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Paper 0143V3-0
Contents
INTRODUCTION
1. Foreword
2. Introduction
APPOINTMENTS
3. The project management appointment
4. Consultant appointments
5. Architect
6. Quantity surveyor
7. Structural engineer
AGREEMENTS
9. Development partnerships – contracts
PROCEDURES
13. Design and specification
18. Insurance
(Continued)
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READING LIST
APPENDICES
A. Drafts of consultant appointments
Introduction
Contents
1. Foreword
2. Introduction
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1 Foreword
On reaching the first floor landing of the grand staircase in the RICS headquarters in
Great George Street, there have been times – although I admit not many – when,
instead of my steps tracing a path in the direction of the bar, I have turned sharp
right towards the double doors which announce entry to the library. Inside, two short
turns to the left have brought me to a short length of shelving which bears the legend
‘Project Management’. I cannot remember how long ago it was that my eyes first ran
over the titles, but both then and subsequently I have been struck by the
overwhelming bias towards description of organisation systems and network
analyses – mostly related to construction activities. Helpful as these works may be,
the project manager of a commercial development has far wider horizons to
encompass.
Since 1970 my career has been solely concerned with project management, and in
recent years, as director of a major development company, I have fortunately been
provided with the opportunity to translate experience into policy. This spawned the
idea of a Guide which would act as a reference work for our in-house project
management team. However, the reality lay dormant until the announcement by the
RICS in 1982 of a Project Management Diploma Course. The Guide was first
researched and created in response to the course requirement for a second year
project, and in 1985 I was pleased to be prompted by CASLE (Commonwealth
Association for Surveying and Land Economy) to revise and extend this work. The
information is necessarily based on features and practice within the UK development
industry, but I believe much of this to be of broad application. I trust the reader will
therefore find benefit even in those chapters which are closely tied to legal doctrine.
For the purpose of narrative style I have assumed that the project manager is
representing the developer, whether as an in-house employee or as an agent, and the
attitudes and observations flow accordingly. I also refer to the employing party,
whether it be corporate or an individual, as the client or developer; the reader should
treat these identities as synonymous.
2 Introduction
In September 1989 the Royal Institution of Chartered Surveyors published the first
professionally ‘authorised’ Project Management Agreement and Conditions of
Engagement. This was an ambition realised for the RICS ’s Project Management
(Diploma) Association, which from its inception in 1985 had seen the creation of a
standard form, comparable to those published by the RIBA and ACE for architects
and engineers, as an essential requirement of the property development industry.
Henceforth it would provide a basis of common understanding between clients and
project managers of the role and services to be performed.
These examples may be simplistic but they nonetheless serve to highlight the need to
determine the project manager’s role. I suggest this can be looked at as one of three
possibilities:
and allied to these considerations is the extent of the project manager’s brief. It may
embrace the entire development process or be limited to only part, such as design
and construction.
Following from this, the project manager must distinguish the rights, responsibilities
and obligations created by contracts. Development projects attract a plethora of
parties, ground landlords, funding institutions, consultants, contractors and
subcontractors, and statutory authorities – to name just the obvious. The project
manager is a pivotal character in fulfilling his client’s obligations, covenant by
covenant. He must recognise where action under one contract may have
consequences for another (eg extension of time under the building agreement), and
also distinguish between similar obligations under differing contracts (eg certificate
of practical completion under a building contract, and certificate of practical
completion pursuant to a funding agreement).
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Even small gestures can go a long way. For example survey information –
dimensions, levels, ground conditions, etc – which usually cost comparatively little,
can be obtained at the preliminary design stage. Not only does this facilitate the
design consultants to be accurate in their schematic drawings, but it also introduces
greater reliability into the engineer’s foundation assumptions and the quantity
surveyor’s budget estimates.
The project manager should continually pay regard to the expertise professed by his
development team and for which he has agreed to pay. He is entitled to expect and if
necessary demand service. To do so, however, he must remain aware of the
functions ascribed under relevant contracts or conditions of engagement – which can
be quite detailed. He must also understand the interaction required between the
respective design consultants, and in turn with the cost estimating and control
process. The project manager should be explicit as to the service he requires;
appointments worded in generalised terms invariably lead to disputes and requests
for additional fees. The format outlined in the chapter on consultants’ appointments
has been successfully practised by my company for a number of years.
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The role of the project manager will inevitably involve him in discussion, review
and instruction of matters impinging on the respective consultants’ specialist
expertise. This is particularly apparent in the chapter on Design and Specification in
which I mention various aspects requiring the project manager’s attention, but which
clearly overlap the consultant’s functions. This cannot be avoided; the project
manager should simply take care not to relieve or transgress the consultant’s
responsibilities.
Lastly in this series of role-playing features, I would mention the project manager’s
duty generally to safeguard his client’s interest. This can take many forms, but by
way of instance, he should monitor local press coverage and make regular
inspections beyond site boundaries to ensure no unreasonable overspill effect on
adjoining owners and the public at large. Well maintained hoardings, safety lighting
and courtesy notices present an image which reflects on the client and the entire
development team.
A development project runs through many phases, a number of which will overlap
according to circumstance, but for which there is nonetheless a reasonably
determined sequence. The chapters of this Guide are therefore arranged in the
approximate order of events. It may be that, for any given project, the project
manager will be appointed to control only certain activities, in which event some
interpolation will be needed. However, even in these instances I suspect a review of
other topics will enable the project manager to assist his client beyond his immediate
brief. The Guide does not contain a specific chapter dealing with the client’s brief, as
the criteria to be established are substantially reflected under the various headings.
Finally, but I am sure not least in the mind of the consultant project manager, is the
matter of his remuneration. The Project Management Agreement and Conditions of
Engagement deliberately leave open the assessment of fees. Consequently the
project manager must conduct his own assessment and negotiation with the client. In
doing so I suggest full account is taken of my earlier remarks about the alternative
degrees of project management responsibility; if this entails achievement of targets
or some measure of project success, then the role contains a degree of
entrepreneurial risk – it is not simply consultancy. In such situations the project
manager must consider whether this merits additional reward. Presumably the
contrary position must be that if the project manager does not achieve his target, he
is potentially liable!
I hope that the reader does not have the misfortune ever to become so distrained
from a client, and that in some measure this Guide will signpost the way to fruitful
and satisfactory service.
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Appointments
Contents
3. The project management appointment
3.1 Structure
3.2 The project
3.3 The services
3.4 Obligations and standards
3.5 Reporting to and obtaining instructions from the client
4. Consultant appointments
4.1 Appointment terms – general criteria
5. Architect
5.1 Appointment terms (Appendix A1)
5.2 Memorandum of Agreement
6. Quantity surveyor
6.1 Appointment terms (Appendix A2)
7. Structural engineer
7.1 Appointment terms (Appendix A3)
NB: For non-native English speakers the words ‘appointment’ and ‘engagement’
may be considered interchangeable in this section.
3.1 Structure
There are three primary components to an appointment contract:
The parties
It should first be appreciated (as defined under ‘General Conditions’ in the
Conditions of Engagement), that the ‘Project Manager ’ is the person or company
named in the Memorandum of Agreement. In other words the ‘Project Manager ’ is
often a company with a principal person specifically identified to undertake the
project manager’s duties and obligations (ref: item 11 in the Memorandum of
Agreement between client and project manager).
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Make clear to your client the form in which you are contracting – as an individual,
partnership, primary or subsidiary company? Is a guarantee for your performance on
offer (or perhaps only if requested)?
Equally, be certain of the client entity with whom you are contracting. A corporate
search never goes amiss, and does not have to be disclosed.
Scope of development
The project manager is often first engaged at a time before the scope is sufficiently
certain for accurate contract description. By the same token, it is too soon to confirm
absolutely your contract commitment and services. Temporarily, a provisional
agreement is better.
For the client as well as project manager, it would benefit the ultimate relationship if
the scope is wholly or substantially defined and confirmed in the agreement. A later
disagreement about what was intended, even though the misunderstanding may be
genuine, will prejudice trust.
Duration
Whilst the start of an appointment usually presents no difficulty, careful thought and
anticipation needs to be given to its completion. Project management services
frequently go beyond events associated with the building contract, eg final
certificate. Client and project manager should agree how the ‘end’ is to be decided.
Is it to be a fixed date come what may, a particular event, or completion of the last
service (not necessarily an obvious point in time)?
Whatever the decision, the duration is important. First for contract certainty, second
for agreeing the fee payment schedule, and third for setting the starting point for
statutory post-contract liability. One consideration in relation to this last is a possible
distortion of dates between that applying under the project manager ’s appointment
and those derived from the consultants’ and contractor’s agreements.
Keep in mind too that the project duration may vary from the original expectation. A
mechanism for adjustment is usually prudent.
Fee
In the United Kingdom there is no Institutional guidance provided for the assessment
of a project management fee. Whilst a market ‘opinion’ based on percentages has
developed for commercial work, this is unsophisticated. I have not heard of anyone
who could demonstrate facts and figures from a number of sources. Consequently
even if expressed as a percentage of cost, the root calculation of a fee is in the
estimate of the resources, time and effort which the project manager will devote. To
this must be allied the responsibility, authority (and liability?) which the project
manager is to take. I commented on this in the Introduction. Particularly in fee
bidding, it is so easy to be optimistic and assume all will go smoothly. Be prudent.
Productive relationships and jobs well done are usually only achieved through
considerable effort – those that turn sour are even harder.
When considering the services, think also of the external agencies with which you
will relate, eg funding partner, tax adviser, insurance broker etc. Ensure their
identities are known, and, perhaps more importantly, that they each understand and
recognise your role as project manager.
In the UK, the most common relationship is that of agent, as indeed for the RICS
Agreement. It is also comparable to that of the consultants.
It is desirable that the project manager ’s authority and relationship to the consultants
be clarified in the appointment. The RICS Agreement deals with this in two respects.
First it states that the client will directly appoint the consultants but that the project
manager will be responsible for management of them and that they shall provide the
project manager with information required for the performance of his duties, without
charge to the project manager. Second, the RICS Agreement states that the client
will formally notify the consultants of the authority given to the project manager to
act on his behalf, and also identify any specific items upon which the client’s written
consent is to be obtained.
Decisions
Development requires daily decisions, usually modest but sometimes significant.
Few clients expect every item to be reported to them first, but as it is impossible to
anticipate all circumstances, some guidelines are an important safeguard for both
client and project manager. Hence in the RICS Agreement a requirement not to issue
any instruction which would materially vary the project, or increase cost or time to
complete, without the prior consent of the client.
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Too many controls will inhibit the development process; two few and there is a
breeding ground for misunderstandings and mistrust. The happy medium is fostered
as much by demonstrable responsibility by the project manager, eg frequent and
informal contact with the client to discuss current issues, as by specific controls or
periodic formal reports.
The client will participate to some degree in most of these. So far as it is practicable
to do so, describe in the appointment the extent of the project manager’s function.
The corollary to this is the client’s mechanism for instructing the project manager
(and the project team). It will be beneficial if a pre-determined style or format can be
adopted. This removes the potential for misunderstanding. A project team frequently
comprises numerous organisations and individuals, including within the client’s
organisation; it is vital to prevent confusion of requirement or approval. The project
manager is the guardian of the client’s brief. The decisions which flow from it and
this responsibility should be impressed firmly, positively and continuously.
Furthermore, it should be clearly set out in the project manager ’s Conditions of
Engagement.
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4 Consultant appointments
The role of the traditional design and cost control consultants is supported by four
separate Conditions of Engagement, produced by three different professional
institutions.
Conditions of Engagement –
Structural Engineers Agreement 3
Association of
Consulting Engineers
Mechanical and (ACE) Conditions of Engagement –
Electrical Services
Agreement 4A
Consultants
Each of the Conditions is written in a style dissimilar to any other, even as between
Agreements 3 and 4A, and the only ‘harmonisation’, to quote Agreement 3, is an
attempt by the ACE in their recent editions to link the Services description of the
Engineering disciplines to the work stages described in RIBA’s SFA. (The Table
provides a reconciliation of the Consultants’ services, using the Work Stages of SFA
as a base reference.)
2. The Conditions contain only limited reference to each other, and to the co-
ordination of activities and working interface that must occur within the
consultant team.
5. The Conditions contain services both within and without the normal
appointment, for which additional fees may be charged.
RICS Scale of
RIBA SFA 99 ACE Agreement 3 ACE Agreement 4 A
Charges
Fees Fees Fees Fees Fees Fees
Full Duties Abridged Performance
Scale 36 Work Stage
Pre-design Duties Duties
Preliminary Services
A/ Inception
B and Stage: 1 Time 1 Time 1 Time
Feasibility Time
Pre-contract Stage: 2 Time 2 Time 2 Time
Examination of
Production Production
tenders F 85% 6 80% 6 70% 6 70%
information information
received
and Bills of (restricted (very limited
G
Quantities 65% service) service)
Construction
Tender
50% H 7 7 7
Action
(very limited (very limited
service) service)
Project
Post -contract J
Planning
Measurement Construction stage 8 8 8
Operations on (restricted
Costing variations K
site service)
Preparing interim
valuation and final L Completion 98% Works complete 100% 100% 100% 100%
account
In the following sections of this chapter I describe how this may be achieved, using a
common proforma basis, and then incorporating the requirements and features of the
project and the particular consultant’s role. Appendix A, ‘Consultant Appointments’,
contains the resultant standard drafts. The ultimate aim: a total service, for a single
fee.
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I should stress here that the Conditions set out in the drafts are my own choice; the
reader may consider some should be omitted and others added. There is no single
option. For what it is worth, however, I can add that the style shown in Appendix A
has been used by me without exception since 1980. Whilst there have been
amendments to the standard draft since that time, and on every occasion it has been
purposely refined to suit the particular development, the essence has remained the
same. It has been remarkably successful in bringing certainty to the client/consultant
relationship.
Other than the lead design and cost consultants, the project manager must consider
that further consultants or advisors should be recruited to the team. Some may have a
design bias, such as landscape architects, acoustic consultants or traffic engineers, in
which event the project manager must determine between the direct appointment by
the client or a sub-appointment by main consultants; also whether the main
consultant embraces full design responsibility or only direction and administration of
any sub-appointment, and whether the main consultant’s fee is deemed to include
payment to the sub-appointee or is separately defined.
1. Project
Although the development title appears at the head of each appointment, this
paragraph should give a brief resume of the work to which the appointment
relates. Example: The alteration and refurbishment of 63/67 Kensington High
Street, to provide retail shops, stores, offices and car park.
2. Client
State the name and address of the client. Be certain: developments are often
carried out by a subsidiary or specially constituted company. The client
named will be the party responsible for payment of fees.
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3. Consultant
Some professional practices operate under more than one style. Check the
practice name (and address) acting as consultant and its corporate credentials!
4. Service
(1) Before drafting the specific services requirement for a given development, the
project manager should assess the role of each consultant and their inter-
relationship. The architect has traditionally been regarded as the leader of the
consultant team and part four of the RIBA’s Standard Form of Agreement
confirms this principle by stating ‘The Architect will have the authority to co-
ordinate and integrate into the overall design the services provided by any
consultant, however employed’. A decision on the extent of services to be
performed by the Mechanical and Electrical Services Consultant is
particularly important because of the three alternatives offered in ACE
Agreement 4A. (See Mechanical and Electrical Services Consultant, later in
this paper.) The design of the M & E systems is often substantially
undertaken by specialist subcontractors, and this can influence overall design
co-ordination and supervision responsibilities. The approach for each
development should be clarified when settling service terms.
Only the RICS Professional Charges refers to ‘claims’, and then only in the
context of additional charges by quantity surveyors for investigating the
validity of contractors’ claims. Bearing in mind that the consultants are
inextricably linked to claims discussion (argument!) and assessment – indeed,
lack of design information is probably the most frequent contractor’s
complaint – there seems good reason to make plain that the consultant’s
service includes advice to the client and project manager, and representation
of the client’s interest.
The project manager is well advised to monitor the consultants throughout the
development programme, to be sure the records are compiled, guarantees
documented etc.
5. Copyright
The wording in the draft appointment follows the style included in the BPF
Collateral Warranty. Copyright is retained by the consultant but licence is
given to the client for all reasonable needs.
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6. Fee
The fees set down in the respective Conditions of Engagement are not
mandatory. Indeed the RIBA now only provides information on fee ranges
based on market research of actual fees from amongst its members. The
earlier table shows the cumulative fee due to each consultant according to the
Work Stage completed, as recommended by the respective Conditions of
Engagement.
Fixed or lump sum fees have a definite attraction for the client and project
manager, because of the certainty they provide. I have also found consultants
willing to agree once they are reassured how this is to be achieved. For them
too it can be a safeguard; it is not unknown for final contract sums to be lower
than the pre-contract forecast or accepted tender. An approach I have found to
work well is to agree a percentage which, once a contract sum is defined, is
applied to that and converted into a fixed fee sum. This has the benefit that
the fee reflects the value of the work described in the building contract, which
is reassuring to the consultant, but removes any suspicion that there is
financial advantage to the consultant in designing or instructing changes
through the contract. When requested, I have agreed a proviso that the
consultant shall receive an additional fee if the client instructs a major change.
This is also discouragement to the client. As client changes can rarely be
anticipated – and may be omission or adaptation as much as addition – I do
not agree to any more specific wording then this statement of intent. In turn,
however, I regard it as the duty of the project manager to promote to the client
the case for additional fees if instruction falls within the spirit of ‘major
change’.
7. Site personnel
The need for site personnel will vary according to the complexity of design
and construction, and also often according to the preference of the individual
consultant. Costs normally form an extra to fees and are customarily based on
wage and national insurance expenses plus an addition for administration
overheads. It is advisable therefore to establish early with each consultant the
likely need for site personnel, because cost allowances must be made in
development appraisals.
When budgeting for expenditure the project manager should take account of
possible wage or salary increases during the time that site personnel are
employed on a project.
8. Terms of payment
The project manager must distinguish between:
b. the post-commitment period, when the full fee terms (Clauses 6 and 7)
will apply.
Provision should always be made for a proportion of the consultant’s fee, say
5%, to be held until issue of the architect’s final certificate, ie completion of
defects.
12. Signature
The draft appointments in Appendix A are presented in the format appropriate
for them to be signed as a Deed (in England and Wales), ie with twelve years’
continuing liability following completion of duties. The project manager
should consider whether this is appropriate to the type of development and
duties to be performed. The alternative is to sign ‘under hand’, which conveys
six years’ liability.
The following sections deal with matters related specifically to the respective
appointments of the four primary consultants. The clause numbers again
relate to those contained in the draft appointments set out in Appendix A.
5 Architect
5.1 Appointment terms (Appendix A1)
4 Service
Schedule Two of the SFA lists the services to be provided by the Architect. It begins
with four headings – Design Skills, Consulting Services, Building/Sites, and All
Commissions – under which are listed services generally applicable to any
appointment. It is intended, however, that the client (project manager) and architect
should indicate those included or deleted, and write in any additions.
Then in similar style, the following 11 Work Stages. In summary these are:
6 Fee
The SFA guide contains information supplied by its members. This is reproduced on
the following pages. As will be seen there are two tables, one for New Works and
the other for Works to Existing Buildings, and each contains five classifications of
building type, details of which are given in Table 3.
Clause 6 should contain a statement of the percentage, lump sum or other fee
payable and that this is in respect of the entire service. Any specific exceptions
should be noted together with the fee basis.
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Survey of Fees
6 Quantity surveyor
6.1 Appointment terms (Appendix A2)
4 Service
(1) The RICS publishes two fee scales, Nos 36 and 37. Scale 36 is an ‘inclusive
scale’; scale 37 gives an itemised scale of professional charges, breaking the
quantity surveyor service into a number of components, and is only likely to have
relevance in the event of a contract proceeding on the basis of an approximate
Bill of Quantities or Schedules of Rates.
(8) Capital allowance. In the UK it has been a traditional part of the Government’s
fiscal policy to provide tax allowances in the form of an annual writing off of a
proportion of the original construction costs. This does not apply to all forms of
building or every part of construction; but where it does apply can provide a
valuable tax benefit. Plant and machinery is the most frequently cited instance,
but the project manager should also review with the client’s tax adviser to secure
the best current advice, and then direct the quantity surveyor.
Tax allowances can usually only be claimed by the party providing the
development finance. Whilst the client will therefore not always gain direct
benefit, it is necessary to retain the service in case this is required by the fund.
6 Fee
Scales 36 and 37 provide for fees to be calculated according to three categories of
work arranged in approximate order of complexity. Speculative standard offices and
other relatively simple forms of construction fall into category C; whilst shopping
centres and offices incorporating detailed tenants’ requirements are more likely to
fall within category B. Category A relates to specialised buildings such as libraries
and universities.
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Category B
Category C
The additional scale fees, when bills are required for air conditioning, etc are:
The inclusive scale of professional charges provides that the printing of a reasonable
number of Bills of Quantity and other documents, together with normal travelling
and other expenses, are included within the percentage fee.
7 Structural engineer
7.1 Appointment terms (Appendix A3)
The Association of Consulting Engineers is the presiding body which publishes
‘Terms and Conditions of Engagement for Structural Engineering Services ’. Those
for the structural engineer are contained in a booklet titled ‘ACE Conditions of
Engagement, Agreement 3 for Structural Engineering work where an Architect is
appointed by the Client – Harmonised with “Architects Appointment”’.
4 Service
(1) Following the lead of the RIBA, Agreement 3 describes the ‘normal service’
under a sequence of work stages approximating to those set out in ‘Architect’s
Appointment’. (NB: Although ‘Architect’s Appointment’ was superseded by
SFA in June 1992, the Work Stages remain the same in principle.)
Whilst the nature of the service under each heading is described, there is only
minimal reference to the features of the development which the structural
engineer is to design or supervise. Consequently the project manager should
define any particular matters for which the engineer is responsible, as indicated
in the draft (Appendix A3).
(6) Record drawings. As-built drawings are listed by Agreement 3 under Clause 7.
Additional Services (time charge!). Engineers’ drawings are vital to the long
term ownership of a building, and possible future alterations or refurbishment.
6 Fee
Agreement 3 (Clause 10) recognises four alternative methods of payment.
According to Agreement 3, ‘Project’ may be taken to mean the total contract sum,
whilst ‘Works’ are said to mean that part of the project for which the client has
engaged the engineer to provide professional services!
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Agreement 3 goes on to describe a complex formula and graph for determining fees
based on the cost of the ‘Works ’; too complex to attempt a precis here. I earnestly
commend every project manager to alternatives (a) or (c), for the reasons mentioned
earlier under ‘General Criteria’, which seem equally to be appreciated by structural
engineers.
The ACE Conditions provide for expenses to be reimbursed at cost. A fixed lump
sum limit or adjustment in the fee percentage provides greater budgetary certainty.
7 Resident Engineer
Agreement 3 stipulates that the client shall reimburse all salary and wage payments
paid by the consultants to site staff, plus a percentage to be agreed for head office
overheads and administration. Reasonable in principle, but beware the salary
increase(s) part way through the job which blows the budget allowance! Better to
agree a fixed gross monthly sum, with an aggregate upper limit.
4 Service
(1) Mechanical and Electrical Services Consultants are commonly appointed under
the Association of Consultant Engineers Conditions of Engagement Agreement
4A. This provides three alternative bases of appointment, known as Full duties,
Abridged duties and Performance duties. (See also M & E Subcontractor
Appointment, below). This is a vital early decision. It affects the extent to which
the design of the services is on a comparable level with architecture and
structure; it also significantly influences the time when the services subcontractor
must be appointed. See ‘Sequence ’ below.
Agreement 4A specifies in detail the work programme for each form of duty. The
respective programmes are divided into eight stages, which are intended to match
the RIBA work stages.
Unless stated otherwise, the Full and Abridged duties provide for the consultant
to produce a Bill of Quantities (for which an additional fee based on the quantity
surveyor scale is payable). A Bill of Quantities for the M & E services is
infrequently required, but, when it is, it is usually preferable for it to be prepared
by the quantity surveyor. This acts as a check on the quality of information
produced by the consultant and assures uniformity of cost control. By virtue of
other provisions in Agreement 4A, the services consultant still retains
responsibilities for providing budgetary advice and account checking.
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Even when a consultant is appointed to Full duties, the subcontractor will have to
produce installation drawings, which Agreement 4A describes as ‘drawings
based on the tender drawings and/or co-ordination drawings (by the consultant)
showing details of the subcontractor’s proposals for the execution of the works.
The drawings will be in such detail as to enable the works to be installed’.
Separate to the detailed list of duties given for the three principal services,
Agreement 4A schedules a number of optional Additional duties. It therefore
requires a laborious cross check to establish what is automatically included in the
appointment, and which of these further duties may be required for a particular
project. Most consultants recognise this problem and are willing to take a broad
view, hence the wording in the draft Appointment. Although Agreement 4A
requires the M & E consultant to carry out commissioning and testing
procedures, to inspect the works on completion and record any defects, there is
no mention of certification to support the architect’s Certificate of Practical
Completion. Given the significance of the consultant’s role, it is desirable that
there should be a clear contractual record of acceptance, and hence the provision
in paragraph 4.1.3.
(6) Record drawings . Both Full and Abridged duties provide in the scale fee for the
consultant to ‘receive and examine, on completion of the work, copies of record
drawings, operating instructions and maintenance schedules prepared by the sub-
contractor and deliver same to the client’. However, if responsibility for
producing this information is placed on the consultant then, unless otherwise
stated, an additional time charge fee is payable.
6 Fee
Agreement 4A contains three graphs for calculating the fee according to each type of
duty, but interpretation requires (in the UK) knowledge of the output price index
produced quarterly by the Department of the Environment. The cost of works,
against which the scale fee is then applied, is the value of the specialist subcontract
together with some additions for attendant builders’ work, and to this aggregate
figure there is a further 15% to cover profit and preliminaries. When assessing fees
on the scale basis, be sure not to overlook the value of these additions.
The fee arrangements are further complicated by a series of notes at the side of the
work programme for each type of duty, indicating that many of the items in the work
stages are subject to other forms of payment – time charge, supplementary scale, and
quantity surveyor scale. In particular, stages 1 and 2 (pre-design work) are entirely
on a time charge unless otherwise stated. It is therefore preferable clearly to record
that the consultant’s fee will be based solely on the scale or otherwise agreed fee,
and will be in respect of all the responsibilities listed in the work plan (except
perhaps Bill of Quantities) unless specific exceptions are made and stated.
Fortunately, services consultants, like other disciplines, are happy to work on either
a lump sum fee or a percentage fee of the total building contract. As a general
indication, a fee for Full duties assessed on the total contract value is likely to rest
between 2% and 2.7% depending upon the size, complexity and value of the M & E
services and building contract.
l The extent of tender competition required and the certainty of design and
price that is to be embodied.
RIBA ACE
PLAN OF WORK AGREEMENT 4A
Work APPENDIX APPENDIX APPENDIX
Title Work stage
stage 1 2 3
Inception &
A Feasibility 1
PRE-DESIGN
B Strategic Briefing 2
C Outline Proposals 3
D Detailed Proposals 4
DESIGN
E Final Proposals 5
Production
F Information 6
Tender
G Documentation
See listed duties 7
H Tender Action
J Mobilisation CONSTRUCTION
Construction to
K Practical Completion See listed duties 8
After Practical
L Completion
INTENDED HARMONISATION
A project manager’s guide to development strategy Paper 0143 Page 33
Agreements
Contents
9. Development partnerships – contracts
Whatever the individual circumstances, the activities, obligations and rewards of the
parties will be recorded in a legal document, conventionally titled a ‘Development
Agreement’ or ‘Building Agreement’, or ‘Joint Venture Agreement’. The two
former (whose title names signify the same type of contract and relationship of the
parties) are employed where the parties retain their individual corporate and/or
statutory identity. In a joint venture a new corporate entity is created, with the
interests of the participating parties usually expressed as a shareholding.
10 Development/building agreements
Probably the most familiar application of development agreements has been in the
formation of partnerships between local authorities and developers for town centre
redevelopments. The local authority has typically been responsible for site assembly
and the developer for design, construction and marketing, including the provision of
finance. However, the principles underlying the need for, and terms of, a
development or building agreement, are equally applicable to project partnerships
between private sector organisations where there is no public authority interest
involved. Usually the legal estate or interest of the developer will only be fully
realised on completion of his development responsibilities, the common arrangement
being that the agreed draft form of lease between the superior partner (landlord) and
developer, or other statement of developer’s reward, is set out in the development
agreement. Consequently, one of the project manager’s ultimate objectives on behalf
of his developer client is to ensure the grant of a lease or payment of the reward is
promptly and effectively achieved.
It is as vital to ensure that the responsibilities of the developer client are clearly
stated as it is to ensure that they are not unreasonably onerous. Also, the project
manager has the task of implementing and carrying through the developer’s
obligations. It serves no purpose to the project manager, his team or his client (nor
indeed the project partner) if, for example, the project manager ’s time is absorbed by
a requirement for providing too frequent written reports, or the project partner can
interfere in minor design changes.
A project manager’s guide to development strategy Paper 0143 Page 36
By the same token, the project partner’s obligations must be equally certain. These
are likely to be found in the non-conventional clauses as they deal mainly with the
particular circumstances of the site and the partner’s contribution to the
development. Thus the project manager must consider carefully whether the clauses
expressing these responsibilities are sufficient and specific. It is no comfort during
the building contract to find that the site owner cannot hand over possession of part
of the site at a time promised but not recorded in the development agreement. The
contractor will have little sympathy for the client, and the project manager will have
none from either.
The developer client takes on obligations and responsibilities consistent with his role
and expertise. The project manager must ensure that he has the contractual rights and
opportunities to meet them. I cannot recommend too strongly that the project
manager participates in the drafting and negotiation process. In my experience,
solicitors welcome information and guidance which help the clauses of the
agreement to be properly cast, particularly in relation to the practical and physical
aspects of carrying out the development.
10.2 Definitions
Terms such as ‘the plan’, ‘development area ’, ‘the site’, ‘the property’, ‘the
premises’, and others similar, are often used to define different elements of the
project. Ensure that there is a clear definition of each phrase (usually provided in the
preambles to the development agreement); and that subsequent references in the
body of the development agreement are consistent with their respective
interpretations. Such terms may also relate to drawings appended to the agreement.
Check that these are correct and also any delineating colouring they contain.
A project manager’s guide to development strategy Paper 0143 Page 37
10.5 Consultants
The British Property Federation publishes standard forms of warranty, which were
drafted in conjunction with the RIBA, RICS (for quantity surveyors), ACE and
CIOB. The warranties are expressed in the accompanying guidance notes to be used
where consultants and contractors are to provide commitments to financiers,
purchasers or tenants. However, I believe the style to be equally appropriate to the
requirements of a ground landlord, and I therefore suggest that the project manager
consider recommending that this be the form adopted. I should add that the RICS has
recommended the BPF warranty as suitable also for project managers who are
requested to provide this commitment. This should be with the same amendments as
are noted in the standard form as appropriate for quantity surveyors.
10.6 Programme
Date of entry
The date of entry into the site is often specified in the agreement, and is frequently
related to factors such as satisfaction of conditions precedent, exchange of approved
drawings, availability of vacant possession, etc. The project manager should
consider the practicality of the date of entry as defined.
More than once I have known the initial drafting to express the date of entry as so
many weeks after signing of the development agreement or agreement of the
approved drawings. The timescale has appeared to be arbitrarily decided with no
consideration given for the programme period needed to complete detail design,
prepare Bills of Quantity and obtain tenders.
Yet frequently the developer and project manager will have held the consultants on a
tight fee rein to restrict speculative expenditure with consequent limitation on
amount of design work done so far. Months rather than weeks are required to
progress through the pre-contract programme. Often the development clock starts
running from the date of entry, so it is vital to have the appropriate ‘pre-entry’
timescale stated in the agreement.
Vacant possession
If vacant possession of the whole site is not available on the date of entry, ensure the
dates for subsequent areas are specified and advised to the consultants and contractor
for consideration during pre-contract programming, and stated in the building
contract terms.
Building period
The period permitted for construction is usually stated. Given that the agreement is
probably drafted many weeks before skilled (contractor’s?) analysis of the
programme is possible, this can at best be an estimate only. I have been surprised
how rarely this has been appreciated by the lawyers and other professionals in the
team. The project manager must persuade them, and in the cause of securing a
commonsense document, include an element of contingency.
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Phasing diagrams
For each significant stage of the development programme there should be a plan
showing the respective site ownerships, extent of contractor’s works area, route for
contractor’s access, public rights of way, routes of services.
Timetable
A statement, perhaps in the form of a bar chart, should be included showing the
periods of time allocated to the respective building contracts and any consequential
sequence or other interrelationship that is to be observed. Where the timing of one
development is dependent upon another, the development agreement should provide
for the timetable to be extended, and hence the developer ’s obligations protected, in
the event of a preceding development being delayed. Such consequences must also
be reflected into dates for calculation and/or commitments for payment of ground
rent.
10.9 Insurance
Typically the developer will be required to insure for reinstatement and three years
loss of ground rent, and to indemnify the ground landlord against third party
liability. The draft clauses should be referred to the client’s insurance broker for
comment/approval as soon as the draft agreement is received.
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Approval to conditions
Occasionally the ground landlord requires that his approval must be given to the
conditions of the building contract. This should be resisted if possible, on the
premise that it is the developer and not the ground landlord who is party to the
building contract and it is he therefore who is responsible for the employer’s
obligations. However, this argument may not suffice if the ground landlord has the
right to take over the building contract in the event of the developer’s default, or his
reward is tied to control of development costs, in which case the ground landlord’s
right of approval should be qualified by ‘not to be unreasonably withheld’.
Approval to tender
If the ground landlord insists on the right to review the contract tender, this should
be by liaison with the developer ’s quantity surveyor and only occur following the
latter’s recommendation to the developer that he is satisfied with the terms and price
on which it is proposed to let the building contract, ie following negotiations and/or
tender vetting with the proposed contractor.
The agreement should state that the ground landlord’s tender review must have
regard to the full terms and conditions of the building contract and any notice of
objection against the tender which the developer proposes to accept must specify the
reasons.
Contract administration
Neither the ground landlord nor his professional representatives should have
sanction over the developer’s consultants’ duties to administer the contract, most
particularly in connection with the preparation of valuations and issue of certificates.
It is reasonable to allow the ground landlord access to the developer’s quantity
surveyor to inspect the basis of assessment of valuations, but if the ground landlord
thereafter wishes formally to register concern, this should be directed to the
developer (project manager) and the matter negotiated accordingly.
Where this contingency is provided for in the agreement the project manager should
advise the developer ’s consultants and insert an appropriate clause in their respective
terms of appointment.
Transfer provisions must also be inserted in the building contract and any nominated
sub-contracts and/or design warranties by specialist sub-contractors.
The development agreement should specify the responsibility for erecting site
hoardings. These are often used for commercial advertising; accordingly, whether
the hoardings are erected by the ground landlord or through the developer, the
agreement should specify the distribution or treatment of income (eg as a deduction
from development outlay).
Arrangements are often made with specialist advertising companies who will tender
rent against a responsibility also to erect the site hoardings. The licence to the
advertising company should contain provision for the alteration, partial removal and
termination of the licence to suit the building contractor’s works and the completion
of the development. Provision for adjustment of income in the event of alteration or
partial removal should be included in the licence.
A project manager’s guide to development strategy Paper 0143 Page 42
l The drawings and specification for such works must be identified in the
development agreement. The document should state that the developer shall
not undertake any alterations or variations unless the ground landlord or third
party has formally approved an estimate of the cost. The project manager
should ensure that the developer ’s estimate is based on discussions with both
contractor and consultants and include allowance for any consequences which
the change may have on the developer ’s own building contract obligations
and costs.
l The basis on which the developer may claim reimbursement should be his
quantity surveyor’s valuation and architect’s certificate. The project manager
should instruct the consultants to identify separately the value of third party
works. The developer’s service of the appropriate certificate to the third party
plus any addition for on costs should constitute notice for reimbursement.
l A time limit of, say, 14 days should be given within which reimbursement has
to be received or else interest at a specified rate, say 2% over commercial
bank lending rate, will accrue. It is important to appreciate that as such works
are included in the developer’s building contract, they are included within the
aggregate of usual monthly building certificates. Consequently, the project
manager must ensure there are effective arrangements for notifying third
parties of impending reimbursements (eg forwarding a copy of the quantity
surveyor’s valuation, which usually precedes the architect’s certificate by a
few days) so that the developer does not incur a negative cash flow by
temporarily financing the third party works. The project manager must notify
the consultants of the arrangements required and agree the timing principles
with the developer and third party personnel.
To facilitate marketing on the developer’s timescale and to control retail pattern, the
agreement should provide that the developer’s offer to displaced traders accords with
the following:
Prior to formal offers being made, it is advisable for the project manager to ensure
that the ground landlord is notified of the proposed location of the units to be offered
to the respective traders, and the rents to be specified. The ground landlord should
also approve the lease to be offered.
Each offer should include a fully completed lease, plans, specifications and rent,
such that the displaced trade has only to sign the agreement for lease and return it
within the specified period (say two months) in order to secure his position. This
procedure enables the developer to insert certainty into his marketing campaign and
ensures that the traders cannot unduly procrastinate or negotiate.
The first is a certificate required specifically for the purpose of determining that the
developer ’s contractual obligations to design and build according to the development
agreement are complete. It is an issue between developer and ground landlord.
A certificate of practical completion arises out of the building contract, to which the
developer (employer), contractor and consultants are the principal parties. The
project manager must ensure the ground landlord has no lien or sanction over the
issue of the certificate of practical completion. The alternative would give the
ground landlord a relationship to the building contract, albeit he is not a party
thereto, and could frustrate the developer (project manager) and his consultants’
ability to meet their contractual obligations under the building contract.
It is, however, appropriate for the development agreement to provide that the
developer shall give notice to the ground landlord in advance – say 14 days – of the
anticipated date on which practical completion will be certified, so that the ground
landlord may have the opportunity of notifying the developer of any matters which
he believes have not been satisfactorily undertaken in accordance with the approved
plans and specifications. The developer and his consultants then have the
opportunity to decide whether they agree with matters notified and, if so, whether
these ought properly to be undertaken by their contractor before a certificate of
practical completion is issued.
The development agreement should next provide that, following the issue of the
certificate of practical completion, the developer may give due notice to the ground
landlord and call for the latter ’s completion certificate. A time limit of, say, 14 days
should be imposed within which the ground landlord must accept or give notice of
any reasons why he does not consider the building to have been satisfactorily
completed. If notice is given, the developer has the option of either remedying the
‘defect’, in which event the notice and response arrangements for the completion
certificate are subsequently repeated, or invoking the arbitration clause under the
agreement.
It is important to appreciate that the grant of the ground lease is normally tied to the
issue of the ground landlord’s completion certificate; also, where calculation of
development outlay is applicable, it is often the completion certificate date to which
subsequent financial calculations are geared (eg capitalisation date, commencement
of ground rent, etc).
A project manager’s guide to development strategy Paper 0143 Page 45
l Building costs
l Consultants fees
l Letting fees
l Legal fees
l Funding fees
l Promotion
l Site survey and soil investigation
l Public inquiry expenses
l Acquisition costs
l Demolitions
l Service diversions
l Insurances
l Non-recoverable VAT
l Project management fees
l Landscaping
l Interest on the rising daily total of all the above at the agreed rate.
l Shortfall between interest payable and rents received prior to the
capitalisation date.
It follows from this that rents or licence fees (eg hoardings) received prior to the
capitalisation date are usually treated as a deduction from the aggregate total of
development outlay.
DEVELOPMENT AGREEMENT
FOR
A HOTEL REDEVELOPMENT
A Parties
Employer’s Agent:
B Obligations
Developer: occupies the Premises as licensee from .......... until Completion Date (issue of certificate
of Operability) to undertake the Development Works, the Fitting Out Works and the Hotel Moveable
Items MDev 7.1
Developer’s obligation: to use reasonable endeavours to complete development and fitting out works
in accordance with Base Drawings Specifications, the Design Documents and the Fitting Out Plans by
the Estimated Practical Completion Date and will complete by Longstop Date (X years after date of
Dev Agmnt ................). Time to be extended by extensions allowed to Contractor by Employer’s
Agent unless caused by act default or omission of Developer 1.1, 1.2 & 1.3
Developer: will keep the Owner informed of the progress and any material
problems or delays affecting the Development Works, the Fitting out Works
and/or the Hotel Moveable Items 5.1
Developer: will keep the Owner furnished throughout with a complete set of
Design Documents as amended and revised MDev 3.5
C Variations
10 days 10 days
â â
Owner: accepts in writing Owner: fails to accept
â â
Developer: implements Developer: makes written
demand
for costs of preparing
estimate/quote
â 21 days
â
Owner: aggregate of
estimate/quotes not paid for Owner: pays costs 3.1.4
exceeds £200K, owner
deposits total with Bank
3.1.9
â â
Restaurant & Bar excluded Developer: responsible for fitting out Restaurant
& Bar 3.1.10.3 and bears whole cost of provision
â 3.1.10.5
â â
Employer’s Agent: issues statement of sectional
completion of Development Works or Statement of
Practical Completion
F Defects
12 months â
Employer’s Agent: includes such defects in schedule of defects 8.1.3
â
Under building contract Main Contractor rectifies defects
â
Developer: procures that Employer’s Agent consults with Owner’s
PM
â â
End of defects ç Employer’s Agent: issues statement of completion of Making Good
period Defects 8.1.6
Owner, Owner’s PM + other authorised persons: view progress and state of Development Work and
Fitting Out Works and shall address comments to Developer (not ....) 9.1
Owner’s PM + other representatives of the Owner: shall be permitted (procured by Developer and
prior notice of date and time to be given) to attend site and project meetings 9.2. Will be allowed by
Developer to attend formal review meetings (held min monthly) 9.5.2.3
Owner, Owner’s PM: will be allowed by Developer to make representations at the meetings (para 9
meetings or thereafter) to which the Developer will have due regard 9.5.2.4
A project manager’s guide to development strategy Paper 0143 Page 51
Owner’s PM: may make representations regarding deficiencies in design, materials or workmanship
to the Developer who shall procure a proper account is taken 9.4
Owner, Owner’s PM: will be afforded access to the Premises at reasonable times 9.5.1
Owner, Owner’s PM: are (procured by Developer) given access to the records of the Development
Works (inc all drawings & specs) 9.5.2.1
Owner’s PM: will be provided by Developer on request information to enable him to prepare
monthly reports on progress 9.5.2.2
Banks’ Representatives: shall be owed by the Developer the same rights available to the Owner’s PM
as above 9.5
K Indemnity by Developer
Developer: shall indemnify the Owner against all costs arising out of any breach by the Developer,
arising out of the ownership of the Premises prior to the issue of the Certificate of Operability or
arising out of the Development Works and Fitting out Works 11
M Certificate of Operability
N Measurement
â
Dispute: referred to Fellow of RICS acting as an
expert 14.2
A project manager’s guide to development strategy Paper 0143 Page 53
P Training facilities
Q Liquidated damages
à Certificate of Operability
R Claims
Developer: after Completion Date – will prosecute claims for the benefit of the Owner for failures by
Professional team or Building Contractor at Developer’s expense before issue of mg defects cert and
at Owner’s expense after. Owner may assume conduct of claim by giving notice. MDev 10.
A project manager’s guide to development strategy Paper 0143 Page 55
11.1 Definitions
The description of material words and phrases carries the same vital message as
explained under Development Agreements. However, in a joint venture agreement,
there may be the added nuance that the development definitions will carry corporate
overtones. Consequently I must emphasise again the importance of understanding
the meanings ascribed, and ensuring the sense follows through into the body of the
agreement. The following, taken from an example of my own experience, illustrate
the point. Used elsewhere – another agreement, another lawyer – they would likely
have different meanings.
Approved scheme.
The general drawings, plans and specification of works for the implementation of
the building works, annexed hereto, with such modifications, additions and
substitutions as shall from time to time be required or approved by or on behalf
of the company.
Budget.
The budget for the project prepared by the project manager, and approved by
unanimous resolution of the board and as the same shall, with the consent of all
the shareholders, be amended from time to time.
Building contract.
The building contract entered into by the company for the carrying out of the
building works.
Building works.
That part of the project comprising the carrying out and completion on the
property of the demolition and/or refurbishment and construction of buildings
and other facilities in accordance with the approved scheme together with the
construction of such other works as may be approved by the shareholders from
time to time.
Consents.
All permits, permissions, consents and approvals required by any local or
governmental authority, building regulation approvals, building consents and
licences of whatsoever nature as shall be necessary for the lawful implementation
of the project. (NB: note the implications of this given the range of the definition
‘Project’ below.)
A project manager’s guide to development strategy Paper 0143 Page 56
l The date on which (the company having completed the sale and or letting on
long leases, at a premium of all units) there is no further obligation on the
company to sell or let the units, and the last instalment of any purchase
monies or premiums has been paid to the company.
l The date upon which the final transfer of any reversionary or residual interest
in the property by the company to the management company is effected.
l The date on which the project expenses have been finally determined.
Project.
The acquisition by the company of the property; the obtaining of the consents
and the carrying out of any works required in order to obtain the consents; the
carrying out, management and completion of the building works; the granting of
leases in respect of the units or any of them; the sale of the company’s interest in
the units or any of them; such other matters as the shareholders shall agree from
time to time.
Project account.
The record of income and expenditure relating to the project.
Project expenses.
The total cost and expenses properly incurred or to be incurred by the company
(including all legal, surveyors and other professional and agents’ fees, taxes,
stamp duties and other fees properly payable) in connection with the
implementation and financing of the project, including but not limited to:
l The costs of the acquisition of the property, and the acquisition release or
modification of any rights, easements, restrictions affecting the same.
¡ The costs of obtaining consents.
¡ The costs of carrying out the building works.
¡ All finance charges.
¡ All publicity, marketing and other sales costs and expenses.
¡ All costs incurred by the company in maintaining and providing
services for the property and/or for the units.
¡ Any non-recoverable VAT, properly payable in relation to the above
items.
The above is not an exhaustive list of the definitions in the document from which my
example is taken, but are those which bear the most significance to the project
management responsibilities. The relevance of understanding the particular
meanings should be apparent. So too should be the breadth of the responsibility
consigned to the project manager.
Board meetings, and the directors’ exercise of delegated powers, will probably have
direct influence on the project manager. He can expect to be their focus of attention,
and his attendance required at most meetings. Therefore, understand the basics.
First, the board meetings. How frequent are they, the venue, what constitutes a
quorum, what is the standard agenda, will a project management report (written or
verbal) be required on each occasion, what issues require a vote, how is a majority
declared, is there a casting vote?
Second, the directors. How are they appointed, whom do they represent, do they
have alternates, how many are there, do they have executive roles within the joint
venture?
These are all pertinent questions, because inevitably circumstances will occur where
prior consultation will be appropriate with certain directors and/or shareholders to
promote a decision towards the project manager ’s recommendations.
One essential distinction to understand is between decisions that lie within the remit
of the board, and those that require shareholder approval. Although the directors
may represent the shareholding interests, it does not follow that they automatically
have power vested in them to decide on shareholder issues.
As might be imagined, the issue was examined from every angle, and I reported
frequently and equivalently to the shareholding companies. By so doing, I am
convinced that when I ultimately decided to recommend removal of the existing
installation and appointment of a new specialist subcontractor, the response from
both shareholders was prompt and positive. Yet the implications were immense.
Putting to one side the long term possibility of legal or insurance recovery, the
partners had to finance a 20% increase in the building cost. Our partner had the
further expense of a twelve months ’ delay to occupation.
When set out in the joint venture agreement, it can be expected that the drafting of
the project management duties will be influenced by the relationship of the parties.
The duties may extend beyond the conventional horizons of project management.
This is underlined by the following resume taken from the document mentioned
earlier.
10. The project manager shall notify the company of any immediate or
prospective material change in the building programme or cost of the project,
and shall not commit or incur any material liability on behalf of the company
except as previously authorised by the board.
I do not for an instant suggest this list is perfect. It has many inappropriate qualities,
not least the mixing of corporate and project obligations, the relative similarity of
certain duties and the absence of many relevant services, eg insurance. However, the
list illustrates how a hybrid document, drafted with many considerations in mind,
may not provide a routine brief. Nevertheless, the project manager must recognise
that the eyes of the shareholders are focused upon him and he must organise, direct
and implement accordingly.
12 Finance agreements
Finance agreements – the documents which govern the relationship between
developer and financier or funding institution – are typically similar in form to
development agreements. However, because of the Institution’s significant financial
commitment, it may be expected to demand a close involvement in the
administration of a project. On the principle that ‘he who pays the piper calls the
tune’, the project manager must acknowledge the need for the fund to be satisfied
that its money is being soundly invested; consequently, he should set out to reassure
the fund’s representatives by demonstrating a willingness to liaise and provide
information, provided that contractual responsibilities are not infringed.
The following items are likely to be affected beyond the guidance already given
under the heading of Development Agreements.
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The bills of quantity are likely to be included, as may also the performance
specifications to be issued to specialist subcontractors for elements such as windows,
lifts, etc.
Some funds employ in-house technical staff; others – probably the majority –
appoint professional consultants to check drawings, specifications, etc on their
behalf. The project manager must arrange for the transfer of information from the
developer ’s consultants to the fund’s representatives; he should also ensure that,
whilst the fund’s representative may seek to clarify details by direct contact with the
developer ’s consultants, any matters on which the fund’s representatives are not
satisfied are formally reported to the project manager.
Working drawings, services installation drawings etc are not usually included in
those documents which are to be formally signed and exchanged. However, there is
often a clause in the finance agreement requiring copies of all consultants’ drawings,
specifications etc to be passed to the fund’s representatives. Again the principles of
comment and approval should apply as above.
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Collateral warranty
An obligation on the developer requiring that he ensure the consultants provide a
warranty to the fund is a virtual certainty. Earlier mention (see Development
Agreements) was made of the standard form published by the British Property
Federation which was drafted for just this circumstance. It is recommended that the
project manager urge this to be the form adopted if the style is either not specified or
left uncertain by the draft wording of the finance agreement. Do not wait until the
finance agreement is signed before tackling this issue, and in any event give early
warning and information to the consultants. (See Appendix A, Clause 4.2.)
The project manager must, however, appreciate the financial investment being made
by the fund, and the consequent demand for reassurance and protection under the
terms of the building contract. In the author’s opinion this is normally best achieved
by adopting traditional and conventional forms of building contract.
The terms and operation of such building contracts are understood by funds and their
lawyers, and are also frequently supported by case law. Specially created hybrid
forms of building contract produced by the developer ’s lawyers will invite
investigation and potentially lengthy interference by the financier ’s lawyers. This
will likely result in inordinate time being spent on an issue which with few
exceptions is just as well served by traditional forms.
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Certification approval
If demanded by the fund, their representatives must be permitted to inspect the
quantity surveyor’s books of account and valuation assessments, but they should not
have the right to prohibit the issue of valuations or architect’s certificates. If the
fund’s representatives are dissatisfied with the developer’s consultants’ performance,
they should register this with the fund, which in turn should notify the
developer/project manager.
To optimise the developer’s cash flow, the project manager should institute
arrangements whereby, on receipt of the architect’s certificates, fee invoices etc,
copies are forwarded immediately to the fund for payment to the developer. In some
instances the fund will accept the quantity surveyor’s valuation notice, which usually
precedes the architect’s certificate by a few days; this gives more time for the
procedures to take place before the developer is obliged to honour the certificate to
the contractor. The project manager should attend to these arrangements and in so
doing should consider the appropriate period to be inserted in the building contract
for honouring certificates.
Typical complications may be that the fund for its own administrative reasons insists
on paying calldowns on one fixed day of each month, or that there may be only one
calldown per month, or that the aggregate amount of any calldown must not be less
than a minimum amount, say £10,000. The project manager may seek to overcome
these considerations, either by negotiation with the fund when the finance agreement
is in draft form, or by instituting appropriate timing arrangements within his team,
most obviously by working back to the date in each month when the valuation must
be issued. The project manager should particularly consider, in relation to the value
of the development project, whether the sum stipulated as a minimum calldown limit
is appropriate.
Where financial calculations flow from the issue of the completion certificate the
project manager should arrange for data and assessments to be compiled and
submitted for agreement by the fund.
12.9 Tenants
Leases
The funding institution will often demand right of approval to each tenant and
respective occupation leases. The project manager should establish whether the
standard draft form of occupation lease is to be produced by the developer ’s or the
fund’s solicitor, but in either event should ensure that the other parties’ approval to
the text is subsequently obtained.
Approval procedure
If a development is likely to have a multitude of tenants (eg a shopping centre) the
project manager should institute a standard procedure for obtaining the fund’s
approval to the principles of each letting (eg covenant, rent, trade, etc). A simple
device is to record the information on a pro-forma such as that shown in Appendix
B3 which can be circulated and signed by both developer and fund.
A project manager’s guide to development strategy Paper 0143 Page 64
The project manager must instruct the consultants accordingly. Frequently the fund
sets a time limit, which the project manager should check is realistic.
The project manager should emphasise to the consultants that material supplied
under this heading is in addition to that also to be provided to the developer (client)
on completion.
12.12 Reflection
A moment’s reflection will, I hope, convey to the reader the importance of close
attention to the terms and implementation of partnership agreements. It is essential to
each agreement in its own right, it is vital when there are two or more running
parallel on the same project. Two or more partners each with their own consultants
checking on the developer’s team, each with their own rights of inspection, each
with a completion certificate arrangement, and so on. Strong discipline, founded on
properly formed contract clauses, has to be maintained.
Procedures
Contents
13. Design and specification
13.1 Surveys and investigation
13.2 The site
13.3 Services
13.4 Development studies
13.5 Building envelope
13.6 Structural frame
13.7 Architecture
13.8 Mechanical and electrical services
13.9 Prefabrication
13.10 Design accreditation
18. Insurance
(Continued)
A project manager’s guide to development strategy Paper 0143 Page 66
Information is the lifeblood of all teams. The better its quality and definition, the
more certain the consultants’ advice and response. This is especially so when
developing design solutions; for example judgement of the optimum level at which
to sit a building on a sloping site can have considerable effect on the amount of cut
and fill, and consequential impact on the client’s budget.
Consequently, always in the mind of the project manager should be the nagging
question of the enquiries that could be made sooner rather than later, to assist the
team and serve the client. Prompt the thought; do not wait for the consultants to
suggest. In terms of type and timing, surveys and investigations may be considered
in three categories: the site, services, and development studies.
Superficially the past history of a site may not be apparent. The project manager may
obtain some guidance by investigation of title deeds, old maps or the local authority
(see also BRE 318 and 322), but the only certain approach is to instruct a ground
investigation and sample analysis from a specialist laboratory.
Dependent on the status of the client’s involvement at the time, this can either be
done as a discreet investigation or combined with the investigation and analysis for
foundation design. Due account should be taken of the preparation time needed to
determine the areas and number of investigations on the site (usually advised by the
structural engineer), the period required for obtaining tenders from specialist
companies, and the anticipated time required for carrying out the works, together
with subsequent laboratory analysis and reports.
Asbestos survey. In the UK, the use and/or removal of asbestos based products is
strictly controlled. It may be treated or removed only by specialist contractors who
are statutorily licensed. Their work is carried out under carefully controlled
circumstances.
Asbestos has been used in numerous building materials, but especially those
associated with insulation and fire protection. The likelihood of its presence should
be considered with the consultants, and if thought possible, a specialist survey
instructed. An assessment of how and when it is to be treated, and the cost involved,
can then be made.
Boundaries
The ownership and condition of all site boundaries should be established. Consider
whether works will be necessary to protect (eg rendering exposed party walls) or to
maintain (eg underpinning) boundary features and whether notification to and/or
agreement is required with adjoining owners or third parties (see under Third Party
Rights).
13.3 Services
Existing
l Drainage
l Water
l Electricity
l Gas
l Telecommunications.
New services
Service companies sometimes demand that new mains are sized in excess of those
required solely by the development; this may be as a result of a modernisation
programme or as a facility for potential development beyond the subject site. The
project manager should obviously direct negotiations towards ensuring that the
client’s financial contribution is calculated according only to the needs of his
development.
The project manager should identify the connection point for the development’s
main service feeds and consider whether these are appropriate to the development.
These studies are concerned with the relationship between a development and its
external environment. There are others, more usually associated with the
consultants’ response to the brief, such as energy analysis. These are better
considered with the design discipline review which follows later, eg services.
A building’s shape, its mass, its height and its relationship to adjacent buildings can,
as we have all experienced, create strange and discomfiting wind forces.
These are unpleasant both for the public at large and the regular occupants of a
development. With the aid of local climatology records, a specialist study can be
conducted replicating prevailing wind forces. From this, the degree and form of any
turbulence can be forecast. Where it is desirable to reduce the forces, the effect of
changes to the building profile can be simulated.
Vibration may be the least frequent of the studies but where applicable is extremely
important. Typically such studies have been necessary when buildings are located
over major transport routes such as railways. These can induce significant vibration
through a building structure. A study will help define the degree of the problem and
assist the structural engineer in designing the solution.
The project manager should, however, keep firmly in mind that traditional materials
and designs (eg pitched roofs) have a proven record; designs that seem complex
even at the concept stage are likely only to increase the prospect of novel and untried
solutions at the detailed design stage. These should be rigorously avoided. The
following are issues to which attention is particularly recommended.
Flat roofs
Flat roofs are notoriously prone to failure. The project manager should carefully
study drawings showing the proposed falls, checking that there is a consistent logic
to the angles and direction flow arrows shown on the drawings; also that the
drainage gullies are correctly located and in sufficient number. These criteria apply
even where the architect proposes what is termed in the UK an ‘inverted roof’, ie
with the insulation lying over the waterproof membrane.
For all types of flat roof the project manager should check that adequate falls are
achieved, wherever possible in excess of the minimum standards laid down by
building codes of practice. The principle behind this is that if a leak should occur,
damage will be minimised if water is encouraged to drain away immediately to the
outlets provided.
The practical effect of designing only to minimum standards is that falls are often so
slight that any lack of accuracy during construction may result in ponding or outlet
gullies being proud of the adjacent roof area. A roof which is partly covered with
water will be subject to differential stress as it heats and cools during the daily cycle.
The project manager should direct the consultants to define testing requirements in
contract specifications, bills of quantity and specialist performance specifications.
Thus the requirement is clearly stipulated at tender stage.
Each of these can be produced with different design subtleties and it may be the
project manager’s task to secure the optimum solution for each development
(depending on his or her terms of engagement).
A project manager’s guide to development strategy Paper 0143 Page 72
The choice of frame cannot be viewed in isolation; the effect of each alternative on
other design, construction and in-use functions must be considered. Primary
headings for review could be:
l Programme
1. Pre-construction
2. In construction
l Cost
1. Unit cost
2. Building cost
3. Development cost
l Material
1. Availability
2. Alternative sources of supply
l Frame
1. Structural grid
2. Floor slab profile
3. Floor loadings
l Fire protection/cladding
l Pre-fabrication
1. Off site
2. Deliveries
3. On-site temporary storage
l Inclement weather
1. Effect on progress of works
l Owner’s insurance.
Although a generalisation, the following example may help. The lead time for steel
is often such that an order for mill production and fabrication must be placed many
weeks before the start of construction; it may therefore also precede the main
contract tender and/or the appointment of the contractor. The order will require an
often significant financial commitment by the client. Not only does this have cash
flow implications but it also has to be considered in the context of what happens if
the result of the main contract tender is unsatisfactory or, for some other reason, the
client decides to abort or defer the start date, or change the design concept – eg a
major tenant withdraws just before signing an agreement.
Unit cost comparisons between the three structural forms will vary according to
economic times and the specific building design. The comparison should go further,
however; to take account of related costs, such as fire cladding, floor slab
construction, fixings for other components, overall construction programme times,
and contractors’ on-costs (eg attendances, cranes etc) to provide a building cost
comparison. Development costs might vary yet again because of difference in the
cash flow profile and finance charges over the programme period.
There are also risk factors to be added into the equation, such as the effect on site
production of extreme cold, wind or rain, or strikes which affect the supply of
structural materials.
Industrial disputes or resource shortages may have a significant effect upon the
supply of structural steel in a country, and this could lead to a preference for
reinforced concrete, providing bar steel can be obtained from inside or outside that
country.
13.7 Architecture
The project manager should review drawings and specifications at every stage in the
evolution of design. Further, and this is equally true of the other design disciplines,
he should expect to comment and advise (or instruct if his brief permits) where
necessary. Conventionally, and in the language of the RIBA, design evolution
progresses through concept, scheme design, detailed design and production
information: four stages in all. In practice the step from one stage to the next is
rarely precise. Nevertheless, the project manager should be alert to and guard against
any one area of design, or a particular discipline, forging ahead if it is at risk from
related or adjacent design which is not at a comparable stage, eg detailing a
suspended ceiling before the lighting units have been selected.
The project manager is the client’s watchdog. In addition to checking that the
information on drawings and specification reflects the brief, he should also continue
to think positively and creatively. Much that the consultants produce, the architect in
particular, is an interpretation of the brief. Not every solution, be it concept or detail,
is the only effective way of responding to the brief. The project manager should
encourage the consultant’s freedom of thought within the context of achieving the
brief.
From philosophy to fact: the design review may be considered in two parts –
development function and materials and components.
Development function
The project manager should instruct and review design in the sum of its parts, eg the
dealing room in a broker ’s office, the service area within a shopping centre, the
changing facilities in a leisure centre, the security system in a hospital. The
judgements will be derived from understanding the client’s attitude and, hopefully,
criteria set out in the client’s brief. The project manager should form his own
opinion, directing the consultants on changes and refinements to a point where he is
happy to present to the client, or directly confirm (if he has the authority) a specific
proposal or alternative and/or options.
The judgement criteria will vary according to the client’s need or expectation, but as
a guide to evaluation I suggest the following:
l Standard design . Wherever possible the project manager should seek design
specifications which are capable of competitive tender, and building elements
which do not require special manufacture or are unique to one producer.
l Guarantees . The project manager should identify the guarantees available for
respective products and ensure that these are furnished on completion.
Guarantees should be distinguished from contractual responsibilities created
under any employer/subcontractor warranty form, or the defects clause
provisions of the building contract.
From the outset of design, therefore, the project manager must make clear the
demands of the brief, although this itself may require evaluations of alternative
concepts before final instructions can be given.
M & E services cover a host of facilities, some essential, others optional. ACE
Agreement 4A contains a non-exclusive list of 42 items, starting with acoustical
design and treatment, and ending with window cleaning trolleys. The range is wide
and in the modern era of computerisation potentially very sophisticated.
Evaluation of the design response must be rooted in the brief, eg assessment of the
lighting proposals will differ from that for fire protection and alarms. The project
manager must compile his judgement criteria and be prepared to consider or initiate
options. Simply as an indication, the assessment of alternative air conditioning
systems might comprise:
l Capital cost.
l Energy cost . This includes review of energy conservation options which must
in turn be considered in conjunction with other building components, eg solar
control glass.
l Future capacity . Facility to add on, or increase loads eg extra cooling for
possible future conference facility.
13.9 Prefabrication
There is an increasing tendency in building design and construction to opt for
components which are manufactured and assembled off-site. Benefits cited for this
approach are improved production quality, less programme disruption as a result of
inclement weather or on-site disputes, and reduced construction periods because of
fewer sequential trades and reduction of on-site wet trades which require time for
curing. These last also add to the weight and cost of the building fabric due to the
moisture content.
The project manager should do his utmost to ensure, however, that the team
recognise the demands imposed by fabrication. They include the following:
l Local issues
1. Legionnaires ’ disease
2. Local wind effects
3. Noise
4. Overshadowing of other buildings and land
5. Water economy
6. Ecological value of the site
7. Cyclists’ facilities
l Indoor issues
1. Legionnaires ’ disease
2. Ventilation, passive smoking and humidity
3. Hazardous materials
4. Lighting
5. Thermal comfort and overheating
6. Indoor noise
A charge is payable for the assessment which is in part determined by the size and/or
complexity of the building.
The project manager should do his utmost to ensure that an early decision is taken on
whether design accreditation such as the above is to be sought. Preferably this
should be decided at the time of the client’s brief. Information on the accreditation
approach should then be sought from the agency, and its requirements fully
confirmed to the team. To gain maximum benefit, the accreditation process should
be woven into and be identifiable upon the development programme.
A project manager’s guide to development strategy Paper 0143 Page 78
Health and safety is now on the development agenda in the UK, as a consequence of
the Construction (Design and Management) Regulations 1994 (CDM), which took
effect at 31 March 1995. This places a statutory responsibility on the client,
designers and contractor(s) and consequently demands the attention of the project
manager. The nature of the statutory obligations makes them a suitable candidate for
a project record – see Appendix D1.
2. That a health and safety evaluation must be present in all design, and that
all construction must be preceded by a complementary contractor’s method
statement. In combination, the evaluation and method statement comprises
what CDM defines as the Health & Safety Plan.
CDM also introduces a new member to the development team: the planning
supervisor. The planning supervisor has two main responsibilities:
2. To prepare the Health & Safety Plan which is delivered to the principal
contractor, and at completion of construction to compile the Health & Safety
File and deliver this to the client.
The above is intended only as a contextual description for what follows in relation to
the considerations for project management. A clause-by-clause recitation of CDM is
not provided. If required, there is no better start for the reader than the publication by
the Health & Safety Commission, Managing Construction for Health & Safety –
Approved Code of Practice.
The project manager (NB: see ‘Client’s agent’ – Section 14.5 – below) is usually
instrumental in the selection of the planning supervisor. If so, the following is worth
considering prior to checking competency and resources:
A project manager’s guide to development strategy Paper 0143 Page 79
2 Continuity
3 Independence
a. Many design practices and construction companies offer the role of planning
supervisor in addition to their traditional function. Except for small or modest
projects, or perhaps those with an exceptional degree of specialisation, I
suggest the following arguments favour independence;
i. To provide an independent judgement upon the designer’s solutions.
ii. To better ensure a balanced assessment of issues which straddle two or
more of the design disciplines.
iii. To avoid political or personality pressures that can arise within a
consultant or contractor organisation when it performs a multi-headed
function.
ii. Size. The planning supervisor should have experience of, and be from
a practice which typically deals with, the scale of project being
considered. The issues which arise, and the selection of other
consultants and the principal contractor, will all reflect this criterion. I
M Pei would not be considered an appropriate architect for a church
hall in a small town, any more than a small provincial practice would
be considered as architects for the Canary Wharf tower. The planning
supervisor must be able to work on the same level as other members of
the team, and command equivalent respect.
iii. Complexity. This may derive from various aspects of the
development, such as function of the building, phasing of the works, or
site conditions, eg tunnelling for a new railway. The planning
supervisor must understand the constraints and be able to temper the
Health & Safety Plan to suit.
c. Working with the team. It is essential that the planning supervisor has the
right attitude and is not disruptive. A happy team invariably produces a good
product. A recognition of the issues and responsibilities which generally face
the members of the team, and an interpretive approach to CDM is important.
5 Insurance
In addition to professional indemnity cover, the CDM brings the added implication
that responsibility may be owed to a third party, eg member of the public or tenant
employee, if an accident should occur which can be in some way linked to the
actions of the planning supervisor. Confirmation of public liability insurance is
therefore required.
CDM requires the client (project manager) – or a client’s agent if appointed (see
below) – to be satisfied on the competence and resources of the planning supervisor.
In the Approved Code of Practice it is said that ‘reasonable enquiries only are
required’, and that the Regulations ‘. . . do not assume that those making
appointments, or engaging designers, planning supervisors or contractors, will be
familiar with all the aspects of the functions of the person they are engaging’. The
competency and resource enquiry form in Appendix D2 incorporates the questions
which the ACOP suggests might be made, plus other points mentioned above.
Dealing with the CDM obligation in this manner (together with the project record –
Appendix D1) provides a documentary record to demonstrate compliance.
14.3 Designers
The competency and resource requirement is similar to that for the planning
supervisor. For the project manager, however, it means taking account of this at the
time of original selection of the consultants, even at the earliest feasibility stage.
Often, the project manager is appointed some time later than this, in which event he
will need to check and/or arrange very quickly for the competency and resource
enquiry to be issued to those consultants (typically the architect and quantity
surveyor) already selected by the client. It is worth noting that the CDM obligation
to make the enquiry is upon the person arranging for the ‘. . . designer to prepare a
design . . .’ and similarly for the principal contractor. Consequently and according to
circumstance it could be judged that this is a responsibility which falls to the project
manager.
14.6 Implementation
Features of CDM which require the project manager’s particular attention appear on
the second page of Appendix D1, and may be summarised as follows:
I suggest the project manager (and client) should have copies of both the above
notifications, hence the reference on the project record.
14.9 Miscellaneous
Client information
CDM requires the client to provide a planning supervisor with information he may
have about the state or condition of the premises at which the work is to be carried
out, and which is relevant to the function of the planning supervisor. It is an
obligation of which the client might not be aware, but which is consistent with the
responsibilities of the project manager. As time passes it is expected that Health &
Safety Files for previous works at a building will be amassed, and will in effect form
a substantial part of the information required by the planning supervisor.
A project manager’s guide to development strategy Paper 0143 Page 83
Also ‘A client who disposes of his entire interest . . . (shall deliver) . . . the Health &
Safety File to the person who acquires his interest . . . and ensure such a person is
aware of the nature and purpose of the Health & Safety File’. These obligations
make it important for the location of the Health & Safety File (or various copies of
it) within the client’s organisation to be clearly identified. The Health & Safety Files
for any future or subsequent works ought also to be added so that there is a clear
record through time. It is a matter which the project manager should bring to the
client’s attention, and promote agreement on a corporate policy which is understood
by those with responsibilities in the client’s organisation.
It may be prudent for one copy of the Health & Safety File to be held with the title
documents of the property. However, this may not be convenient for those
administering maintenance contracts or an ongoing programme of works. They
would need their own copies. The project manager should therefore establish the
number of copies required and their distribution within the client’s organisation.
Briefing Note
1. Introduction
l Where work is being carried out by domestic
The Construction (Design and Management) householders, CDM will not apply, so long as the
Regulations 1994 (“CDM ”) were placed before residence is not being used in connection with a
Parliament on 10th January 1995 and, subject to trade or business. However, the requirements on
transitional provisions, are effective from 31st March designers and for the project to be notified will
1995. apply.
CDM gives a new prominence to health and safety in l If there is any doubt as to whether CDM applies,
construction projects. The Regulations apply to most you should contact your nearest HSE area office.
construction projects and everyone associated with
them. Those involved in projects must now rethink (b) Construction Work
their approach to ensure that health and safety issues
This term has been widely defined by CDM. It means
are properly taken into account from the outset and
any building and engineering work and includes:
then co-ordinated and effectively managed throughout
the construction process. l site clearance, investigation and excavation and
foundation work,
Defined roles of planning supervisor and principal
contractor have been created and the client is under a l new build and commissioning,
specific duty to ensure that these are duly appointed
for each project. He is under a further duty to ensure l conversion, alterations or fitting out,
that they, and any designer also appointed, are
sufficiently competent and resourced to enable the l renovation and repair,
project to be carried out with regard to health and
l dismantling and demolition,
safety. The main duties placed upon the client, the
planning supervisor, the principal contractor and the l upkeep and maintenance,
designer are set out in summary form in Table A.
l assembly of prefabricated elements to form a
The task of policing CDM is given to the Health & structure or disassembly of the same,
Safety Executive (“HSE ”). There are various
sanctions for breaches of CDM, including in certain l cleaning work where this involves high pressure
circumstances unlimited fines. It is important that systems or corrosive or toxic substances, or
those involved in the construction industry understand involves cleaning windows or translucent walls or
what they need to do under CDM in order to discharge roofs where there is a danger of falling more than
their duties. two metres,
To act as a guide, HSE is due shortly to publish an l installation, maintenance and removal of
Approved Code of Practice (“ ACOP”). The ACOP mechanical and electrical, telecommunications or
will give detailed guidance on, for example, what computer equipment which is normally fixed to a
needs to be included in the health and safety plan and structure; the installation of compressed air or
ultimately in the health and safety file. other gases, and
This Briefing Note is a short guide to CDM and l the installation, commissioning or demolition of
comments briefly on its impact and effect, looking at manufacturing plant where there is a possibility of
the duties and obligations imposed by it and how it is falling more than two metres.
likely to affect standard construction documentation.
(c) The Client
2. How CDM operates
Client for the purposes of CDM means any person for
(a) When does CDM apply? whom a project which includes construction work is
carried out, whether by a third party or in -house.
l CDM will generally apply to construction work
which is notifiable, ie lasts for more than 30 days There can be more than one client for any particular
or will involve more than 500 person days of project. Where there are a number of clients, they are
work. at liberty to elect one of their number, or his agent, to
take the legal responsibilities imposed by CDM on
l CDM also applies to non -notifiable work which behalf of them all.
involves five people or more on site at any one
time. Where a project is being constructed by a developer
for the benefit of a private client who will occupy the
l Where demolition or dismantling works are building as his residence, the developer is treated as a
taking place, CDM applies regardless of the client and not the future occupier.
length of time or the number of workers.
This Briefing Note has been prepared by Kevin J Greene, a construction law partner in the firm
of Messrs Nicholson Graham & Jones incorporating Brecher & Co
A project manager’s guide to development strategy Paper 0143 Page 85
Briefing Note
The point to recognise is that CDM places positive l to be able to give adequate advice to a client and
duties on the client in making the key appointments contractor so that they can satisfy themselves that
and in setting the scene for the way in which health anyone appointed to prepare designs is competent
and safety is managed throughout the project. A client to do so and has allocated adequate resources to
may need to seek professional help to do this but comply with their obligations as designer under
CDM seeks to ensure that the planning supervisor is CDM,
there to advise him and that designers take steps to tell
him about their duties. l to advise the client that a health and safety plan
has been prepared, before construction starts on
Generally the duties of the client are: site. The client and the contractor should request
l to consider whether CDM applies and whether he his advice in time to avoid delays to the project,
is in fact a client for the purposes of the l to be able to give adequate advice to a client to
Regulations, satisfy himself that a contractor has the
l to appoint a planning supervisor and a principal competence to carry out or manage the
contractor and to ensure the competence of such construction work and has allocated adequate
appointees and that adequate resources for health resources in order to comply with CDM. Clients
and safety have been, or will be, allocated by will probably wish to seek advice from their
them and to have regard to the timing of the planning supervisor about the party or person to
appointments, be chosen as principal contractor and whether this
can be the main contractor. This will form part of
l to ensure that the planning supervisor has been the tender process
supplied with all information relevant to his
l to give notice of the project to the HSE,
functions under CDM,
l to ensure that so far as is reasonably practicable a l to ensure that a health and safety file is prepared,
health and safety plan has been prepared before l to review and if necessary to amend the health and
the construction phase commences (Please see safety file as necessary as work proceeds on site,
further below under ‘The Health and Safety and
Plan ’),
l to deliver the health and safety file to the client on
l to ensure that the health and safety file is kept completion of the construction project.
available for inspection (Please see further below
under ‘The Health and Safety File’), and (e) The Designer
l to be satisfied that designers and contractors are Designers play a key role in construction projects. A
also competent and will allocate adequate designer is defined within CDM as
resources.
“any person who carries on a trade, business or
The client must be able to show that he has taken other undertaking in connection with which he –
reasonable steps to satisfy himself as to the
competence and adequate resourcing of his appointees a. prepares a design, or
at the time of appointment. The ACOP draft
guidelines suggest that “reasonable enquiries” only are b. arranges for any person under his control
required. For what might be regarded as “reasonable (including, where he is an employer, any
enquiries ”, please refer to Table B. employee of his) to prepare a design,
Note – The client may appoint the same person as relating to a structure or part of a structure ”.
planning supervisor and as principal contractor,
Design includes the preparation of specifications and
provided that person is competent to carry out the bills of quantities: it is not limited to drawings.
functions of each required under CDM. The client Therefore, quantity surveyors are treated as designers
may even appoint himself as planning supervisor or for the purposes of CDM. Project managers are also
principal contractor or both, again provided that he is likely to come within the ambit of “designer”. A client
competent to perform the relevant functions. could also find that he is a designer, if he imposes on
(d) The Planning Supervisor the design team his own design parameters or where
part of the design is carried out in -house.
There are, at least at present, no specific qualifications
for a planning supervisor. A number of professional The main duties of a designer under CDM are:
consultants may offer to perform such a role. l to prepare his design only after taking reasonable
The main duties of the planning supervisor under steps to alert the client of his duties under CDM,
CDM are: l to consider the safety needs of those on site and
l to ensure that the design of the structure has those who will be affected by works on site. The
adequate regard to avoiding foreseeable risks to designer’s duties towards these categories of
those carrying out construction work or cleaning people are to have adequate regard to the need:
work and those who may well be affected by such
work being carried out (eg passers-by),
Briefing Note
In carrying out their functions under CDM, designers l information about welfare arrangements, eg. health
are only required to take the above factors into hazards associated with materials which cannot be
account to the extent that it is reasonable to expect the avoided, and
designer to address them at the time the design is l procedures for dealing with subsequent design and
prepared and to the extent it is otherwise reasonably
changes.
practicable to do so.
(h) The Health and Safety File
(f) The Principal Contractor
The client must keep a health and safety file and is to
The principal contractor has to take over and develop
take reasonable steps to ensure that it is kept available
the health and safety plan and co -ordinate the
for inspection.
activities of all contractors so that they comply with
health and safety law. The health and safety file is not the same as the health
and safety plan. The file is a record of onformation for
The main duties of the principal contractor are:
the client/end -user, which tells those who might be
l to ensure that the other contractors (ie. sub- responsible for the structure in future of the risks that
contractors) comply with their obligations on have to be managed during maintenance, repair or
health and safety matters, renovation. It should contain information about health
and safety factors affecting the building and
l to ensure co-ordination and co-operation between information about materials and techniques used in
sub -contractors, construction. The planning supervisor has to ensure
that it is prepared as the project progresses and that it
l to keep the health and safety plan updated during is given to the client when the project is complete.
the course of the project,
Once the planning supervisor is satisfied that the
l to ensure compliance with the health and safety health and safety file fulfils the requirements of CDM,
plan at all times, he should then deliver the health and safety file to the
client for safekeeping.
l to display a copy of the notification of the project
to the HSE, and The format of the health and safety file is not specified
but it should be in such a form which makes it easy for
l to provide the planning supervisor with
the client to store securely and which makes the
information he requires for the health and safety
information it contains easy to retrieve. The client has
file.
to make it available to those who will work on any
(g) The Health and Safety Plan future design, building, maintenance or demolition of
the structure. Where the structure is multi -tenanted, we
The planning supervisor appointed must ensure that a would suggest that the file is kept by the freeholder
health and safety plan in respect of the project has who makes it available to tenants as and when
been prepared before the construction phase required. The health and safety file is to be passed on
commences. The client can seek necessary advice to any subsequent purchasers of the building and,
from the planning supervisor as to the adequacy of the therefore, needs to be securely kept.
health and safety plan. It will be submitted, in most
instances, to the principal contractor at tender stage. 3. Alterations to construction documentation
Once appointed, it is the principal contractor ’s
In respect of new projects, consideration should be
responsibility to develop the health and safety plan given to the amendment of standard documentation.
and to keep it up -to -date.
Most building contracts require the main contractor to
In the pre-tender phase, the plan should include: comply with statutory requirements which will include
CDM. We belive that, in any event, it would be
l a general description of the construction work, sensible for the contractor and for the design team to
be reminded in their contracts and appointments of
l the timescale for completion of the work (in any their obligations in respect of CDM, by express
intermediate stages), reference to the Regulations.
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Briefing Note
It will be necessary to assess each project against each l Health and Safety Plan: The requirement that the
of the transitional provisions, to establish which of the client should satisfy himself that there is a health
Regulations will apply and at what stage. and safety plan prepared before work starts on site
will not apply to any project where the construction
l The Planning Supervisor: This appointment phase starts before 1st August 1995.
should be made as soon as the client has enough
information about the project and is committed to l Client ’s obligation to provide information to
it. In practice, the planning supervisor should be designers: The client’s obligation to provide
appointed early on in the life of a project. information relevant to health and safety will not
apply to any project where work has started on site
If on 31st March 1995 the time for appointing a before 31st March 1995.
planning supervisor for a project has already
passed, he should be appointed as soon as l Start of project design: If the design of a project has
practicable after that date. already commenced before 31st March 1995, the
Regulations relating to design will not apply until
l The Principal Contractor: The time for 1st August 1995. If, on 1st August 1995, practical
appointing a principal contractor is as soon as the completion has not been achieved, there will be an
client has enough information about potential obligation on designers to design for safety, as
contractors to assess whether the proposed main provided for by CDM. If there is any possibility that
contractor has the competence to carry out the practical completion will not be achieved by 1st
construction work and will allocate adequate August 1995, it is important for designers to review
resources. their design now, to see what (if any) design
changes are required.
If the appointment of the main contractor has
already been made by 31st March 1995, his 5. Conclusion
appointment as principal contractor should also
be made as soon as practicable, assuming that he It is essential that clients, professionals and contractors
is competent to act as principal contractor. are aware of, and comply with, the statutory
obligations and liabilities placed upon each of them by
l Work on site: Where construction work has CDM if they are to avoid the penalties.
already started on site by 31st March 1995, the
planning supervisor and principal contractor do Particular attention should be given to the appointment
not have to be appointed until 1st January 1996. and engagement of a planning supervisor and a
Thus, for example, where a project is commenced principal contractor and to the terms of such
on 20th March 1995 and is planned to be appointments and engagements. Amendments may be
completed by 21st July 1995, there will be no required to many types of construction documents
need to appoint a planning supervisor or principal including standard forms of building contracts and
contractor. professional consultants ’ appointments.
This Briefing Note is only intended as a general guide to the new Regulations and, on any specific issue,
professional advice should be sought.
TABLE A
TABLE B
15 Statutory approvals
Government or Regional Authority regulations governing development, whilst
rooted in the respective laws and custom of each country or state, can nevertheless
be viewed in the context that they are usually intended to control:
l Land use
l Aesthetic quality
l Design standards
l Construction standards.
l The Town and Country Planning Acts – the first of which in 1947 established
the framework which survives today, despite subsequent Planning Acts which
have modernised or extended the system – contain the procedure for gaining
approval to land or building use, and for consent to building mass and
appearance. Note: They are currently under review – see Section 16.
l The Building Acts control detail design standards and matters such as
structure, thermal insulation, public health, fire control and escape. They also
require on-site official inspection during construction as a check on building
standards.
Both the Planning and Building Acts are administered by local Councils but with the
distinction that elected Members make the primary planning decisions, albeit
advised by their officers, whilst assessment and approval under the Building Acts are
made by the officers. In both instances, however, there is a right of appeal for the
applicant, which is scrutinised and determined by central government.
The notes which follow are necessarily founded upon the system operating in the
UK, but are indicative of the considerations necessary under any sovereign
legislation.
Type of application
Although planning permissions are commonly described as outline, detailed, or full,
the amount of information for an application under any heading will vary according
to the attitudes of individual Planning Officers and the importance of, or sensitivity
toward, a particular development. It may of course suit the client’s interest to furnish
limited or qualified information at a particular stage, and it is often possible by
agreement with the Planning Officer to arrange that information on specific aspects
will be submitted subsequent to the principal permission being granted; in the
interim the permission is issued with appropriate conditions or reservations attached.
Typical instances are the submission of samples of finishing materials, or
landscaping details.
Application documents
Usually the architect will establish (but the project manager should check) the
quantity and quality of information required by the Planning Office. The project
manager should vet all the application documents before submission, including the
written responses on the application form itself. Planning permission attaches to
land. It is not normally personal and therefore the application need not necessarily be
made by the client; the architect, project manager or vendor are equally suitable
alternatives according to circumstance, but any agency should be disclosed. It is also
vital to identify the official notices that have to be served or published and ensure the
correct timescales for these are observed. Guidance is usually contained in notes
issued by the Planning Authority accompanying the blank planning application
forms.
Illustrative materials
The project manager should consider (usually including informal consultation with
the Planning Officer and architect) whether it would be appropriate to provide
illustrative material such as a model, perspectives, aerial photograph or written
description which, although not forming part of the formal application, would help
Officers and Members of the Council to appreciate better and gain confidence in the
client’s proposals. Much, however, will depend on the approval procedures.
Approval procedure
Prior to submission, the project manager should ascertain the likely timescale for
official consideration of the planning application and the probable date(s) at which it
will be heard by committee and thereafter given full Council approval. Once an
application is complete, a decision is required to be given within two months, in
default of which an appeal may be filed.
In the determination of applications the local planning authority is legally required to
take the development plan and any other material consideration into account. With
the former, the local plan and unitary development plan (UDP) are the most
important, as they are the ones which identify sites. Other material considerations
can include previous decisions on the site, car parking requirements, the effects on
neighbours and many more.
The development plan is the most important consideration when determining
applications. If a proposal is in accordance with it there will be a presumption in
favour of the application. If it is not, the presumption will be towards a refusal.
Use Classes: Town and Country Planning (Use Classes) Order 1987
When seeking planning permission, the project manager should take care that the
permission sought is ascribed to the correct Use Class Order, or combination thereof
in the case of a hybrid development. This is of particular importance to the
investment value of the completed project and to the ability of tenants or occupiers
to dispose of their interest in the open market. The Order gives a certain freedom of
use within the Classes.
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The description of the permitted use is most important when dealing with industrial
and warehouse estates where it may be difficult to anticipate the full range of
activities that will be carried on by tenants. Unless the permitted use stated in the
permission is sufficiently broad, it may be found some proposed lettings will be
prejudiced because the trade process of the tenant(s) does not fully comply.
Another phenomenon is the growth of business, science and industrial parks, where
the client will require considerable flexibility to meet the requirements of tenants
whose business may, in varying proportions, comprise warehouse, manufacturing,
assembly, research and development, computer suite, offices, canteen, etc. The
category B1 in the 1987 order makes it possible for change of use between offices
and light industry and vice versa without planning permission. In such instances the
use described on the application is best first discussed informally with the planning
authority. Some are more flexible than others. Lengthy developments carried out in
phases should be given special consideration for their planning time limits.
Grant of permission
On grant of permission the project manager should:
1. Pass the original of the consent to the client and/or his solicitor for
safekeeping with other title documents.
2. Note the expiry date of the permission and the date(s) by which details
pursuant to that permission have to be submitted, or by which works should
start and whether they require any further action to be taken.
3. Review any/all conditions attached to the permission and decide if these are
reasonable and acceptable.
1. The date by which the appeal has to be made (six months from refusal or
deemed refusal).
2. Grounds for appeal (eg the Planning Authority’s decision is ultra vires or the
grounds for refusal of imposition of conditions are unreasonable).
3. Conduct of the appeal (eg written submission, public inquiry, informal
hearing, appointment of advocate).
4. The cost and time implications of the alternative appeal procedures and the
chances of success.
5. Alternative means of overcoming refusal (eg submission of fresh application
with compromise amendments).
If permission is granted by the local planning authority, the Secretary of State for the
Environment (in England) may, if he wishes, call in the application (especially if
there have been a number of objections) for review at a Public Inquiry. In that event
the project manager must determine the nature and number of expert witnesses who
should be called on to argue the client’s case, taking expert guidance as necessary on
their selection and appointment.
Until Listed Building Consent is granted, it is a criminal offence to demolish
property.
Planning fees
Fees payable on application for planning permission are governed by the Town and
Country Planning (Fees for Applications and Deemed Applications) Regulations.
These are periodically reviewed and changed by the Department of the Environment.
Fire Officer
The Fire Officer ’s approval to matters such as means of escape, smoke extraction
and fire protection systems is secured through the formal Building Regulation
application, ie the Building Inspector’s office, but informal direct consultation is
usually possible. Although operating within the Building Regulation Codes of
Practice, the fire officer’s powers of interpretation are significant and very often a
matter of individual Brigade Officers’ discretion. It is advisable for the project
manager to ensure that the consultants obtain an early and clear understanding of the
Fire Officer’s attitudes, as these can have a substantial influence on concept and
schematic design, and also costs (eg sprinkler installation).
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Waiver
Where designs for the project do not comply with strict interpretation of the Building
Regulations but are nonetheless considered satisfactory by the consultants because
of other factors, application for a waiver may be made as part of the Building
Regulation application. Until waiver consent is received, the client is at risk in
allowing detailed design or construction to continue, but waivers are a common
procedure and the project manager should therefore be able to evaluate the degree of
risk with guidance from the consultants.
Consent document
The original of the Building Regulation approval form should be supplied to the
client and/or his solicitor to be placed with other title documents for the project.
Note: However, in late 2001, a major review of all development planning was
commenced and so the following is subject to review:
Planning gain
Section 106 Town & Country Planning Act 1990
(Formerly s.52 of the 1971 Act)
Procedure by which special restrictions, attached to or associated with a planning
permission, are embodied in a legal agreement, thus creating a contractual obligation
between the party wishing to exercise the consent and the local planning authority.
These agreements, or obligations as they are officially called, are often used by the
local planning authority where the objective cannot be validly stated as a planning
condition.
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Section 106 – Obligations – are a charge on the land, and as such will be entered on
the Local Land Charge Register by the planning authority. The project manager
should endeavour to obtain the authority’s acknowledgement that obligations under
a Section 106 Agreement have been discharged so as to ensure the entry can be
cancelled. There are procedures for clearing off Section 106 Agreements which have
become stale.
Appropriate to closures arising out of, or in consequence of, the exercise of planning
permissions. Administered through the local planning authority (which proposes the
Closure Order) and the Minister (who confirms it), often following a Public Inquiry.
The procedures can consume a great deal of time and effort and must precede
development proper. Development plans and highway plans should be minutely
checked to make sure that all necessary closures have been spotted and are being
arranged.
Application may be made direct either by the party concerned who wishes to have
the particular road closed and owns the land in question (or else has obtained
owner ’s consents to the closure); or by the local authority. The application is heard
by the Magistrates’ Court. This is a comparatively straightforward and quick
procedure if the Court can be made to feel confident about full submission of all
facts. Similarly Section 119 is suited to realignment of a footpath.
In the overall planning context, substantial and important highways are better dealt
with under planning law.
Road adoption
Section 38 Highways Act 1980 (Formerly Section 40 Highways Act 1959)
A Highway Authority may enter into an agreement with a third party (developer)
whereby the public acquires rights of way and assumes responsibility for
maintenance and exercise of all normal powers of control over a highway.
The agreement will usually specify the standard of construction to be carried out by
the developer and, from the date the highway is agreed by the Highway Authority as
being complete, will oblige the developer to be responsible for maintaining it to that
same standard for a given maintenance period, usually one year.
Appropriate where it is intended the local authority should assume responsibility for
maintaining a footpath within a development which is to be used by the general
public or emergency and service vehicles, but ownership is to remain with the
landowner (developer). Such agreements also permit periodic closure of the footpath
(eg out of business hours) for security or similar reasons. Such a footpath becomes
dedicated and becomes a walkway.
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It is important to note that the police have no authority in areas to be used by the
public but which have not been dedicated, and are usually reluctant to enter these
areas to indicate a presence. They will enter under police powers legislation where
their presence is requested or the occasion (eg breach of the peace) demands. The
project manager should advise the developer to consider carefully his policy for
developments such as shopping centres and office piazzas, having regard to security,
freedom to undertake future redevelopment, etc.
Public utilities
Electricity, water and gas supplies and diversion of existing supplies are governed
by, for example, the Electricity Acts and Gas Acts. It may be broadly stated, having
regard to the monopolies created by such legislation, that there is an entitlement to
the supply of these public utilities for the benefit of the land.
The notes which follow are of necessity closely tied to UK law and custom, but the
principles involved are of general application.
A development site may enjoy, need or be subject to numerous rights over or for the
benefit of adjoining land. Most of those existing should be identified in the
acquisition process, but the project manager should request specific information
from the client or his lawyer. Similarly, rights required should be identified,
typically through examination with the architect and engineers.
Generally, rights cannot arise simply and automatically. They are acquired or
granted either deliberately by statute/by-law or by long usage (‘prescription’: 20
years). They cannot be acquired by stealth, force or permission. They should be
recorded for safety, but can be in the process of being acquired ( ‘prescription ’).
This is particularly important with registered title to land where these rights may
operate as ‘over-riding interests’, if they are visible simply on inspection. The rights
needed will be the subject of negotiation with adjoining owners, and possibly local
authorities or public utilities.
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l Rights of light
If obstruction is claimed by an overlooked site, the test of whether the
proposed development must be cut back, or the loss is compensatable by
money, relates to the amount of light left and reaching the claimant’s
windows, and not the amount of light lost. Surveyors specialising in this work
are often appointed by developer and claimant to assess and agree the
valuation.
l Wayleaves
Legal agreements primarily used to record the right for services to pass over
or through adjoining lands, whether or not these are publicly or privately
owned. The project manager must review any existing wayleaves over either
his development site (ie for the benefit of other parties) or which the
development site enjoys across adjoining land. The client or his lawyer should
be able to assist with this information.
The project manager should also consider whether any existing wayleaves can
be terminated or need amendment if services are to be repositioned, coupled
with securing wayleaves for any new services required to run over adjoining
ownerships. The agreements required can only be obtained through private
negotiation.
l Rights of way
These are normally reasonably apparent from visual inspection where the site
is in an urbanised area, but in the countryside particular care is needed (eg
land for out-of-town shopping centres). In any event, the project manager
should seek clarification from the client’s lawyer, especially as to the means
of terminating or altering existing rights of way. Often these arise through use
over a long period (prescription) and are not recorded in any formal
document. Preservationist groups can be very knowledgeable and exacting
when fighting to protect rights of way!
Frequently a new development will closely abut or be physically tied in to an
adjacent property which is in separate ownership. In Greater London, the
London Building Acts convey a statutory right for the developer to undertake
his works, provided the right of support of the adjoining building is not
withdrawn, appropriate forms of notice are served on the adjoining owner(s)
interests, the works to be undertaken are properly described in advance, and
the adjoining owner(s) (there may be more than one, eg freeholder, ground
lessee, leaseholder) are correctly protected and/or compensated (eg upholding
of existing foundations during excavation, payment in lieu for cracks or other
damage caused by the undertaking of the development). Invariably a Schedule
of Condition of the adjacent property should be prepared and agreed between
the parties before any work starts on site.
Outside Greater London the automatic statutory right does not apply, although
there are some places with their own special legislation (eg Bristol), and the
only way in which the developer can secure permission to alter or tie in is by
private negotiation.
The work of serving notices (where applicable), agreeing Schedules of
Condition, settling compensation etc is usually undertaken by surveyors who
specialise in this area (frequently building surveyors).
REFERENCES
l Prescription Act 1832
l Law of Property Act 1925
and various Acts incorporating the Public Utilities whether or not privatised, and all
as subsequently amended.
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18 Insurance
Summarised below are a number of insurances and related activities. Each should be
reviewed and applied according to the merits of the project in hand. The client will
probably have insurances in place for existing interests, and through this is likely to
have an established in-house or external brokerage arrangement; possibly too a
direct link with one or more insurance companies. It follows therefore that the
project manager must seek guidance from the client of any preferred liaison through
which insurances are to be placed. For ease of reference I have assumed in the notes
below a direct liaison between the project manager and insurance company, but in
practice it may be that the contact is through a third party.
Design
At schematic design stage, ie 1:200 scale plans or larger, the project manager should
ensure that drawings and specification information are provided to the insurer for
review and comment. (NB: It is important in the UK to ascertain whether design
proposals conform with FOC rules – Fire Officers Committee – which is a standing
committee of the leading insurance companies that sets guidelines by which
buildings are assessed for standard or premium rate.)
Building contract
Advance notification should be given to the insurer of the proposed form of building
contract, the approximate value and the programme period including anticipated start
date. Phased completion(s) may be intended prior to full practical completion, in
which case the project manager should give details, including the character of any
third party occupation/works likely to occur.
The project manager should request the insurer to respond with guidance on
treatment of the insurance clauses under the proposed building contract. Usually the
contractor is responsible for insurance of the contract works, materials and third
party liabilities, but great care should be taken on the following aspects.
l The sum for third party insurance should be assessed relative to the physical
risks present at the site. The indemnity clauses under standard building
contracts are not all-embracing. The degree of client risk for third party
liability should be reviewed for each respective project. The project manager
must secure instructions as to the amount and scope of cover required.
The benefits of this form of insurance were identified in the NEDO ‘BUILD’
Report, published in 1989, and there are now major UK insurance companies writing
policies. Although the cover between different insurers will vary in detail, the
following principles will usually apply:
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l The damage suffered must result from a defect in the design or construction
of the structure, external walls and roofing. Some insurers will also admit
services and other elements of a building in return for an additional premium.
The insurance company will probably reserve its right to claim against
any member(s) of the team it believes responsible for the defect (subrogation), but
this will not prevent or delay payment of a valid claim. Consequently the insurance
is seen by developers, funds, purchasers and tenants as a considerable safeguard.
However, the developer has first to accept this is justified by the size of premium
required. As an approximate guide only, this will be in order of 1% of the total
construction cost for the basic cover.
There will also be fees to pay for the insurance company to employ consultants who
will vet drawings and calculations produced by the developer’s consultants and
inspect construction.
In its present form BUILD is unlikely to remove the requirement for collateral
warranties, or alleviate the need for consultants to carry their own professional
indemnity insurances.
Performance bond
A financial warranty obtained by the contractor or subcontractor in favour of the
client (or possibly in favour of the main contractor in the case of subcontractors)
whereby the bond company commits to payment up to a maximum limit in the event
of failure to perform or complete by the bonded contractor.
Within the UK the traditional maximum sum which the bonding market would
underwrite has been 10% of the contract or sub-contract sum. Outside the UK, but
no doubt dependent on the ‘local’ market, substantially higher cover has been
available, even up to 100%. The project manager should recognise, however, that the
premium for bond cover paid by the contractor has to be financed by the contractor,
and therefore is presumably reflected in his tender. Consequently the project
manager and his team should weigh carefully the need for, and level of, bonding.
Bond companies are notoriously reluctant when called upon to meet commitments,
and are as stout as any contractor or subcontractor in pointing to failures or errors by
the client’s team which have led to a performance failure. Consequently the project
manager should beware absolute reliance on the ‘security’ of a bond. Further, should
there be a construction problem and arguments ensue with the bond company, the
project manager may find the contract becomes legally ensnared, and he is unable to
initiate action on site to progress the works.
Practical completion
At the date of practical completion, or partial practical completion, responsibility for
building insurance passes to the client. This applies whether or not the contractor
remains on site to attend to outstanding works or snagging items; it is also regardless
of the date on which the architect may actually issue his certificate of practical
completion or the time it is received by the project manager and/or client.
l Prior to the anticipated date of practical completion obtain from the appointed
quantity surveyor an estimate of the current reinstatement cost.
l The project manager must immediately inform the insurer of the extent of the
property for which practical completion is accepted and the current
reinstatement value.
Tenants’ works
Part of the fitting out undertaken by tenants will, on completion, comprise the
developer ’s structure, for which the latter usually carries property insurance
responsibilities (eg plastering, electrical wiring). The project manager should secure
details and costs from the tenant(s) and inform the insurer accordingly.
Claims
Wherever the project manager believes circumstances may give rise to an insurance
claim, he should notify the insurer immediately.
The project manager must particularly have regard to events which affect insurance
responsibilities on behalf of any development partners and ensure that there is
compliance in all respects with the client’s obligations under legal documents.
19 Specialist subcontractors
A principal feature of the UK design and construction industry is the use of
components which in whole or part are designed, manufactured, assembled and
installed by specialist companies; these form a major physical and financial part of
most commercial development building contracts. The role is performed by
companies who thus cross the traditional boundary of responsibilities between
professional consultants (design) and contractor (building). In consequence,
principles of appointment have evolved which conventionally place a considerable
degree of responsibility with the client. There are numerous variations to the basic
approach and the project manager ought therefore to review with his development
team the particular arrangements to be applied to any given project. The main
considerations for the project manager are set out below.
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Note the presumption of employment by the client and the responsibility placed
upon the subcontractor – and not the architect – notwithstanding the architect’s role
in nominating and/or agreeing to that appointment. In practice it is invariably
difficult to distinguish between design or construction responsibility where a
difficulty arises between the interface of a particular specialist’s work and that of
another building element. Nor is it often easy to determine where design
responsibility rests as between the subcontractor and consultant. Should the
architect’s performance specification reasonably have anticipated certain features
draughted by the subcontractor, which subsequently give rise to problems?
The project manager should study the performance specification for each element
within the bounds of his general understanding, but he should in no way relieve the
consultant of his responsibility for producing a suitable document. Aspects of the
performance specification which the project manager might suitably consider are:
These are associated with the previous headings and provide some additional degree
of assurance in respect of a contract about to be undertaken. A performance bond is
usually obtained by the subcontractor concerned from institutional or banking
sources, and warrants that if the subcontractor should fail properly to discharge his
contract responsibilities, the bondsman will pay to the client an agreed sum. In the
UK this has traditionally been 10% of the subcontract value, but in recent years
clients have pressed for and have succeeded to some degree in obtaining higher
percentage values. The premium for cover is payable by the subcontractor, although
the cost is likely to be reflected in his tender.
The project manager must also consider the benefit of a 10% payment against the
costs associated with finding and instructing an alternative subcontractor, in the
event of a failed performance; often it will fall short of the loss incurred but may
nonetheless be considered worthwhile because of the contribution that will be
obtained. In instances where the subcontractor’s product is not one that can be easily
produced or completed by an alternative subcontractor, the project manager should
consider whether there are grounds for seeking an increased percentage value of
performance bond, albeit with a higher premium rate.
Each subcontract tender invitation should ask tenderers to furnish guidance and/or
specify the material they will provide on completion. This could include a
requirement to provide a sample maintenance agreement and quotation where
appropriate, eg lifts. A favourable attitude is always more likely at tender stage than
at practical completion. The project manager should review the relevant criteria with
the consultants according to the nature of each contract.
It is this translation of ideas, the concept into reality, that concerns us now. The
mechanism through which financial, contractual and functional aspirations are to be
physically expressed is the building contract. It deserves considerable forethought.
l The speed with which it is essential to achieve a start on site and/or complete
the project. This may influence the quality and quantity of the design
information that can be produced pre-contract and the timing and method of
appointment of specialist subcontractors.
l Standard clauses. The criteria mentioned above offer a basis from which the
consultants can advise the project manager of any adjustment to the standard
terms contained in the appropriate form of contract. In receiving their
recommendations, I do urge the project manager to reflect on whether the
consultants are keeping faith with the principles of the contract adopted.
There are occasions when consultants propose changes which run counter to
the principle, either out of concern for the client’s interest (in my view
misguided) or sensitivity to responsibilities closer to home! The project
manager must maintain the equilibrium of responsibility – this is in the
client’s interest.
Standard contract forms require the input of data to make them effective, eg
the dates for site possession and completion of the works. Certain of the
responses should be self-apparent, but others hinge on priorities and attitude,
hence the following comments:
l Date for completion . When seeking tenders there is the option to specify the
period for the works or leave it open for tendering contractor(s) to bid. I will
say only that I believe the judgement of the practising expert (the contractor)
is the more reliable bet.
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Bills of Quantity
Whilst the Bills of Quantity as a whole may be of interest to the project manager, it
is the preliminaries section (or its equivalent in other forms of documentation) which
should always command attention. It is here that the specific circumstances of the
project (as distinct from the standard conditions) are conveyed. This will form the
backbone to the contractors’ understanding of the working arrangements and may
influence their attitude to a tender. Preliminaries which demonstrate thorough
preparation and a responsible approach can but add to contractors’ confidence when
pricing and, after selection, the attitude of trust required for the construction phase to
be conducted successfully. The following are potential items for inclusion.
l Site possession . The date the contractor is to be given control. If the site is to
be handed over in phases, then the dates for each plus a clear definition of the
respective boundaries.
l Access/egress. The local routes and entries to the site to which contractor
vehicles and work personnel are restricted. Also any particular requirements,
location or restriction on contractors’ parking.
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l Health and safety . The statutory or other requirements which the contractor
is required to observe.
l Programme. Consider the style and detail of programmes required from the
contractor(s) with their tender and/or during the contract. Also stipulate any
particular events, dates or links that are to be included.
l Valuation dates and certification. State the intention. Remember that where
the employer is to recover monies from a third party, such as a funding
institution, the date schedule may need to be worked out by first referring to
the fund’s payment cycle.
l Records. Confirm both the nature and the timing for the contractor’s
submission of ‘as built’ records, operating and maintenance manuals,
guarantees, and test certificates.
Provisional sums
Usually a schedule within the Bills of Quantity of financial allowances (defined by
the consultants) for work items where the detailed requirement is not adequately
described in the tender documents for the contractor to price. Whilst there is often
legitimate cause for this approach, the project manager must guard against its use to
cover the failure of the design consultants to complete information in time for the
tender.
Drawings
There are two aspects to this: the drawings issued with the tender documents, and
those attached to the signed building contract. Although I would always advocate the
project manager prompting the consultants to complete all construction drawings in
time for tender, in the real world it has to be acknowledged that this is rarely
achieved. Due to the time difference between tender and contract, revisions and
additions to drawings often occur. At both stages the project manager should check
that the drawings adequately define the works to the standard expected, and for the
building contract obtain confirmation that the financial effect of any revisions is
negotiated and included in the contract sum stated in the building contract.
Specification
Either as a separate document or perhaps by incorporation in the Bills of Quantity,
there should be a specification of the working standards required for the works.
Whilst the project manager may not be an expert in such matters, a review of the
document should indicate its efficacy.
Performance specifications
These will be required for specialist items such as lifts and curtain walling. Similar
consideration applies as for the general specification but in addition the project
manager should expect to find, or draft, requirements for tests or certificates, product
guarantees, performance bonds and/or warranties, and advice in respect to repair and
maintenance. For the last item I would recommend that each specialist be required to
include in his tender a sample maintenance contract, including rates, which it is open
for the employer to accept upon completion of the works.
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20.3 Tender/Negotiation
The analysis of contract type, mentioned earlier in this chapter, will likely include
discussion on this topic. The reasons usually advanced for competitive tendering are
perhaps self-obvious, being essentially one of achieving the cheapest price and/or
shortest programme. As a generalisation this is true, but to assume these are the sole
criteria for decision-making is to overlook the circumstances needed for a tendered
contract to operate successfully and the benefits that can accrue through negotiation.
Tender
The information provided for tender should be very substantial, if not complete.
Adequate time must be allowed to the contractors to comprehend all the information;
remember they are seeing this for the first time, whereas the client and his team have
probably lived with it for many months if not years. The contractor will be obtaining
many of his prices by sub-tendering and if reliable bids are required time must be
allowed, having regard to the scale and complexity of the works.
The time for return and opening of tenders should be stipulated and wherever
possible the contractors should be invited to attend the tender opening. After the
effort required of them they are at least entitled to see the fruits of their labours and
make a judgment of their bid against others received. In the round this is of benefit
to all in the development industry. Usually the bid(s) most preferred will be called in
to give the client’s consultants the chance to check that the bid is complete (it is
surprising how often items are found which have not been priced) and that the
pricing addition is arithmetically correct. Dependent on the tender requirements,
programmes, method statements etc, may also be requested. At this point the project
manager may also want to take a lead role by interviewing (with the consultants) the
contractor(s) to satisfy himself on matters such as resourcing, programme phasing,
and attitude!
Frequently, the compilation of contract documents for client and contractor signature
takes longer than the mobilisation period needed by the contractor to make a start on
site. A letter of intent is therefore often issued. This must be prompted by the project
manager, who should also review the draft of the letter prepared by the consultant –
usually the quantity surveyor or contract administrator. Thereafter, the project
manager should continue to prompt the early completion of the formal contract.
There is never a good reason why this should take many weeks or months.
Negotiation
As another generalisation it can be said that whereas most clients will probably
accept with little question a recommendation to procure by competitive tender, they
instinctively distrust negotiation. The implication of a commitment to one contractor
before a full price has been submitted sets nerves jangling. Yet there are many good
reasons why negotiation may be the more prudent option.
Negotiation offers the opportunity to include the contractor’s expertise in the pre-
contract preparation. It might therefore be considered appropriate that, for works
which are generally complex or require particular technical expertise, assessment of
alternative construction methods and perhaps more generally on ‘buildability’ is
directly available to the team, as also construction programme analysis. Quality
standards are another aspect which can benefit through pre-contract understanding
and preparation. The contractor’s knowledge of specialist subcontractors may be
invaluable in determining those who have the necessary skills and resources.
A project manager’s guide to development strategy Paper 0143 Page 110
A less considered advantage to negotiation can occur in either boom or bust cycles
of the industry. In a strong market there is a lot to be said for commanding the
attention of one contractor and wedding him to your team. The contractor’s own
returns in terms of profit, overhead etc, and his knowledge of contract rates, can be
used to give certainty to the budget estimates instead of lying prone to the hype of a
bullish competitive market. At the bottom of the cycle, when contractors’ resources
may be very lean and a climate of business failures generally abounds, it might be
considered an advantage to identify a proven contractor and secure his commitment
to contribute to the team. Once again, there is the benefit gained of the contractor’s
knowledge of subcontract rates and the current corporate status of specialists.
Selecting a contractor for negotiation will usually require some degree of
assessment, often in the form of presentations and discussions. One approach which
seeks to harness the benefits of both competitive tendering and negotiation is a two-
stage tender. Broadly stated, a selected group of main contractors is asked to tender
their requirements for profit, overhead and possible preliminaries, at an early stage
of the pre-contract programme based on information prepared by the client’s team.
Having made the selection, the chosen contractor then works as a member of the
client’s team and ultimately secures tenders for the subcontract works which are
assessed in conjunction with the consultants. The arrangement may offer programme
advantages, as the contractor can secure specialist tenders as the design information
becomes available, rather than wait for the entire construction information to be
completed. Crucial packages can be highlighted and, if tendering is advanced, time
for reassessment built in without prejudice to the overall programme.
Demolition/site clearance
The removal of existing buildings and the diversion or stopping up of main services
is an exercise that can often be carried out separately and without prejudice to the
main contract. The work can be carried out during the pre-contract programme.
In the UK, the one qualification the project manager must bear in mind is to check
that planning permission has been granted if the existing buildings are in a location
where prior consent is needed, such as a conservation area.
Consideration must be given to whether foundations and any basement are to be
included in the removal exercise. The relevance of this should be apparent from
discussion with the team. Similarly, a view must be taken of whether it is
appropriate to leave any of the material stockpiled on site to act as hardcore for the
new construction, or whether there are items such as artifacts which are to be
carefully removed and placed in storage. The taking down of part of a structure may
demand measures for upholding adjoining property, eg by shoring or protecting the
remainder which is left standing.
Requirements such as these should be clearly stipulated in the demolition tender and
contract.
Advance orders
A review with the team should highlight materials or elements whose lead-in time is
likely to be too long to fit with a contractor’s programme if an order is not placed
until the main contractor has been appointed. Structural steel and lifts are typical. By
placing an advance order and then novating to the main contractor, the client
protects the programme, but at the risk of a financial commitment to the supplier or
specialist ahead of receiving a main contract tender and being certain to proceed.
The project manager must recognise the risk judgment required and advise the client
accordingly.
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Information
In whatever form information is issued to the contractor, the project manager should
be satisfied that it is always provided in ample time for the contractor to perform his
tasks. These, it must be remembered, include obtaining quotations and/or
arrangements with subcontractors, co-ordination with other trades, ordering and
procurement of materials and possibly other special arrangements such as storage,
crane time and access scaffolding. The clarity and content of information should be
reviewed. It is often worthwhile obtaining an opinion from the contractor – but
through informal discussion!
Architect’s instruction
A specific, contractual form of information and one with financial overtones. It is
essential that architect’s instructions (AIs) are issued promptly and in clear terms. So
often they appear to be couched in ambiguous language. If so, it is to no one’s
advantage. The project manager should step in immediately and demand precision.
Just as important, the project manager must be satisfied that each AI is necessary and
its financial consequences, under the terms of the contract, can be correctly
interpreted. Often, architect’s instructions simply act as confirmation of matters
already priced, or which are the subject of allowances, within the contract sum. The
wording of the instruction must be definite and complete.
Architect’s instructions are also used to confirm site instructions. So often the latter
are accumulated over days or weeks, and are grouped together in one all-embracing
instruction. There are two aspects to this. The first is that a site instruction validly
given should be confirmed promptly and not languish in the architect’s office; to do
so mistreats the contractor and misleads the quantity surveyor and project manager
on cost control. The second aspect is that when many site instructions are grouped
together, it can happen that some which might be considered ‘questionable’ will slip
through. Time for effective counteraction is also lost. This is all a matter of good
discipline, enforced by a few friendly persuasive words from the project manager.
A project manager’s guide to development strategy Paper 0143 Page 112
One option available to the project manager is to instruct that all AIs must receive
his approval before they are issued to the contractor. To do so draws the project
manager directly into contract administration, slows the process, and undermines the
status of the architect. I would therefore suggest that any such control should first be
considered very carefully, but if needs must . . . !
Subcontractors
Perhaps self-obvious, but the procedures written into the contract for main contractor
recommendation and consultants’ approval of subcontractors should be observed.
These may include specific requirements as to corporate information, test
certificates, sample materials etc. Certainly, where drawings are to be produced by a
subcontractor for approval by the consultants, this process needs to be monitored.
Method statements
This too should be a monitoring issue, checking that the statements called for in
contract conditions are submitted in good time by the contractor and
reviewed/approved by the consultants.
The issues are more critical if disagreement occurs between quantity surveyor and
contractor of amounts included in valuations, and/or the architect certifies payment
less than valuation because of concerns about quality, performance etc. Reassurance
as to the contractual basis should be sought from the consultants; it is equally
important that the reason for and amount of deduction is drawn to the contractor’s
attention, with the accompanying certificate. Whilst this might seem obvious,
experience suggests the project manager would be unwise to assume. It is in
circumstances like these that the project manager must act positively. He must
anticipate the wound and foster an understanding and solution. However correct the
architect’s action, watching blood flow without efforts to staunch and heal is of no
help to the client.
Meetings
Being a focus for recording progress and reviewing issues, an early requirement of
any building contract is to establish the regular meetings that are to be held and their
organisation, eg frequency, location, chairmanship, agenda, attendance etc.
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Site meetings are normally chaired by either the contractor or the architect/contract
administrator. To avoid imprecision, it is best if the responsibility is stated in the
tender documents. However, this is no guarantee of the quality of chairmanship or
minutes. Some latitude for individual style is desirable if only to make life
interesting, but should not be treated as an excuse for inadequate reports and
incoherent minutes. If he judges the need, the project manager must ‘request’ a more
adequate record.
Building inspector
The project manager is entitled to reassurance that relationships between the
contractor and building inspector are good; that visits are occurring as needed and no
problems arising.
Visitors’ book
A modest but occasionally very useful item, not least because if correctly maintained
will record visits by health and safety inspectors or third parties who may be of
interest to the client, eg prospective tenants.
Before moving on, I would just like to emphasise that whilst each of the above has a
relevance and importance, they should only be regarded as integral elements of the
project manager’s armoury. A ritualised approach will not of itself bring success.
The project manager must be proactive in moving amongst his team, taking
soundings, sensing the confidence factor in comments, observing organisation on
site, noting the telltale signs of (in)efficiency in and around the site manager’s office.
As I once heard it expressed, ‘the smell of the concrete’. This is where the project
manager will feel the pulse of construction and where he too can generate
enthusiasm and belief from his own attitude.
20.6 Completion
Completion arrives in two stages: completion of the works such that the employer
can take possession and use the building and, some time later, completion of the
administrative requirements of the contract.
Commissioning
This particularly applies to the services, but also related equipment such as lifts and
window cleaning equipment. Whilst the specific requirements should be spelt out in
the contract documents, and time allocation be included on programmes, the project
manager ought to enquire reasonably ahead that the consultants and/or contractor(s)
have made preparation. Often they appoint independent engineers to carry out this
task. A related consideration for the project manager is possible introduction of the
management organisation who will be responsible for future maintenance; the
opportunity to observe commissioning can then be treated as part induction and part
reassurance of the integrity of the installations.
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In an ideal world, snagging schedules would not exist. However, we deal in reality
and unfortunately they are capable of exploitation. When it suits the architect and/or
client, they may argue that there should be not a single snagging item. On other
occasions the pressure for handover may lead to schedules of excessive length being
accepted. There is no simple solution, but it is a time for the project manager to be
proactive in the cause of rational thinking.
The UK court action between contractor John Mowlem and financier/client Eagle
Star Insurance Company, although perhaps extreme of its type, nonetheless
illustrates the commercial pressures that can bear down on a building contract
relationship.
The transfer of insurance responsibility must be executed. The project manager must
see to it that the client’s insurers are notified the instant the certificate is issued (or
indeed forewarned) and that they are also provided with an estimate of the
reinstatement cost. The notification should be confirmed in writing immediately.
Labelled and scheduled keys should be received from the contractor and passed on
to the client or its authorised representative.
Mains services metres should be read in conjunction with the contractor in case of
subsequent need to apportion accounts from the supply companies.
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Defects
If and when they arise during the defects period, relevant items should be reported
formally to the contractor. Both the architect’s notice and the contractor’s response
should be monitored to ensure the issue is understood, whether or not remedial
attention is considered urgent.
A full and formal inspection is required at the end of the defects period. A prompt to
the consultants a few weeks beforehand never goes amiss, and arrangements for
access will need to be made if the building is occupied, both for the inspection and
for the contractor to carry out any subsequent works. There is a tendency at this
stage of a project, when the contractor has no permanent presence on site, for the
time taken to attend to defects to drag on. It pays therefore to check that the
contractor has made definite and organised arrangements for the various trades and
subcontractors that may have to return to the site.
Final account
Although normally a matter for resolution between the quantity surveyor/contract
administrator and contractor, the project manager must keep abreast of progress and
be informed of delays or arguments affecting the settlement. How far the project
manager should interfere is a matter for individual judgement and the particular
circumstances, but he should obviously take into consideration any influence he may
have to hasten attention or promote general understanding of the issues – and
attitudes of those involved!
Following settlement, and the contractor’s signature on the account, the original of
the account should be handed to the client for safekeeping.
Final Certificate
The last act! Once more, this should be a matter of procedure which simply requires
the project manager’s observance to ensure it occurs in timely fashion. It is triggered
by the issue of the certificate of making good defects and the presumption that the
final account has been settled. Accordingly, it will confirm the release of the final
portion of retention for payment by the client. Given the contractual significance of
the certificate, it is particularly important that the original of the employer’s copy is
formally recorded as having been passed to the client.
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20.7 Claims
Simplistically the effect may be described as delay, expense, and probably a
combination of both. There are no easy guidelines for the project manager as the
circumstances and validity of claims are invariably diffuse, resulting as much from
the basis of tender, corporate policies and attitudes of people within the team, as
from clearly defined problems encountered by the contractor. Hence the task for the
project manager arises well before any claim occurs, in that he must assess, and
continually observe and reassess, attitudes and personalities within the team, as well
as practical difficulties that occur. There is benefit to be gained, however, from
ensuring fundamental monitoring procedures are maintained, such as the checking of
information flow to the contractor, the timing of specialist subcontract orders, the
checking and interpretation of progress reports, and so on. By so doing, when claims
do arise, their validity should be easier to determine and evaluate.
There are three primary considerations for the project manager when a claim is
submitted:
l To ascertain that the claim accords with the terms of the building contract.
The last of these three will invariably be the most problematic and the project
manager must come to his conclusion based on the evidence available and the
perception of motives and real concerns. However, I offer the following short
guidelines:
l Strive to have the facts recorded immediately following the claim; they will
never subsequently be more clearly recalled.
l Direct the consultants’ continuing attention to claims received; they are wont
to ignore the less attractive aspects of contract administration.
In respect of the tenant’s demise, the developer’s obligation should be more specific
so as to identify for the tenant what is (and what is not) to be provided. This is best
set out in a specification attached to the Agreement (see below). Plans for
attachment are usually only of small scale sufficient to identify the location and
extent of demise (eg inclusive or exclusive of boundary walls), but are not usually to
such scale or detail as may be needed by the tenant as a basis for preparing
shopfitting drawings. More detailed drawings may, however, be necessary, or
demanded, when dealing with major tenancies such as variety or department stores.
Once settled with the tenant, the project manager should direct the consultants on the
arrangements and certification procedure to be adopted, which should ensure prompt
and effective notice to the tenant so that reimbursements are received in time for the
client to meet his payment obligations to the contractor under the building contract.
Approval fees
Developers’ consultants, especially the architect, frequently demand a separate fee
for approving tenants’ fitting-out drawings. Any such arrangement should be stated
in the Principles of Appointment. When dealing with a multi-tenant building,
particularly a shopping centre, it is advisable to agree a standard fee per unit for this
service. A clause can then be inserted in the Agreement for Lease obliging the tenant
to pay the fee when submitting his fitting-out drawings for approval.
The Agreement should therefore state that the developer ’s architect shall certify
(often in the form of a letter) when the unit has been completed sufficient for the
tenant to fit out in accordance with his approved plans and specification. The
architect’s fitting-out certificate should be issued to the client (project manager) and
a copy immediately served upon the tenant.
It is usual to provide a short period (say seven days) in which the tenant may object
to the notice, giving reasons. If the objection notice is accepted, the certification
procedure should be repeated as soon as appropriate; if the tenant’s notice is
disputed, the Agreement should allow either party to refer to arbitration.
The project manager should direct the consultants and main contractor as to the
required arrangements and ensure suitable provisions are incorporated in the
building contract. Responsibility for security and insurance, once a tenant has
possession for fitting out, must also be defined.
Rent-free period
The project manager must clarify the date of commencement of any rent-free period.
Two principal alternatives are the shopfitting certificate date or the certificate of
practical completion for the building.
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Building defects
Tenants often require a developer’s covenant to remedy defects in the building
structure. The project manager must be concerned to limit the developer’s liability,
and therefore a response to this may be that the tenant shall draw the developer’s
attention to any defects of which he becomes aware, but the tenant’s rights against
the developer should be limited to such as may be reasonably enforced by the
developer under the terms of the main building contract.
Landlord/tenant specification
Other than drawings which may be attached or referred to in the Agreement, the
developer ’s and tenant’s building responsibilities should be set out in specifications
attached to the Agreement, thus making the tenant’s works as obligatory as the
developer ’s. For ease of understanding, the respective obligations can be set out in a
combined format, of which a typical example is provided in Appendix B1.
For each development the project manager should instruct the consultants to produce
an appropriate standard specification, paying particular regard to the following:
Tenants’ handbook
Apart from the function of controlling a series of individual tenants’ activities, the
project manager must be aware of the need to encourage a positive tenant attitude
towards shopfitting and participation in the centre; also that there is information
beneficial to a tenant which will not necessarily be made known to him through
normal estates and legal channels. The project manager should therefore direct the
production of a tenant’s handbook, containing policy and guidance notes, intended
for distribution to all relevant personnel within the tenant’s organisation, his
designers and shopfitting contractors. The project manager cannot assume that
copies of the tenant’s obligations under the Agreement will have been distributed in
this same fashion – in fact, it is extremely rare to find this degree of awareness in
tenant organisations. Hence reference to these obligations is both relevant and
necessary. The tenants’ handbook does not, however, carry the authority of a legal
document, unless it is specifically included in the Agreement for Lease. One result
of making the tenants’ handbook a legal document is that it will be scrutinised
closely by each tenant’s solicitor and may well extend the legal exchanges. In my
experience the ‘informal’ method works just as well.
Presentation and content of the tenants’ handbook may alter according to
circumstance, but Appendix B2 repeats the ‘Contents’ pages from a shopping centre
example showing the information customarily included in the UK.
Control of shopfitters
Experience has shown that this is one of the most perplexing difficulties in finishing
a centre. Shopfitting contractors generally act entirely in accordance with self-
interest and often without regard for the developer ’s works, whether completed or
on-going. The project manager should not place reliance solely on the handbook but
should make specific arrangements for on-site checks, either by arrangement with
the main contractor, by instructing the clerk of works, or by direct monitoring.
Damage by shopfitters is not only aggravating, it is also usually very difficult to find
the culprit. The project manager must maintain a strict discipline on site, confining
each shopfitting contractor solely to the respective tenant’s demise, including
unfixed materials. Deliveries should be made only via the service ways, and vehicles
should be removed from site immediately unloading is completed. Where shopfronts
occur, the shopfitter should provide a dustproof hoarding on the shopfront line, and
only be permitted to step this forward for installation of the shopfront on prior notice
and agreement with the project manager and client’s contractor.
Shopfitting completion
It is often a prudent requirement to insist that the tenant secures a developer’s
certificate stating that his shopfitting works have been satisfactorily completed. This
enables a check to be made against the previously approved shopfitting drawings,
and to ensure that connections to the development’s system (eg sprinklers, fire
alarms etc) are functioning and drains are not blocked by waste shopfitting material.
The tenant’s obligation to secure the developer’s certificate can be incorporated in
the terms of the Agreement of Lease.
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l Cleaning
l Building maintenance
l Refuse collection
l Security
l Reception facilities
l Postal deliveries
l Landscape care.
Identify requirements for care and running of plant and machinery, and whether this
is to be administered by a resident engineer, through a maintenance agreement with
a service company, or a combination thereof. If a resident engineer is to be
employed, adequate time must be allowed for training on the specific equipment
installed in advance of responsibility being transferred – usually at the date of
practical completion.
Define the extent to which the M & E subcontractor responsible for installation will
need to attend the development during the defects period to carry out balancing and
performance checks.
Obtain copies of the maintenance manuals for use by the management officer and
services engineers.
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The project manager should distinguish between the services to be metered and
charged direct to tenants, and those which are metered on the main incoming supply
only, with responsibility for apportionment and obtaining reimbursement from
tenants resting with the management officer. The project manager should define and
advise the management officer on the maintenance and insurance responsibilities for
different areas of a development such as common parts, demised areas, dedicated
and adopted highways.
23.1 Programme
Development bar chart and/or network
Prepared by the project manager with contributions from other team members
defining all critical or major events (eg site acquisition, planning permission,
settlement of pre-lettings, exchange of funding agreement) and including primary
elements from the consultants’ detailed design programme (eg building regulation
submission).
A network format can be particularly useful in the early stages of a project, because
it depicts the separate activities of site ownership, finance, pre-letting and design,
signifies the priorities as well as the linkage. It is vital for the project manager to
convey to both client and consultants the interdependence of events, and the risk
(particularly financial commitment) that can arise if the appropriate sequence is
ignored.
Schedules of information
l Bills of Quantity . To aid production of the Bill the quantity surveyor should
circulate a schedule showing dates by which design information is required
from consultants to enable billing to take place.
l Organisation name
l Each individual’s name, and
¡ his project role, and
If appropriate, the team directory can be supplemented by marking those who are to
attend certain regular meetings, and those who are on the circulation list for minutes,
or other regular distributions. Can be included in the team directory.
The terms of reference of the site personnel (eg site architect, resident engineer),
their relationship to each other, the contractor and the consultants, and particularly
their responsibilities for issuing instructions, should be set down in a statement
collated and issued by the architect. This can be issued to the contractor or
incorporated in the building contract.
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23.6 Administration
Meetings
The project manager should identify the various meetings to be held regularly; their
purpose, frequency, personnel attendance and venue. Decide on the responsibilities
or chairmanship and taking of minutes for each respective meeting – also the
circulation of minutes. The project manager should insist on minutes being issued
within 48 hours of each meeting.
Statutory approvals
The originals of all consents (eg planning permission) should be obtained from the
consultants and passed to the client or his solicitor with specific instruction that these
be placed with the title documents for the development.
Project records
Maintain and update at, say, quarterly intervals, a ‘project record’ in the form shown
at Appendix C which provides a synopsis of the development for the project
manager and any principals to whom he must report, together with acting as a simple
check on the progress to date.
Provisional sums
Regularly review those items identified in the Bills of Quantity as provisional sums,
with the purpose of ensuring that tenders are obtained, reviewed against the
allowance, and instructions issued within the agreed programme.
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Checklists
Probably the most familiar term of project management jargon, checklists perform a
useful function, and should be created to serve particular needs or aspects of control
(eg responsibilities under legal agreements, information flow to contractor).
23.8 Finance
Speculative development budget
By reference to the pre-contract development programme, negotiate limits to
speculative fee expenditure with each consultant, and prepare a cash flow of these
costs together with others such as planning permission fees, site surveys etc.
Cost record
The project manager should maintain his own ledger in which is entered all
expenditure by reference to individual headings such as architect’s fees, tenant
reimbursements etc, together with a summary of gross and net expenditure.
Construction cost
Quantity surveyors and contractors are well versed in the practice of preparing
frequent reports identifying changes known and anticipated in the contract sum.
Usually these will be represented under headings such as Provisional Sums,
Nominated and Specialist Subcontractors, and Architects’ Instructions. It is usually
only necessary for the project manager and quantity surveyor to agree on the
presentation format; the principle is well understood. The project manager should
ensure a copy of each report is given to the respective consultants, as they are
effectively accountable for any extras (or savings) shown, including those springing
from a client’s change of mind!
Development appraisal
At regular intervals, say quarterly, produce an appraisal and cost summary in the
form shown at Appendix C2, which identifies the client’s approved budget, the
comparative anticipated totals of development cost at previous current quarters, and
the aggregate payment made to date. This enables the project manager to highlight
any increases or savings in cost and their impact on overall viability; also to check
that payments are in line with progress to date on the project.
Cash flow
At commencement of the building contract the quantity surveyor and contractor
should jointly prepare the anticipated monthly cash flow of building certificates,
which according to need should be adjusted at subsequent regular intervals to reflect
actual payments and apportionment of the amount outstanding. The project manager
can in turn use this information as a basis for a development cash flow reflecting
fees, acquisition costs and finance, etc.
The project manager should treat the comparison between forecast and actual
expenditure as a basis for reviewing effective progress and the general wellbeing of
the development.
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Alternative forms of presentation are also available, some of which create visual
interpretation. Forecast and actual cash flow can be converted into graph form.
Heads of development expenditure can be shown as pie diagrams. The extent of
computer use is a matter for individual preference; clearly they can play a very
useful role. I do think it important, however, for the project manager to regard
computers only as a tool. There is a potential danger of too much analysis.
Reading list
RECOMMENDED READING
Topping R and Cadman D (1995) Property Development (4th edn) Spon Press,
ISBN 0419202404.
Latham M (2002) Code of Practice for Project Management for Construction and
Development (3rd edn) Longman, ISBN 0582276802.
FURTHER READING
Appendices
Contents
1. Appendix A: Drafts of consultant appointments
Appendix A:
Drafts of consultant appointments
A1 Architect’s appointment
1 Project
Address/name of project; form of development; approximate content.
2 Client
Name and address.
3 Consultant
Name and address.
4 Service
4.1 1 The Consultant’s services shall include all those specified in Schedule 2 of the RIBA’s
Standard Form of Agreement for the Appointment of an Architect (the edition current at the
date of this Agreement) as are necessary for the project.
4.1.2 Specialist sub-contractors and suppliers. The Consultant shall provide written recommendation
to the Client wherever the appointment of a specialist sub- contractor or supplier is proposed
and shall include advice as to the division of design and installation responsibilities between
the Consultant, specialist contractor and/or Main Contractor which will apply in each
instance.
4.1.3 Before commencing Work Stage E of the RIBA Standard Form of Agreement the Consultant
will prepare a programme identifying for each building element the number of drawings,
specifications, schedules or other information to be prepared, the timing of its issue and the
manpower resources that will be committed at each stage of the programme. The programme
shall also specify any Client decisions required, statutory approvals needed, and any other
significant issue which may affect information production. Where information for construction
is not included in a tender invitation the Consultant shall provide the tendering contractor(s)
a detailed Information Issue schedule specifying the dates this will be provided.
4.1.4 The consultant will incorporate and coordinate in the programme, and Information Issue
schedule, comparable information from other members of the consultant team, relevant to
their discipline.
132 Paper 0143 A project manager’s guide to development strategy
4.1.5 The consultant shall satisfy himself that each provisional and prime cost sum contained in the
Bills of Quantity prepared by the Quantity Surveyor, is adequate for the intended design.
4.1.6 Prior to tender action the Consultant shall provide the Client with a schedule of floor areas,
together with a set of drawings showing the principal internal dimensions of all leasable space.
4.1.7 The Consultant will advise, act for, and represent the Client in respect to any claim(s)
presented by the Contractor, or specialist sub-contractor(s).
d asbestos products
e naturally occurring aggregates for use in reinforced concrete which do not comply with
British Standard 882; 1983 and/or naturally occurring aggregates for use in concrete
which do not comply with British Standard 8110: 1985.
4.1.9.1 The Consultant will, prior to the payment of any part or the whole of the fee (Clause 6),
whether or not this Agreement has been executed, provide information to the Client to
demonstrate his competence and resources to comply with statutory requirements applicable
to the Consultants discipline.
4.1.9.2 During the continuance of this appointment, the Consultant will maintain the expertise and
resources needed to perform all statutory requirements applicable to the Consultant’s
discipline and to provide evidence of this upon request by the Client.
4.1.9.3 The Consultant will provide to the Planning Supervisor (if appointed) such information and
assistance as the Planning Supervisor may require to perform his duties according to statutory
requirements.
4.1.9.4 Without prejudice to the provisions of Clause 4.6, the Consultant will provide or procure any
relevant information required for the Health & Safety File, to be produced on or before the
certificate of practical completion for any relevant structure (as defined by the CDM
Regulations 1994).
4.2.2 If requested by the Client, the Consultant shall provide each and any Development Partner a
warranty in the form published by the British Property Federation. Each warranty to include
the following terms:
4.3 Letting
Provide any architectural drawings and specifications that may be required in connection with
the letting of the project. The Consultant will have regard for the requirements of the Property
Misdescriptions Act 1991.
4.4 Legal
Provide any architectural drawings, specifications or other information that may be required
for any legal documents.
4.5.1 Liaise with tenants and their consultants in resolving any requirements to be included in the
Client’s building contract. Where the Client is to obtain reimbursement from a tenant for the
costs of any works, the Consultant shall provide appropriate certification.
4.5.2 Assist the Client in preparing a Tenant’s Handbook if appropriate and/or provide plans and
any other architectural information on which tenants and their Consultants may base fitting
out proposals. The Consultant shall also monitor the works to ensure they are implemented
according to approvals given on behalf of the Client.
The Consultant shall provide two sets of all relevant material, including that of any specialist
sub-contractor, within two months of practical completion, including:
The information required by items (b) and (c) above are to be presented in the form of an
owners handbook.
The Consultant will advise and assist in the arranging of any maintenance contracts.
5 Copyright
The copyright in all drawings, reports, models, specifications, calculations and other documents
and information, prepared by or on behalf of the Consultant in connection with the project,
shall remain vested in the Consultant but, subject to the Consultant having received payment
of any fees due under this appointment, the Client shall have licence to copy and use such
134 Paper 0143 A project manager’s guide to development strategy
documents and to reproduce the designs and content of them for any purpose related to the
project following its completion including, but without limitation, the construction, completion,
maintenance, letting, promotion, advertisement, reinstatement, refurbishment and repair of
the project. Such licence shall enable the client, and its appointee, to copy and use the
documents for the extension of the project but such use shall not include a licence to reproduce
the designs contained in them for any extension of the project. The Consultant shall not be
liable for any use by the Client, or its appointee, of any of the documents for any purpose other
than that for which the same were prepared by or on behalf of the Client.
6 Fee
(To be calculated either;
b As a fixed sum.)
Clerk of works: Payment by the Client to be based on salary cost and other properly
attributable expenses.
8 Terms of payment
8.1 The period(s) prior to the Client’s decision fully to proceed with the project
a Time.
8.2.1 The full fee terms as described in 6. above to apply and be paid as follows:
(Statement of basis on which fee to be paid up to Certificate of Practical Completion (eg. equal
monthly/quarterly tranches, or fixed proportion of fee for differing work stages).
8.2.2 Payment of fees in the manner prescribed, is conditional upon the Consultant adhering to his
commitments shown in the programme and Information Issue schedule.
8.2.3 5% of the Consultant’s fee to be paid immediately after issue of the Final Certificate.
9.1 If during the period(s) described in 8.(1) the sum(s) specified in that clause for work up to the
time at which suspension or abandonment occurs.
A project manager’s guide to development strategy Paper 0143 135
9.2 If during the stage described in 8.(2) the measure of payment will be by agreement, and have
regard to work completed in relation to the programme and Information Issue schedule
(Clause 4.1.3).
The consultant shall maintain professional indemnity insurance in the amount of not less than
£..for any one occurrence or series of occurrences arising out of any one event for a period of
..years from the date of practical completion of the building contract for the project, provided
always that such insurance is available at commercially reasonable rates. As and when it is
reasonably requested to do so by the Client, the Consultant shall produce for inspection,
documentary evidence that its professional indemnity insurance is being maintained.
(NB. This clause, and clause 4.2.2, may, if the Consultant wishes, be omitted from the final
form of this appointment, provided the Consultant confirms the same commitments to the
Client in a side letter at the date the appointment is signed.)
11 Consultant team
11.1 The Consultant acknowledges and agrees that the other members of the Consultant Team shall
be:-
Planning Supervisor:
Structural Engineer:
Mechanical and Electrical Services Consultant (.... Duties):
Quantity Surveyor:
Project Manager:
and such other or further appointments as the Client shall from time to time consider
necessary.
12 Signature
In Witness whereof this agreement was executed as a Deed and delivered on the above date.
Executed on behalf of
the Architect __________ __________
Witness
__________
12 Insert new clause in the appointments of those consultants who are to be novated to the
contractor.
Novation
12.1 The Consultant acknowledges and agrees that this Agreement is to be novated so that ..(Client
name) is replaced as Client by the Contractor~ when appointed. All other terms and conditions
of this Agreement shall continue in full force and effect. (Client name..) and (..Consultant
name) shall each be responsible to the other for obligations arising under this Agreement, up
to the time and date of Novation.
12.2 Subsequent to Novation it is agreed that the Consultant will inform (..Client name):
1 If the Consultant considers any aspect of the detailed or construction design to conflict
with the drawings and specifications previously approved by (..Client name..) and/or
a Development Partners, or with Planning Permission or Building Regulation ap-
proval.
3 If the Consultant considers the building is not suited for Practical Completion at the
time this is sought by the Contractor.
4 If the Consultant considers the snagging or defects lists prepared by the Contractor are
insufficient.
A project manager’s guide to development strategy Paper 0143 137
1 Project
2 Client
3 Consultant
4 Service
4.1 The Consultant’s service will be in accordance with Scale (?) of the Professional Charges of
the Royal Institution of Chartered Surveyors. (Define whether this includes air-conditioning,
heating, ventilating and electrical services as provided in paragraph 2.2 of Scale 36.) The
Consultant will advise, act for, and represent the Client/ Project Manager in respect to any
claim(s) presented by the Contractor, or specialist sub-contractor(s).
‘Before commencing Work Stage E of the RIBA Standard Form of Agreement, the Consultant
will prepare a programme identifying for each building element the number of drawings,
specifications, schedules or other information to be prepared, the timing of its issue, and the
manpower resources which will be committed at each stage of the programme. The programme
shall also specify any Client decisions required, statutory approvals needed, and any other
significant issue which may affect information production. Where any construction information
is not included in a tender invitation the Consultant shall provide the tendering contractor(s)
a detailed Information Issue schedule specifying the dates this will be provided. The
Consultant will incorporate and coordinate in the programme, the Information Issue schedule,
comparable information from other members of the consultant team, relevant to their
discipline.’
The Consultant will coordinate his service with the Architect and provide information to him
to enable production of the programme and Information Issue schedule.
4.1.3.1 The Consultant will, prior to the payment of any part or the whole of the fee Clause 6), whether
or not this Agreement has been executed, provide information to the Client to demonstrate his
competence and resources to comply with statutory requirements applicable to the Consultants
discipline.
4.1.3.2 During the continuance of this appointment, the Consultant will maintain the expertise and
resources needed to perform all statutory requirements, applicable to the Consultant’s
discipline and to provide evidence of this upon request by the Client.
4.1.3.3 The Consultant will provide to the Planning Supervisor (if appointed) such information and
assistance as the Planning Supervisor may require perform his duties according to statutory
requirements.
138 Paper 0143 A project manager’s guide to development strategy
4.1.3.4 The Consultant will include in the terms and conditions of any construction contract for a
structure (as defined by the CDM Regulations 1994), that the contractor will provide all
information for which he is responsible, that is required for the Healthy & Safety file, as a
precondition of the issue of a certificate of practical completion.
If requested by the Client, the Consultant shall provide information and assistance relevant to
the Consultant’s discipline, to enable the Client to make a proposal for, and meet the terms of,
a policy of insurance.
4.2.1 Upon instruction from the Client the Consultant shall provide information, including Bills of
Quantity, required by a Development Associate, its agents and/or Consultants, and will liaise
with these parties according to the direction of the Client.
4.2.2 If requested by the Client, the Consultant shall provide each and any Development Partner a
warranty in the form published by the British Property Federation. Each warranty to include
the following terms:
4.3 Letting
Provide cost advice, area calculations or other related information that may be required in
connection with the letting of the project. The Consultant will have regard for the requirements
of the Property Misdescriptions Act 1991.
4.4 Legal
Provide Bills of Quantity, and any cost or measurement information that may be required for
any legal document.
Liaise with tenants and their consultants in agreeing the value of any tenant requirements to
be incorporated in the Project; where reimbursement is to be obtained by the Client, provide
separate valuations.
4.6 As-built record drawings, operating and maintenance manuals, product guarantees. warranties.
test certificates and maintenance contracts
4.6.1 The appointments of the design consultants contain the following obligations upon them:
“..provide two sets of all relevant materials, including that of any specialist sub-contractor,
within two months of practical completion (services to be at practical completion) including:-
4.6.2 The Consultant shall have regard to these requirements, and the need for warranties from all
specialist sub-contractors, in the procuring, vetting and completion of all contract works, and
liaise with other members of the Consultant Team.
4.7 Insurance
Advise the Client on the value of any insurances to be placed, particularly at the time of
practical completion.
4. 8 Capital Allowances
If requested by the Client, advise the value of any works qualifying for tax allowances.
If requested by the Client the Consultant shall advise the value of structural and/or mechanical
and electrical works within the contract in a form enabling fees for those disciplines to be
calculated according to the code of the Association of Consulting Engineers.
5 Copyright
The copyright in all reports, specifications, Bills of Quantities, calculations and other
documents and information, prepared by or on behalf of the Consultant in connection with the
project, shall remain vested in the Consultant but, subject to the Consultant having received
payment of any fees due under this appointment, the Client shall have licence to copy and use
such documents and to reproduce the designs and content of them for any purpose related to
the project following its completion including, but without limitation, the construction,
completion, maintenance, letting, promotion, advertisement, reinstatement, refurbishment
and repair of the project. Such licence shall enable the client, and its appointee, to copy and
use the documents for the extension of the project but such use shall not include a licence to
reproduce the designs contained in them for any extension of the project. The Consultant shall
not be liable for any use by the Client, or its appointee, of any of the documents for any purpose
other than that for which the same were prepared by or on behalf of the Client.
6 Fee
To be calculated either;
c As a fixed sum.)
8 Terms of Payment
8.1 The period(s) prior to the Client’s decision fully to proceed with the Project
a Time.
8.2.1 The full fee terms as described in 6. above to apply and be paid as follows:
(Statement of basis on which fee to be paid up to Certificate of Practical Completion (eg. equal
monthly/quarterly tranches, or fixed proportion of fee for differing work stages).)
8.2.2 Payment of fees in the manner prescribed, is conditional upon the Consultant adhering to his
commitments described in the programme and Information Issue schedule (paragraph 4.2).
8.2.3 5% of the Consultant’s fee to be paid immediately after issue of the Final Certificate.
9.1.1 If during the period(s) described in 8.(1) the sum(s) specified in that clause for work up to the
time at which suspension or abandonment occurs.
9.1.2 If during the stage described in 8.(2) the measure of payment will be by agreement, and have
regard to the provisions of the RICS Scale of Charges.
10.1 The consultant shall maintain professional indemnity insurance in the amount of not less than
£..for any one occurrence or series of occurrences arising out of any one event for a period of
..years from the date of practical completion of the building contract for the project, provided
always that such insurance is available at commercially reasonable rates. As and when it is
reasonably requested to do so by the Client, the Consultant shall produce for inspection,
documentary evidence that its professional indemnity insurance is being maintained.
10.2 (NB. This clause, and clause 4.2.2, may, if the Consultant wishes, be omitted from the final
form of this appointment, provided the Consultant confirms the same commitments to the
Client in a side letter at the date the appointment is signed.)
A project manager’s guide to development strategy Paper 0143 141
11 Consultant Team
The Consultant acknowledges and agrees that the other members of the Consultant Team shall
be:
Planning Supervisor:
Architect:
Structural Engineer:
Mechanical and Electrical Services Consultant (.... Duties):
Project Manager:
and such other or further appointments as the Client shall from time to time consider
necessary.
12 Signature
In Witness whereof this agreement was executed as a Deed and delivered on the above date.
Executed on behalf of
the Quantity Surveyor __________ __________
Witness
__________
12 Insert new clause in the appointments of those consultants who are to be novated to the
contractor.
Novation
12.1 The Consultant acknowledges and agrees that this Agreement is to be novated so that ..(Client
name) is replaced as Client by the Contractor, when appointed. All other terms and conditions
of this Agreement shall continue in full force and effect. (Client name..) and (..Consultant
name) shall each be responsible to the other for obligations arising under this Agreement, up
to the time and date of Novation.
12.2 Subsequent to Novation it is agreed that the Consultant will inform (..Client name....):
1 If the Consultant considers any aspect of the detailed or construction design to conflict
with the drawings and specifications previously approved by (..Client name..) and/or
a Development Partners, or with Planning Permission or Building Regulation ap-
proval.
3 If the Consultant considers the building is not suited for Practical Completion at the
time this is sought by the Contractor.
4 If the Consultant considers the snagging or defects lists prepared by the Contractor are
insufficient.
A project manager’s guide to development strategy Paper 0143 143
1 Project
2 Client
3 Consultant
4 Service
4.1.1 The Consultant’s service will be in accordance with Agreement 3 of the ACE Conditions of
Engagement (current edition) including such additional services described in Clause 7., as
may be necessary. (Define whether service includes design of below ground drainage, and
checking of structural worthiness of designs by Architect and/or specialist sub-contractors;
also supervision of their on-site construction.)
‘Before commencing Work Stage E of the RIBA Standard Form of Agreement, the Consultant
will prepare a programme identifying for each building element the number of drawings,
specifications, schedules or other information to be prepared, the timing of its issue, and the
manpower resources which will be committed at each stage of the programme. The programme
shall also specify any Client decisions required, statutory approvals needed, and any other
significant issue which may affect information production. Where any construction information
is not included in a tender invitation the Consultant shall provide the tendering contractor(s)
a detailed Information Issue schedule specifying the dates this will be provided. The
Consultant will incorporate and coordinate in the programme, the Information Issue schedule,
comparable information from other members of the Consultant team, relevant to their
discipline.’
The Consultant will coordinate his service with the Architect and provide information to him
to enable production of the programme and Information Issue schedule.
4.1.3 The Consultant will advise, act for, and represent the Client/Project Manager in respect to any
claim or claims presented by the Contractor, or specialist sub-contractor(s), in so far as this
relates to the Consultant’s service and expertise.
The Consultant Warrants that he has exercised, and will continue to exercise, reasonable skill
and care to see that, unless authorised by the Client in writing or, where such authorization
is given orally, confirmed by the Consultant to the Client in writing, none of the following has
been or will be specified by the Consultant for use in the construction of the Project:
d asbestos products
e naturally occurring aggregates for use in reinforced concrete which do not comply with
British Standard 882; 1983 and/or naturally occurring aggregates for use in concrete
which do not comply with British Standard 8110: 1985.
4.1.5.1 The Consultant will, prior to the payment of any part or the whole of the fee (Clause 6),
whether or not this Agreement has been executed, provide information to the Client to
demonstrate his competence and resources to comply with statutory requirements applicable
to the Consultants discipline.
4.1.5.2 During the continuance of this appointment, the Consultant will maintain the expertise and
resources needed to perform all statutory requirements applicable to the Consultant’s
discipline and to provide evidence of this upon request by the Client.
4.1.5.3 The Consultant will provide to the Planning Supervisor (if appointed) such information and
assistance as the Planning Supervisor may require to perform his duties according to statutory
requirements.
4.1.5.4 Without prejudice to the provisions of Clause 4.6, the Consultant will provide or procure any
relevant information required for the Health & Safety File, to be produced on or before the
certificate of practical completion for any relevant structure (as defined by the CDM
Regulations 1994).
If requested by the Client, the Consultant shall provide information and assistance relevant to
the Consultant’s discipline, to enable the Client to make a proposal for, and meet the terms of,
a policy of insurance.
4.2.1 Upon instruction from the Client the Consultant shall provide any drawings, specifications,
calculations or associated information required by a Development Partner, its agents and/or
Consultants, and will liaise with these parties according to the direction of the Client.
4.2.2 If required by the Client, the Consultant shall provide each and any Development Partner
warranty in the form published by the British Property Federation.
4. 3 Letting
4.4 Legal
Provide drawings, specifications or other structural information that may be required for any
legal documents.
Liaise with tenants and their Consultants in resolving any requirements to be included in the
Client’s building contract.
4.5.2 Assist the Client in preparing a Tenants’ Handbook if appropriate, and/or provide drawings
and any other structural engineering information on which tenants and their Consultants may
base fitting out proposals. Comment upon and recommend approval of any tenant structural
proposals; also monitor the works to ensure they are implemented according to the approvals
given by or on behalf of the Client.
The Consultant shall provide two sets of all relevant material, including that of any specialist
sub-contractor, within two months of practical completion, including:
The information required by items (b) and (c) above are to be presented in the form of an
owners handbook.
The Consultants will advise and assist in the arranging of any maintenance contracts.
5 Copyright
The copyright in all drawings, reports, models, specifications, calculations and other documents
and information, prepared by or on behalf of the Consultant in connection with the project,
shall remain vested in the Consultant but, subject to the Consultant having received payment
of any fees due under this appointment, the Client shall have licence to copy and use such
documents and to reproduce the designs and content of them for any purpose related to the
project following its completion including, but without limitation, the construction, completion
maintenance, letting, promotion, advertisement, reinstatement, refurbishment and repair of
the project. Such licence shall enable the client, and its appointee, to copy and use the
documents for the extension of the project but such use shall not include a licence to reproduce
the designs contained in them for any extension of the project. The Consultant shall not be
liable for any use by the Client, or its appointee, of any of the documents for any purpose other
than that for which the same were prepared by or on behalf of the Client.
146 Paper 0143 A project manager’s guide to development strategy
6 Fee
b As a percentage of the initial contract sum or final account value (excluding the value
of any finishes of a fitting out character, eg carpets, canteen equipment) .)
c As a fixed sum.)
Payment by the Client to be based on salary cost and other properly attributable expenses.
8 Terms of payment
8.1 The period(s) prior to the Client’s decision fully to proceed with the Project
a Time.
8.2.1 The full fee terms as described in 6. above to apply and be paid as follows:
Statement of basis on which fee to be paid up to Certificate of Practical Completion (eg. equal
monthly/quarterly tranches, or fixed proportion of fee for differing work stages).)
8.2.2 Payment of fees in the manner prescribed, is conditional upon the Consultant adhering to his
commitments shown in the programme and Information Issue schedule (para.4.1.2).
8.2.3 5% of the Consultant’s fee to be paid immediately after issue of the Final Certificate.
9.1.1 If during the period(s) described in 8.(1) the sum(s) specified in that clause for work up to the
time at which suspension or abandonment occurs, or some other specified figure.
9.1.2 If during the stage described in 8.(2) the measure of payment will be by agreement, and have
regard to the provisions of the ACE Agreement 3.
A project manager’s guide to development strategy Paper 0143 147
The Consultant shall maintain professional indemnity insurance in the amount of not less than
£..for any one occurrence or series of occurrences arising out of any one event for a period of
years from the date of practical completion of the building contract for the project, provided
always that such insurance is available at commercially reasonable rates. As and when it is
reasonably requested to do so by the Client, the Consultant shall produce for inspection,
documentary evidence that its professional indemnity insurance is being maintained.
(NB. This clause, and clause 4.2.2, may, if the Consultant wishes, be omitted from the final
form of this appointment, provided the Consultant confirms the same commitments to the
Client in a side letter at the date the appointment is signed.)
11 Consultant Team
The Consultant acknowledges and agrees that the other members of the Consultant team shall
be:
Planning Supervisor:
Architect:
Quantity Surveyor:
Mechanical and Electrical Services Consultant (.... Duties):
Project Manager:
and such other or further appointments as the Client shall from time to time consider
necessary.
12 Signature
In Witness whereof this agreement was executed as a Deed and delivered on the above date.
Executed on behalf of
the Structural Engineer __________ __________
Witness
__________
12 Insert new clause in the appointments of those consultants who are to be novated to the
contractor.
Novation
12.1 The Consultant acknowledges and agrees that this Agreement is to be novated so that ..(Client
name) is replaced as Client by the Contractor, when appointed. All other terms and conditions
of this Agreement shall continue in full force and effect. (Client name..) and (..Consultant
name ) shall each be responsible to the other for obligations arising under this Agreement, up
to the time and date of Novation.
12.2 Subsequent to Novation it is agreed that the Consultant will inform (..Client name ....):
1 If the Consultant considers any aspect of the detailed or construction design to conflictwith
the drawings and specifications previously approved by (..Client name..) and/or a
Development Partners, or with Planning Permission or Building Regulation approval.
3 If the Consultant considers the building is not suited for Practical Completion at the time
this is sought by the Contractor.
4 If the Consultant considers the snagging or defects lists prepared by the Contractor are
insufficient.
A project manager’s guide to development strategy Paper 0143 149
1 Project
2 Client
3 Consultant
4 Service
‘Before commencing Work Stage E of the RIBA Standard Form of Agreement the Consultant
will prepare a programme identifying for each building element the number of drawings,
specifications, schedules or other information to be prepared, the timing of its issue and the
manpower resources that will be committed at each stage of the programme. The programme
shall also specify any Client decisions required, statutory approvals needed, and any other
significant issue which may affect information production. Where information for construction
is not included in a tender invitation the Consultant shall provide the tendering contractor(s)
a detailed Information Issue schedule specifying the dates this will be provided. The
Consultant will incorporate and coordinate in the programme, and Information Issue schedule,
comparable information from other members of the consultant team, relevant to their
discipline.’
The consultant will coordinate his service with the Architect, and provide information to him
to enable production of the programme and Information Issue schedule.
4.1.3 When the Consultant is satisfied practical completion of the services installation has been
achieved to a standard comparable to that required of the Architect under the building
contract, the Consultant shall certify accordingly to the Client and Architect.
4.1.4 The Consultant will advise, act for, and represent the Client in respect of any claim(s)
presented by the Contractor, or specialist sub-contractor(s), in so far as this relates to the
Consultant’s service and expertise.
Deleterious Materials:-
The Consultant Warrants that he has exercised, and will continue to exercise, reasonable skill
and care to see that, unless authorised by the Client in writing or, where such authorization
is given orally, confirmed by the Consultant to the Client in writing, none of the following has
been or will be specified by the Consultant for use in the construction of the Project:
150 Paper 0143 A project manager’s guide to development strategy
d asbestos products
e naturally occurring aggregates for use in reinforced concrete which do not comply with
British Standard 882; 1983 and/or naturally occurring aggregates for use in concrete
which do not comply with British Standard 8110: 1985.
The Consultant will, prior to the payment of any part or the whole of the fee (Clause 6),
whether or not this Agreement has been executed, provide information to the Client to
demonstrate his competence and resources to comply with statutory requirements applicable
to the Consultants discipline.
4.1.6.2 During the continuance of this appointment, the Consultant will maintain the expertise and
resources needed to perform all statutory requirements applicable to the Consultant’s
discipline and to provide evidence of this upon request by the Client.
4.1.6.3 The Consultant will provide to the Planning Supervisor (if appointed) such information and
assistance as the Planning Supervisor may require to perform his duties according to statutory
requirements.
4.1.6.4 Without prejudice to the provisions of Clause 4.6, the Consultant will provide or procure any
relevant information required for the Health & Safety file, to be produced on or before the
certificate of practical completion for any relevant structure (as defined by the CDM
Regulations 1994).
If requested by the Client, the Consultant shall provide information and assistance relevant to
the Consultant’s discipline, to enable the Client to make a proposal for, and meet the terms of,
a policy of insurance.
4.2.1 Upon instruction from the Client the Consultant shall provide any drawings, specifications,
or other services information, required by a Development Partner, its agents and/or Consultants,
and will liaise with these parties according to the direction of the Client.
4.2.2 If required by the Client, the Consultant shall provide each and any Development Partner a
warranty in the form published by the British Property Federation.
4. 3 Letting
4.3.1 Provide drawings, specifications, or other services information that may be required in
connection with the letting of the project. The Consultant will have regard for the requirements
of the Property Misdescriptions Act 1991.
4.4 Legal
Provide any drawings, specifications or other services information that may be required for
any legal documents.
4.5.1 Liaise with tenants and their Consultants in resolving any requirements to be included in the
Client’s building contract.
4.5.2 Assist the Client in preparing a Tenant’s Handbook if appropriate, and/or provide drawings
and other services information on which tenants and their Consultants may prepare fitting out
proposals. Comment upon and recommend approval of any tenant services proposals; also
monitor the works to ensure they are implemented according to approvals given on behalf of
the Client.
4.6.1 The Consultant shall procure and pass to the Client, at practical completion, two sets of all
relevant material, including:
c For each and all services’ elements, and to the extent not included in (b) above:-
i the specification and/or manufacturers reference,
ii the anticipated life,
iii written guidance on cleansing, maintenance and repair.
4.6.2 The information required by items (c) and (d) above are to be presented in the form of an
owners handbook.
4.6.3 The Consultant will advise and assist in the arranging of any maintenance contracts
5 Copyright
5.1 The copyright in all drawings, reports, models, specifications, calculations and other documents
and information, prepared by or on behalf of the Consultant in connection with the project,
shall remain vested in the Consultant but, subject to the Consultant having received payment
of any fees due under this appointment, the Client shall have licence to copy and use such
documents and to reproduce the designs and content of them for any purpose related to the
project following its completion including, but without limitation, the construction, completion,
maintenance, letting, promotion, advertisement, reinstatement, refurbishment and repair of
the project. Such licence shall enable the client, and its appointee, to copy and use the
documents for the extension of the project but such use shall not include a licence to reproduce
the designs contained in them for any extension of the project. The Consultant shall not be
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liable for any use by the Client, or its appointee, of any of the documents for any purpose other
than that for which the same were prepared by or on behalf of the Client.
6 Fee
(State the agreed fee basis which shall be calculated according to one of the following.
a In accordance with the provisions of Agreement 4A, but note whether this includes or
excludes any time charges, supplementary scales and QS scale rewards.
b As a percentage of the initial contract sum or final account value (excluding the value
of any finishes of a fitting out character, eg carpets).
c As a lump sum.)
7.1 Payment by the Client to be based on salary cost and other properly attributable expenses.
8 Terms of Payment
8.1 The period(s) prior to the Client’s decision to fully proceed with the project.
a Time.
8.2.1 The full fee terms as described in 6. above to apply and be paid as follows:
(Statement of basis on which fee to be paid up to Certificate of Practical Completion (eg. equal
monthly/quarterly tranches, or fixed proportion of fee for differing work stages).)
8.2.2 Payment of fees in the manner prescribed, is conditional upon the Consultant adhering to his
commitments shown in the programme and Information Issue schedule (para.4.1.2).
8.2.3 5% of the Consultant’s fee to be paid immediately after issue of the Final Certificate.
9.1 If during the period(s) described in 8. (1) the sum(s) specified in that clause for work up to the
time at which suspension or abandonment occurs, or some other specified figure.
9.2 If during the stage described in 8.(2) the measure of payment will be by agreement, and have
regard to the provisions of the ACE Agreement 4A.
A project manager’s guide to development strategy Paper 0143 153
The consultant shall maintain professional indemnity insurance in the amount of not less than
£..for any one occurrence or series of occurrences arising out of any one event for a period of
..years from the date of practical completion of the building contract for the project, provided
always that such insurance is available at commercially reasonable rates. As and when it is
reasonably requested to do so by the Client, the Consultant shall produce for inspection,
documentary evidence that its professional indemnity insurance is being maintained.
(NB. This clause, and clause 4.2.2, may, if the Consultant wishes, be omitted from the final
form of this appointment, provided the Consultant confirms the same commitments to the
Client in a side letter at the date the appointment is signed.)
11 Consultant team
The Consultant acknowledges and agrees that the other members of the Consultant team shall
be;
Planning Supervisor:
Architect:
Quantity surveyor:
Structural Engineer:
Project Manager:
and such other or further appointments as the Client shall from time to time consider
necessary.
12 Signature
In Witness whereof this agreement was executed as a Deed and delivered on the above date.
Executed on behalf of
the Architect __________ __________
Witness
12. Insert new clause in the appointments of those consultants who are to be novated to the
contractor.
Novation
12.1 The Consultant acknowledges and agrees that this Agreement is to be novated so that ..(Client
name) is replaced as Client by the Contractor, when appointed. All other terms and conditions
of this Agreement shall continue in full force and effect. (Client name..) and (..Consultant
name.........) shall each be responsible to the other for obligations arising under this Agreement,
up to the time and date of Novation.
12.2 Subsequent to Novation it is agreed that the Consultant will inform (..Client name....):
If the Consultant considers any aspect of the detailed or construction design to conflict with
the drawings and specifications previously approved by (..Client name..) and/or a Development
Partners, or with Planning Permission or Building Regulation approval.
If the Consultant considers the building is not suited for Practical Completion at the time this
is sought by the Contractor.
If the Consultant considers the snagging or defects lists prepared by the Contractor are
insufficient.
A project manager’s guide to development strategy Paper 0143 155
Appendix B
B1 Developer/tenant outline specification (example)
APPENDIX B1
TREATY CENTRE, HOUNSLOW
7.05 Walls
Provide all enclosing walls to demise except
shopfront.
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By developer By tenant
7.07 Drainage
Provide cast iron drainage for two water closets Provide sanitary fittings and waste pipeworks.
and two wash hand basins.
Provide shop units 28-29, 31-32 with additional Where used provide ventilation pipework and
drainage for two water closets and two hand basins. connection for one wash hand basin connect to the
existing ventilation pipework at high level.
7.08 Doors
Provide doors between shop units and service Provide all internal doors, frames and ironmongery.
corridors. Doors will be solid, flush, fire resisting Provide locks, latches or other security fittings to
timber in softwood frames, painted finish, fitted Developer’s doors.
with butts, overhead closers and barrel bolts.
7.11 Postal services Provide a standard GPO letter box in the shopfront
incorporating the shop number agreed by the
Developer and the local authority together with
the Post Office, of which the tenant will be advised.
7.12 Sign to malls and service corridors Provide name on outside of entrance from service
Provide signs as follows: corridor. Provide all names, signs etc on shopfront.
Provide exit signs etc as required to comply with
7.12.1 Tenant’s nameboard at entrance to service Fire Officer’s requirement.
corridor
By developer By tenant
7.16 Escalators
Provide four escalators by Thyssen in two pairs,
up and down, to connect the three levels of the
atrium and provide access from the east car park to
ground and first floor levels.
7.17 Refuse
Provide a refuse container for each shop unit. Provide a refuse store to accommodate a refuse
Provide a refuse compaction system within the container measuring 1.27 ¥ 0.81 m.
first floor service area.
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APPENDIX B1
TREATY CENTRE, HOUNSLOW
By developer By tenant
Provide interface box for connection of sprinkler Provide a flow switch within the installation, after
alarm to central security office. the sealed termination valve.
For ventilation rates of General or Corridor Extract For shop units 22-25 inclusive: Provide ductwork,
see Schedule No 1 attached. extract fan grilles and louvres to draw air through
the shop and discharge to atmosphere at the rear of
the premises.
A project manager’s guide to development strategy Paper 0143 159
By developer By tenant
For shops with a closed shop front, air will enter Provide a deflector screen at above false ceiling
shop at false ceiling level, from mall false ceiling level and approx 2 m from shop front to deflect
void. incoming fresh air to a lower level to assist in
smoke ventilation of public areas.
Note: no service is given to shop unit outside Provide drainage from unit to discharge into the
enclosed malls. shop waste and drainage system.
8.10 Heating
No heating is provided to the shop units, except Provide electric heating as necessary.
for the tempered air supplied for ventilation
purposes. (See Condenser water loop above)
By developer By tenant
For capacity of electrical supplies being provided Provide connection cables between meter and
by SEB see Schedule 4 attached. tenant’s main switch.
Provide standby or emergency lighting for public Provide emergency illumination to shop unit.
areas to cater for potential mains supply failure.
Central alarm control will be at console type Tenants’ panels to be sited on tenants’ premises.
equipment located in the Security Room.
Alarms identification in zones, where each tenant Tenants’ panel to provide an automatic alarm
is designated as one zone. connection to the interface box.
Break glass call units and smoke detectors are Alarm warning to be by bells. Alert warning to be
provided in malls and service corridors and at by intermittent ringing. Evacuation warning to be
exits. by continuous ringing.
By developer By tenant
Provide an interface box located at each shop unit Provide an intruder sensor to all doors and
which will enable the developer’s security staff to entrances and connect these to interface box. If a
monitor the tenant’s system. reed relay system is used, a direct connection to
the developer’s system could be made without the
need for a tenant’s additional control unit.
8.16 Telephones
A telephone link will be provided between the
service deck and each shop unit excluding units
22, 23, 24 and 25 which have direct rear access
from the Douglas Road Service Yard.
Provide a network of empty cable trunking between Provide, by tenants’ application to British
the main frame and each tenancy, for use by the Telecom, a telephone service to each shop.
tenant.
APPENDIX B1
SCHEDULE NO 1
1 0.1 0.283
2 0.1 0.188
3 0.1 0.190
4 0.1 0.153
5 0.1 0.365
6 0.1 0.039
* 7 No Service
8 No Service
9 0.1 0.152
10 0.1 0.479
11 0.1 0.192
12 0.1 0.192
13 0.1 0.269
14 0.1 0.269
15 0.1 0.115
16 0.1 0.311
17 0.1 0.148
18 0.1 0.148
19 0.1 0.262
* 20 No Service
* 22 0.1 0.031
* 23 0.1 0.191
* 24 0.1 0.300
* 25 0.1 0.300
*Ventilation rates given are supply volumes available from the developer systems. Tenants are required
to provide complete extract systems to handle the rates stated.
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APPENDIX B1
SCHEDULE NO 1
26 0.1 0.642
27 0.1 0.323
28 0.1 0.347
29 0.1 0.347
30 0.1 0.229
31 0.1 0.292
32 0.1 0.601
33 0.1 0.601
34 0.1 0.950
35 * 0.1 0.950
36 0.1 0.330
37 0.1 0.290
38 0.1 0.290
39 0.1 0.498
40 0.1 0.640
*Restaurant – 3.6
*Ventilation rates given are supply volumes available from the developer systems. Tenants are required
to provide complete extract systems to handle the rates stated.
A project manager’s guide to development strategy Paper 0143 165
APPENDIX B1
SCHEDULE NO 2
1 0.677 26 1.313
2 0.51 27 0.748
3 0.514 28 0.791
4 0.448 29 0.791
5 0.823 30 0.582
6 0.246 31 0.968
7 * No service 32 0.984
8 * No service 33 0.925
9 0.446 34 1.048
10 1.024 35 2.988
11 0.517 36 0.62
12 0.517 37 0.602
13 0.652 38 0.602
14 0.652 39 1.058
15 0.380 40 1.31
16 0.727 Restaurant 2.76
17 0.438
18 0.438
19 0.641
20 * No service
22 0.232
23 0.516
24 0.708
25 0.708
APPENDIX B1
SCHEDULE NO 3
The following is for information only, being the tenant’s responsibility to select,
purchase and instal air conditioning units for shop heating and cooling.
The models listed do not indicate any preference by the landlord for any particular
manufacturer or supplier.
The units are sized for a typical shop only and the tenant should in all cases
contact the supplier and/or the manufacturer to ensure the correct unit is being
supplied for his needs.
APPENDIX B1
SCHEDULE NO 4
NB: Single phase and neutral supplies will be a declared voltage of 240 v 50 Hz.
Three phase and neutral supplies will be a declared voltage of 415v/240v 50 Hz.
The SEB incoming supplies will provide PME (ie TWC-S) earth terminals adjacent to the SEB
cutouts
The space requirements for the SEB metering equipment will be as follows:
A free space of 1000 mm minimum will be required in front of all SEB metering equipment for
maintenance and meter reading. All meter tails are to be provided by each tenant and these
should be PVC/PVC and a maximum length of 3000 mm.
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APPENDIX B1
SCHEDULE NO 5
Thorn EMI Protech Limited are the developer’s specialist installer for the Building Management
and Integrated Systems and to ensure compatibility with the developer’s systems the developer
strongly recommends tenants to appoint Thorn EMI Protech for the installation of electronics
monitoring and alarm systems within the units. For tenants’ guidance we have obtained the
following budgetary advice based on supply, installation, testing and commissioning in an average
sized unit, eg Shop Unit 12. However, we stress that tenants should obtain their own specific
quotation from Thorn EMI Protech as cost will vary according to individual requirements.
BUDGET COSTING
1 Complete fire alarm system £2 000
1 ´ Control unit
5 ´ Smoke detectors
3 ´ Manual callpoints
4 ´ Alarm bells
APPENDIX B2
TENANTS’ HANDBOOK
TREATY CENTRE – HOUNSLOW
CONTENTS
1.00 Introduction 1
1.01 Treaty centre 1
1.02 Parking and servicing 2
1.03 Entrances 2
1.04 Summary of finishes 2
1.05 Summary of M & E works 2
1.06 Centre logo 3
9.00 Insurances 37
10.00 List of statutory authorities 38
11.00 List of development team consultants 39/40
12.00 Floor plans & shop front recommendations 41/51
13.00 Diagram of M & E services to typical shop unit 52
14.00 Disclaimer clause 53
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APPENDIX B3
5 Annual rent: £
12 Additional details:
Sent by the Developer on ................ 199 to Messrs McKenna & Co with instructions to despatch
draft lease to the Tenant’s Solicitors.
A project manager’s guide to development strategy Paper 0143 175
APPENDIX B4
TREATY CENTRE, HOUNSLOW
SHOPFITTING PRO FORMA
Unit No:
Special instructions:
(date) ......................
Appendix C
C1 Project record
Appendix D:
Health & Safety:
Construction (Design and Management) Regulations 1994
D1 Project record
A561
Taylor Woodrow Property Company Limited
Regulation PM File
CLIENT’S AGENT
Name:
Address:
PLANNING SUPERVISOR
Name:
Address:
DESIGNERS
PRINCIPAL CONTRACTOR(S)
PROJECT RECORD
CONSTRUCTION (DESIGN & MANAGEMENT) REGULATIONS 1994
Regulation PM File
PROJECT
Revisions:
Subject
1 ___________________________________________________________
2 ___________________________________________________________
3 ___________________________________________________________
4 ___________________________________________________________
5 ___________________________________________________________
6 ___________________________________________________________
7 ___________________________________________________________
8 ___________________________________________________________
9 ___________________________________________________________
10 __________________________________________________________
APPENDIX D2 (continued)
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APPENDIX D2 (continued)
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APPENDIX D3 (continued)
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APPENDIX D3 (continued)
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APPENDIX D3 (continued)
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APPENDIX D4 (continued)
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APPENDIX D4 (continued)
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APPENDIX D4 (continued)