said
election and return it to hubco &ithin JI>$E"T >?MBE"K Business Days of receipt$
:$ hubco &arrants that it has the competence2 resources and capacity to2 and shall2 observe2 perform
and discharge or shall procure the observance2 performance and discharge of)
:$1 all the obligations2 re4uirements and duties of the client arising under the 5DE 7egulations in
connection &ith the ;or,sI and
:$2 all obligations incumbent on the client under any 5ode of Practice for the time being approved by
the 1ealth and Safety 5ommission pursuant to the 1ealth and Safety at ;or, etc$ Act 1/"6 issued
in connection &ith the 5DE 7egulations$
6$ hubco shall provide to the AuthorityGs 7epresentative)
6$1 in a substantially complete form on the Actual 5ompletion DateI and
6$2 in final form &ithin J K of the Actual 5ompletion Date2
one electronic copy on computer dis,2 tape or other format! of each and every health and safety
file and construction phase plan prepared by the 5DE 5o*ordinator pursuant to the 5DE
7egulations in relation to the ;or,s and electronic or paper copies of every amendment or update
made to such file$
S%&$'() *
AUTHORITY7S CONSTRUCTION RE=UIREMENTS
DC
?"
The contents of this Section : of Schedule Part 9 &ill usually include the follo&ing)
S Antroduction to &hat is comprised &ithin the 'acilities
S Architectural performance specification
S 5ivil>Structural performance specification
S Eechanical and @lectrical performance specification
S Area Schedule
S Dra&ings$
S%&$'() +
HUBCO7S PROPOSALS
DD
??
The contents of this Section 6 of Schedule Part 9 &ill usually include the follo&ing)
Antroduction
Architectural proposals
5ivil>Structural engineering proposals
Eechanical and @lectrical engineering proposals
5onstruction Eethodology
Dra&ings full design to be developed at least to 1)2.. level2 &ith a sample dra&ing of each ,ey area of the 'acilities
developed to 1)9. level!
S%&$'() ,
REVIE+ABLE DESIGN DATA
D:
?/
This Section 9 of Schedule Part 9 should include the design that is to be developed in accordance &ith the principles set out in
the 7evie& Procedure eg 1)2.. dra&ings of site plans2 1)9. dra&ings of room layouts2 etc$
S%&$'() -
ROOM DATA SHEETS
:G
/.
This Section 8 of Schedule Part 9 should include a room*by*room design and contents schedule$
S%&$'() .
THERMAL AND ENERGY E//ICIENCY TESTING PROCEDURE
:1
JA0S@7T P7<5@D%7@ 1@7@K
/1
This Section " of Schedule Part 9 should contain the monitoring procedure referred to in 5lause @rror) 7eference source not
found T!ermal and Energ Efficienc'$ Af for any reason2 5lauses @rror) 7eference source not found*@rror) 7eference source
not found are not used2 this Section should be deleted$
S%&$'() /
=UALITY PLANS IDESIGN AND CONSTRUCTIONJ
:8
/2
This Section ? of Schedule Part 9 should contain Design and 5onstruction Huality Plans$
PA#$ -
THE PROGRAMME
:1
JT!e contents of t!is $c!edule Part D are project specific and need to be prepared b !ubco and agreed #it!
t!e Aut!orit6K
/:
This is the Project master programme &hich should set out the design and construction &or,s from the @(ecution Date to Post
5ompletion 5ommissioning$
PA#$ .
REVIE+ PROCEDURE
1$ REVIE+
1$1 The provisions of this Schedule Part " &"evie# Procedure' shall apply &henever any item2
document or course of action is re4uired to be revie&ed2 approved or other&ise processed in
accordance &ith Schedule Part " "evie# Procedure'$
1$2 Subject to any e(press provision of this Agreement2 the manner2 form and timing of any submission
to be made by hubco to the AuthorityGs 7epresentative for revie& under this Schedule Part "
&"evie# Procedure' shall be a matter for hubco to determine$ @ach submission under the 7evie&
Procedure shall be accompanied by a copy of the proposed document to be revie&ed including2
&here applicable2 any 7evie&able Design Data! or a statement of the proposed course of action
the entire contents of a submission being referred to in this Schedule Part " &"evie# Procedure'
as a #S$b;,tted Ite;#!$ An relation to each Submitted Atem2 the follo&ing procedure shall apply)
1$2$1 as soon as possible and2 if the Submitted Atem comprises)
a! an item of 7evie&able Design DataI
b! a revised Programme submitted pursuant to 5lause 16 Programme and Dates
for Completion!I or
c! a document or proposed course of action submitted in the case of an
emergency!
/6
2
&ithin J K Business Days of the date of receipt of a submission or re*submission2 as the case
may be! of the Submitted Atem to the AuthorityGs 7epresentative or such other period as the parties
may agree!2 the AuthorityGs 7epresentative shall return one copy of the relevant Submitted Atem to
hubco endorsed #no comment# or subject to and in accordance &ith paragraph : (rounds for
Objection!! #comments# as appropriateI and
1$2$2 if the AuthorityGs 7epresentative fails to return a copy of any Submitted Atem including
any re*submitted Submitted Atem! duly endorsed in accordance &ith paragraph 1$2$12
&ithin J K Business Days or &ithin such other period as the parties may agree in
&riting! of the date of its submission to the AuthorityGs 7epresentative2 then the AuthorityGs
7epresentative shall be deemed to have returned the Submitted Atem to hubco endorsed
#no comment# and2 in the case of 7evie&able Design Data2 endorsed #3evel A * no
comment#!I and
1$2$: in relation to the aspect of each 'inish identified in the table belo&)
a! hubco shall submit to the Authority a range or selection of finishes no later than
the relevant 'inishes Proposal DateI
b! the AuthorityGs 7epresentative shall by the relevant 'inishes Selection Date
notify hubco of its selection for the relevant 'inishI and
c! if no selection of a 'inish has been made by the AuthorityLs 7epresentative and
notified to hubco in accordance &ith paragraph 1$2$:b! by the end of the
relevant 'inish Selection Date2 hubco shall be entitled to ma,e a selection from
the 7ange of 'inishes submitted in accordance &ith paragraph 1$2$:a!$ After
the end of the relevant 'inish Selection Date2 should the Authority &ish to vary
any selection previously made by hubco or by the Authority2 such variation shall
be effected as a Cariation in accordance &ith Schedule Part 1: +ariation
Procedure!$
/6
Authorities to include any other items &hich are relevant on a project specific basis$
Tab(e A
/9
/,n,)#e) A)4e"t) /,n,)#e) Pr4)a(
Date
/,n,)#e)
Se(e"t,n Date
@(ternal finishes roof2
&indo&s and e(ternal
elevations!
5olour and material
;all finishes 5olour
'loor finishes 5olour and type
Aronmongery Style and colour
Tap&are Style and content
Eain public light fittings Specification and style
@(ternal signage SiMe2 style2 colour and
location
Anternal signage SiMe2 style2 colour and
location
3ight s&itches and soc,ets Style and colour
1ard landscaping 5olour and material
JOt!ers to be inserted on a
project specific basis b
t!e Aut!oritK
1$: Af the AuthorityGs 7epresentative raises comments on any Submitted Atem in accordance &ith
paragraph : (rounds for Objection! he shall state the ground upon &hich such comments are
based and the evidence or other information necessary to substantiate that ground$ To the e(tent
that the AuthorityGs 7epresentative comments on a Submitted Atem other than on the basis set out
in this Schedule Part " &"evie# Procedure'2 or fails to comply &ith the provisions of this paragraph2
hubco may2 in its discretion2 either)
1$:$1 re4uest &ritten clarification of the basis for such comments and2 if clarification is not
received &ithin J K Business Days of such re4uest by hubco2 refer the matter for
determination in accordance &ith Schedule Part 19 Dispute "esolution Procedure!I or
1$:$2 in the case of a Submitted Atem comprising 7evie&able Design Data only2 at its o&n ris,2
and &ithout prejudice to 5lause 12 T!e Design1 Construction and Commissioning
Process!2 proceed &ith further design or construction disregarding such comments
pending the outcome of any reference to the Dispute 7esolution Procedure that may be
made by either party$
2$ /URTHER IN/ORMATION
2$1 hubco shall submit any further or other information2 data and documents that the AuthorityGs
7epresentative reasonably re4uires in order to determine &hether he has a basis for raising
comments or ma,ing objections to any Submitted Atem in accordance &ith this Schedule Part "
&"evie# Procedure'$ Af hubco does not submit any such information2 data and documents2 the
AuthorityGs 7epresentative shall be entitled to)
2$1$1 comment on the Submitted Atem on the basis of the information2 data and documents
&hich have been providedI or
2$1$2 object to the Submitted Atem on the grounds that insufficient information2 data and
documents have been provided to enable the AuthorityGs 7epresentative to determine
&hether he has a legitimate basis for commenting or objecting in accordance &ith this
Schedule Part " &"evie# Procedure'$
/9
Project specific$ This table is intended to be for guidance only$
:$ GROUNDS O/ OB%ECTION
/8
The e(pression #raise comments# in this paragraph shall be construed to mean #raise comments or
ma,e objections# unless the contrary appears from the conte(t$ The AuthorityGs 7epresentative
may raise comments in relation to any Submitted Atem on the grounds set out in paragraph 2
.urt!er Information! above or on the ground that the Submitted Atem &ould on the balance of
probabilities! breach any 3a& but other&ise may raise comments in relation to a Submitted Atem
only as follo&s)
:$1 in relation to any Submitted Atem if)
:$1$1 hubcoGs ability to perform its obligations under this Agreement &ould on the balance of
probabilities! be adversely affected by the implementation of the Submitted AtemI or
:$1$2 the implementation of the Submitted Atem &ould on the balance of probabilities!
adversely affect any right of the Authority under this Agreement or its ability to enforce
any such rightI
:$2 in relation to any Submitted Atem submitted pursuant to 5lause 6$1 if)
:$2$1 the AuthorityGs ability to perform its obligations under this Agreement &ould be adversely
affected by the proposed course of actionI
:$2$2 the AuthorityGs or any 5ommunity Service ProviderGs ability to use and>or provide the
relevant 5ommunity Services at the 'acilities or to carry out any of its statutory functions
&ould on the balance of probabilities! be adversely affected by the proposed course of
actionI
:$2$: the proposed course of action &ould be li,ely to result in an increase to the AuthorityGs
liabilities or potential or contingent liabilities under this AgreementI
:$2$6 the proposed course of action &ould adversely affect any right of the Authority under this
Agreement or its ability to enforce any such rightI or
:$2$9 hubcoGs ability to perform its obligations under this Agreement &ould be materially
adversely affected by the proposed course of actionI
:$: in relation to 7evie&able Design Data submitted pursuant to 5lause 12$8)
:$:$1 &hich does not comprise 1)9. scale 7oom 3ayout Dra&ings the AuthorityGs
7epresentative may raise comments2 subject to and in accordance &ith paragraph 6
Effect of "evie#! on the ground that the Submitted Atem is not in accordance &ith)
a! the AuthorityGs 5onstruction 7e4uirementsI and>or
b! hubcoGs ProposalsI
:$:$2 &hich comprises a 1)9. scale 7oom 3ayout Dra&ing in respect of &hich there is a
corresponding generic 1)9. scale 7oom 3ayout Dra&ing for the relevant room type
&hich has previously been revie&ed and commented upon by the AuthorityGs
7epresentative in accordance &ith this Schedule Part " &"evie# Procedure'!2 the
AuthorityGs 7epresentative may raise comments2 subject to and in accordance &ith
paragraph 6 Effect of "evie#!2 on the ground that the Submitted Atem does not conform
to the generic 1)9. scale 7oom 3ayout Dra&ingI and
:$:$: &hich comprises a 1)9. scale 7oom 3ayout Dra&ing in respect of &hich there is no
corresponding generic 1)9. scale 7oom 3ayout Dra&ing for the relevant room type
&hich has previously been revie&ed and commented upon by the AuthorityGs
/8
This drafting has been included as a frame&or, for guidance and should be amended as appropriate on a project specific
basis2 including2 in particular2 to ta,e account of ho& commissioning of the 'acilities is to be carried out and any other
matters that are to be left to be agreed pursuant to the 7evie& Procedure$
7epresentative in accordance &ith this Schedule Part " &"evie# Procedure'!2 the
AuthorityGs 7epresentative may raise comments2 subject to and in accordance &ith
paragraph 6 Effect of "evie#!2 on the grounds that the Submitted Atem)
a! is not in accordance &ith the AuthorityGs 5onstruction 7e4uirements and>or
hubcoGs ProposalsI or
b! is inconsistent &ith the guidance contained in any current J>@$ "e4uirementK
/"
&hich is applicable to a room of that function provided that such guidance has
not been superseded by and is not inconsistent &ith any other provisions of the
AuthorityGs 5onstruction 7e4uirements including any e(isting Approved 7DD
Atem!I
:$6 in relation to a proposal to amend hubcoLs Proposals to rectify part of! the ;or,s submitted
pursuant to 5lause 12 on the grounds that follo&ing the amendment and rectification proposed)
:$6$1 hubcoLs Proposals &ould not satisfy the AuthorityLs 5onstruction 7e4uirementsI and>or
:$6$2 the structural2 mechanical and>or electrical performance of the 'acilities &ould not be of
e4uivalent standard of performance to that set out in hubcoLs Proposals prior to their
amendment of rectification for the purpose of this comparison disregarding the fault
&hich re4uired the amendment or rectification to be made!I
:$9 in relation to 'inishes)
:$9$1 &hich have the effect of ma,ing a selection from the 7ange of 'inishes or any alternative
range or selection of 'inishes submitted by hubco to the AuthorityGs 7epresentative!
pursuant to 5lause 12$8I or
:$9$2 &here the Submitted Atem does not comply &ith the relevant provisions of the AuthorityGs
5onstruction 7e4uirements and>or hubcoGs ProposalsI
:$8 in relation to the submission of any revised Programme pursuant to 5lause 16 Programme and
Dates for Completion! on the ground that the revised Programme &ould not on the balance of
probabilities! enable the ;or,s to be completed by the 5ompletion DateI
:$" in relation to the submission of any Huality Plan or part of a Huality Plan or any changes to any
Huality Plan pursuant to 5lause 2.$6 or 5lause 2.$"or any 4uality manual or procedure in
accordance &ith 5lause 2.$/ Eualit Manuals and Procedures!2 on the grounds that such Huality
Plans2 or parts of or changes to such Huality Plans2 4uality manuals or procedures2 or the 4uality
management systems &hich they reflect2 &ould not comply &ith in the case of the Design Huality
Plan and the 5onstruction Huality Plan referred to in 5lause 2. Eualit Assurance!2 the
re4uirements referred to in Section ? of Schedule Part 9 Construction Matters!$
6$ E//ECT O/ REVIE+
6$1 Any Submitted Atem &hich is returned or deemed to have been returned by the AuthorityGs
7epresentative endorsed #no comment# and in the case of 7evie&able Design Data2 endorsed
#3evel A * no comment#! shall be complied &ith or implemented as the case may be! by hubco$
6$2 An the case of any Submitted Atem other than 7evie&able Design Data2 if the AuthorityGs
7epresentative returns the Submitted Atem to hubco endorsed #comments#2 hubco shall comply
&ith such Submitted Atem after amendment in accordance &ith the comments unless hubco
disputes that any such comment is on grounds permitted by this Agreement2 in &hich case hubco
or the AuthorityGs 7epresentative may refer the matter for determination in accordance &ith
Schedule Part 19 Dispute "esolution Procedure! and hubco shall not act on the Submitted Atem
until such matter is so determined or other&ise agreed$
/"
;here the Authority is a health board$
6$: An the case of a Submitted Atem comprising 7evie&able Design Data2 if the AuthorityGs
7epresentative returns the Submitted Atem endorsed other than #3evel A * no comment#2 hubco
shall)
6$:$1 &here the AuthorityGs 7epresentative has endorsed the Submitted Atem #3evel B *
proceed subject to amendment as noted#2 either proceed to construct or proceed to the
ne(t level of design of the part of the ;or,s to &hich the Submitted Atem relates but ta,e
into account any amendments re4uired by the AuthorityGs 7epresentative in his
commentsI
6$:$2 &here the AuthorityGs 7epresentative has endorsed the Submitted Atem #3evel 5 * subject
to amendment as noted# not act upon the Submitted Atem2 amend the Submitted Atem in
accordance &ith the AuthorityGs 7epresentativeGs comments and re*submit the same to
the AuthorityGs 7epresentative in accordance &ith paragraph 6$6I and
6$:$: &here the AuthorityGs 7epresentative has endorsed the Submitted Atem #3evel D *
rejected# not act upon the Submitted Atem2 amend the Submitted Atem and re*submit the
Submitted Atem to the AuthorityGs 7epresentative in accordance &ith paragraph 6$62
unless hubco disputes that any such comment or proposed amendment is on grounds permitted by
this Agreement2 in &hich case hubco or the AuthorityGs 7epresentative may refer the matter for
determination in accordance &ith Schedule Part 19 Dispute "esolution Procedure! and hubco
shall not act on the Submitted Atem until such matter is so determined or other&ise agreed e(cept
at its o&n ris, in accordance &ith paragraph 1$:$2$
6$6 ;ithin J K Business Days of receiving the comments of the AuthorityGs 7epresentative on any
Submitted Atem comprising 7evie&able Design Data2 hubco shall e(cept in the case contemplated
in paragraph 6$:$1 send a copy of the Submitted Atem as amended to the AuthorityGs
7epresentative pursuant to paragraph 6$: and the provisions of paragraphs 1$2$12 6$1 and 6$: shall
apply changed according to conte(t! to such re*submission$
6$9 The return or deemed return of any Submitted Atem endorsed #no comment# or in the case of
7evie&able Design Data endorsed #3evel A * no comment# or other&ise endorsed in accordance
&ith paragraph 6$:$1 or 6$:$2 shall mean that the relevant Submitted Atem may be used or
implemented for the purposes for &hich it is intended but2 save to the e(tent e(pressly stated in
this Agreement including2 &ithout limitation2 as specified in Appendi( 1 Table A to this Schedule
Part "2 such return or deemed return of any Submitted Atem shall not other&ise relieve hubco of its
obligations under this Agreement nor is it an ac,no&ledgement by the Authority that hubco has
complied &ith such obligations$
9$ DOCUMENTATION MANAGEMENT
/?
9$1 hubco shall issue J K copies of all Submitted Atems to the Authority and compile and maintain a
register of the date and contents of the submission of all Submitted Atems$
9$2 hubco shall compile and maintain a register of the date of receipt and content of all Submitted
Atems that are returned or deemed to be returned by the AuthorityGs 7epresentative$
9$: Save to the e(tent set out in Appendi( A to this Schedule Part " &"evie# Procedure' or else&here
in this Schedule Part " &"evie# Procedure'2 no revie&2 comment or approval by the Authority shall
operate to e(clude or limit hubcoGs obligations or liabilities under the Agreement or the AuthorityGs
rights under the Agreement!$
8$ VARIATIONS
8$1 0o approval or comment or any failure to give or ma,e an approval or comment under this
Schedule Part " shall constitute a Cariation save to the e(tent provided in this Schedule Part "$
/?
This paragraph is intended as a frame&or, only and should be developed in a project specific basis$
8$2 Af2 having received comments from the AuthorityGs 7epresentative2 hubco considers that
compliance &ith those comments &ould amount to a Cariation2 hubco shall2 before complying &ith
the comments2 notify the Authority of the same and2 if it is agreed by the parties or determined
pursuant to Schedule Part 19 Dispute "esolution Procedure! that a Cariation &ould arise if the
comments &ere complied &ith2 the Authority may2 if it &ishes2 implement the Cariation and it shall
be dealt &ith in accordance &ith Schedule Part 1: +ariation Procedure!$ Any failure by hubco to
notify the Authority that it considers compliance &ith any comments of the AuthorityGs
7epresentative &ould amount to a Cariation shall constitute an irrevocable acceptance by hubco
that any compliance &ith the AuthorityGs comments shall be &ithout cost to the Authority and
&ithout any e(tension of time$
8$: 0o alteration or modification to the design2 4uality and 4uantity of the ;or,s arising from the
development of detailed design or from the co*ordination of the design shall be construed or
regarded as a Cariation$
Tab(e A
A44r2ed RDD Ite;
by category!
S"a(e Mean,n* 6 KLe2e( A > n ";;entK and KLe2e( B
& 4r"eed )$b!e"t t a;end;ent a) ntedK
endr)e;ent 6 Re2,ewab(e De),*n Data $nder
S"#ed$(e Part C IReview ProcedureJ including
both the actual and deemed endorsement!$
7oom Data Sheets n>a A #3evel A * no comment# endorsement or a #3evel
B * proceed subject to amendment as noted#
endorsement of any room data sheet means that
hubco may proceed to construct in accordance &ith
the Submitted Atem and that the Authority is satisfied
that the design and other information in the relevant
room data sheet satisfies <perational 'unctionality$
Dra&ings *
Development 5ontrol
Plan
1)129. A #3evel A * no comment# endorsement or a #3evel
B * proceed subject to amendment as noted#
endorsement of any 1)129. scale development
control plan means that hubco may proceed to
construct in accordance &ith the Submitted Atem
and that the Authority is satisfied that the design and
other information contained in the relevant dra&ing
satisfies <perational 'unctionality$
Dra&ings *
Site Plan
1)9.. A #3evel A * no comment# endorsement or a #3evel
B * proceed subject to amendment as noted#
endorsement of any 1)9.. scale site plan means
that hubco may proceed to construct in accordance
&ith the Submitted Atem and that the Authority is
satisfied that the design and other information
contained in the relevant dra&ing satisfies
<perational 'unctionality$
Dra&ings *
'loor Plans
1)2.. A #3evel A * no comment# endorsement or a #3evel
B * proceed subject to amendment as noted#
endorsement of any 1)2.. scale floor plan means
that hubco may proceed to construct in accordance
&ith the Submitted Atem and that the Authority is
satisfied that the design and other information
contained in the relevant dra&ing satisfies the
<perational 'unctionality$
Dra&ings *
7oom 3ayouts
including room
elevations! &
7eflected ceiling
plans
1)9. A #3evel A * no comment# endorsement or a #3evel
B * proceed subject to amendment as noted#
endorsement of any 1)9. scale room layout and>or
reflected ceiling dra&ing means that hubco may
proceed to construct in accordance &ith the
Submitted Atem and that the Authority is satisfied to
the e(tent of the design and other information
contained in the relevant dra&ing! that the design
and other information in the relevant dra&ing
satisfies <perational 'unctionality$
Dra&ings *
Departmental plans
1)9. A #3evel A * no comment# endorsement or a #3evel
B + proceed subject to amendment as noted#
endorsement of any 1)9. scale departmental plan
means that hubco may proceed to construct in
accordance &ith the Submitted Atem and that the
Authority is satisfied to the e(tent of the design and
other information contained in the relevant dra&ing!
that the design and other information in the relevant
dra&ing satisfies <perational 'unctionality$
PA#$ /
COLLATERAL AGREEMENTS
S%&$'() "
CONSTRUCTION CONTRACTOR COLLATERAL AGREEMENT
BET+EEN.
1! [AUTHORITY] the #A$t#r,t-#!I
//1..
2! [CONSTRUCTION CONTRACTOR] the #Cn)tr$"t,n Cntra"tr#!I
:! [HUBCO] ##$b"#!I and
6! [GUARANTOR] the #G$arantr#!$
+HEREAS.
A! The Authority and hubco have agreed the terms on &hich hubco &ill design2 develop and construct
Jdescription of facilitiesK the #De2e(4;ent#! at the Site as that e(pression is defined in the Design
& Build Development Agreement! and2 accordingly2 have entered into the Design & Build
Development Agreement and the Project Documents$
B! The 5onstruction 5ontractor and hubco have entered into an agreement of even date here&ith
relating to the provision of the ;or,s as defined in the Design & Build Development Agreement! by
the 5onstruction 5ontractor to enable hubco to discharge its obligations to the Authority regarding
such ;or,s under the Design & Build Development Agreement the #Cn)tr$"t,n Cntra"t#!$
5! This 5onstruction 5ontractorGs 5ollateral Agreement the #A*ree;ent#! is one of the 5onstruction
5ontractorGs 5ollateral Agreements contemplated by the Design & Build Development Agreement$
D! Pursuant to the 5onstruction 5ontract2 the =uarantor has entered into a =uarantee in favour of
hubco in respect of the 5onstruction 5ontractorGs obligations under the 5onstruction 5ontract the
#Parent C;4an- G$arantee#!$
NO+ IT IS HEREBY AGREED as follo&s)
1$ De6,n,t,n) and ,nter4retat,n
1$1 De6,n,t,n)
An this Agreement2 the follo&ing terms shall2 unless the conte(t other&ise re4uires2 have the
follo&ing meanings)
#Business Day# means a day other than a Saturday2 Sunday or a
ban, holiday in Scotland
#@vent of hubco Default# has the meaning given in the 5onstruction 5ontract
#0ovation Agreement# has the meaning given in 5lause 6$9$1b!
#0ovation @ffective Date# means the date of performance of the obligations
set out in 5lause 6 &>ovation'
#Project Documents# has the meaning given in the Design & Build
Development Agreement
//
;here the 'acilities are joint2 the 5ontractor shall be re4uired to grant a collateral &arranty in substantially the same form as that
set out in this Section 1 in favour of the other relevant authorities$
1..
The Authority shall be entitled to re4uire hubco to procure a collateral &arranty from each party providing a collateral &arranty to
the Authority in favour of any future tenant of the 'acilities or part of the 'acilities under a '7A lease$
#Proposed 0ovation Date# has the meaning given in 5lause 6$1 &Proposed
$ubstitute'
#Proposed 0ovation 0otice# has the meaning given in 5lause 6$1 &Proposed
$ubstitute'
#Proposed Step*in Date# has the meaning given in 5lause :$1
&Commencement and Duration'
#Proposed Substitute# has the meaning given in 5lause 6$1 &Proposed
$ubstitute'
#Step*in Date# means the date of issue of the Step*in %nderta,ing
#Step*in 0otice# has the meaning given in 5lause :$1 &$tep%in
>otice'
#Step*in Period# means the period commencing on the Step*in Date
and ending on the earliest of)
1$ the date of the first anniversary of the
Step*in Date but subject al&ays to
5lause 6$" &E/tension of $tep%in Period'!I
2$ the Step*out DateI
:$ the 0ovation @ffective DateI and
6$ termination of the 5onstruction 5ontract
under 5lause JI>$E"T "ELE+A>T
CLA?$E ."OM CO>$T"?CTIO>
CO>T"ACTK
#Step*in %nderta,ing# has the meaning given in 5lause :$2$6
#Step*out Date# has the meaning given in 5lause :$6$1
#Termination 0otice# has the meaning given in 5lause 2$:$1
1$2 Inter4retat,n
Save to the e(tent that the conte(t or the e(press provisions of this Agreement other&ise re4uire)
1$2$1 headings and sub*headings are for ease of reference only and shall not be ta,en into
consideration in the interpretation or construction of this AgreementI
1$2$2 all references to 5lauses are references to 5lauses of this AgreementI
1$2$: all references to agreements2 documents or other instruments include subject to all
relevant approvals! a reference to that agreement2 document or instrument as amended2
supplemented2 substituted2 novated or assigned from time to timeI
1$2$6 all references to any statute or statutory provision shall include references to any statute
or statutory provision &hich amends2 e(tends2 consolidates or replaces the same or
&hich has been amended2 e(tended2 consolidated or replaced by the same and shall
include any orders2 regulations2 codes of practice2 instruments or other subordinate
legislation made under the relevant statute or statutory provisionI
1$2$9 any reference to time of day shall be a reference to @dinburgh timeI
1$2$8 the &ords #herein#2 #hereto# and #hereunder# refer to this Agreement as a &hole and not
to the particular 5lause in &hich such &ord may be usedI
1$2$" &ords importing the singular include the plural and vice versaI
1$2$? &ords importing a particular gender include all gendersI
1$2$/ #person# includes any individual2 partnership2 firm2 trust2 body corporate2 government2
governmental body2 authority2 agency2 unincorporated body of persons or associationI
1$2$1. any reference to a public organisation shall be deemed to include a reference to any
successor to such public organisation or any organisation or entity &hich has ta,en over
the functions or responsibilities of such public organisationI
1$2$11 references to #Party# means a party to this Agreement and references to #Parties# shall
be construed accordinglyI
1$2$12 all monetary amounts are e(pressed in pounds sterlingI
1$2$1: references to the &ord #includes# or #including# are to be construed &ithout limitationI
1$2$16 the obligations of any Party under this Agreement are to be performed at that PartyGs o&n
cost and e(penseI
1$2$19 terms used in this Agreement that are defined in the Design & Build Development
Agreement or the Project Documents shall have the meanings given to them in the
Design & Build Development Agreement or the Project Documents2 as appropriate$
2$ Ter;,nat,n Nt,"e and A$t#r,t- Ter;,nat,n
2$1 Cn)tr$"t,n Cntra"tr7) +arrant,e) and Underta5,n*)
The 5onstruction 5ontractor &arrants and underta,es to the Authority that it has complied &ith and
fulfilled and shall continue to comply &ith and fulfil its duties and obligations arising under or by
virtue of the 5onstruction 5ontract2 provided that during the period prior to e(piry of the Defects
3iability Period as defined in the Design & Build Development Agreement!! the Authority shall only
be entitled to ma,e a claim against the 5onstruction 5ontractor under this 5lause 2$1 &Construction
Contractor3s )arranties and ?nderta-ings' if the Design & Build Development Agreement has
terminated and in any case shall not be entitled to do so during the Step*in Period or after the
5onstruction 5ontract has been novated under 5lause 6 &>ovation'$
2$2 L,ab,(,t- 6 Cn)tr$"t,n Cntra"tr
Any liability arising from any claim for breach of the &arranty under or pursuant to 5lause 2$1
Construction Contractor3s )arranties and ?nderta-ings' shall be in addition to and &ithout
prejudice to any other present or future liability of the 5onstruction 5ontractor to the Authority
including2 &ithout prejudice to the generality of the foregoing2 any liability in negligence! and shall
not be released2 diminished or in any other &ay be affected by any independent en4uiry into any
relevant matter &hich may be made or carried out by or on behalf of the Authority by any person nor
by any action or omission of any person &hether or not such action or omission might give rise to an
independent liability of such person to the Authority provided al&ays that the 5onstruction 5ontractor
shall o&e no greater duties or obligations to the Authority under this Agreement than it o&es or
&ould have o&ed to hubco under the 5onstruction 5ontract$ ;ithout prejudice to 5lause 122 the
5onstruction 5ontractor shall be entitled in any action or proceedings brought by the Authority under
this Agreement to rely on any limitation or e(clusion of liability in the 5onstruction 5ontract and to
raise e4uivalent rights in defence of liability but e(cluding set*offs and counterclaims! as it &ould
have against hubco under the 5onstruction 5ontract$
2$: Ter;,nat,n Nt,"e
2$:$1 The 5onstruction 5ontractor underta,es not to terminate the 5onstruction 5ontract on
account of an @vent of hubco Default &ithout first giving the Authority not less than J K
Business DaysG prior &ritten notice specifying the grounds for that termination$ Any such
notice2 other than one given in circumstances &here there is no default under the
5onstruction 5ontract by hubco or the 5onstruction 5ontractor2 shall be a #Ter;,nat,n
Nt,"e#$
2$:$2 0ot&ithstanding any provision of the 5onstruction 5ontract to the contrary2 on termination
of the Design & Build Development Agreement by the Authority2 the Parties agree that the
5onstruction 5ontract shall not come to an end e(cept in accordance &ith the terms of
this Agreement$
:$ Ste4>In and Ste4>O$t
:$1 Ste4>,n Nt,"e
:$1$1 Af the Authority has terminated the Design & Build Development Agreement in
accordance &ith the terms of the Design & Build Development Agreement or if the
Authority has received a Termination 0otice2 then subject to the provisions of this
Agreement2 the Authority may give &ritten notice to the 5onstruction 5ontractor a #Ste4>
,n Nt,"e#! of the intention of the Authority to issue a Step*in %nderta,ing on a specified
date the #Pr4)ed Ste4>,n Date#! provided that such Proposed Step*in Date shall be)
a! no later than J K Business Days after termination of the Design & Build
Development Agreement &here this has been terminated by the AuthorityI and
b! no earlier than the date falling J K Business Days prior to the date of e(piry of
the Termination 0otice and no later than the date of e(piry of the Termination
0otice &here a Termination 0otice has been given by the 5onstruction
5ontractor$
:$1$2 ;ithout prejudice to 5lause :$2$82 unless the 5onstruction 5ontractor other&ise
consents2 only one Step*in 0otice may be given during the period of this Agreement$
Subject to 5lause 9$1 &"ig!ts of Termination' belo&2 the 5onstruction 5ontractor shall not
be entitled to terminate the 5onstruction 5ontract until after the Proposed Step*in Date$
:$2 Nt,"e 6 Ob(,*at,n) and Ste4>,n Underta5,n*
:$2$1 ;ithin J K Business Days of receipt of any Step*in 0otice2 the 5onstruction 5ontractor
shall give &ritten notice to the Authority of any sums of &hich the 5onstruction 5ontractor
has actual ,no&ledge &hich are due and payable but unpaid by hubco and of any other
material obligations or liabilities2 of &hich the 5onstruction 5ontractor has actual
,no&ledge2 &hich should have been performed or discharged by hubco under the
5onstruction 5ontract2 in each case2 as at the date of the Step*in 0otice$
:$2$2 The 5onstruction 5ontractor shall inform the Authority in &riting as soon as reasonably
practicable of)
a! any change in such sums2 obligations or liabilities referred to in 5lause :$2$1I
and
b! any further sums2 obligations or liabilities thereafter falling due and payable but
unpaid or falling due for performance or discharge and unperformed or
undischarged as the case may be!I
in each case of &hich the 5onstruction 5ontractor has actual ,no&ledge2 before the
Step*in Date$
:$2$: The 5onstruction 5ontractor shall give the Authority the information referred to in
5lauses :$2$1 and :$2$2 in good faith and may not give any further notifications pursuant
to 5lause :$2$2 less than J K Business Days prior to the Proposed Step*in Date$ The
Authority shall not be re4uired to assume any liability under a Step*in %nderta,ing for any
outstanding obligations or liabilities of hubco to the 5onstruction 5ontractor &hich are not
notified to the Authority pursuant to 5lauses :$2$1 or :$2$2$
:$2$6 0ot later than the Proposed Step*in Date the Authority shall decide if it is prepared to
issue a Step*in %nderta,ing$ Af it does so decide2 the Authority shall promptly give the
5onstruction 5ontractor &ritten notification of such decision$ The Authority shall deliver
to the 5onstruction 5ontractor on the Proposed Step*in Date2 a &ritten underta,ing in
form and substance agreed &ith the 5onstruction 5ontractor both the Authority and the
5onstruction 5ontractor acting reasonably! the #Ste4>,n Underta5,n*#!2 incorporating a
clause in terms similar to 5lause 11 but only to the e(tent that there &ill not be double
counting of default interest accruing under the 5onstruction 5ontract and this
Agreement!2 and underta,ing to the 5onstruction 5ontractor)
a! to pay or procure the payment to the 5onstruction 5ontractor2 &ithin J K
Business Days of demand by the 5onstruction 5ontractor2 of any sum due and
payable but unpaid by hubco to the 5onstruction 5ontractor under the
5onstruction 5ontract before the Step*in Date and &hich has been notified by
the 5onstruction 5ontractor to the Authority in accordance &ith 5lause :$2$1
or :$2$2I
b! to perform or discharge or procure the performance or discharge of any
unperformed or undischarged obligations of hubco under the 5onstruction
5ontract &hich shall have fallen due for performance or discharge before the
Step*in Date and &hich have been notified by the 5onstruction 5ontractor to the
Authority in accordance &ith 5lause :$2$1 or :$2$2 &ithin such period as the
5onstruction 5ontractor may reasonably re4uireI
c! to pay or procure the payment of any sum due and payable by hubco under the
5onstruction 5ontract as a result of any act or omission occurring during the
Step*in Period &hich shall arise from any act or omission occurring after the
Step*in Date but subject to 5lauses :$6 and 6$9$2i!b!! but not2 to avoid doubt2
any sum due in respect of any ;or,s carried out before the Step*in DateI and
d! to perform or discharge or procure the performance or discharge of any
obligations of hubco under the 5onstruction 5ontract as a result of any act or
omission occurring during the Step*in Period &hich shall arise from any act or
omission occurring after the Step*in Date but subject to 5lauses :$6 &$tep%Out'
and 6$9$2i!b!! but not2 to avoid doubt2 to perform or discharge or to procure the
performance or discharge of any obligations in respect of any ;or,s carried out
before the Step*in Date$
:$2$9 hubco shall immediately assign all its rights and po&ers under the Parent 5ompany
=uarantee to the Authority in accordance &ith 5lause JI>$E"T "E.E"E>CE ."OM
PC(K of the same$ The =uarantor ac,no&ledges and agrees that upon intimation to it of
such assignation2 the =uarantor shall o&e its obligations under the Parent 5ompany
=uarantee to the Authority to the e(clusion of hubco but &ithout prejudice to hubcoGs
right to claim thereunder in respect of any cause of action arising in respect of the period
prior to the assignation! upon the terms and conditions of the Parent 5ompany
=uarantee$
:$2$8 Af the Authority shall not have issued the Step*in %nderta,ing on or before the Proposed
Step*in Date2 the Step*in 0otice shall be deemed to have been &ithdra&n and the rights
and obligations of the Parties shall be construed as if the Step*in 0otice had not been
given$
:$: Re)tr,"t,n 6 R,*#t 6 Ter;,nat,n
During or in respect of the Step*in Period2 the 5onstruction 5ontractor confirms to the Authority that
it shall continue to observe and perform its duties and obligations under the 5onstruction 5ontract
and shall2 &ithout prejudice to 5lause 9$1 &"ig!ts of Termination'2 only be entitled to e(ercise its
rights of termination under the 5onstruction 5ontract)
:$:$1 by reference to an @vent of hubco Default arising during the Step*in Period provided that
no event of default by hubco under the Design & Build Development Agreement &hether
resulting in termination of the Design & Build Development Agreement or other&ise2 and
not&ithstanding that it has occurred during the Step*in Period! shall entitle the
5onstruction 5ontractor to e(ercise such rights of termination during the Step*in PeriodI
or
:$:$2 if the Authority2 in breach of the terms of the 5onstruction 5ontract2 fails to pay &hen due
any amount o&ed to the 5onstruction 5ontractor or fails to perform or discharge &hen
falling due for performance or discharge any obligation under the Step*in %nderta,ing or
fails to procure such payment or performance or dischargeI or
:$:$: if such rights of termination arise in circumstances &here there is no default under the
5onstruction 5ontract by the Authority or the 5onstruction 5ontractor$
:$6 Ste4>O$t
:$6$1 the Authority may2 at any time2 give the 5onstruction 5ontractor at least J thirty :.!K
daysG prior &ritten notice to terminate the Step*in Period on a date specified in the notice
the #Ste4>$t Date#!I
:$6$2 the Authority shall give the 5onstruction 5ontractor at least J thirty :.!K daysG prior
&ritten notice that subject to 5lause 6$6$2! the Step*in Period &ill end due to the
occurrence subject to 5lause 6$" &E/tension of $tep%In Period! of the first anniversary of
the Step*in DateI
provided that
a! the Authority has performed and discharged in full or procured the performance and
discharge in full of any obligations of hubco under the 5onstruction 5ontract in
relation to the maintenance of records and the provision of reports during the Step*
in Period so as to permit the 5onstruction 5ontractor to monitor the performance of
hubcoGs other obligations under the 5onstruction 5ontractI and
b! all liability under the Step*in %nderta,ing pursuant to any claims made up to the
date specified in either 5lause :$6$1 or 5lause :$6$2 as the case may be! shall
have been fully and unconditionally discharged2
the Authority shall be released from the Step*in %nderta,ing on the e(piry of the Step*in Period in
accordance &ith 5lauses :$6$1 and :$6$2$ Such release shall not affect the continuation of hubcoGs
obligations to&ards the 5onstruction 5ontractor under the 5onstruction 5ontract$
6$ N2at,n
6$1 Pr4)ed S$b)t,t$te
At any time that the Authority is entitled to give a Step*in 0otice pursuant to 5lause :$1 &$tep%In
>otice' or at any time during the Step*in Period the Authority may give notice a #Pr4)ed
N2at,n Nt,"e#! to the 5onstruction 5ontractor that it &ishes itself or another person a
#Pr4)ed S$b)t,t$te#! to assume2 by &ay of sale2 transfer or other disposal2 the rights and
obligations of hubco under the 5onstruction 5ontract and specifying a date the #Pr4)ed
N2at,n Date#!)
6$1$1 falling not later than J fifteen 19!K Business Days after termination of the Design &
Build Development Agreement &here this has been terminated by the AuthorityI
6$1$2 falling not later than the e(piry of the Termination 0otice &here a Proposed 0ovation
0otice is given by the Authority at a time &hen it is entitled to give a Step*in 0otice
pursuant to 5lause :$1I and
6$1$: falling not later than J t&enty eight 2?!K Business Days after the date of the
Proposed 0ovation 0otice2 &here a Proposed 0ovation 0otice is given during a Step*in
Period2
Save as provided in 5lause 6$6 &Consent )it!!eld'2 only one Proposed 0ovation 0otice may be
given during the period of this Agreement$ ;ithout prejudice to 5lauses :$: &"estriction of "ig!t of
Termination'2 the 5onstruction 5ontractor shall not be entitled to terminate the 5onstruction 5ontract
during the notice period specified in a Proposed 0ovation 0otice$
6$2 In6r;at,n 6r Cn)ent t N2at,n
Af the Proposed 0ovation 0otice specifies the Authority as the Proposed Substitute2 the 5onstruction
5ontractorGs consent to the novation shall be deemed to have been given automatically$ ;here the
Proposed Substitute is not the Authority2 a novation in accordance &ith a Proposed 0ovation 0otice
shall only be effective if the 5onstruction 5ontractor consents to that novation in &riting in
accordance &ith 5lause 6$: &(rant of Consent' and 5lause 9$1 &"ig!ts of Termination' and the
Authority shall as soon as practicable! supply the 5onstruction 5ontractor &ith the follo&ing
information)
6$2$1 the name and registered address of the Proposed SubstituteI
6$2$2 the names of the shareholders in the Proposed Substitute and the share capital o&ned
by each of themI
6$2$: the names of the directors and the secretary of the Proposed SubstituteI
6$2$6 details of the means by &hich it is proposed to finance the Proposed Substitute including
the e(tent to &hich such finance is committed and any conditions precedent as to its
availability for dra&ing!I and
6$2$9 the resources including contractual arrangements! &hich are to be available to the
Proposed Substitute to enable it to perform its obligations under the 5onstruction
5ontract$
6$: Grant 6 Cn)ent
The 5onstruction 5ontractor may &ithhold or delay consent to a novation only &here the Proposed
Substitute is not the Authority and the Authority has failed to sho& to the 5onstruction 5ontractorGs
satisfaction acting reasonably! that)
6$:$1 the Proposed Substitute has the legal capacity2 po&er and authorisation to become a
party to and perform the obligations of hubco under the 5onstruction 5ontractI and
6$:$2 the technical competence and financial standing of and the technical and financial
resources available to the Proposed Substitute are sufficient to perform the obligations of
hubco under the 5onstruction 5ontract$
The 5onstruction 5ontractor shall notify the Authority in &riting2 &ithin J five 9!K Business Days of
the later of receipt of a Proposed 0ovation 0otice and all information re4uired under 5lause 6$2
&Information for Consent to >ovation'2 as to &hether or not it has decided to grant such consent
together &ith an e(planation of its reasons if it has decided to &ithhold its consent!$
6$6 Cn)ent +,t##e(d
Af2 in accordance &ith 5lause 6$: &(rant of Consent'2 the 5onstruction 5ontractor &ithholds its
consent to a Proposed 0ovation 0otice2 the Authority shall be entitled to give one or more
subse4uent Proposed 0ovation 0otices2 pursuant to the provisions of 5lause 6$1 &Proposed
$ubstitute'2 containing changed particulars relating to the same Proposed Substitute or particulars
relating to another Proposed Substitute &hich &here the replacement Proposed Substitute is not
the Authority! the Authority has good cause to believe &ould fulfil the re4uirements of 5lauses 6$:$1
and 6$:$22 provided that only one Proposed 0ovation 0otice may be outstanding at any one time2
and provided further that)
6$6$1 &here a Step*in*0otice has not been issued2 any revised Proposed 0ovation Date shall
be a date falling no later than the date specified in 5lause 6$1$1 or 6$1$2 as appropriateI
and
6$6$2 if the Proposed 0ovation 0otice &as served during the Step*in Period2 any revised
Proposed 0ovation Date shall be a date falling not later than J K Business Days after
the date of the revised Proposed 0ovation 0otice$
6$9 I;4(e;entat,n 6 N2at,n
6$9$1 Af the 5onstruction 5ontractor consents to a novation pursuant to a Proposed 0ovation
0otice &hether automatically or other&ise!2 then on the Proposed 0ovation Date and
&ithout prejudice to 5lause 9$12 hubco shall immediately assign all its rights and po&ers
under the Parent 5ompany =uarantee to the Authority in accordance &ith
5lause JI>$E"T PC( "E.E"E>CEK of the same2 and on the Proposed 0ovation Date
and &ithout prejudice to 5lause 9$1 &"ig!ts of Termination')
a! subject to the prior performance by hubco of its obligations under 5lause 6$9$1
the Proposed Substitute shall become a party to the 5onstruction 5ontract in
place of hubco and2 thereafter2 shall be treated as if it &as and had al&ays been
named as a party to the 5onstruction 5ontract in place of hubcoI and
b! the 5onstruction 5ontractor2 hubco and the Proposed Substitute shall enter into
a novation agreement the #N2at,n A*ree;ent#! and any other re4uisite
agreements2 in form and substance satisfactory to the 5onstruction 5ontractor
acting reasonably!2 pursuant to &hich)
i! the Proposed Substitute shall be granted all of the rights of hubco under
the 5onstruction 5ontract including those arising prior to the end of the
Step*in Period!I
ii! subject to the 5onstruction 5ontractor giving to the Proposed Substitute
&ithin J K Business Days of receipt of the Proposed 0ovation 0otice
such notice as is referred to in 5lause :$2$1 and to the provisions of
5lauses :$2$2 and :$2$:2 mutatis mutandis2 the Proposed Substitute
shall assume all of the obligations and liabilities of hubco under the
5onstruction 5ontract including those arising prior to the end of any
Step*in Period and those arising during the period of the Proposed
0ovation 0otice!I
c! the =uarantor ac,no&ledges and agrees that it shall o&e its obligations under
the Parent 5ompany =uarantee to the Authority to the e(clusion of hubco but &ithout
prejudice to hubcoGs right to claim thereunder in respect of any course of action
arising in respect of the period prior to the novation! upon the terms and conditions
of the Parent 5ompany =uarantee2
provided that the 5onstruction 5ontractor &ill not be in breach of any of its obligations
under this Agreement if the Proposed Substitute does not enter into one or other of such
agreements$
6$9$2 <n and after the 0ovation @ffective Date)
a! the 5onstruction 5ontractor shall o&e its obligations under the 5onstruction
5ontract &hether arising before2 on or after such date! to the Proposed
Substitute and the receipt2 ac,no&ledgement or ac4uiescence of the Proposed
Substitute shall be a good dischargeI and
b! if the Authority shall have entered into a Step*in %nderta,ing2 the Authority &ill be
released from the Step*in %nderta,ing2 provided that)
i! all obligations of the Authority under the Step*in %nderta,ing &hich have
accrued up to the 0ovation @ffective Date and are identifiable as at that
date shall have been fully and unconditionally dischargedI and
ii! the Authority has performed and discharged in full or procured the
performance and discharge in full of the obligations of hubco under the
5onstruction 5ontract in relation to the maintenance of records and the
provision of reports during the Step*in Period up to the 0ovation
@ffective Date so as to permit the 5onstruction 5ontractor to monitor the
performance of hubcoGs other obligations under the 5onstruction
5ontract$
6$9$: the Authority and the 5onstruction 5ontractor shall use all reasonable endeavours to
agree and the Authority shall use reasonable endeavours to procure that the Proposed
Substitute agrees any amendments to the 5onstruction 5ontract necessary to reflect
5lause :$2$2 and the fact that the Design & Build Development Agreement may have
terminated at the time of the 0ovation @ffective Date$
6$8 Ter;,nat,n A6ter N2at,n
After the 0ovation @ffective Date the 5onstruction 5ontractor shall only be entitled to e(ercise its
rights of termination under the 5onstruction 5ontract)
6$8$1 in respect of any @vent of hubco Default arising after that date in accordance &ith the
5onstruction 5ontractI or
6$8$2 if the Proposed Substitute does not discharge the obligations and liabilities assumed by it
under 5lause 6$9$2i!b! &hich relate to matters arising prior to the end of the Step*in
Period &ithin J K Business Days follo&ing the 0ovation @ffective Date$
6$" E9ten),n 6 Ste4>In Per,d
As at the date of the first anniversary of the Step*in Date2 if the Step*in Period has not previously
ended2 and)
6$"$1 the Authority is in the course of conducting discussions in good faith &ith a Proposed
Substitute the novation to &hom has been approved by the 5onstruction 5ontractor
&hether automatically or other&ise in accordance &ith 5lause 6$: &(rant of Consent'!2
the Step*in Period shall be e(tended and shall continue until such date as is proposed by
the Authority and agreed by the 5onstruction 5ontractorI or
6$"$2 a contract has been entered into bet&een the Authority and a Proposed Substitute &hich
has been approved by the 5onstruction 5ontractor in accordance &ith 5lause 6$: &(rant
of Consent' as at such date2
the Step*in Period shall be e(tended and shall continue until the date such contract comes into
force2 provided that such date shall not be later than J K Business Days after the last date of
e(ecution of such contract$
9$ R,*#t) and Ob(,*at,n) $nder t#e Cn)tr$"t,n Cntra"t
9$1 R,*#t) 6 Ter;,nat,n
Af)
9$1$1 no Step*in 0otice or Proposed 0ovation 0otice is given before a Termination 0otice
e(pires or &ithin J K Business Days after termination of the Design & Build Development
Agreement by the AuthorityI or
9$1$2 a Step*in %nderta,ing is not issued on the Proposed Step*in DateI or
9$1$: the Step*in 0otice is &ithdra&n or2 pursuant to 5lause :$2$82 deemed to have been
&ithdra&nI or
9$1$6 the Step*in Period ends before the occurrence of the 0ovation @ffective DateI or
9$1$9 in the absence of a Step*in %nderta,ing2 the 5onstruction 5ontractor &ithholds its
consent to a novation pursuant to a Proposed 0ovation 0otice2 in accordance &ith
5lause 6$: &(rant of Consent'2 and does not subse4uently grant consent to a novation in
accordance &ith 5lause 6$6 &Consent )it!!eld' on or before the Proposed 0ovation
DateI or
9$1$8 in the absence of a Step*in %nderta,ing2 the obligations of the Proposed Substitute set
out in 5lause 6$9 &Implementation of >ovation' are not performed on the Proposed
0ovation DateI or
9$1$" the 5onstruction 5ontractor is entitled to terminate the 5onstruction 5ontract under
5lause :$: &"estriction of "ig!t of Termination' or 6$8 &Termination After >ovation'I or
9$1$? the Authority e(ercises its right to Step*out under 5lause :$6$12
the 5onstruction 5ontractor shall2 on and from the Step*<ut Date be entitled to)
9$1$/ e(ercise all of its rights under the 5onstruction 5ontract and act upon any and all
grounds for termination available to it in relation to the 5onstruction 5ontract &henever
occurringI and>or
9$1$1. pursue any and all claims and e(ercise any and all rights and remedies against hubco$
9$2 #$b"7) Ob(,*at,n) t Cnt,n$e
%ntil completion of a novation pursuant to 5lause 6$9 &Implementation of >ovation' unless the terms
of such novation e(pressly preserve an obligation or liability of hubco!2 hubco shall continue to be
liable for all its obligations and liabilities2 &henever occurring2 under or arising from the 5onstruction
5ontract not&ithstanding)
9$2$1 the service of a Step*in 0otice or the issue of a Step*in %nderta,ing or the e(piry of the
Step*in Period or the release of a Step*in %nderta,ingI or
9$2$2 the service of a Proposed 0ovation 0oticeI or
9$2$: any other provision of this Agreement$
8$ Re2"at,n 6 Nt,"e)
A Termination 0otice and a Step*in 0otice may each be revo,ed in &riting to the recipient! by the
Party giving them before the e(piry of their respective notice periods$ %pon any such revocation2 the
rights and obligations of the Parties shall be construed as if the relevant notice had not been given$
"$ A)),*nat,n
"$1 B,nd,n* n S$""e))r) and A)),*nee)
This Agreement shall be binding on and shall enure to the benefit of the Parties and their respective
successors and permitted assignees$ An the case of the Authority2 its successors shall include any
person to &hich the Scottish Einisters2 Jin e(ercising their statutory po&ers to transfer property2
rights and liabilities of the Authority upon the Authority ceasing to e(ist2K transfers the rights and
obligations of the Authority under this Agreement$
"$2 Re)tr,"t,n n A)),*nat,n
0o Party shall assign or transfer any part of its respective rights or obligations under this Agreement
&ithout the prior consent of the others such consent not to be unreasonably &ithheld or delayed!2
provided that)
"$2$1 hubco shall not assign this Agreement to any party other than a party to &hom hubcoLs
interests in the 5onstruction 5ontract are assigned in accordance &ith the 5onstruction
5ontractI
"$2$2 the Authority shall be entitled2 &ithout the consent of any other Party2 to transfer all its
rights and obligations hereunder2 to any person to &hom it assigns or other&ise disposes
of the benefit of the Design & Build Development Agreement in accordance &ith
5lause 6: Assignation1 $ub%Contracting! of the Design & Build Development Agreement
and2 other&ise2 &ith hubcoGs and the 5onstruction 5ontractorGs consent not to be
unreasonably &ithheld or delayed!I
"$2$: nothing in this sub*clause shall restrict the rights of the Scottish Einisters to effect a
statutory transferI
"$2$6 the 5onstruction 5ontractor shall assign this Agreement to any party to &hom it assigns
the 5onstruction 5ontract in accordance &ith the terms of that agreement!$
"$: N L))
The 5onstruction 5ontractor agrees that it shall not at any time assert that any permitted assignee in
terms of this Agreement is precluded from recovering any loss resulting from any breach of this
Agreement by reason that such assignee is not an original party to this Agreement or that no loss or
a different loss has been suffered by such assignee$
?$ Cn6,dent,a(,t-
?$1 The parties shall be bound to observe2 mutatis mutandis2 the terms of 5lause JI>$E"T
"E.E"E>CEK of the 5onstruction 5ontract &ith respect to any information or document referred to
in 5lause JI>$E"T "E.E"E>CEK of the 5onstruction 5ontract &hich shall come into its possession
pursuant to this Agreement$K
?$2 The 5onstruction 5ontractor agrees that the Authority shall be entitled to disclose the terms of this
Agreement in accordance &ith 5lause 68 &Confidentialit' of the Design & Build Development
Agreement$
/$ Nt,"e)
Any notice given under this Agreement shall be deemed to be duly given if it is delivered by hand or
sent by recorded delivery to the party named therein at the address of such party sho&n in this
Agreement or such other address as such party may by notice in &riting nominate for the purpose of
service and if sent by recorded delivery shall be deemed subject to proof to the contrary! to have
been received forty eight 6?! hours after being posted$
1.$ Pa-;ent) and Ta9e)
1.$1 Pa-;ent)
All payments under this Agreement to any Party shall be made in pounds sterling by electronic
transfer of funds for value on the day in 4uestion to the ban, account of the recipient located in the
%nited Fingdom! specified to the other Parties from time to time$
1.$2 VAT
1.$2$1 All amounts stated to be payable by any Party under this Agreement shall be e(clusive of
any CAT properly payable in respect of the supplies to &hich they relate$
1.$2$2 @ach Party shall pay any CAT properly payable hereunder in respect of any supply made
to it under this Agreement2 provided that it shall first have received a valid ta( invoice in
respect of that supply &hich complies &ith the re4uirements of Part AAA CAT 7egulations
1//9$
1.$: Ded$"t,n) 6r; 4a-;ent)
All sums payable by a Party to any other Party under this Agreement shall be paid free and clear of
all deductions or &ithholdings &hatsoever in respect of ta(ation2 save as may be re4uired by 3a&$
11$ De6a$(t Intere)t
@ach Party shall be entitled2 &ithout prejudice to any other right or remedy2 to receive interest on any
payment not made on the due date calculated from day to day at a rate per annum e4ual to the
Default Anterest 7ate from the day after the date on &hich payment &as due up to and including the
date of payment$
12$ A**re*ate L,ab,(,t-
0ot&ithstanding any other provision of this Agreement2 the 5onstruction 5ontractorGs aggregate
liability from time to time under this Agreement and the 5onstruction 5ontract shall not at any time
e(ceed its ma(imum liability as stated in the 5onstruction 5ontract as amended or varied!$
1:$ Pr6e)),na( Inde;n,t- In)$ran"e
1:$1 The 5ontractor by this Agreement covenants &ith the Authority that it has at its o&n cost ta,en out2
or procured the ta,ing out of2 professional indemnity insurance &ith reputable insurers carrying on
business in the @uropean %nion &ith a limit of indemnity of not less than RJ K2...2... J K million
pounds! Jon an each and every claim basisKJin the annual aggregateK &ith at least one annual
reinstatement2 in relation to the ;or,s2 provided al&ays that)
1:$1$1 such insurance shall be in place from the commencement of the ;or,s until no less than
12 years after the Actual 5ompletion Date or2 if earlier2 after the date of termination of the
5onstruction 5ontractI
1:$1$2 the insurance premiums in respect of the insurance shall at all times be the responsibility
of the 5ontractorI
1:$1$: if such insurance is not available to the 5ontractor and>or design and build contractors
engaged in projects of a similar scope2 siMe2 nature and comple(ity as the 5ontractor! at
commercially reasonable rates and terms e(cluding any increase in premiums
attributable to the actions2 omissions2 errors or defaults of the 5ontractor!2 the 5ontractor
and the Authority &ill meet and the 5ontractor &ill outline the steps it intends to ta,e to
manage such ris,s$ Af the steps proposed by the 5ontractor are not acceptable to the
Authority acting reasonably!2 the 5ontractor and the Authority shall agree an alternative
method of managing such ris,$
1:$2 The 5ontractor &ill2 upon re4uest2 provide the Authority &ith reasonable evidence that the policy
referred to in this 5lause 1: Professional Indemnit Insurance! is in full force and effect in
accordance &ith the re4uirements of this 5lause 1: Professional Indemnit Insurance!$
16$ T#,rd Part- R,*#t)
At is agreed that this Agreement is not intended to2 and does not2 give to any person &ho is not a
party to this Agreement any rights to enforce any provisions contained herein e(cept for any person
to &hom the benefit of this Agreement is assigned or transferred in accordance &ith 5lause "
&Assignation'$
19$ A*en"-
19$1 N De(e*at,n
0o provision of this Agreement shall be construed as a delegation by the Authority of any of its
statutory authority to any other Party$
19$2 N A*en"-
Save as other&ise provided in this Agreement2 no other Party shall be or be deemed to be an agent
of the other Parties nor shall any party hold itself out as having authority or po&er to bind the other
parties in any &ay$
19$: Inde4endent Cntra"tr
The Parties shall2 at all times2 be independent contractors and nothing in this Agreement shall be
construed as creating any partnership bet&een the Parties or any relationship of employer and
employee bet&een the Parties$
18$ +#(e A*ree;ent
18$1 This Agreement &hen read together &ith the Design & Build Development Agreement2 the
5onstruction 5ontract and the Parent 5ompany =uarantee! contains or e(pressly refers to the entire
agreement bet&een the Parties &ith respect to the specific subject matter of this Agreement and
e(pressly e(cludes any &arranty2 condition or other underta,ing implied at 3a& or by custom and
supersedes all previous agreements and understandings bet&een the Parties &ith respect thereto
and each of the Parties ac,no&ledges and confirms that it does not enter into this Agreement in
reliance on any representation2 &arranty or other underta,ing not fully reflected in the terms of this
Agreement$
18$2 0othing in this Agreement is intended to or shall operate so as to e(clude or limit any liability for
fraud or fraudulent misrepresentation$
1"$ +a,2er
'ailure by any Party at any time to enforce any provision of this Agreement or to re4uire
performance by the other Parties of any provision of this Agreement shall not be construed as a
&aiver of such provision and shall not affect the validity of this Agreement or any part of it or the right
of the relevant Party to enforce any provision in accordance &ith its terms$
1?$ Se2erab,(,t-
Af any condition2 5lause or provision of this Agreement not being of a fundamental nature2 is held to
be illegal or unenforceable2 the validity or enforceability of the remainder of this Agreement shall not
be affected thereby$
1/$ C)t) and E94en)e)
@ach Party shall be responsible for paying its o&n costs and e(penses incurred in connection &ith
the negotiation2 preparation and e(ecution of this Agreement$
2.$ A;end;ent)
0o amendment to this Agreement shall be binding unless in &riting and signed by the duly
authorised representatives of the Parties$
21$ G2ern,n* Law and %$r,)d,"t,n
21$1 Law
This Agreement shall be governed by and construed in all respects in accordance &ith Scottish la&$
21$2 %$r,)d,"t,n
The Parties each submit to the jurisdiction of the Scottish 5ourts as regards any claim or matter
arising in relation to this Agreement$
IN +ITNESS +HEREO/ these presents consisting of this and the J K preceding pages are e(ecuted as
follo&s)*
S%&$'() 2
COLLATERAL +ARRANTY
a;n*
[AUTHORITY]
1G11G8
and
[#$b"]
and
[CONTRACTOR]
and
[CONSULTANT]
1G1
1.1
;here the 'acilities are joint2 the 5onsultant shall be re4uired to grant a collateral &arranty in substantially the same form as that
set out in this Section 2 in favour of the other relevant authorities$
1.2
The Authority shall be entitled to re4uire hubco to procure a collateral &arranty from each party providing a collateral &arranty to
the Authority in favour of any future tenant of the 'acilities or part of the 'acilities under a '7A lease$
1.:
An addition to the &arranty to be granted by the 5ontractor and set out in Section 12 hubco shall be obliged to procure a collateral
&arranty in the form set out in this Section 2 from any other ,ey sub*contractor of hubco$
COLLATERAL +ARRANTY
AMONG.
[THE AUTHORITY] having its principal offices at J K Nthe Bene6,",ar-O &hich e(pression shall
include its successors in title or permitted assignees under this Agreement and>or the BeneficiaryLs
appointee!I
and
[#$b"]2 a company incorporated in Scotland under the 5ompanies Acts 7egistered 0umber J K! and
having its 7egistered <ffice at J K N#$b"O &hich e(pression shall include its successors in title or
permitted assignees under this Agreement!I
and
[ ] LIMITED2 a company incorporated in JScotland>@ngland and ;ales>0orthern ArelandK under the
5ompanies Acts 7egistered 0umber J K! and having its 7egistered <ffice at J K the #Cntra"trO &hich
e(pression shall include its successors in title or permitted assignees under this Agreement!$
and
[ ] LIMITED2 a company incorporated in JScotland>@ngland and ;ales>0orthern ArelandK under the
5ompanies Acts 7egistered 0umber J K! and having its 7egistered <ffice at J K the #Cn)$(tantO!$
+HEREAS.
A$ The Beneficiary and hubco have entered into an agreement for the design2
redevelopment>refurbishment the #De2e(4;ent#! on or about the date hereof #the De2e(4;ent
A*ree;ent#!$
B$ hubco and the 5ontractor have entered into a contract the #Cn)tr$"t,n Cntra"t#! on or about
the date hereof for the design and construction of the Development the #Cntra"t +r5)#!$
5$ The 5ontractor has entered or intends to enter into an agreement &ith the 5onsultant &hereby the
5onsultant &ill provide certain JdesignK services the #Ser2,"e)#! in connection &ith the
Development the #A44,nt;ent#! as more particularly described in the Appointment$
D$ At is a condition of the Appointment that the 5onsultant enters this Agreement &ith the Beneficiary$
@$ The Beneficiary shall be entitled to rely and is deemed to have relied on the 5onsultantGs
reasonable s,ill2 care and diligence in respect of all matters covered by this Agreement insofar as
they relate to the Services provided by the 5onsultant under the Appointment$
NO+ IT IS AGREED a) 6((w).
1$ +ARRANTY AND UNDERTA3ING
1$1 The 5onsultant &arrants and underta,es to the Beneficiary that it has complied and &ill continue to
comply &ith all the terms and obligations under or arising out of the Appointment on the 5onsultantLs
part to be performed and observed and shall complete the Services in accordance &ith the
Appointment$
1$2 ;ithout prejudice to 5lause 1$1 of this Agreement2 the 5onsultant further &arrants and underta,es to
the Beneficiary that)
1$2$1 it has e(ercised and &ill continue to e(ercise all the due s,ill2 care and diligence to be
e(pected from a properly 4ualified and competent consultant e(perienced in providing
design services on projects similar in nature2 siMe and comple(ity to the Project in)
a! the JdesignK of the 5ontract ;or,sI
b! the specification of goods and materials for the 5ontract ;or,s2 and in particular in
ensuring that it has not and &ill not specify for use in relation to the 5ontract ;or,s
any products or materials not in conformity &ith relevant British or @uropean
standards or 5odes of Practice or &hich are at the time of specification generally
,no&n &ithin the %nited Fingdom to an e(perienced designer of such as the
5ontract ;or,s to be deleterious to health and safety or to the durability of
buildings and>or other structures and>or finishes and>or plant and machinery in the
particular circumstances in &hich they are usedI and
c! the performance of the Services to the 5ontractor under the AppointmentI
d! the final JdesignK and all materials and goods specified therein &ill correspond as to
description2 4uality and condition &ith the re4uirements of the 5onstruction
5ontractI
e! the final JdesignK &ill at practical completion or its e4uivalent under the
5onstruction 5ontract2 as the case may be2 comply &ith all relevant legislation and
=ood Andustry Practice$
2$ INSURANCE
2$1 The 5onsultant shall maintain throughout the duration of provision of the Services and for a period of
12 years after the date of practical completion or its e4uivalent under the 5onstruction 5ontract2 or if
earlier the date of termination of the Appointment2 professional indemnity insurance in an amount of
not less than JI>$E"T PI LE+ELK million pounds RJI>$E"T .I(?"E]2...2...! sterling on an each
and every claim basis and for any one occurrence or series of occurrences arising out of any one
event &ith insurer of good repute carrying on business in the @uropean %nion provided al&ays that
such insurance is available at rates &hich are commercially reasonable to consultants$
2$2 An determining &hether or not insurance is available as aforesaid2 the financial characteristics and
claimsL record of the 5onsultant shall be ignored$
2$: The 5onsultant shall immediately inform the Beneficiary if such insurance ceases to be available at
rates &hich are commercially reasonable in order that the 5onsultant and the Beneficiary can
consider alternative means of best protecting their respective positions in respect of the
Development in the absence of such insurance provided that the Beneficiary shall be entitled to
re4uire the 5onsultant to maintain such lesser amount of professional indemnity insurance as is
available to the 5onsultant at rates &hich are commercially reasonable$
2$6 As and &hen it is reasonably re4uested to do so by the Beneficiary the 5onsultant shall produce for
inspection documentary evidence satisfactory to the Beneficiary acting reasonably! that its
professional indemnity insurance is being maintained$
2$9 The 5onsultant confirms that this Agreement has been disclosed to and has been approved by the
5onsultantLs professional indemnity insurers or under&riters$
2$8 Should the 5onsultant be in breach of any of its obligations under this 5lause 2 &Insurance'2 the
Beneficiary may itself insure against any ris, &ith respect to &hich the breach shall have occurred
and may recover such sum or sums from the 5onsultant as a debt$
:$ COPYRIGHT
:$1 The 5onsultant hereby grants to the Beneficiary or its appointee and all those authorised by the
Beneficiary an irrevocable2 transferable2 non*e(clusive and royalty*free licence &hich shall be
capable of assignation! to use and reproduce all information &hether or not stored in computer
systems!2 dra&ings2 models2 bills of 4uantities2 specifications2 schedules2 details2 plans2
programmes2 budgets2 reports2 calculations or other documents2 &or, or things including all
applicable pass&ords or access codes &hatsoever provided or to be provided by the 5onsultant in
connection &ith the Services the ND"$;ent)O! for such purposes as the Beneficiary may at its sole
discretion re4uire$
:$2 Such licence shall carry the right to grant sub*licences and shall subsist not&ithstanding that the
Appointment is terminated or the obligations and duties there under have been completed$ 'or the
avoidance of doubt2 the grant of such licence or sub*licences shall not impose any additional liability
on the 5onsultant$
:$: The 5onsultant shall on reasonable demand provide to the Beneficiary or its appointee and those
authorised by the Beneficiary additional copies of any documents on receipt of reasonable copying
costs$ The 5onsultant &ill not be liable for any use by the Beneficiary or any appointee or sub*
licensee of any of the Documents for any purpose other than that for &hich the same &ere prepared
and provided by the 5onsultant or for any improper or negligent use by the Beneficiary or any
appointee or sub*licensee$
:$6 The 5onsultant agrees to indemnify and ,eep indemnified the Beneficiary from and against all loss2
damage2 cost2 e(pense2 liability or claim in respect of breach of the copyright or other intellectual
property rights of any third party caused by or arising out of the carrying out of the Services or the
use of the licence$
6$ ASSIGNATION
6$1 This Agreement may be assigned in &hole or in part by the Beneficiary to any successor to the
BeneficiaryLs interest in the Development or any part thereof &ithout the consent of the 5onsultant
being re4uired and such assignation shall be effective upon &ritten notice thereof being given to the
5onsultant$ 0o assignation of this Agreement by any other party shall be permitted$
6$2 The 5onsultant agrees that it shall not at any time assert that any permitted assignee in terms of this
Agreement is precluded from recovering any loss resulting from any breach of this Agreement by
reason that such assignee is not an original party to this Agreement or that no less or a different loss
has been suffered by such assignee$
9$ NO +AIVER OR VARIATION
9$1 0o failure2 approval2 act or forbearance on the part of the Beneficiary in respect of any right of the
Beneficiary pursuant to this Agreement shall constitute any &aiver of any right of the Beneficiary
under or arising out of this Agreement nor relieve the 5onsultant of any of its duties or obligations
under or arising out of this Agreement$
9$2 The 5onsultant &ill not see, to modify or vary any of the obligations for &hich it is responsible under
the Appointment in any respect if that modification or variation &ill be detrimental to the Beneficiary
or affects the BeneficiaryGs rights or obligations under the Development Agreement or affects the
5onsultantGs obligations under this Agreement$
8$ E=UIVALENT RIGHTS
The obligations of the 5onsultant under this Agreement shall be no greater in e(tent or 4uantity than
if the Beneficiary had been named as joint employer &ith the 5ontractor under the Appointment$ The
5onsultant shall be entitled in any action or proceedings by the Beneficiary to rely on any limitation in
the Appointment and to raise the e4uivalent rights in defence of liability as it &ould have against the
5ontractor under the Appointment other than counterclaim2 set*off or to state a defence of no loss or
a different loss has been suffered by the 5ontractor!$
"$ NOTICES
"$1 Any notice2 consent or demand to be given or made by any party under this Agreement hereinafter
called a N0oticeO! shall only be validly served if in &riting and delivered personally or sent by pre*paid
first class recorded delivery post or sent by fa( to the follo&ing address and mar,ed for the attention
of the follo&ing person in the case of each party)
Party A 'a( 0umber Person
The Beneficiary JUK JUK JUK
hubco JUK JUK JUK
The 5ontractor JUK JUK JUK
The 5onsultant JUK JUK JUK
Any party may by 0otice to the other party>parties change its address2 fa( number or the title of the
person for &hose attention 0otices are to be given or made pursuant to this 5lause$ Any such
0otice shall be deemed to have been received)
"$1$1 if delivered personally2 at the time of deliveryI
"$1$2 in the case of pre*paid first class recorded delivery post2 on the first Business Day after the
date of postingI and
"$1$: in the case of a fa(2 at the time of transmission$
"$2 Af any 0otice is delivered or fa(ed after 9 p$m$ on a Business Day2 or at any time during a day &hich
is not a Business Day2 that 0otice shall be deemed to have been received at / a$m$ on the ne(t
Business Day$
"$: 'or the purposes of this 5lause " &>otices'2 NBusiness DayO means any day &hich is not a Saturday2
a Sunday or a public holiday in Scotland$ An proving service it shall be sufficient to prove that the
envelope containing such 0otice &as properly addressed to the relevant party and either delivered
personally to that address or delivered into the custody of the postal authorities as a pre*paid first
class recorded delivery letter2 or that such 0otice &as transmitted by fa( to the correct fa( number of
the relevant party as demonstrated by the transmission slip!$ 'or the avoidance of doubt2 0otices
shall not be validly served if sent by e*mail$
?$ The definitions of &ords and phrases used in this Agreement shall be those set out in the
5onstruction 5ontract and Appointment e(cept &here e(pressly defined in this Agreement$
/$ This Agreement shall be governed by and construed in accordance &ith Scots 3a& and the parties
hereto submit to the e(clusive jurisdiction of the Scottish 5ourts$
1.$ Save to the e(tent e(pressly provided in this Agreement no provision of this Agreement is intended
to or does confer upon any third party any benefit or right enforceable at the option of that third party
or any liability &hatsoever to any third party2 and &ithout prejudice to the generality of the foregoing2
there shall not in any circumstances be created by this Agreement a jus 4uaesitum tertio in favour of
any person &hatsoever$
IN +ITNESS +HEREO/ this Agreement consisting of this and the preceding J K pages is e(ecuted as
follo&s)
PA#$ 0
OUTLINE COMMISSIONING PROGRAMME
1G?
JT!e contents of t!is Schedule Part H are project specific and s!ould be prepared b eac! Aut!orit on a
project basis6K
1.6
To be considered in light of 5lauses 18 Pre%Completion Commissioning! and 1? Post Completion Commissioning' and the
commissioning activities to be carried out during those periods$ This should outline &ho is responsible for &hat and &hen! and
set out the principles for all completion tests and inspections$
PA#$ "!
E=UIPMENT
1G@
JT!e contents of t!is $c!edule Part 1. are project specific and s!ould be prepared b eac! Aut!orit on a
project basis6K
1.9
This Schedule Part 1. should include a list of the e4uipment that hubco is re4uired to procure and install and any other items
that are relevant to e4uipment on a project specific basis$
PA#$ ""
DEVELOPMENT AMOUNT ANALYSIS
JI>$E"T B"EA,DO)> O. DE+ELOPME>T AMO?>T )@IC@ )ILL DICTATE T@E D"A)DO)> BA
@?BCO O. T@E DE+ELOPME>T AMO?>T O+E" T@E PE"IOD O. T@E P"OBECT6K
PA#$ "2
INSURANCE RE=UIREMENTS
T!is Schedule Part 7< comprises%
Section 19 Policies to be ta-en out b !ubco
Section 29 Policies to be ta-en out b t!e Aut!orit
Section 39 Endorsements
Section 49 Bro-er3s Letter of ?nderta-ing
S%&$'() "
POLICIES TO BE TA3EN OUT BY HUBCO AND MAINTAINED PRIOR TO COMMENCEMENT O/ THE
+OR3S AND TO BE MAINTAINED /OR THE PERIODS SPECI/IED IN THIS SCHEDULE PART 18F
5ommon to each policy in Section 1 unless stated other&ise!)
In)$red)
1.8
)*
1$ Authority
2$ hubco
:$ 5ontractor
6$ 5onstruction sub*contractors of any tier
9$ 5onsultants * for their site activities only2
each for their respective rights and interests in the Project$
1$ CONTRACTORSL MALL RIS3SL INSURANCE ICARJ
1$1 In)$red Pr4ert-
The permanent and temporary &or,s2 materials Jincluding but not limited to e4uipment supplied by
the AuthorityK
1."
2 goods2 plant and e4uipment for incorporation in the &or,s other than
constructional plant2 tools2 accommodation and e4uipment belonging to or the responsibility of the
5ontractor or the construction sub*contractors! and all other property used or for use in connection
&ith &or,s associated &ith the Project #The Ansured Property#!$
1$2 C2era*e
NAll ris,sO of physical loss or damage to the Ansured Property unless other&ise e(cluded$
1$: S$; In)$red
At all times an amount not less than the full reinstatement or replacement value of the Ansured
Property2 but not less than RJ K plus provision to include e(tensions as appropriate$
1$6 Ma9,;$; Ded$"t,b(e
R J K
1$9 Terr,tr,a( L,;,t)
%nited Fingdom including offsite storage and during inland transit$
1$8 Per,d 6 In)$ran"e
'rom the date of this Agreement until the Actual 5ompletion Date and thereafter in respect of
defects liability until e(piry of the J12K months defects liability period$
1.8
@nsure that parties named>defined terms match structure of particular project
1."
Anclude as appropriate as this is project specific$
1$" C2er /eat$re) ' E9ten),n)
1.?
1$"$1 Terrorism$
1$"$2 Eunitions of &ar clause$
1$"$: Additional costs of completion clause$
1$"$6 Professional fees clause$
1$"$9 Debris removal clause$
1$"$8 "2 hour clause$
1$"$" @uropean %nion local authorities clause$
1$"$? 'ree issue materials clause$
1$"$/ J1.KQ escalation clause$
1$"$1. Automatic reinstatement of sum insured clause$
1$"$11 3oss minimisation$
1$? Pr,n",4a( E9"($),n)
1$?$1 ;ar and related perils %F mar,et agreed &ording!$
1$?$2 0uclear>radioactive ris,s %F mar,et agreed &ording!$
1$?$: Pressure &aves caused by aircraft and other aerial devices travelling at sonic or
supersonic speeds$
1$?$6 ;ear2 tear and gradual deterioration$
1$?$9 5onse4uential financial losses$
1$?$8 5yber ris,s$
1$?$" Anventory losses$
1$?$? 'raud and employee dishonesty$
1$?$/ D@9> D@: drop do&n option$
2$ CONSTRUCTION THIRD PARTY LIABILITY INSURANCE
1./
2$1 Intere)t
To indemnify the Ansured in respect of all sums that they may become legally liable
11.
to pay
including claimantLs costs and e(penses! as damages in respect of accidental)
2$1$1 death2 or bodily injury2 illness2 death2 disease contracted by any personI
2$1$2 loss or damage to propertyI
1.?
Additional 5over 'eatures & @(tensions may be appropriate for certain projects$
1./
Af possible2 insurance should be placed on a #losses occurring# basis$
11.
5over should be for contractual liability2 statutory liability and liability in delict$
2$1$: interference to property or any easement right of air2 light2 &ater or &ay or the enjoyment
or use thereof by obstruction2 trespass2 nuisance2 loss of amenities2 or any li,e cause$
happening during the Period of Ansurance and arising out of or in connection &ith the Project$
2$2 L,;,t 6 Inde;n,t-
0ot less than RJ Km
111
in respect of any one occurrence2 the number of occurrences being
unlimited2 but in the aggregate in respect of pollution liability$
2$: Ma9,;$; Ded$"t,b(e
RJ K for each and every occurrence of property damage$ Personal injury claims &ill be paid in
full
112
!$
2$6 Terr,tr,a( L,;,t)
%F Jand else&here in the &orld in respect of non manual visitsK$
2$9 %$r,)d,"t,n
;orld&ide e(cluding the %SA and 5anada$
2$8 Per,d 6 In)$ran"e
As per the 5ontractorsL NAll 7is,sO Ansurance2 including the defects liability period$
2$" C2er /eat$re) ' E9ten),n)
11:
2$"$1 Eunitions of &ar$
2$"$2 5ross liability clause$
2$"$: 5ontingent motor$
2$"$6 3egal defence costs$
2$? Pr,n",4a( E9"($),n)
2$?$1 3iability for death2 illness2 disease or bodily injury sustained by employees of the insured$
2$?$2 3iability arising out of the use of mechanically propelled vehicles &hilst re4uired to be
compulsorily insured by legislation in respect of such vehicles$
2$?$: 3iability in respect of predetermined penalties or li4uidated damages imposed under any
contract entered into by the Ansured$
2$?$6 3iability in respect of loss or damage to property in the care2 custody and control of the
insured but this e(clusion is not to apply to all property belonging to the Authority &hich is
in the care2 custody and control of another Ansured$
2$?$9 @vents more properly covered under a professional indemnity policy$
2$?$8 3iability arising from the o&nership2 possession or use of any aircraft or marine vessel$
111
3imit should be determined by the Authority2 in conjunction &ith its insurance adviser2 ta,ing into account the relevant
circumstances of the project$
112
'or certain projects an e(cess may apply to personal injury claims$
11:
'or certain projects2 additional 5over 'eatures & @(tensions may need to be noted$
2$?$" 3iability arising from seepage and pollution unless caused by a sudden2 unintended and
une(pected occurrence$
2$?$? 3osses indemnified under the 5A7 policy or DS% policy$
S%&$'() 2
POLICIES TO BE TA3EN OUT BY THE AUTHORITY AND MAINTAINED PRIOR TO COMMENCEMENT
O/ THE +OR3S AND TO BE MAINTAINED /OR THE PERIODS SPECI/IED IN THIS SCHEDULE PART
18F
5ommon to all policies in Section 2 unless stated other&ise!)
In)$red)
116
)*
1$ Authority
2$ hubco
:$ 5ontractor
6$ 5onstruction sub*contractors of any tier
9$ 5onsultants * for their site activities only2
each for their respective rights and interests in the Project$
1$ E0ISTING STRUCTURES INSURANCE
1$1 In)$red Pr4ert-
Any e(isting structures o&ned by the Authority or in respect of &hich the Authority is responsible
and any contents thereof o&ned by the Authority or for &hich the Authority is responsible #The
Ansured Property#!$
1$2 C2era*e
NAll ris,sO of physical loss or damage to the Ansured Property unless other&ise e(cluded$
1$: S$; In)$red
At all times an amount not less than the full reinstatement or replacement value of the Ansured
Property2 but not less than RJ K plus provision to include e(tensions as appropriate$
1$6 Ma9,;$; Ded$"t,b(e
R J K
1$9 Terr,tr,a( L,;,t)
%nited Fingdom including offsite storage and during inland transit$
1$8 Per,d 6 In)$ran"e
'rom the date of this Agreement until the Actual 5ompletion Date and thereafter in respect of
defects liability until e(piry of the J12K months defects liability period$
116
@nsure that parties named>defined terms match structure of particular project
1$" C2er /eat$re) ' E9ten),n)
119
1$"$1 Terrorism$
1$"$2 Eunitions of &ar clause$
1$"$: Additional costs of completion clause$
1$"$6 Professional fees clause$
1$"$9 Debris removal clause$
1$"$8 "2 hour clause$
1$"$" @uropean %nion local authorities clause$
1$"$? 'ree issue materials clause$
1$"$/ J1.KQ escalation clause$
1$"$1. Automatic reinstatement of sum insured clause$
1$"$11 3oss minimisation$
1$? Pr,n",4a( E9"($),n)
1$?$1 ;ar and related perils %F mar,et agreed &ording!$
1$?$2 0uclear>radioactive ris,s %F mar,et agreed &ording!$
1$?$: Pressure &aves caused by aircraft and other aerial devices travelling at sonic or
supersonic speeds$
1$?$6 ;ear2 tear and gradual deterioration$
1$?$9 5onse4uential financial losses$
1$?$8 5yber ris,s$
1$?$" Anventory losses2 fraud and employee dishonesty$
119
Additional 5over 'eatures & @(tensions may be appropriate for certain projects$
S%&$'() *
ENDORSEMENTS
11A
%nless the conte(t other&ise re4uires defined terms set out in the follo&ing endorsements shall have the
meaning set out in this Agreement$
Endr)e;ent 1
Can"e((at,n
This policy shall not be cancelled or terminated before the original e(piry date is to ta,e effect e(cept in
respect of non*payment of premium$
The insurer shall by &ritten notice advise the Authority)
a! at least :. days before any such cancellation or termination is to ta,e effectI
b! at least :. days before any reduction in limits or coverage or any increase in deductibles is
to ta,e effectI and
c! of any act or omission or any event of &hich the insurer has ,no&ledge and &hich might
invalidate or render unenforceable in &hole or in part this policy$
Endr)e;ent 8
M$(t,4(e In)$redHNn>V,t,at,n C(a$)e
@ach of the parties comprising the insured shall for the purpose of this policy be considered a separate co*
insured entity2 insured on a composite basis2 &ith the &ords #the insured# applying to each as if they &ere
separately and individually insured provided that the total liability of the insurers under each section of this
policy to the insured collectively shall not unless the policy specifically permits other&ise! e(ceed the limit of
indemnity or amount stated to be insured under that section or policy$ Accordingly2 the liability of the insurers
under this policy to any one insured shall not be conditional upon the due observance and fulfilment by any
other insured party of the terms and conditions of this policy or of any duties imposed upon that insured party
relating thereto2 and shall not be affected by any failure in such observance or fulfillment by any such other
insured party$
At is understood and agreed that any payment or payments by insurers to any one or more of the insureds
shall reduce2 to the e(tent of that payment2 insurersG liability to all such parties arising from any one event
giving rise to a claim under this policy and if applicable! in the aggregate$
Ansurers shall be entitled to avoid liability to or as may be appropriate! claim damages from any insured
party in circumstances of fraud misrepresentation non*disclosure or material breach of &arranty or condition
of this policy each referred to in this clause as a NCitiating ActO! committed by that insured party save &here
such misrepresentation non*disclosure or breach of &arranty or condition &as committed innocently and in
good faith$
'or the avoidance of doubt it is ho&ever agreed that a Citiating Act committed by one insured party shall not
prejudice the right to indemnity of any other insured &ho has an insurable interest and &ho has not
committed the Citiating Act$
Ansurers hereby agree to &aive all rights of subrogation and>or recourse &hich they may have or ac4uire
against any insured party together &ith their employees and agents! e(cept &here the rights of subrogation
or recourse are ac4uired in conse4uence of a Citiating Act in &hich circumstances insurers may enforce
such rights against the insured responsible for the Citiating Act not&ithstanding the continuing or former
status of the vitiating party as an insured$
118
The endorsements are recommended drafting$ ;hilst the parties should endeavour to obtain cover in accordance &ith
these &ordings2 if these are not in practice available2 the parties should obtain the best terms reasonably available in the mar,et
at the time$
0ot&ithstanding any other provision of this policy or any other document or any act and>or omission by any
insured party insurers agree that)
1! no party other than the Authority has any authority to ma,e any &arranty2 disclosure or representation in
connection &ith this policy on behalf of the AuthorityI
2! &here any &arranty2 disclosure or representation is re4uired from the Authority in connection &ith this
policy insurers &ill contact the Authority in &riting in accordance &ith @ndorsement : to the 5ontract! and
set out e(pressly the &arranty2 disclosure and>or representation re4uired &ithin a reasonable period of time
from the Authority regarding itself!I and
:! save as set out in a re4uest from insurers to the Authority in accordance &ith 2! above2 the Authority
shall have no duty to disclose any fact or matter to insurers in connection &ith this policy save to the e(tent
that for the Authority not to disclose a fact or matter &ould constitute fraudulent misrepresentation and>or
fraudulent non*disclosure$
Endr)e;ent 1
C;;$n,"at,n)
All notices or other communications under or in connection &ith this policy shall be given to each insured
and the Authority! in &riting or by facsimile$ Any such notice &ill be deemed to be given as follo&s)
a! if in &riting2 &hen deliveredI
b! if by facsimile2 &hen transmitted but only if2 immediately after transmission2 the senderLs
facsimile machine records a successful transmission has occurred$
The address and facsimile number of the Authority for all notices under or in connection &ith this policy are
those notified from time to time by the Authority for this purpose to hubco at the relevant time$ The initial
address and facsimile number of the Authority are as follo&s)
1$ The Authority)
Address)
'acsimile 0o) J K
Attention) The 5hief @(ecutive from time to time of
the Authority
At is further agreed that a notice of claim given by the Authority or any other insured shall in the absence of
any manifest error be accepted by the insurer as a valid notification of a claim on behalf of all insureds$
Endr)e;ent ?
L)) Pa-ee Ia44(,"ab(e n(- t t#e P#-),"a( Da;a*e) P(,",e)J
All proceeds of this policy shall be payable &ithout deduction or set*off to the -oint Ansurance Account$
Endr)e;ent @
Pr,;ar- In)$ran"e
At is e(pressly understood and agreed that this policy provides primary cover for the insured parties and that
in the event of loss destruction damage or liability covered by this policy &hich is covered either in &hole or
in part under any other policy or policies of insurance effected by or on behalf of any of the insured parties
the insurers &ill indemnify the insured parties as if such other policy or policies of insurance &ere not in force
and the insurers &aive their rights of recourse if any against the insurers of such other policy or policies of
insurance$
Endr)e;ent A
R,n*6en",n*
The level of any indemnity available to an insured party under this policy in relation to any claims!
concerning the Project shall not be affected and>or reduced by any claims! unrelated to the Project$
S%&$'() +
BROKERS LETTER OF UNDERTAKING
11C
T. T#e A$t#r,t-
Dear S,r)
A*ree;ent dated [ ] entered ,nt between [
] L,;,ted It#e N#$b"EJ and [ ] It#e NA$t#r,t-EJ It#e NA*ree;entEJ
1$ ;e refer to the Agreement$ %nless the conte(t other&ise re4uires2 terms defined in the Agreement
shall have the same meaning in this letter$
2$ ;e act as insurance bro,er to hubco in respect of the Ansurances and in that capacity &e confirm
that the Ansurances &hich are re4uired to be procured pursuant to clause J K and schedule J K of
the Agreement)
2$1 &here appropriate name you and such other persons as are re4uired to be named pursuant to the
Agreement for their respective interestsI
2$2 are2 in our reasonable opinion as insurance bro,ers2 as at todayLs date2 in full force and effect in
respect of all the matters specified in the AgreementI and
2$: that all premiums due to date in respect of the Ansurances are paid and the Ansurances are2 to the
best of our ,no&ledge and belief2 placed &ith insurers &hich2 as at the time of placement2 are
reputable and financially sound$ ;e do not2 ho&ever2 ma,e any representations regarding such
insurersL current or future solvency or ability to pay claimsI and that
2$6 the endorsements set out in Section : &Endorsements' of Schedule Part 12 Insurance
"e4uirements! of the Agreement are as at todayLs date in full force and effect in respect of the
Ansurances$
:$ ;e further confirm that the attached cover notes confirm this position$
6$ Pursuant to instructions received from hubco and in consideration of your approving our
appointment Jor continuing appointmentK as bro,ers in connection &ith the Ansurances2 &e hereby
underta,e in respect of the interests of the Authority in relation to the Ansurances)
6$1 0otification <bligations
6$1$1 to notify you at least :. thirty! days prior to the e(piry of any of the Ansurances if &e have
not received instructions from hubco to negotiate rene&al and in the event of our
receiving instructions to rene&2 to advise you promptly of the details thereofI
6$1$2 to notify you at least :. thirty! days prior to ceasing to act as bro,ers to hubco unless2
due to circumstances beyond our control2 &e are unable to do so in &hich case &e shall
notify you as soon as practicableI and
6$1$: to pay into the -oint Ansurance Account &ithout set off or deduction of any ,ind for any
reason all payments in respect of claims received by us from insurers in relation to the
Ansurances specified in 5lauses 6.$1 to 6.$: of the Agreement$
6$2 Advisory <bligations
11"
The &ording in this @rror) 7eference source not found of this Schedule Part 12 is recommended drafting$ Af agreement to
this &ording is not in practice achievable2 then the parties should agree the best terms reasonably available in the mar,et at the
time$

6$2$1 to notify you promptly of any default in the payment of any premium for any of the
AnsurancesI
6$2$2 to notify you if any insurer cancels or gives notification of cancellation of any of the
Ansurances2 at least :. thirty! days before such cancellation is to ta,e effect or as soon
as reasonably practicable in the event that notification of cancellation ta,es place less
than :. thirty! days before it is to ta,e effectI
6$2$: to notify you of any act or omission2 breach or default of &hich &e have ,no&ledge &hich
in our reasonable opinion may either invalidate or render unenforceable in &hole or in
part any of the Ansurances or &hich may other&ise materially impact on the e(tent of
cover provided under the AnsurancesI and
6$2$6 to advise hubco of its duties of disclosure to insurers and to specifically advise upon)
a! the facts2 circumstances and beliefs that should generally be disclosed to
insurersI and
b! the obligation not to misrepresent any facts2 matters or beliefs to insurers$
6$: Disclosure <bligations
6$:$1 to disclose to insurers all information made available to us from any source and any fact2
change of circumstances or occurrence made ,no&n to us from any source &hich in our
reasonable opinion is material to the ris,s insured against under the Ansurances and
&hich properly should be disclosed to insurers as soon as practicable after &e become
a&are of such information2 fact2 change of circumstance or occurrence &hether prior to
inception or rene&al or other&iseI and
6$:$2 to treat as confidential all information so mar,ed or other&ise stated to be confidential
and supplied to us by or on behalf of hubco or the Authority and not to disclose such
information2 &ithout the prior &ritten consent of the supplier2 to any third party other than
those persons &ho2 in our reasonable opinion have a need to have access to such
information from time to time2 and for the purpose of disclosure to the insurers or their
agents in respect of the Ansurances in discharge of our obligation set out at 5lause 6$:$1
of this letter$ <ur obligations of confidentiality shall not conflict &ith our duties o&ed to
hubco and shall not apply to disclosure re4uired by an order of a court of competent
jurisdiction2 or pursuant to any applicable la&2 governmental or regulatory authority
having the force of la& or to information &hich is in the public domain$
6$6 Administrative <bligations
6$6$1 to hold copies of all documents relating to or evidencing the Ansurances2 including but
&ithout prejudice to the generality of the foregoing2 insurance slips2 contracts2 policies2
endorsements and copies of all documents evidencing rene&al of the Ansurances2
payment of premiums and presentation and receipt of claimsI
6$6$2 to supply to the Authority and>or its insurance advisers or the AuthorityLs or its insurance
advisersL authorised representatives! promptly on &ritten re4uest copies of the
documents set out in 5lause 6$6$1 of this letter2 and to the e(tent available2 to ma,e
available to such persons promptly upon the AuthorityLs re4uest the originals of such
documentsI
6$6$: to administer the payment of premiums due pursuant to the Ansurances such that2 in so
far as &e hold appropriate funds2 all such premiums shall be paid to insurers in
accordance &ith the terms of the AnsurancesI
6$6$6 to administer the payment of claims from insurers in respect of the Ansurances the
NAnsurance 5laimsO! including)
a! negotiating settlement of Ansurance 5laims presented in respect of the
AnsurancesI
b! collating and presenting all information re4uired by insurers in relation to
Ansurance 5laims presented in respect of the Ansurances2 and
c! insofar as it is relevant and practicable2 liaising &ith and reporting to each
Authority throughout the settlement2 payment and administration of such
Ansurance 5laims$
6$6$9 to advise the Authority promptly upon receipt of notice of any material changes &hich &e
are instructed to ma,e in the terms of the Ansurances and &hich2 if effected2 in our opinion
as Ansurance Bro,ers &ould result in any material reduction in limits or coverage or in any
increase in deductibles2 e(clusions or e(ceptionsI
6$6$8 to advise the Authority in advance of any change to the terms of2 or any lapse2 non*
rene&al and>or cancellation of any policy maintained in respect of the AnsurancesI and
6$6$" to use our reasonable endeavours to have endorsed on each and every policy evidencing
the Ansurances &hen the same is issued! endorsements substantially in the form set out
in Section : to Schedule Part 12 of the Agreement$
6$9 Ansurance 5ost 7eporting Procedures
6$9$1 to prepare follo&ing re4uest2 at the e(pense of hubco2 a -oint Ansurance 5ost 7eport on
behalf of both hubco and the Authority in accordance &ith the Ansurance 7evie&
Procedure as set forth in Section 6 of Schedule Part 12 of the Agreement$ ;e shall
ensure that the information in the -oint Ansurance 5ost 7eport is fairly represented2 based
on the information available to us$
11?

9$ 0otification Details
9$1 <ur obligations at 5lause 6 of this letter to notify or inform you shall be discharged by providing the
re4uisite information in hard copy to)
J K Authority
9$2 ;e shall supply further letters substantially in this form on rene&al of each of the Ansurances and
shall supply copies of such letters to those parties identified to us by the Authority for such
purposes$
Dours faithfully
********************
'or and on behalf of JhubcoLs bro,erK
11/
11?
This provision under 5lause 6$9 is re4uired drafting and may not be altered$
11/
hubcoGs bro,er may &ish to limit its liability and include additional liability &ording in the Bro,erLs 3etter of %nderta,ing$ ;hilst
this is in principle acceptable2 the Authority &ill need to chec, that i! the scope of such additional &ording is appropriate eg
does not e(tend to a limitation of liability for fraudulent acts!2 and ii! the capped amount is set at a sufficiently high level$
PA#$ "*
VARIATION PROCEDURE
S%&$'() "
INTERPRETATION
'or the purposes of this Agreement2 and in particular this Schedule Part 1: +ariation Procedure!2 unless the
conte(t re4uires other&ise)
#Authority ;or,s Cariation# means a variation to the ;or,s initiated by the
Authority in accordance &ith this Schedule Part 1:
+ariation Procedure!
#Authority ;or,s Cariation 5onfirmation# means a Cariation 5onfirmation pursuant to
paragraph 6$6 of Section 2 of Schedule Part 1:
+ariation Procedure! in respect of a Authority ;or,s
Cariation
#Authority ;or,s Cariation @n4uiry# has the meaning given in paragraph 2$1$1 of Section
2 of Schedule Part 1: +ariation Procedure!
#Hualifying Cariation# means a Cariation for &hich a Cariation 5onfirmation
has been issued and the supplementary agreement
referred to in paragraph 6$6 of Section 2 of Schedule
Part 1: +ariation Procedure! has become
unconditional in all respects
#7oom Data Sheets# has the meaning described in Schedule Part 9
Construction Matters!
#Cariation# means an Authority ;or,s Cariation
#Cariation 5onfirmation# has the meaning given in paragraph 6$6 of Section 2
of Schedule Part 1: +ariation Procedure!
#Cariation @n4uiry# has the meaning given in paragraph 2$1 of Section 2
of Schedule Part 1: +ariation Procedure!
S%&$'() 2
VARIATIONS
1$ GENERAL
Subject to receiving the Cariation 5onfirmation issued in accordance &ith the terms of this
Schedule Part 1: and to any 5onsent &hich must be obtained or modified being so obtained or
modified and subject to the other provisions of this Schedule Part 1:2 hubco shall be under a duty
to implement a Cariation$ hubco &ill not be entitled to any payment or compensation for or in
respect of a Cariation save as provided in accordance &ith this Schedule Part 1:$
2$ VARIATION EN=UIRIES
2$1 A Cariation @n4uiry shall be a document issued by the AuthorityGs 7epresentative &hich)
2$1$1 states on its face that it is a Cariation @n4uiryI and
2$1$2 specifies the nature of the Authority ;or,s Cariation and &hich of the provisions of the
AuthorityGs 5onstruction 7e4uirements and>or hubcoGs Proposals are re4uired to be
amended to accommodate the relevant Authority ;or,s Cariation$
12.

2$2 The AuthorityGs 7epresentative may not issue a Cariation @n4uiry other than in accordance &ith the
provisions of this Section 2$
:$ HUBCO RESPONSE TO VARIATION EN=UIRY
Pre(,;,nar- Ind,"at,2e In6r;at,n
:$1 Prior to giving a notice referred to in paragraph :$2 of this Section 2)
:$1$1 hubco may at its option &ithin ten 1.! Business Days of receipt of a Cariation @n4uiry)
a! give to the Authority in good faith a preliminary non*binding indication of the
estimated cost of implementing the Cariation and provide such other information
about the Cariation as is available to hubco and &hich it believes is useful to the
AuthorityI and
b! such information shall include in particular hubcoGs estimated effect on the date
&hen the Actual 5ompletion Date &ill occurI
:$1$2 if hubco provides an indication referred to in paragraph :$1$1a!2 the Authority shall &ithin
a further five 9! Business Days of its receipt confirm &hether or not it &ishes hubco to
proceed to respond to the Cariation @n4uiry in accordance &ith provisions of
paragraph :$2$
#$b" Re)4n)e
:$2 ;ithin one 1! month of receipt of a Cariation @n4uiry or if the provisions of paragraph :$1$2 apply!
&ithin one 1! month of the Authority confirming that it &ishes hubco to proceed &ith responding to
the Cariation @n4uiry or in either case such longer period as may be agreed by the parties or
determined in accordance &ith Schedule Part 19 Dispute "esolution Procedure! as reasonable
given the nature of the Cariation @n4uiry and all other relevant considerations
121
2 hubco shall either)
12.
The reference to hubcoGs Proposals has been included to give Authorities fle(ibility in circumstances &here it is not possible to
outline the change re4uired solely by reference to the AuthorityGs output specifications$ This option should be used on a limited
basis so that2 &herever possible2 the AuthorityGs output specifications alone are used for this purpose! ta,ing account of ris, transfer
implications if hubcoGs Proposals are amended by the Authority$
121
5onsider &hether provision is to be made for a longer period of time being a possibility or &hether the 1 month period should
be left as it is2 in &hich case hubco may give a less detailed response$
:$2$1 give notice to the AuthorityGs 7epresentative that it objects to the Cariation @n4uiry stating
the grounds of the objection$ hubco may only object to a Cariation @n4uiry on one or
more of the follo&ing grounds
122
)
a! that implementation of the Cariation &ould materially and adversely affect the
health and safety of any personI or
b! that implementation of the Cariation &ould)
i! infringe any 3a&I or
ii! cause any e(isting 5onsent &hich is not reasonably li,ely2 on a
balance of probabilities2 to be capable of modification! to be revo,edI
or
iii! re4uire a ne& 5onsent &hich &ill not using all reasonable
endeavours! be obtainableI or
iv! have a material and adverse effect on the carrying out of the ;or,s
e(cept those ;or,s &hich have been specified as re4uiring to be
amended in the Cariation @n4uiry! in a manner not compensated
pursuant to this Schedule Part 1:I or
ii! be a departure from =ood Andustry PracticeI or
c! that the Authority does not have the legal po&er or capacity to re4uire the
Cariation to be implemented or to do anything envisaged by this Schedule Part
1: in respect of2 or in connection &ith2 the CariationI or
d! that the Cariation &ould2 if implemented2 result in a change in the essential
nature of the 'acilities
12:
I or
e! that the Cariation @n4uiry does not comply &ith paragraph 2 of this Section 2I or
f! that the information contained in the Cariation @n4uiry is inade4uate to enable
hubco to respond in accordance &ith paragraph :$2$2 belo& on the
assumption2 &hether or not the case2 that it has no objection under
paragraphs a! to e!I
or
:$2$2 give notice to the AuthorityGs 7epresentative stating)
a! the steps &hich hubco proposes to ta,e to implement the Cariation giving such
level of detail as is reasonable and appropriate in all the circumstances hubcoGs
estimated increase or decrease in the Development Amount calculated in
accordance &ith paragraph 1 of Section : of this Schedule Part 1: in respect of
the Cariation having regard to all relevant facts and matters2 including any costs
by line item! incurred or to be incurred under paragraph 9 of this Section 2$
b! &hether2 in the vie& of hubco2 implementing the Authority ;or,s Cariation
@n4uiry &ould be li,ely to prevent the Actual 5ompletion Date from occurring at
the 5ompletion Date prior to any adjustment being made to the 5ompletion
Date by reason of the implementation or proposed implementation of the
Authority ;or,s Cariation! and2 if so2 giving an estimate of the e(tension of time
122
Authorities should note that some but not all! ban,s have sought and obtained their approval as an additional ground for
objection$
12:
li,ely to be re4uired subject to any further time re4uired to obtain or amend any
5onsent!I
c! any 5onsent &hich must be obtained or amended for the Cariation to be
implemented and the latest date by &hich hubco must receive a Cariation
5onfirmation and any such 5onsent must be obtained or modified for the
matters set out in :$2$1b!i! to paragraph :$2$1b!ii! inclusive above to remain
valid2 such date being a reasonable period of time after service of the notice by
hubco under this paragraph :$2$2 to enable the AuthorityGs 7epresentative to
consider any matter under paragraph 6$1$: belo&I and
d! such amendments to the provisions of this Agreement &hich are necessary as a
conse4uence of the Cariation2 the objective of such amendments being to
ensure that save for the obligation of the Authority to ma,e payments or altered
payments in respect of the Cariation or any other adverse conse4uences for the
Authority arising from the Cariation itself! the parties are in no better and no
&orse position in relation to the Project than they &ould have been in if such
Cariation had not been implemented$

6$ RESOLUTION O/ DISPUTES AND VARIATION CON/IRMATION
6$1 ;ithin ten 1.! Business Days of receipt of the notice referred to in paragraph :$2 of this Section 2)
6$1$1 if hubco has served a notice under paragraph :$2$1 but the AuthorityGs 7epresentative
does not accept that hubco is entitled to object to the Cariation @n4uiry2 the matter may
be referred for resolution in accordance &ith Schedule Part 19 Dispute "esolution
Procedure! and if the Dispute is resolved in favour of the Authority then hubco shall
forth&ith give the notice referred to in paragraph :$1$2I
6$1$2 if the contents of the notice under paragraph :$1$2 shall be to the satisfaction of the
AuthorityGs 7epresentative he shall so inform hubco and the parties shall proceed to
agree or determine all the matters referred to in paragraph 6$: of this Section 2I or
6$1$: if he &ishes to consider further any matter2 the AuthorityGs 7epresentative may give notice
to that effect to hubco provided that if no response is given under paragraph 6$1$2 of this
paragraph 6$1 prior to the date referred to in paragraph d!2 3atest date for Cariation
5onfirmation! the Cariation @n4uiry shall be deemed to have been &ithdra&nI or
6$1$6 if any aspect of a notice under paragraph :$2$2 shall not be to the AuthorityGs
7epresentativeGs satisfaction he shall so notify hubco and shall specify the alterations to
the notice &hich he &ould re4uire in order to be so satisfied$
6$2 Af the AuthorityGs 7epresentative has given a notice referred to in paragraph 6$1$6 of this Section 2
then2 unless agreement has been reached &ith hubco &ithin a further ten 1.! Business Days from
the date of issue of that notice in &hich case the AuthorityGs 7epresentative shall proceed pursuant
to paragraph 6$1$2 of this Section 2! or the AuthorityGs 7epresentative &ithdra&s the Cariation
@n4uiry2 the outstanding Dispute shall be referred for resolution in accordance &ith Schedule Part
19 Dispute "esolution Procedure! to be determined if the AuthorityGs 7epresentative so re4uires
it! concurrently &ith any matter referred to in paragraph 6$: of this Section 2$ An see,ing to reach
agreement and>or in so determining a Dispute pursuant to this paragraph or to paragraph 6$:2 the
criterion to be applied to resolve any such dispute e(cept &here another criterion or other criteria
are e(pressly or by implication stated in this Schedule Part 1:! shall be that hubco shall be in no
&orse position in relation to the Project and the ;or,s after the Cariation is implemented than it
&ould have been in had the Cariation not been implemented$
6$: The parties shall meet and see, to agree the matters referred to in paragraphs 6$:$1 and 6$:$2 in
relation to the Cariation2 failing &hich agreement being reached in a reasonable period of time2
either party may refer any matter for resolution in accordance &ith Schedule Part 19 Dispute
"esolution Procedure!$ The matters to be agreed or determined are)
6$:$1 in relation to the terms of the Cariation)
a! any alteration to the 5ompletion DateI
b! the increase or decrease in the Development Amount calculated in accordance
&ith paragraph 1 of Section : of this Schedule Part 1:I
c! any amendment to the provisions of this Agreement &hich is referred to in
paragraph :$2$2d!
in each case occasioned by the CariationI and
6$:$2 the terms of a supplementary agreement under &hich)
a! as re4uired to give effect to the Cariation in each case2 the AuthorityGs
7e4uirements and>or hubcoGs Proposals are amendedI and>or provision is
made for the amendment of the as*built dra&ings and specifications2 including
7oom Data Sheets and other records2 dra&ings2 operating and maintenance
manuals2 the asset register2 the health and safety fileI and
b! the matters referred to in paragraph 6$: of this Section 2 are fully recorded and
given effect as amendments to and>or other variations to the provisions of this
Agreement and>or such other documentation as is necessary$
6$6 %pon the agreement or determination of all the matters referred to in paragraph 6$:2 and upon any
5onsent having been modified or obtained2 in accordance &ith paragraph 9 in terms reasonably
satisfactory to hubco and the Authority2 the AuthorityGs 7epresentative shall2 by notice a #Var,at,n
Cn6,r;at,n#! confirm the Cariation$ %pon the issue of the Cariation 5onfirmation2 the parties
shall enter into the supplementary agreement referred to in paragraph 6$:$
6$9 %pon the Cariation 5onfirmation being issued and the supplementary agreement referred to in
paragraph 6$6 becoming unconditional in all respects)
6$9$1 the relevant Cariation shall be a Hualifying CariationI and
6$9$2 the rights and liabilities of the parties under this Agreement shall be construed
accordingly$
9$ CONSENT AND VARIATIONS
9$1 Af it shall be necessary to obtain or amend any 5onsent
126
in respect of any Cariation then hubco
shall use all reasonable endeavours to obtain and2 &here the co*operation and involvement of both
parties is re4uired2 the Authority shall use all reasonable endeavours to assist and co*operate in
obtaining2 such 5onsent$ The provisions of 5lause 11 Consents and Planning Approval! shall
apply in relation to Planning Permissions2 save that the time ta,en to obtain such 5onsent shall be
ta,en into account for the purposes of determining any e(tension of time and any other amounts
payable by the Authority to hubco under this Schedule Part 1:$
9$2 Af it shall not be possible to obtain any such 5onsent as is referred to in paragraph 9$1 above by the
latest date &hen a Cariation 5onfirmation could be given &ith regard to the Cariation in 4uestion in
accordance &ith the notice by hubco pursuant to paragraph :$2$2 of this Section 2 of Schedule
Part 1:2 the Cariation @n4uiry shall be deemed to be &ithdra&n and the provisions of paragraph 8
of this Section 2 of Schedule Part 1: shall apply accordingly$
8$ +ITHDRA+AL
The AuthorityGs 7epresentative may &ithdra& a Cariation @n4uiry at any time prior to the issue of a
Cariation 5onfirmation2 or2 in the case of a Cariation &hich re4uires the obtaining of2 or an
amendment to any 5onsent2 the date &hen the last such 5onsent is granted2 &hichever shall be
126
5are must be ta,en to consider &hether there &ill be 5onsents &hich2 in principle2 ought to be obtained by the Authority$
later$ An the case of a &ithdra&al or deemed &ithdra&al the Authority shall pay hubco all out of
poc,et e(penses reasonably and properly incurred by hubco in connection &ith the Cariation$
S%&$'() *
PAYMENT IN RESPECT O/ VARIATIONS
Ad!$)t;ent t Cntra"t S$;
1$ The increase or reduction in the Development Amount arising out of a Hualifying
Cariation shall be calculated on the basis of a fair and reasonable valuation of the
aggregate of any increased design and construction costs including insurance costs
and costs that arise as a conse4uence of the effect on the regular progress of the
;or,s! less the aggregate of any reduction in design and construction costs &hich
result directly from the Hualifying Cariation$
2$ ;here the effect of a Hualifying Cariation is an increase in Development Amount2 then
as part of the matters to be agreed pursuant to paragraph 6$: of Section 2)
2$1 The Authority and hubco shall agree)
2$1$1 a payment schedule in respect of the payment of such increase reflecting the
amount and timing of the costs to be incurred by the 5ontractor in carrying
out the Hualifying Cariation to the e(tent borne by hubcoI and
2$1$2 &here payment for part of the Hualifying Cariation reflects the carrying out of2
or specific progress to&ards2 an element &ithin the Hualifying Cariation2 an
objective means of providing evidence confirming that the part of the
Hualifying Cariation corresponding to each occasion &hen payment is due
under the payment schedule appears to have been duly carried out2
such payment schedule and evidence to be determined in accordance &ith Schedule
Part 19 Dispute "esolution Procedure! in the event of the Authority and hubco failing
to agree as to its terms! provided that &here all or any part of the Hualifying Cariation
is being carried out by a third party under a contract &ith the hubco2 subject to the
terms of any contract bet&een the hubco and that third party in relation to the
implementation of the Hualifying Cariation having been approved by the Authority
such approval not to be unreasonably &ithheld!2 the process under Schedule Part 19
Dispute "esolution Procedure! shall not determine a payment schedule or evidence
&hich &ould not enable hubco to be funded by the Authority in time to ma,e payments
to that third party in accordance &ith its contract &ith the Authority$
2$2 and the relevant amendments to this Agreement shall reflect that)
2$2$1 the Authority shall ma,e payment to hubco in accordance &ith the
procedures for payment of interim payments in accordance &ith 5lause 2"$
2$2$2 0ot used$
PA#$ "+
RECORD PROVISIONS
S%&$'() "
GENERAL RE=UIREMENTS
18@
1$ hubco shall retain and maintain all the records including superseded records! referred
to in Section 2 of this Schedule Part 16 in accordance &ith this Section 1 of Schedule
Part 162 the re4uirements of =ood Andustry Practice2 in chronological order2 in a form
that is capable of audit and at its o&n e(pense$ hubco shall ma,e such records
available for inspection to the Authority &here it has reasonable cause for re4uiring
such records2 on giving reasonable notice shall provide such facilities as the Authority
may reasonably re4uire for its representatives to visit any place &here the records are
held and e(amine the records maintained under this Schedule Part 16$
2$ ;herever practical2 original records shall be retained and maintained in hard copy
form$ True copies of the original records may be ,ept by hubco &here it is not
practicable to retain original records$
:$ Those records relating to the Project <perations including the design2 construction
and development2 of the 'acilities! shall be retained for the duration of the Agreement$
6$ 'inancial and other records including &ithout limitation all information provided in
support of any Cariation! shall be retained and maintained by hubco for a period of at
least si( 8! years after the Actual 5ompletion Date in sufficient detail2 in appropriate
categories and generally in such a manner to enable hubco to comply &ith its
obligations under 5lause 6? Information and Audit Access!$
9$ ;here hubco &ishes to dispose of any records maintained as provided in this Part of
this Schedule or in respect of &hich the re4uired period for their retention has e(pired2
then hubco shall notify the Authority and if2 &ithin forty 6.! Business Days of such
notice2 the Authority elects to receive certain of those records2 then hubco shall deliver
up such records to the Authority in the manner and at the location as the Authority
shall reasonably specify2 and the costs of retaining those records in safe storage and
delivering up the same shall be borne by hubco$
8$ Subject to paragraph 92 for a period of not more than si( 8! years follo&ing the
termination for &hatever reason of this Agreement2 hubco shall retain in safe storage
all such records as are referred to in Section 2 of this Schedule Part 16 &hich &ere in
e(istence at the date of termination of this Agreement$ <n the e(piry of such period or
at the earlier re4uest of the Authority2 hubco shall deliver up all those records or
&here those records are re4uired by statute to remain &ith hubco or a 5ontracting
Associate of hubco2 copies thereof! to the Authority in the manner and at the location
as the Authority shall reasonably specify$ The Authority shall ma,e available to hubco
all the records hubco delivers up pursuant to this paragraph subject to reasonable
notice$ The costs of retaining those records in safe storage and delivering up the
same shall be borneJ)
8$1 by hubco &here the termination arises as a result of a hubco @vent of DefaultI and
8$2 by the Authority &here the termination arises for any other cause$
"$ Any dra&ings re4uired to be made or supplied pursuant to this Agreement shall be of
a siMe appropriate to sho& the detail to be depicted clearly &ithout magnifying aids
and shall conform to British Standards 11/2 or :.? or e4uivalent as appropriate$
129
These provisions have been included for the purpose of providing a general frame&or, and should be amended
to reflect project specifics$
;here by prior agreement the Authority has agreed to accept microfilm2 microfiche or
other storage media &hich must include secure bac, up facilities!2 dra&ings and other
documents shall be made or supplied in such form as has been agreed$
?$ hubco shall use all reasonable endeavours to assist the Authority in its preparation of
any report and>or return re4uired pursuant to regulations2 directions or guidance
applicable to the Authority in each case as amended replaced or consolidated from
time to time! or as re4uired by e(ternal agencies including &ithout limitation2 reports
and returns regarding the physical condition of the 'acilities2 health and safety under
the 'ire Scotland! 7egulations 2..9 and the 'ire Safety Scotland! 7egulations 2..82
relating to environmental health2 by the Scottish 'utures TrustJ2 Scottish =overnment
1ealth Directorates
128
K or the Scottish =overnment from time to time$
128
;here the Authority is a health board
S%&$'() 2
RECORDS TO BE 3EPT
18C
1$ This Agreement and the Project Documents including all amendments to such
agreements$
2$ hubco shall at all times maintain a full record of particulars of the costs of performing
the Project <perations$ This shall re4uire hubco to ,eep and &here appropriate to
procure that the sub*contractors shall ,eep! boo,s of account in accordance &ith best
accountancy practice &ith respect to the Agreement sho&ing in detail)
2$1 administrative overheadsI
2$2 payments to Sub*5ontractors and to sub*contractorsI
2$: capital and revenue e(penditureI
2$6 such other items as the Authority may reasonably re4uire to conduct cost audits for
verification of cost e(penditure or estimated e(penditure2 for the purpose of Schedule
Part 1: &+ariation Procedure'2
and hubco shall have and procure that the sub*contractors shall have! the boo,s of
account evidencing the items listed in paragraphs 2$1 to 2$6 available for inspection by
the Authority and any e(pert! upon reasonable notice2 and shall present a report of
these to the Authority as and &hen re4uested$
:$ All other documents2 soft&are or other information e(pressly referred to in this
Agreement$
6$ 7ecords relating to the appointment and supersession of the AuthorityGs
7epresentative and hubcoGs 7epresentative$
9$ Project Data$
8$ Documents2 dra&ings2 design data or submissions raised in accordance &ith
Schedule Part " "evie# Procedure!$
"$ Documents relating to planning applications2 consents2 refusals and appeals$
?$ 7ecords relating to any specialist or statutory inspections of the 'acilities2 including
any road&ays$
/$ 0otices2 reports2 results and certificates relating to completion of the ;or,s and
completion of the commissioning activities$
1.$ Documents relating to events of 'orce Eajeure2 Delay @vents and 7elief @vents and
the conse4uences of the same$
11$ Documents submitted in accordance &ith Schedule Part 1: +ariation Procedure! and
all documents provided in support$
12$ Documents related to referrals to the Dispute 7esolution Procedure$
1:$ Ta( invoices and records related to Calue Added Ta($
12"
The 7ecords to be ,ept by hubco are to be determined on a project specific basis2 but should include those
items listed in this Section$
16$ 7ecords re4uired by 3a& including in relation to 1ealth and Safety matters and health
and safety files prepared pursuant to 5DE 7egulations! and all 5onsents$
19$ Documents relating to insurance and insurance claims$
18$ All other records2 notices or certificates re4uired to be produced and>or maintained by
hubco pursuant to this Agreement or any Project Document$
PA#$ ",
DISPUTE RESOLUTION PROCEDURE
18D
1$ The procedure set out in this Schedule Part 19 the #D,)4$te Re)($t,n
Pr"ed$re#! shall apply to any dispute2 claim or difference arising out of or relating to
this Agreement #D,)4$te#! e(cept &here it has been e(cluded from this procedure by
any e(press term of this Agreement$
2$ This Dispute 7esolution Procedure shall not impose any pre*condition on either party
or other&ise prevent or delay either party from commencing proceedings in any court
of competent jurisdiction in relation to any Dispute in &hich that party re4uires either)
2$1 an order &hether interlocutory or final! restraining the other party from doing any act
or compelling the other party to do any actI or
2$2 a decree for a li4uidated sum to &hich there is no stateable defence$
:$ MEDIATION
:$1 ;ithout prejudice to paragraph 6 belo&2 if the parties have been unable bet&een
themselves to resolve the Dispute &ithin t&enty 2.! Business Days of the Dispute
arising2 they may if both parties so agree! refer the Dispute to mediation on such
conditions as may be agreed bet&een the parties$ Any mediation shall be completed
&ithin thirty :.! Business Days of such referral and any agreement arising therefrom
shall be recorded in &riting and signed by the parties and shall be final and binding to
the e(tent set out in such agreement unless other&ise agreed by the parties$
:$2 'or the avoidance of doubt2 mediation shall not be a precondition to the
commencement of adjudication or court proceedings$
6$ AD%UDICATION
6$1
12/
@ither party may at any time not&ithstanding that other dispute resolution
procedures are running concurrently! give the other party to the Dispute notice of its
intention to refer the Dispute to adjudication the #Nt,"e 6 Ad!$d,"at,n#!$ The
Party giving notice the #Re6err,n* Part-#! shall by the same means of
communication2 send a copy of the 0otice of Adjudication to an Adjudicator selected in
accordance &ith paragraph 6$2 belo&$
6$2 The Adjudicator nominated to consider a Dispute referred to him shall be selected on
a strictly rotational basis from the relevant panel of adjudicators appointed in
accordance &ith the follo&ing)
6$2$1 there shall be a panel of adjudicators in respect of construction matters the
KAd!$d,"at,n Pane(K!$ All the adjudicators on the panel shall be &holly
independent of hubco2 the Authority2 any relevant Sub*5ontractor and any of
the major competitors of hubco or relevant Sub*5ontractorI
6$2$2 the Adjudication Panel shall be comprised of three :! adjudicators as
identified in paragraph " &Panel Members' &ho shall be selected jointly by
hubco and the Authority$ Such selections shall ta,e place &ithin t&enty*eight
2?! days of the date of this AgreementI
12?
Provisions allo&ing joinder of hubco parties have not been included to prevent the Authority from getting
embroiled in concurrent disputes running bet&een hubco and its contractors$
12/
0ote that this agreement is li,ely to fall &ithin the definition of a #5onstruction 5ontract# for the purposes of the
1ousing =rants 5onstruction and 7egeneration Act 1//82 and therefore re4uires to contain a right to adjudicate
&ithout restriction$
6$2$: if any member of the panel resigns during the term of the Agreement2 a
replacement adjudicator shall be appointed by hubco and the Authority as
soon as practicable2 provided that no such appointment may be made under
this paragraph 6$2$: unless and until the Authority confirms in &riting that the
replacement adjudicator identified by the parties has been appointed
pursuant to this Schedule Part 19I
6$2$6 if hubco and the Authority are unable to agree on the identity of the
adjudicators to be selected for the panel or any replacement adjudicators!2
the 5hairman or Cice 5hairman! for the time being of the 5hartered Anstitute
of Arbitrators Scottish Branch shall appoint such adjudicators! &ithin seven
"! days of any application for such appointment by either partyI
6$2$9 in the event that the first panel member is unable or un&illing to confirm
acceptance of his appointment as Adjudicator or &here he fails to respond
&ithin t&o 2! days of the date of the 0otice of Adjudication2 then the
7eferring Party shall invite the person ne(t in line to act as Adjudicator$ An
the event that the second panel member is unable or un&illing to confirm
acceptance of his appointment as Adjudicator or &here he fails to respond
&ithin four 6! days of the date of the 0otice of Adjudication then the
7eferring Party may apply to the 5hairman for the time being of the 7oyal
Anstitute of 5hartered Surveyors for Scotland &ho shall &ithin seven "! days
of the 0otice of Adjudication2 nominate an Adjudicator &ho shall also &ithin
the same period2 confirm acceptance of his appointment as Adjudicator! to
determine the Dispute described in the 0otice of Adjudication$
6$: The 7eferring Party shall2 &ithin seven "! days of the date of the 0otice of
Adjudication2 serve its statement of case the #Re6erra( Nt,"e#! on the Adjudicator
appointed pursuant to paragraph 6$2! and the other party to the Dispute the
#Re)4nd,n* Part-#!$ The 7eferral 0otice shall set out each element of the 7eferring
PartyGs claim and the relief or remedy sought in sufficient detail so as to enable the
7esponding Party to understand and2 &here appropriate2 respond to the claim and the
7eferral 0otice shall be accompanied by copies of2 or relevant e(tracts from2 this
Agreement and such other documents as the 7eferring Party intends to reply upon$
The date of the referral of the Dispute the #Re6erra(#! shall be the date of the 7eferral
0otice$
6$6 ;ithin seven "! days of appointment in relation to a particular Dispute2 the
Adjudicator shall establish the procedure and timetable for the adjudication$ The
Adjudicator shall in his absolute discretion2 consider &hether a hearing is necessary in
order to resolve the Dispute$ 1e shall establish the procedure and timetable subject to
any limitation &ithin this Agreement$ The parties shall comply &ith any re4uest or
direction of the Adjudicator in relation to the Adjudication$
6$9 The Adjudicator shall reach a decision on the Dispute &ithin t&enty*eight 2?! days of
the date of the 7eferral or such other period as the parties may agree!$ The
Adjudicator may e(tend the period of 2? days by up to 16 days &ith the consent of the
7eferring Party$ %nless the parties agree other&ise2 the Adjudicator shall give
reasons for his decision$ %nless and until the Dispute is finally determined by court
proceedings or by an agreement in &riting bet&een the parties2 pursuant to
paragraph 9$1 of this Schedule Part 19 the AdjudicatorGs decision shall be binding on
both parties &ho shall forth&ith give effect to the decision$
6$8 Subject to paragraph 8$62 the AdjudicatorGs costs of any reference shall be borne as
the Adjudicator shall specify or2 in default2 e4ually by the parties$ @ach party shall
bear its o&n costs arising out of the adjudication2 including legal costs and the costs
and e(penses of any &itnesses$
6$" The Adjudicator shall be deemed not to be an arbitrator but shall render his decision
as an adjudicator and the la& relating to arbitration shall not apply to the Adjudicator or
his determination or the procedure by &hich he reached his determination$
6$? The Adjudicator shall act fairly and impartially and may ta,e the initiative in
ascertaining the facts and the la&$ The Adjudicator shall have the po&er to open up2
revie& and revise any opinion2 certificate2 instruction2 determination or decision of
&hatever nature given or made under this Agreement$
6$/ All information2 data or documentation disclosed or delivered by a party to the
Adjudicator in conse4uence of or in connection &ith his appointment as Adjudicator
shall be treated as confidential$ The Adjudicator shall not2 save as permitted by
5lause 68 Confidentialit!2 disclose to any person or company any such information2
data or documentation and all such information2 data or documentation shall remain
the property of the party disclosing or delivering the same and all copies shall be
returned to such party on completion of the AdjudicatorGs &or,$
6$1. The Adjudicator is not liable for anything done or omitted in the discharge or purported
discharge of his functions as Adjudicator unless the act or omission is in bad faith$
Any employee or agent of the Adjudicator is similarly protected from liability$
4.10A.1 The Adjudicator may on his o&n initiative or on the re4uest of the 7eferring Party or
7esponding Party correct his decision so as to remove a clerical or typographical error
arising by accident or omission$
6$1.A$2 Any correction of a decision shall be made &ithin 9 days of the date upon &hich the
AdjudicatorLs decision &as delivered to the parties$
6$1.A$: Any correction of a decision shall form part of the decision$
6$11 Af any Dispute raises issues &hich2 in the opinion of hubco2 is substantially the same
as or connected &ith issues raised in a dispute or difference arising out of or relating
to any other agreement all such agreements being referred to as the #Re(ated
A*ree;ent)#! bet&een hubco and the 5ontractor &hich &as or has been referred to
adjudication the #Re(ated Ad!$d,"at,n#! and an adjudicator has already been
appointed the #Re(ated Ad!$d,"atr#! then hubco may re4uest that the Dispute be
referred to the 7elated Adjudicator and paragraphs 6$12 to 6$16 shall apply$
6$12 Subject to paragraphs 6$1: and 6$16 belo&2 in the event that a 7elated Adjudicator
orders that a Dispute under this Agreement be consolidated &ith a 7elated
Adjudication &ith &hich he is dealing under the 7elated Agreement2 then)
6$12$1 &ith effect from the time of such order2 the Dispute &hich shall be
determined by the 7elated Adjudicator2 &ho shall become the AdjudicatorI
and
6$12$2 such order shall be binding on hubco and the Authority and both of them
shall ac,no&ledge the appointment of the 7elated Adjudicator as the
adjudicator of the Dispute2 &ith hubco or the Authority as the case may be!
using its best endeavours to procure that the third party &ho is a party to the
7elated Agreement shall &ith effect from the time of such order comply &ith
the re4uirements of the 7elated Agreement including if applicable any
re4uirement or direction of the 7elated Adjudicator appointed under such
7elated Agreement! as to the future conduct of the determination of the
Dispute and the 7elated AdjudicationI and
6$12$: not&ithstanding paragraph 6$82 hubco and the Authority shall be jointly
responsible &ith the third party &ho is a party to the 7elated Agreement for
the 7elated AdjudicatorLs fees and e(penses including those of any
specialist consultant appointed under the adjudication procedure in the
7elated Agreement2 in respect of the period in &hich the Dispute is
consolidated &ith the 7elated Adjudication pursuant to an order of the
7elated Adjudicator NCn)(,dated Ad!$d,"at,n C)t)O!$ hubco and the
Authority agree that the 7elated Adjudicator shall have the discretion to
ma,e directions to re4uire hubco2 the Authority and the third party &ho is a
party to the 7elated Agreement to pay or ma,e contribution to the
5onsolidated Adjudication 5osts in different proportions$ Af no such
directions are made2 hubco2 the Authority and the third party &ho is a party
to the 7elated Agreement shall bear the 5onsolidated Adjudication 5osts in
e4ual shares2 and if hubco2 the Authority or the third party has paid more
than such e4ual share2 that party or third party shall be entitled to a
contribution from the other party2 parties or third party2 as the case may be$
6$1: 0ot&ithstanding anything to the contrary a Dispute under this Agreement may only be
consolidated &ith a 7elated Adjudication2 if the 7elated Adjudicator receives
particulars of the Dispute &ithin ten 1.! days of the referral of the 7elated
Adjudication to the 7elated Adjudicator under the 7elated Agreement$
6$16 ;here hubco re4uests that a Dispute under this Agreement be consolidated in terms
of paragraph 6$11! &ith a 7elated Adjudication and heard by the 7elated Adjudicator2
the Dispute may only be consolidated &here the Authority has previously consented in
&riting to the identity of the 7elated Adjudicator appointed in respect of the 7elated
Adjudication$ The AuthorityLs consent to such re4uest shall not be unreasonably
&ithheld and if the Authority refuses to consent2 it must give reasons in &riting for its
refusal$ Should the Authority fail to respond &ithin t&o 2! days of receipt of such a
re4uest it shall be deemed to have consented to the appointment of the 7elated
Adjudicator$ ;here the 7elated Adjudicator is on the Adjudication Panel at the time of
the 7eferral then the Authority shall be deemed to have consented to the appointment
of the 7elated Adjudicator$
9$ COURT PROCEEDINGS
9$1 Subject to paragraph 6 &Adjudication' disputes2 to the e(tent not finally resolved
pursuant to the procedures set out in the foregoing provisions of this Schedule Part 19
&Dispute "esolution Procedure' shall be referred to the 5ourt of Session @dinburgh$
8$ SUBMISSIONS IN RELATION TO AD%UDICATION
8$1 Af any Dispute raises issues &hich relate to any dispute bet&een hubco and the
5ontractor arising under the 5onstruction 5ontract or other&ise affects the
relationship or rights of hubco and>or the 5ontractor under the 5onstruction 5ontract
the KCn)tr$"t,n Cntra"t D,)4$teKJ then hubco may include as part of its
submissions made to the Adjudicator submissions made by the 5ontractor$
8$2 Any submissions made by the 5ontractor shall)
8$2$1 be made &ithin the time limits applicable to the delivery of submissions by
hubco to the AdjudicatorI and
8$2$2 concern only those matters &hich relate to the Dispute bet&een the Authority
and hubco arising out of this Agreement or in connection there&ith$
8$: ;here the 5ontractor ma,es submissions in any reference before the Adjudicator2 the
AdjudicatorGs costs of such reference shall be borne as the Adjudicator shall specify2 or
in default2 one*third by the Authority and t&o*thirds by hubco$
8$6 The Authority shall have no liability to the 5ontractor arising out of or in connection
&ith any decision of the Adjudicator or in respect of the costs of the 5ontractor in
participating in the resolution of any Dispute under this Agreement$
8$9 hubco shall not allo& the 5ontractor access to any 5onfidential Anformation relevant to
the issues in dispute bet&een the Authority and hubco save &here)
8$9$1 the 5onfidential Anformation is relevant also to the issues relating to the
5onstruction 5ontract DisputeI and
8$9$2 hubco has first delivered to the Authority a &ritten underta,ing from the
5ontractor addressed to the Authority that they shall not use any such
5onfidential Anformation other&ise than for the purpose of the dispute
resolution proceedings under this Agreement and that they shall not disclose
such 5onfidential Anformation to any third party other than the Adjudicator or
the courts or any professional adviser engaged by the 5ontractor to advise
in connection &ith the Dispute$
"$ PA0@3 E@EB@7S
The panel members referred to in paragraph 6$2 are as follo&s
1:.
)
Adjudication Panel J K
or any replacements or substitutes to be agreed bet&een the parties$
?$ NO LOSS
;here the Authority &ould other&ise be e(pressly liable to ma,e payment to hubco of
sums &hich include amounts payable in turn by hubco to any Sub*5ontractor2 the
Authority shall not be entitled to &ithhold2 reduce or avoid any such payment to hubco
in reliance only on the fact that the amount &hich is due from hubco to the Sub*
5ontractor or the entitlement of the Sub*5ontractor to payment of such amount as a
result of the circumstances giving rise to the AuthorityLs obligation to pay2 is conditional
on the entitlement of2 or receipt of payment by hubco from the Authority$
/$ CONTINUING OBLIGATIONS
%nless this Agreement has already been repudiated or terminated2 the parties shall2
not&ithstanding that any Dispute is subject to the Dispute 7esolution Procedure set
out in this Schedule Part 19 &Dispute "esolution Procedure!2 continue to carry out
their obligations in accordance &ith this Agreement$
1:.
To be completed prior to e(ecution of the Design and Build Development Agreement
PA#$ "-
CERTI/ICATES
S%&$'() "
OCert,6,"ate 6 Pra"t,"a( C;4(et,n
Assued by) AuthorityGs 7epresentative * [ ]
Address) J K
hubco) [HUBCO]
Address) J K
5ontractor) [CONTRACTOR]
Address) J K
Assue date) VVVVVVV
;or,s)
Situated at)
Design & Build Development Agreement dated) VVVVVVV
%nder the terms of the above*mentioned Design & Build Development Agreement2
A certify that the Actual 5ompletion Date of the ;or,s &as achieved on J K$
To be signed by or for the issuer named above$
Signed$$$$VVVVVVVVVVVVVVVVVV
AuthorityGs 7epresentative
S%&$'() 2
OC;;,)),n,n* C;4(et,n Cert,6,"ate
Assued by) AuthorityGs 7epresentative * [ ]
Address) J K
hubco) [HUBCO]
Address) J K
5ontractor) [CONTRACTOR]
Address) J K
Assue date) VVVVVVV
;or,s)
Situated at)
Design & Build Development Agreement dated) VVVVVVV
%nder the terms of the above*mentioned Design & Build Development Agreement2 A certify that
the 5ommissioning @nd Date &as achieved on J K$
To be signed by or for the issuer named above$
Signed$$$$VVVVVVVVVVVVVVVVVV
AuthorityGs 7epresentative
S%&$'() *
OCert,6,"ate 6 Ma5,n* Gd De6e"t)
Assued by) AuthorityGs 7epresentative * [ ]
Address) J K
hubco) [HUBCO]
Address) J K
5ontractor) [CONTRACTOR]
Address) J K
Assue date) VVVVVVV
;or,s)
Situated at)
Design & Build Development Agreement dated) VVVVVVV
%nder the terms of the above*mentioned Design & Build Development Agreement2 A certify that
all Defects in the Schedule of Defects have been made good on J K$
To be signed by or for the issuer named above$
Signed$$$$VVVVVVVVVVVVVVVVVV
AuthorityGs 7epresentative
PA#$ ".
COMMERCIALLY SENSITIVE IN/ORMATION
J! "# $%S#R#& !% ' PR!(#C SP#C$)$C "'S$SK
S%&$'() "
JT< B@ A0S@7T@DK
S%&$'() 2
JT< B@ A0S@7T@DK
PA#$ "/
LI=UIDATED DAMAGES
J! "# $%S#R#& !% ' PR!(#C SP#C$)$C "'S$SK
PA#$ "0
RETENTION BOND
BOND NO. [ ]
RETENTION BOND
BET+EEN.
I1J [ ] company registered number J K! &hose registered office is at J
K the KBene6,",ar-K!
I8J [GUARANTOR] company registered number ! &hose registered office is at
J K the KG$arantrK!
BAC3GROUND.
A! J K the NB$,(d,n* Cntra"trO! has entered into a contract the NCntra"tO!
dated on or around the date of this Bond &ith the Beneficiary for the carrying out of
certain &or,s as defined in the 5ontract!2 at J K the #/a",(,t,e)#!$
B! Pursuant to the 5ontract2 the Building 5ontractor has agreed to procure a retention
bond in favour of the Beneficiary in return for the release by the Beneficiary of retention
monies the #Retent,n Mn,e)#! in accordance &ith the 5ontract$
5! The =uarantor has at the Building 5ontractorGs re4uest agreed to provide a retention
bond on the follo&ing terms and conditions$
INTERPRETATION.
An this Bond)
NCert,6,"ate 6 Pra"t,"a( C;4(et,nE means a certificate issued by the Andependent 5ertifier
under the 5ontract to certify that completion has occurredI
NCert,6,"ate 6 Ma5,n* Gd De6e"t)E means a certificate issued by the Andependent 5ertifier
under the 5ontract &hen all defects &hich re4uired to be made good under the 5ontract have
been made good$
KE94,r- DateK means the date on &hich the =uarantor receives from the Beneficiary a
certificate2 stating the Bond 0o$ referred to above2 confirming that the last 5ertificate of Ea,ing
=ood Defects under the 5ontract has been issuedI
KG$arantr7) I))$,n* O66,"eK means J K or such other address as the
=uarantor may subse4uently notify to the Beneficiary in &riting!I
KMa9,;$; A**re*ate A;$ntK means J K RJ K ! reducing to J K RJ
K! upon receipt by the =uarantor from the Beneficiary of a certificate2 stating the Bond 0o$
referred to above2 confirming that the 5ertificate of Practical 5ompletion has been issued under
the 5ontract and that the Ea(imum Aggregate Amount of the Bond is reduced to J K RJ
K!$
Nw ,t ,) a*reed a) 6((w).
1$ The Beneficiary shall2 on demand a KDe;andK! be entitled to receive from the
=uarantor the sum therein demanded provided that it does not e(ceed the Ea(imum
Aggregate Amount and provided that any Demand complies &ith the re4uirements of
5lause 2 belo&$
2$ Any Demand by the Beneficiary under 5lause 1 shall)
2$1 be in &riting and addressed to the =uarantorGs Assuing <fficeI
2$2 be e(ecuted by the Beneficiary &hose signatures! are accompanied by ban,
authenticationI
2$: state the Bond 0o$ referred to aboveI
2$6 state the amount in pounds sterling! demandedI and
2$9 state that the Building 5ontractor is in breach of its obligations under the 5ontract
and>or a default has occurred under the 5ontract$
Pr2,ded a(wa-) t#at.
:$ The Beneficiary may assign the benefit of this Bond to any person &ithout the prior
&ritten consent of the =uarantor$ 0o such assignation shall in any &ay prejudice2
discharge or affect the liabilities or underta,ings of the =uarantor hereunder$ 0otice of
every assignation shall promptly be given to the =uarantor$
6$ The =uarantorGs liability hereunder shall be limited in aggregate to the Ea(imum
Aggregate Amount$
9$ Subject to satisfying conditions under 5lause 2 above2 a Demand served upon the
=uarantor by the Beneficiary shall be conclusive evidence and admissible as such! of
the =uarantorGs liability to pay the Beneficiary and of the amount of the sum or sums
&hich the =uarantor is liable to pay the Beneficiary$
8$ The =uarantorGs liability hereunder shall e(pire upon the @(piry Date after &hich this
Bond shall be null and void &hether returned to the =uarantor or not2 save in respect
of any Demand made strictly in compliance &ith all the terms hereof received by the
=uarantorGs Assuing <ffice on or before the @(piry Date$
"$ Subject to 5lause :2 this Bond shall not confer any benefit on or be enforceable by
any third party$
?$ This Bond and any non*contractual obligations relating to it shall be governed by and
construed according to the la&s of Scotland and the Scottish courts shall have
e(clusive jurisdiction for any and all claims directly or indirectly relating hereto and the
BeneficiaryGs acceptance of this Bond shall be the BeneficiaryGs confirmation that the
Beneficiary submits to the jurisdiction of the courts of Scotland in this regard$
/$ The obligations of the =uarantor shall remain in full force and effect and shall not be
affected or discharged by any act2 delay2 omission or thing by the Beneficiary in
e(ercising its rights under this Bond or under the 5ontract or by any amendment or
alteration of or variation to the terms of the 5ontract or any agreement or document
referred to therein or to the e(tent or nature of the ;or,s to be carried out thereunder2
or by any other indulgence or concession to the Building 5ontractor or any
forbearance2 forgiveness of any other thing omitted or neglected to be done under the
5ontract or any agreements or documents referred to therein or under any other bond2
security or Bond no& or hereafter held by the Beneficiary for all or any part of the
obligation of the Building 5ontractor under the 5ontract or the release or &aiver of any
such bond2 security or Bond2 or by the insolvency2 &inding up or reorganisation of the
Building 5ontractor nor by any dispute or disagreement &hatsoever bet&een the
Beneficiary and the Building 5ontractor under or in relation to the 5ontract$
IN +ITNESS &hereof