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KIER CONSTRUCTION LIMITED T/A KIER CONSTRUCTION-EASTERN Form 15.23.02

NEC3 SUBCONTRACT – OPTION A (ENGLAND)

NEC3.oA.EN.PM.150727 1 March 2016

KIER CONSTRUCTION LIMITED

Trading as Kier Construction-Eastern

NEC3 SUBCONTRACT – CAMBRIDGESHIRE

COUNTY COUNCIL FRAMEWORK - OPTION [A,

B, C, D, E]

Originator: [insert]

Approved for issue: [insert]

Sub-contract order no.: [insert]




Made the day of 20

Between:

KIER CONSTRUCTION LIMITED TRADING AS KIER CONSTRUCTION-EASTERN (Company No.

02099533) whose registered office is situated at Tempsford Hall, Sandy. Bedfordshire SG19 2BD

(“the Contractor”)

and

[INSERT NAME OF SUB-CONTRACTOR] (Company No. [insert relevant company no.]) whose

registered office is situated at [insert relevant registered office] (“the Subcontractor”)

for

[INSERT DESCRIPTION OF SUBCONTRACT WORKS] (“the subcontract works”)

as part of

[DESCRIPTION OF MAIN CONTRACT WORKS] (“the main contract works”)

at

[DESCRIPTION OF SITE]

Form of Subcontract:

The Subcontractor shall carry out the subcontract works in accordance with this Subcontract

Agreement which incorporates the conditions of subcontract for the NEC Engineering and

Construction Subcontract (2005) (with amendments June 2006 and September 2011) published by

the Institution of Civil Engineers (the conditions of subcontract) as amended in accordance with this

Subcontract Agreement and Schedules A to I hereto all of which shall be deemed amended mutatis

mutandis to correspond with the main contract.

Subcontract Order No: [INSERT SUBCONTRACT ORDER NO.]




THIS SUBCONTRACT is executed as a deed in duplicate and delivered on the date stated at the

beginning of this Subcontract.

EXECUTED as a DEED by the CONTRACTOR

EXECUTED as a DEED by )

[INSERT NAME OF SUBCONTRACTOR] )

acting by two directors or a director and the )

Company secretary: )

Director:

Director/Company Secretary:

OR

EXECUTED as a DEED by )

[INSERT NAME OF SUBCONTRACTOR] )

acting by a director in the presence of a witness )

Director:

Witness signature:

Witness name:

Witness address:

SIGNED as a Deed by

as attorney for Kier Construction Limited trading as Kier Construction – Eastern

as attorney for Kier Construction Limited trading as Kier Construction - Eastern

in the presence of:

Name:

Address: Building 3000 witness to signature of attorney Cambridge Research Park, Beach Drive, Waterbeach, Cambridge. CB25 9PD SIGNED as a Deed by

as attorney for Kier Construction Limited trading as Kier Construction – Eastern

as attorney for Kier Construction Limited trading as Kier Construction - Eastern

in the presence of:

Name:

Address: Building 3000 witness to signature of attorney Cambridge Research Park, Beach Drive, Waterbeach, Cambridge. CB25 9PD




LIST OF SCHEDULES Schedule Description

A. Background and Articles

B. Subcontract Data Part One and Part Two

C. Schedule of Amendments

D. Subcontract Works Information and Site Information

E. Project Specific Schedule of Amendments

F. Subcontract Payment Dates

G. Application for Payment

H. Default Payment Notice

I. Forms of warranty, bond and parent company guarantee




SCHEDULE A

Background The Contractor desires to have executed the subcontract works as described in the Subcontract Works Information; and the subcontract works are to be executed as part of the main contract works to be carried out by the Contractor for the Employer named in the Subcontract Data. Now it is hereby agreed as follows: Article 1: The Agreement 1.1 The Subcontractor will Provide the Subcontract Works in accordance with the conditions of

contract identified in the Subcontract Data. 1.2 The Contractor will pay the Subcontractor the amount due and carry out his duties in

accordance with the conditions of contract identified in the Subcontract Data. 1.3 The documents forming part of this Subcontract are this Subcontract Agreement and:-

the conditions of subcontract the Subcontract Data Part one and Part two found at Schedule B and the documents referred to therein the main contract Schedules A to I In the event of any discrepancy, inconsistency or divergence arising between the provisions of this Subcontract or any other document forming part of this Subcontract, Schedule C and Schedule E shall prevail. In the event there is any discrepancy, inconsistency or divergence between Schedule C and Schedule E, then Schedule E shall prevail.

1.4 The conditions of subcontract are the core clauses of the NEC Engineering and Construction

Subcontract (June 2005) (with amendments June 2006 and September 2011) and the clauses for Options indicated below:

Option [A,B,C,D,E] Priced Contract with activity schedule and dispute resolution Option W2, together with the following Secondary Options:

SECONDARY OPTION

X1

[applies/does not apply]

X2


X4


X5


X7


X12


X13


X15


X16





X17


X18 [applies/does not apply]




Y(UK)3 [applies/does not apply]

Option Z Not used.

all as amended by Schedule C and Schedule E.




SCHEDULE B

Subcontract Data

The Subcontract Data shall be replaced as follows:

Part one – Data provided by the Contractor

Statements given in all subcontracts

1 General The conditions of contract are those stated in Article 1.4.

The works in the main contract are

The subcontract works are

The Contractor is

Name: Kier Construction Limited t/a Kier Construction-Eastern.

Address: [insert address]

The Employer in the main contract is

Name:

Address:

The Project Manager in the main contract is

Name:

Address:

The Supervisor in the main contract is

Name:

Address:

The Adjudicator in this subcontract is

Name:

Address:

The main contract Adjudicator is

Name:

Address:

The Subcontract Works Information is in Schedule D.

The Site Information is in Schedule D.

The boundaries of the site are

The language of this subcontract is English




The law of the subcontract is the law of England and Wales

The period for reply is

for a reply by the Contractor weeks

For a reply by the Subcontractor weeks.

The Adjudicator nominating body is

The tribunal is

The following matters will be included in the Risk Register

3 Time The subcontract starting date is

The subcontract access dates are

Part of the Site Date

1

2

3

The Subcontractor submits revised programmes at intervals no longer

than

weeks.

4 Testing and Defects The defects date is ………… weeks after Completion of the whole of the subcontract works.

The defect correction period is ………… weeks except that

The defect correction period for is weeks

The defect correction period for is weeks.

5 Payment The currency of this subcontract is Sterling.

The assessment interval is monthly in accordance with the assessment dates in Schedule F.

The due date for payment is as set out in Schedule F.

The final date for payment is as set out in Schedule F.

The interest rate is two per cent (2%) per annum above the base rate of the Bank of England.

The specified person is Kier Construction Limited t/a Kier Construction-Eastern, [insert address].

The company secretary is the Company Secretary, Kier Construction Limited t/a Kier Construction-Eastern, Tempsford Hall, Sandy, Bedfordshire SG19 2BD.

The percentage referred to in clause 50.4 is: [words] per cent ([numbers]%).

6 Compensation events The place where weather is to be recorded is

The weather measurements to be recorded for each calendar month are

the cumulative rainfall (mm)

the number of days with rainfall more than 5 mm

the number of days with minimum air temperature less than 0 degrees Celsius




the number of days with snow lying at [•] hours GMT

and these measurements:

The weather measurements are supplied by

The weather data are the records of past weather measurements for

each calendar month which were recorded at

and which are available from

Where no recorded data are available

Assumed values for the ten year return weather data for each weather measurement for each calendar month are

8 Risks and insurance The minimum limit of indemnity for insurance in respect of loss of or damage to property (except the subcontract works, Plant and Materials and Equipment) and liability for bodily injury to or death of a person (not an employee of the Subcontractor) caused by activity in connection with this subcontract for any one event is

[twenty million pounds (£20,000,000) for any one occurrence or series of occurrences and unlimited in the period of insurance.]

The minimum limit of indemnity for insurance in respect of death of or bodily injury to employees of the Subcontractor arising out of and in the course of their employment in connection with this subcontract for any one event is

[ten million pounds (£10,000,000) for any one occurrence or series of occurrences and unlimited in the period of insurance.]

Optional statements If the tribunal is arbitration

The arbitration procedure is

The place where arbitration is to be held is

The person or organisation who will choose an arbitrator

if the Parties cannot agree a choice or

if the arbitration procedure does not state who selects an arbitrator is

The subcontract completion date for the whole of the subcontract works is

If the Contractor is not willing to take over the subcontract works before the Subcontract Completion Date




The Contractor is not willing to take over the subcontract works before the Subcontract Completion Date.

If no programme is identified in part two of the Subcontract Data

The Subcontractor is to submit a first programme for acceptance within weeks of the Subcontract Date.

If the Contractor has identified work which is to meet a stated condition by a key date

The key dates and conditions to be met are

condition to be met key date

1

2

3

If the Employer or Contractor is to provide Plant, Equipment and Materials

The insurance against loss of or damage to the subcontract works, Plant, Equipment and Materials is to include cover for Plant and Materials provided by the Employer or Contractor for an amount of

If the Employer or Contractor is to provide any of the insurances stated in the Insurance Table

The Employer or Contractor provides these insurances from the Insurance Table

1. Insurance against

Cover/indemnity is

The deductibles are


Cover/indemnity is

The deductibles are


Cover/indemnity is

The deductibles are

If additional insurances are to be provided

The Employer or Contractor provides these additional insurances


Cover/indemnity is

The deductibles are


Cover/indemnity is

The deductibles are





Cover/indemnity is

The deductibles are

The Subcontractor provides these additional insurances

1. Insurance against [All risks insurance]

Cover/indemnity is [Full value of the Subcontract Works]

2. Insurance against [Professional indemnity insurance]

Cover/indemnity is [£10,000,000 each and every claim]


Cover/indemnity is

If Option X1 is used

The proportions used to calculate the Price Adjustment Factor are

0. linked to the index for

0.

0.

0.

0.

0.

0. non-adjustable

1.00

The base date for indices is

The indices are those prepared by


The subcontract completion date for each section of the subcontract works is

section description subcontract completion date

1

2

3

4

If Options X5 and X7 are used together

Delay damages for each section of the subcontract works are

section description amount per day

1

2




3

4

Remainder of the subcontract works

If Option X7 is used (but not if Option X5 is also used)

Delay damages for Completion of the whole of the subcontract works

are per day.


The Client is

Name

Address

The Client’s objective is

The Partnering Information is in


The amount of the performance bond is


The retention free amount is

The retention percentage is %.


The amounts for low performance damages are

amount performance level

for

for

for

for


The Subcontractor's liability to the Contractor for indirect or

consequential loss is limited to




For any one event, the Subcontractor's liability to the Contractor for loss

of or damage to the Employer's or Contractor‘s property is limited to

The Subcontractor's liability for Defects due to his design which are not

listed on the Defects Certificate is limited to

The Subcontractor's total liability to the Contractor for all matters arising

under or in connection with this subcontract, other than the excluded

matters, is limited to

The end of liability date is years after Completion of

the whole of the subcontract works.

If Option X20 is used (but not if Option X12 is also used)

The incentive schedule for Key Performance Indicators is in

A report of performance against each Key Performance Indicator is

provided at intervals of months.

If Option Y(UK)3 is used

term person or organisation

None None




Part two – Data provided by the Subcontractor

Statements given in all The Subcontractor is

subcontracts Name

Address

The direct fee percentage is NOT USED %.

The sub-subcontracted fee percentage is NOT USED %.

The subcontract working areas are the Site and

The key people are

(1) Name

Job

Responsibilities

Qualifications

Experience

(2) Name

Job

Responsibilities

Qualifications

Experience

The following matters will be included in the Risk Register

Optional statements If the Subcontractor is to provide Subcontract Works Information for

his design

The Subcontract Works Information for the Subcontractor’s design is in

If a programme is to be identified in the Subcontract Data

The programme identified in the Subcontract Data is

If the Subcontractor is to decide the completion date for the whole of the subcontract works




The subcontract completion date for the whole of the subcontract works

is

The activity schedule is

The tendered total of the Prices is

Data for the Shorter The percentage for people overheads is NOT USED %.

Schedule of Cost The published list of Equipment is the last edition of the list published

Components by

The percentage for adjustment for Equipment in the published list is

% (state plus or minus).

The rates for other Equipment are

Equipment size or capacity rate

The hourly rates for Defined Cost of design outside the Working Areas

are

category of employee hourly rate

NOT USED NOT USED

The percentage for design overheads is NOT USED %.

The categories of design employees whose travelling expenses to and

from the Working Areas are included in Defined Cost are




SCHEDULE C

SCHEDULE OF AMENDMENTS

The core clauses and clauses for Options are amended and added to as follows:

Core clauses




Best value and efficiency reviews Z2

The following should be inserted as supplementary clauses to Clause 10

Z2.1 The following should be inserted as new Clause 10.2

“10.2 Best Value

The Subcontractor acknowledges that in accordance with Part 1 of the Local Government Act 1999 the Employer may from time to time review the works in pursuance of the Employer’s wide commitment to continuing service improvement, having regard to a combination of economy, efficiency and effectiveness and the Subcontractor shall: -

10.2.1 Participate in and fully co-operate with such reviews; and

10.2.2 Provide such assistance and information including, but without limitation, accounting and other record books, business plans, quality assurance, service records and service plans as may be reasonably required by the Contractor or Employer in relation to the works and/or the subcontract works.”


“10.3 Efficiency savings

The subcontractor acknowledges that from time to time the Employer will require the Contractor to submit detailed proposals to it relating to efficiency savings on the works or any part of them. At the Contractor’s request the Subcontractor submits detailed proposals to it relating to efficiency savings on the subcontract works or any part of them; subject to agreement on such proposals between the parties they shall be implemented by the Subcontractor to the Contractor’s reasonable satisfaction.”

General Z3 The following should be amendments to Clause 11

Z3.1 [Option C only] At 11.2(25), at the end:

“the value of any work done, goods or material supplied or services rendered with which the Contractor may for the time being be dissatisfied and for that purpose or for any other reason which to the Contractor may seem proper, the Contractor may delete, correct or modify any sum previously determined by the Contractor as due for payment to the Subcontractor.”

Z3.2 The following should be inserted as new definitions at clause 11.2:

“(34) A Funder is [insert definition from main contract]

(35) A Purchaser is [insert definition from main contract]

(36) A Tenant is [insert definition from main contract]”

(37) Terrorism means any act of any person acting on behalf of or in connection with any organization with activities directed towards the overthrowing or influencing of any government de jure or de facto by force or violence.

(38) Schedule of Cost Components means the schedule of cost




components in schedule D.

(39) An Application for Payment is an application under clause 50.1 in the form set out in Schedule G of this subcontract. (40) A Default Payment Notice is a written notice and copied to the specified person in the form set out at Schedule H or such other form as the parties may agree in writing. (42) A Payment Notice is the payment notice issued by the Contractor or the specified person pursuant to clause 50.5; (43) The final date for payment and the Subcontractor application dates (“the Specified Dates”) are set out in Schedule F. (44) A Notified Sum is the sum (including where the sum is zero) that the Contractor, the specified person or the Subcontractor (as applicable) notifies in accordance with this subcontract was due at the relevant due date for payment;”

Interpretation Z4 The following should be inserted as a new clause 12.1

Z4.1 Delete existing clause 12.1 and replace with:

“In this contract, except where the context shows otherwise:

words in the singular also mean in the plural and the other way around,

words in the masculine also mean in the feminine and neuter and the other way around, references to a document include any revision made to it in accordance with this contract,

references to a statute or statutory instrument include any amendment or re-enactment of it from time to time and any subordinate legislation or code of practice made under it and

references to a standard include any current relevant standard that replaces it”.

Freedom of Information Z5


Z5.1 The following should be inserted as new Clause 13.10:

“13.10 The Subcontractor acknowledges that:

13.10.1 the Employer is obliged to comply with the provisions of Section 100 of the Local Government Act 1972 and Section 1(1) of the Freedom of Information Act 2000 (the "Information Acts"), meaning that any person has a right to request information including information relating to the provisions of this subcontract (the "Information"), from the Employer;

13.10.2 the Employer has a duty to communicate the Information to the individual making the request; and

13.10.3 the Subcontractor co-operates with the Contractor and the Employer in complying with the Employer’s obligations under the Information Acts, but shall not disclose any Information to any individual under the provisions of the Information Acts without first obtaining the prior written consent of the Contractor.”




Z5.2

The following should be inserted as new Clause 13.11:

“13.11 The Subcontractor acknowledges that the Employer and the Contractor are to take account of the Code of Practice on the Discharge of the Functions of Public Authorities under Part 1 of the Freedom of Information Act 2000 made pursuant to Section 45 of the Act and assists the Contractor and the Employer in discharging their obligations under the Act.”

Providing the works outside the contract period Z6



“20.2 The Contractor may instruct the Subcontractor to carry out works, including mobilisation, before the subcontract starting date. The Defined Cost which the Subcontractor has paid plus the Fee for these works is included in the Contractor’s first assessment of the amount due to the Subcontractor.


“20.3 The Contractor may instruct the Subcontractor to carry out works, including demobilisation, after the end of the contract period. The Defined Cost which the Subcontractor has paid plus the Fee for these works is included in the Contractor’s assessments of the amount due to the Subcontractor.”

Design Z7 The following should be inserted as supplementary to Clause 21

Z7.1 The following should be inserted before the full stop in Clause 21.1

“and in the provision of his design exercises all the reasonable skill, care and attention as it is reasonable to expect of a suitably qualified and experienced designer of the appropriate design discipline designing works for projects of a similar scope, purpose, size and complexity to the works.”

Equal opportunities Z8.0



“24.3.1 Before commencing the subcontract works, and in connection with the performance of the subcontract works, the Subcontractor shall:

24.3.1.1 Adopt a policy as an employer to comply with its statutory obligations under the Race Relations Act 1976 or any amendment or re-enactment thereof and any relevant regulations and, accordingly, will not treat one group of people less favourably than others because of their colour, race, nationality or ethnic or national origin in relation to decisions to recruit, train or promote employees.

24.3.1.2 Adopt a policy to comply with the Employer’s and the Contractor’s general statutory duties under section 71 of the Race Relations Act 1976 as amended by the Race Relations (Amendment) Act 2000 and any relevant regulations, to have due regard to the need:

24.3.1.2.1 to eliminate unlawful racial discrimination; and

24.3.1.2.2 to promote equality of opportunity and good relations between




persons of different racial groups;

and shall provide such evidence of the existence and application of such policy as the Contractor requests.

24.3.1.3 Adopt a policy to comply with the provisions of the Sex Discrimination Act 1975 and the codes formulated under it, the Equal Pay Act 1970, the Disability Discrimination Act 1995 and the Manpower Services Commission's Code of Good Practice on Employment of Disabled People.

24.3.1.4 Observe as far as possible the Commission for Racial Equality’s Code of Practice which came into effect on 31st May 2002, which gives guidance in relation to the performance of the duties under section 71(1) and (2) of the Race Relations Act 1976 as amended by the Race Relations (Amendment) Act 2000.

24.3.1.5 Set out its policy on race relations:

24.3.1.5.1 in instructions to those concerned with recruitment, training and promotion.

24.3.1.5.2 in documents available to employees, recognised trade unions or other representative groups of employees.

24.3.1.5.3 in recruitment advertisements or other literature.

and shall provide such evidence of the instructions, documents, recruitment advertisements or other literature as the Contractor requests.

24.3.1.6 Where it is not subject to English law, comply with this clause 24.3 so far as possible, including any legislation and Codes of Practice in force in its own country of the same or equivalent nature as the legislation and Codes of Practice referred to in this clause 24.3.

24.3.1.7 Require any Subsubcontractor employed by it under a sub-contract of any part of the subcontract works to comply with the requirements of this clause 24.3, as if the Subsubcontractor was the Subcontractor and the Subcontractor was the Contractor.

24.3.1.8 Provide such information and documentation as the Contractor may require enabling monitoring by the Contractor of compliance by the Subcontractor with this clause 24.3.

24.3.2 Failure by the Subcontractor to comply with the requirements of this Clause Z24 will constitute a material breach of the Subcontractor’s obligations.”

Provision of information during and at the end of the contract Z9.0






“24.4 The Subcontractor acknowledges that the Employer has obligations to third parties to provide information concerning the proper performance of its functions and these obligations require the supply of information to those third parties. By way of example, during the subcontract, the Employer is likely to have to respond to inquiries, both written and verbal, concerning the works, from various government agencies. e.g. the Department of Transport, The Home Office, Her Majesty’s Treasury, the Health and Safety Executive, from democratically elected representatives of the public (for example, Members of Parliament, Members of European Parliament and councillors) from bodies which regulate its affairs (for example, external auditors, the Audit Commission, the Equal Opportunities Commission, Her Majesty’s Inspectors and the Commission for Racial Equality, and under the provision of a Citizens Charter Mark or BS EN ISO 9000 accreditation) and from other groupings with a legitimate interest in the Employer’s affairs (for example, the press, tenant groups and members of the public).”


“24.5 The Subcontractor acknowledges the Contractor’s obligation under clause Z27.2 of the main contract and if requested to do so by the Contractor, the Subcontractor provides to the Contractor any and all relevant information relating to the subcontract works reasonably required by the Contractor to enable it to comply with its obligations under clause Z27.3 of the main contract. The information required shall be sufficient to enable the Employer to meet its legal obligations and to obtain the best value for money reasonably obtainable in a tendering exercise. For the avoidance of doubt, this obligation shall extend to all workforce information necessary to enable the Employer to comply with its duties under the Transfer of Undertakings (Protection of Employment) Regulations 1981 as amended.”


“24.6 Such information pursuant to Clause Z7 above shall be provided at no cost to the Contractor or Employer.”

Human Rights Act 1998 Z10.0



“24.7 The Subcontractor is not to do or permit or cause to be done any act or thing or omission in connection with this subcontract which would either cause or give proper grounds for action to be brought against the Contractor or the Employer under Section 7 of the Human Rights Act 1998 or any amendment or re-enactment of that Act or give grounds for a person to rely upon such act or thing or omission on the part of the Subcontractor in his defence in any proceedings brought against a third party by the Contractor or the Employer.”

Recruitment of ex-offenders Z11.0



“24.8.1 The Subcontractor shall comply with the Employer’s and Contractor’s policies in relation to recruitment of ex-offenders and disclosures under the Police Act 1997 and the Serious Organised




Crime and Police Act 2005.

24.8.2 Without prejudice to the generality of the foregoing, the

Subcontractor shall either register with the Criminal Records

Bureau (CRB) or any relevant successor organisation or make use of the Employer’s or another organisations umbrella registration for the purposes of securing disclosures from applicants who will be in regular contact with children or vulnerable adults.”

24.8.3 The works will normally be contained within a separate and fenced compound under the Contractor’s control. As such, there is normally no need to CRB check each operative, as they will not come into regular contact with children or vulnerable adults. However, it is normal for some key personnel to visit existing occupied buildings on a regular basis, both during construction and after completion. In these circumstances CRB checks for the relevant operatives will be required. Copies of all CRB certificates must be made available to the Contractor before relevant personnel enter existing occupied buildings.

24.8.4 At pre-contract meetings these conditions should be discussed and CRB certificates requested. The management of the subcontract in terms of expected visits to the school should be discussed with the Contractor and the end user and agreement made as to any personnel that require CRB checks. This would normally be personnel that would visit occupied premises on a regular and prolonged basis. A process for occasional ad-hoc visits to the occupied school by un-checked Subcontractors staff should also be agreed, i.e. use of schools existing security, supervision and signing–in procedures.”

The Subcontractors Main Responsibilities Z12

The following should be amendments to Clauses 24 and 26


“24.9 The Contractor will operate site Quality Control Procedures. The Subcontractor shall co-operate with the Contractor in the implementation of his checks to verify and record compliance with the subcontract for both off-site and on-site work including the provision of documentation as necessary.”

Z12.2 The following amendments should be made to Clause 26:

Delete clause 26.2 and replace with the following:

“26.2 The Subcontractor submits to the Contractor for acceptance:

the name of each proposed Subsubcontractor and subsubconsultant, and

details of the extent of the work that it is proposed to subsubcontract and

the proposed contract data for the subsubcontract.”

Z12.3 The following amendments should be made to Clause 26:

Delete clause 26.3 and replace with the following:




1 Delete if not applicable

2 Delete if applicable.

“26.3 The Subcontractor does not appoint a proposed

Subsubcontractor on the proposed subcontract conditions until the Contractor has accepted them. A reason for not accepting them would be:

they will not allow the Subcontractor to Provide the Subcontract Works,

they do not include a statement that the parties to the subcontract shall act in a spirit of mutual trust and co-operation,

or

the procedures and requirements in the Subcontract Works Information for the appointment of a Subsubcontractor have not been complied with.”


1.1 “26.5 Notwithstanding clause 93.6, the Subcontractor is only authorized to carry out the subcontract works, including design, procurement, off-site prefabrication and work on site to the value of £[AMOUNT], and such sum shall be the Contractor’s maximum liability whether in contract, tort, under statute or otherwise.”


“26.6 The Subcontractor must inform the Contractor when this amount is likely to be expended as under no circumstances will the Subcontractor be paid further amounts unless instructed accordingly, in writing, by the Contractor.”

Z12.7 The following should be inserted as new Clause 26.7:1

“26.7 Notwithstanding the date of this subcontract:

26.7.1 all subcontract works carried out prior to the date of the subcontract pursuant to letter(s) of authority given by the Contractor to the Subcontractor dated [ ] and [ ] (called “the Authority”) are deemed to be carried out under this subcontract; and

26.7.2 all and any payments made and/or to be made by the Contractor to the Subcontractor, if any, pursuant to the Authority are deemed to be payments on account of the Defined Cost or such other sum(s) as may become payable by the Contractor to the Subcontractor under the subcontract.”

Z12.8 The following should be inserted as new Clause 27A:

“27A.1 The Subcontractor may be required by the Contractor to provide collateral warranties to [the Employer/a Purchaser/a Tenant/a Funder/[IDENTIFY ANY OTHER RELEVANT BENEFICIARIES]

2 in relation to the subcontract

works in the form attached at Appendix I and:

27A.1.2 the Subcontractor shall, within 14 days from receipt of a notice from the Contractor that identifies the




beneficiary and requires execution of such a collateral warranty, execute and deliver the warranty to the Contractor as he may direct;

27A.1.3 such warranty shall be executed as a deed.”

Quality management System Z13.0


Z13.1 The following should be inserted as new Clause 27.5.1:

“27.5.1 The Subcontractor operates a quality management system for Providing the Subcontract Works.”


“27.5.2 The Subcontractor provides the Contractor, within the period stated in the Contract Data, with a quality policy statement and a quality plan for acceptance.”

Health & safety Z14.0 The following should be inserted as supplementary clauses to Clause 27

Z14.1 “27.6.1 The Subcontractor must comply at all times with all of the requirements and obligations imposed by the Construction (Design and Management) Regulations 2015, the Health and Safety at Work etc. Act 1974, the regulations made under the 1974 Act including but not limited to the Management of Health and Safety at Work Regulations 1999, and all other health, safety and welfare requirements applicable to the subcontract works subject of this subcontract.”


“27.6.2 Product data sheets giving details of any hazards associated with products used in providing subcontract works under this subcontract must be supplied on request to the Contractor.”


“27.6.3 The Subcontractor acknowledges that the Contractor’s health and safety policy together with specific risk assessments (or method statements incorporating risk

assessment or safe working procedures as the case may be)

(“Contract Safe Working Arrangements‟) form part of the main contract and the Subcontractor complies therewith at all times when carrying out this subcontract.”


“27.6.4 Whilst on premises controlled by the Employer, the Subcontractor is to ensure that his employees, Subsubcontractors and agents comply with the lawful requirements of the Contractor and the Employer, including the Contractor’s requirement to monitor the Subcontractor’s health and safety periodically. The Subcontractor also ensures that his employees, Subsubcontractors and agents observe any local arrangements for fire, health, safety, welfare, hygiene and security.”


“27.6.5 The Subcontractor is to ensure that a suitably competent person is responsible for health and safety matters as required by law, for the duration of the subcontract.”


“27.6.6 The Subcontractor is to report all serious accidents and incidents




(including those reportable to the Enforcing Authority under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995) that occur as a result of carrying out of the subcontract to his employees, sub contractors, agents, or members of the public, to the Contractor.”


“27.6.7 The Subcontractor acknowledges that the Employer is empowered to suspend the provision of the main works and that the Contractor is empowered to suspend the provision of the subcontract works if the Subcontractor fails to comply with any legal requirements stated in the above clauses or within any contract specifications or fails to comply with the Contract Safe Working Arrangements referred to in Clause Z27.6.3”


“27.6.8 The Subcontractor is not to resume provision of the subcontract works until the Contractor is satisfied that the non-compliance has been rectified. In respect of any such period of suspension, the provisions for default as set out in this subcontract shall apply.”


“27.6.9 The Contractor will not incur any liability under the subcontract

as the result of any action taken by the Contractor to suspend provision of the subcontract works in the event of non-compliance by the Subcontractor and such suspension is not a compensation event.”

Observance of Statutory Requirement Z15.0



“27.7 The Subcontractor is to comply with all statutory and other provisions to be observed and performed in connection with the subcontract works and indemnifies the Contractor against any claims made as a result of any failure in compliance.”

Complaints procedure Z16.0



“27.8 The Subcontractor shall: -

27.8.1 establish the complaints procedure

27.8.2 operate it from the beginning of the Contract Period.”

Z16.2 The following should be inserted as new supplementary

Clause 27.9:

“27.9 The Contractor is committed to improving safety performance and standards in the industry as part of the Major Contractors Group (MCG) initiative as described in the MCG Health and Safety Charter published in April 2001. The Contractor requires that a Competent and Qualified Workforce is employed to undertake the subcontract works in line with the criteria set out In the MCG initiative.

The Subcontractor shall ensure that all of its site operatives and/or its subsubcontractors (including any agency labour




employed by it) possess and produces to the Contractor prior to such operatives/subsubcontractors or agency labour commencing work on site, a CSCS card or equivalent documentary evidence from any of the alternative schemes accepted by the MCG.

The Subcontractors site operatives and/or its subsubcontractors (including any agency labour employed by it) will be audited for compliance and any labour found not be carrying the appropriate card will be asked to leave site by the Contractor.

The Subcontractor shall have a continuing obligation to carry out and complete the subcontract works in accordance with the subcontract, notwithstanding the exclusion of members of his workforce for breach of his obligation to demonstrate that they have the appropriate skills cards.”

Z16.3 The following should be inserted as new supplementary Clause 27.10:

“27.10 The Subcontractor shall indemnify the Contractor and keep the Contractor indemnified against all liabilities, demands, losses, damages, claims, expenses and interest made against , suffered or incurred by the Contractor where the subcontract works include systems and any other plant and equipment containing hardware, software or firmware (including embedded logic systems, chips or components), should they fall to process with accuracy or process with interruption information containing dates or periods of time including, but not limited to any confusion and/or ambiguity as to century or leap years. Any claim under this indemnity shall, at the Contractor’s option, also constitute and be treated as a breach by the Subcontractor of the terms of this subcontract.”


“27.11 Whenever the Contractor is required by the terms of the main contract to give any return, account, notice or other information to the Project Manager or the Supervisor or to the Employer, the Subcontractor shall in relation to the subcontract works give a similar return, account or notice or such other information in writing to the Contractor as will enable the Contractor to comply with such terms of the main contract and shall do so in sufficient time to enable the Contractor to comply with such terms punctually. Provided always that the Subcontractor shall be excused any non-compliance with this sub-clause for so long as he neither knew nor ought to have known of the Contractor’s need of any such return, account, notice or information from him.”


“27.12 Fire Prevention on Construction Sites” - a Code of Practice published by the Construction Confederation and The Fire Protection Association applies irrespective of value of the works and the Subcontractor shall observe the recommendations contained therein. In carrying out the subcontract works the Subcontractor shall observe, conform and comply fully with the requirements of the project fire precautions plan, including the induction of his own employees, his subsubcontractors particularly in regard to the procedures stated therein. The Subcontractor, his subsubcontractors shall promote a “fire safe working environment” at all times.”

Value engineering Z17 The following should be inserted as new supplementary Clause 28





“28.1 The Subcontractor may submit to the Contractor for acceptance written proposals to change the Subcontract Works Information which, if implemented will in the Subcontractor’s opinion:

28.1.1 enhance the quality or durability of the subcontract works;

or

28.1.2 improve the efficiency of carrying out the subcontract works; or

28.1.3 reduce the cost to the Employer of maintaining the works.”


“28.2 The Subcontractor includes with his proposals:

28.2.1 the value of any savings that will arise

28.2.2 the effect if any on the Accepted Programme

28.2.3 the forecast Actual Cost of implementing the change.” Z17.3 The following should be inserted as new Clause 28.3:

“28.3 If the Contractor accepts the Subcontractor’s proposal the Contractor gives an instruction to the Subcontractor within [28] days which changes the Subcontract Works Information.”

Time Z18 The following should be inserted as new supplementary Clauses 30, 31 and 34


“30.2 Completion of the subcontract works will be deemed to have taken place on the date of Completion of the works as certified by the Project Manager under clause 30.2 of the main contract.”


“31.5 The Subcontractor acknowledges that the Accepted Programme reflects the entire agreements made between the Subcontractor and the Contractor in relation to the execution of the subcontract works and that all other references to commencement, sequence of the subcontract works, periods for carrying out and completion, periods for notice and periods for off site work in relation to the programme are deleted.”


“31.6 For the purposes of the programme only, reference to “weeks” means all weeks except the Winter and Easter (Spring) Holiday weeks as defined in the Construction Industry Joint Council Working Rule Agreement.”


“34.2 In the event that the Contractor shall have reasonable cause to believe that the Subcontractor is unwilling, unable or unlikely to complete the subcontract works within the time required by the subcontract, then the Contractor may, without prejudice to his other powers and remedies but after consultation with the Subcontractor:




34.2.1 omit the whole or part of the subcontract works as remain outstanding, in which case the value of the omitted work shall be deducted from the Price for Work Done to Date and the Prices and the Subcontractor shall not be entitled to any further payment until Completion of the subcontract works nor shall the Subcontractor be entitled to any adjustment to the Prices associated therewith; and/or

34.2.2 augment the Subcontractor’s labour force, design team or other resources, in which case the Subcontractor shall reimburse the Contractor for the actual costs incurred by the Contractor in connection with any such augmentation.”

Payment Z19.0 The following should be amendments to Clause 50

Z19 Delete clause 50.1 and substitute: “Following substantial commencement of the Subcontract Works, the Subcontractor, no later than seven (7) days prior to the next Subcontract application date (“the Specified Date” as set out in Schedule F) and thereafter no later than seven (7) days prior to subsequent Subcontract application dates, submits to the Contractor in the form of the Application for Payment (Schedule G) a written statement of the value of all work properly done under the Subcontract and if allowable under the main contract all materials delivered to the Site and incorporated into the Subcontract Works and the value of off-site materials for incorporation in the Subcontract Works at the date of such statement.”

Z19.1a The following should be amendments to Clause 50.2:

[Options A and B only]

In clause 50.2 after “retained from the Subcontractor” insert new bullet points:

“less the value of any work done, goods or materials supplied or services rendered with which the Contractor may for the time being be dissatisfied and for that purpose or for any other reason which to the Contractor may seem proper, the Contractor may delete, correct or modify any sum previously determined by the Contractor as due for payment to the Subcontractor.

Less such sum that the Contractor is or may be liable to pay to the Construction Industry Training Board in respect of the Subcontractor’s employment under this subcontract (when the subcontract works or part thereof are deemed by the Construction Industry Training Board to be labour only).”

Z19.2 The following should be amendments to Clause 50.4:

Delete and substitute:

“Assessing the amount due It is a condition precedent to payment of the percentage set out in the Sub-Contract Data Part one (including any release of retention and payments following the final assessment) becoming due to the Subcontractor that the Subcontractor shall have provided to the Contractor:

a) the subcontract, duly executed and delivered by the Subcontractor;




b) the Subcontractor warranty to the Employer; and/or any Subcontractor warranties to a Funder and/or a Purchaser and/or a Tenant and/or Other Beneficiary in the form annexed at Schedule I.

c) a ten per cent (10%) Subcontractor performance bond (Option X13) given by a surety acceptable to the Contractor and/or a Subcontractor parent company guarantee (Option X4) (both in the forms set out in Schedule I, if required);

d) all/any sub-sub-consultant/subcontractor warranties to the Contractor from any designer(s) contributing to the design of the Subcontract Works;

e) all/any sub-sub-contractor warranties (substantially in the same format as the Sub-Contractor warranty to the Employer) to be provided in respect of significant sub-sub-contractors, sub-sub-contractors who carry out design or performance specified works and/or sub-sub-contractors who supply and/or install significant materials, products, and/or equipment;

f) manufacturer warranties and/or guarantees to be provided from suppliers of significant materials, products and/or equipment, if any; and

g) documentary evidence that the insurances required under the Subcontract are being maintained at the date of payment as requested in accordance with clause 85.1.

Z19.2a Delete clause 50.5 and substitute: “Subject to the Subcontractor having provided all information required by clause 50.4 or as otherwise required by this sub-contract, the Contractor or the specified person no later than five (5) days after the relevant due date for payment following the Subcontract application date, issues a Payment Notice to the Subcontractor specifying the Notified Sum and the basis on which the Notified Sum has been calculated and such Notified Sum shall be calculated by the Contractor or the specified person in accordance with this subcontract.”

Z19.2b Insert a new clause 50.6: “Where the Contractor or the specified person does not issue a Payment Notice in accordance with clause 50.5, the Subcontractor may at any time following the five (5) day period after the relevant due date for payment give the Contractor a Default Payment Notice in the terms attached at Schedule H.”


“ A Default Payment Notice is deemed to be compliant with the provisions of this subcontract and section 110B of the Act only if: (a) the Subcontractor specifies in the Default Payment Notice the

Notified Sum provided that the parties agree that the Notified Sum shall not exceed the amount set out in the relevant Application for Payment;




(b) the Subcontractor specifies the basis on which the Notified Sum has

been calculated; (c) the Subcontractor demonstrates that such Notified Sum has been

calculated by the Subcontractor in accordance with this subcontract; and

(d) the Default Payment Notice is served on the company secretary in

the form set out at Schedule H.”

[Option C only]

“50.7 The Price for Work Done to Date and Prices have not been prepared adopting the Standard Method of Measurement or New Method of Measurement. Each item is deemed inclusive of all ancillary and/or associated work necessary for the proper installation and integration of the subcontract works into the main contract works. Prices are deemed inclusive of all small quantities, narrow widths, cutting, fitting and all other labours which would otherwise be measured or described.”

[Option B only]

1.2 “50. The Bills of Quantities and/or schedules of rates are to be used in the revision of the Prices the Subcontractor acknowledges that the Bills of Quantities have not been prepared adopting the Standard Method of Measurement or New Method of Measurement. Each item is deemed inclusive of all ancillary and/or associated work necessary for the proper installation and integration of the subcontract works into the main contract works. Rates are deemed inclusive of all small quantities, narrow widths, cuttings, fitting and all other labours which would otherwise be measured or described.”


“50.8 For the avoidance of doubt the Price for Work Done to Date and Prices includes for:

50.8.1 Everything ancillary to and necessary for the proper execution of the subcontract works, including anything that is reasonably and obviously implied and/or inferred as necessary for the safe and satisfactory installation and operation of the subcontract works;

50.8.2 Obtaining approval from and the cost of compliance with, any Local Authority Regulation or Bye-Law, Act of Parliament or Statutory Undertakings requirements relating to the subcontract works or with any other party whose system the subcontract works are, or will be connected to either directly or indirectly (including the cost of all connections thereto);

50.8.3 Due allowance for all work necessary to accommodate any differences between the main contract tolerances (as defined in the main contract documents) and the tolerances in the subcontract works; and

50.8.4 Where the subcontract works include design, the integration of




that design with the main contract works and/or design of others.

50.8.5 Upon receipt of the Default Payment Notice (Schedule H), where the Contractor considers (acting reasonably) that the Default Payment Notice does not comply with the requirements of Clause 50.7, the Contractor, as soon as reasonably practicable and in any event no later than five (5) days after receipt of the Default Payment Notice, gives written notice (including its reasons) to the Subcontractor and the Subcontractor re-issues the Default Payment Notice to take into account such reasons. The provisions of this clause 50.8 are repeated until the Contractor considers (acting reasonably) or it is determined that the Default Payment Notice complies with the requirements of clause 50.7.”


“Where the Contractor does not issue any written notice in accordance with clause 50.8, the Contractor is deemed to accept that the relevant Default Payment Notice (which shall be the latest relevant Default Payment Notice issued under clauses 50.6 or 50.7) given by the Subcontractor was compliant.”


“The Contractor corrects any wrongly assessed amount due in a later Payment Notice and any overpayments made to the Subcontractor shall be retained from sums due to the Subcontractor or recoverable from the Subcontractor as a debt.”

Z19.7 Delete and substitute: clause 50.11:

“All sums payable by or to the Contractor or the Subcontractor are exclusive of Value Added Tax (“VAT”). Where VAT is chargeable on such sums, the payer pays, upon production of a valid VAT invoice by the payee, such VAT in addition to such sums.”


If the Contractor is a “contractor” for the purposes of the Construction Industry Scheme (“CIS”) under the Finance Act 2004, or if at any time the Contractor becomes such a “contractor”, the obligation of the Contractor to make any payment under this contract is subject to the provisions of the CIS.”

[Option A only]

“50.12 The Prices are a lump sum price without quantities for the subcontract works as shown in the Activity Schedule, as described or inferred in the Subcontract Works Information and/or other tender documents.”


[Option A only]

“50.13 The Prices will not be adjusted, other than in respect of written instruction issued by the Contractor varying the Subcontract Woks Information, in which case the Contractor will value the instructions having regard to the breakdown of Prices.”





[Option A only]

“50.14 Bills of quantities, and/or schedules of rates (whether or not quantified), prepared by the Contractor or the Subcontractor in connection with the subcontract, shall have effect only in relation to the revision of the Prices in accordance with a revision of the Activity Schedule, and these shall in no way be construed as amending the provisions of the subcontract relating to the original Prices. To the extent that the bills of quantities and/or schedules of rates are to be used in the revision of the Prices in accordance with a revision of the Activity Schedule the Subcontractor acknowledges that the bills of quantities have not been prepared adopting the Standard Method of Measurement or New Method of Measurement. Each item is deemed inclusive of all ancillary and/or associated work necessary for the proper installation and integration of the subcontract works into the main contract works. Rates are deemed inclusive of all small quantities, narrow widths, cuttings, fitting and all other labours which would otherwise be measured or described.”


“50.15 The Contractor reserves the right to audit any open book costs and any adjustments in cost found will be adjusted in the amount due to the Subcontractor at the next monthly assessment.”

Z19.12 The following should be amendments to Clause 51.1 and 51.2

Delete from clause 51.1: “The Contractor certifies a payment within two (2) weeks of each assessment date.” Delete from clause 51.2: “Each certified payment is made within four (4) weeks of the assessment date or, if a different period is stated in the Subcontract Data, within the period stated.”


“51.5 Without prejudice to any other rights and remedies which the Contractor may possess, if in the bona fide opinion of the Contractor:

51.5.1 there has been any breach of and/or failure on the part of the Subcontractor to observe the provisions of this subcontract or any other contract with the Contractor; and

51.5.2 such breach and/or failure has caused or is likely to cause the Contractor to incur loss, damage, expense or cost,

then, pending final determination of the matter in arbitration or litigation, or an adjudicator’s decision or agreement between the Contractor and the Subcontractor, the Subcontractor shall forthwith pay or allow the Contractor such sum as the Contractor shall bona fide estimate in writing from time to time to be the amount of such loss, damage, expense or cost.

51.5.3 The date on which a payment (as set out in Schedule F) becomes due is set out in the payment provisions in the Subcontract Data Part One.





“The relevant final date for payment is, subject to the Subcontractor having provided all information required by Clause 50.4, the final date for payment following the relevant Subcontract application date provided that where the Subcontractor gives a compliant Default Payment Notice (Schedule H), the final date for payment is for all purposes to be regarded as postponed by the same number of days as the number of days after the relevant due date for payment that a compliant Default Payment Notice is given.

Whenever under this subcontract any sum of money shall be recoverable from or payable by the Subcontractor to the Contractor it may be deducted from the amount of any sum or sums then due, or, which at any time thereafter may become due to the Subcontractor under this subcontract or any other contract with the Contractor.”


“Not later than one (1) working day before the relevant final date for payment, the Contractor or the specified person may give a written notice to the Subcontractor of its intention to pay less than the Notified Sum and such notice shall set out the sum that the Contractor or the specified person considers to be due on the date such notice is served and the basis on which that sum is calculated. For the avoidance of doubt, the Contractor gives such written notice even where the Notified Sum may be zero (0).”


“51.8 The Subcontractor shall provide to the Contractor its unique taxpayer’s reference number (if any) and company registration number. Upon verification by the Contractor with HM Revenue & Customs as to whether the Subcontractor is registered for gross payment or payment under deduction, the Contractor shall make payments:

(a) gross i.e. without any deduction, where the Subcontractor is registered as “Gross Payment subcontractor” (as defined in the Construction Industry Scheme);

(b) with the standard rate of deduction (currently 20 per cent), where the Subcontractor is registered as “Net Payment subcontractor” or “subcontractor paid under deduction” (as defined in the Construction Industry Scheme);

(c) with the higher rate of deduction (currently 30 per cent), where the Subcontractor is not registered.”


“51.9 Notwithstanding anything to the contrary elsewhere in this subcontract if the Employer is insolvent, the Contractor shall not be obliged to make any further payment to the Subcontractor of any amount which is due or may become due to the Subcontractor unless the Contractor has received payment in respect thereof from the Employer and then only to the extent of such receipt. For the purposes of this clause insolvent means the appointment of an Administrator or an Administrative Receiver or a Receiver or Manager of its property under Chapter I of Part III of that Act, or the appointment of a Receiver under Chapter II of that Part (Scotland only), on the passing of a Resolution for Voluntary




Winding-up without a Declaration of Solvency under Section 89 of that Act, or on the making of a Winding-up Order under Part IV or V of that Act. A partnership becomes insolvent on the making of a Winding-up Order against it under any provision of the Insolvency Act 1986 as applied by an Order under Section 420 of that Act, or when sequestration is awarded on the estate of the Partnership under Section 12 of the Bankruptcy (Scotland) Act 1985 or the Partnership grants a trust deed for its creditors. An individual becomes insolvent on the making of a Bankruptcy Order against him under Part IX of the Insolvency Act 1986, or on the sequestration of his estate under the Bankruptcy (Scotland) Act 1985 or when he grants a trust deed for his creditors. A company, partnership or individual shall also be treated as insolvent on the occurrence of any event corresponding to those specified above under the law of Northern Ireland or of a country outside the United Kingdom.”


“51.10 No payment made by the Contractor shall be construed as confirmation or acceptance by the Contractor that the subcontract works have been carried out in accordance with the terms and conditions of the subcontract.”


“51.11 Provided always that if the Contractor shall have been required by the main contract to give to the Employer or to procure the Subcontractor to give to the Employer any undertaking as to the completion or maintenance of the subcontract works, the Subcontractor shall not be entitled to payment under this subcontract until he has given a like undertaking to the Contractor or has given the required undertaking to the Employer, as the case may be.”


“53.5 If the Contractor does not receive any application for payment from the Subcontractor after completion of the subcontract works, the Contractor shall prepare a statement of all adjustments to the final Price for Work Done to Date as the Contractor can make on the information in his possession and the Contractor shall send a copy of such statement to the Subcontractor.

If nothing in the statement sent by the Contractor to the Subcontractor is disputed in writing by the Subcontractor, giving grounds for so disputing, within one month of the submission of the statement to the Subcontractor, the final Price for Work Done to Date so adjusted shall be deemed to have taken into account all adjustments required by these conditions.”


“53.6 It is a condition precedent to final payment by the Contractor becoming due under this subcontract that the Subcontractor shall secure for the benefit of the Contractor collateral warranties and/or guarantees from certain of his subsubcontractors for materials and/or equipment and/or services provided in connection with the subcontract works, all as prescribed below:

.1 Subsubcontractor collateral warranties to be provided in




respect of significant Subsubcontracts and/or where the Subsubcontract includes design or performance specified works, in a form to be agreed by the Contractor.

.2 manufacturer’s warranties and/or guarantees are to be provided from suppliers of significant products and/or equipment.”


“53.7 It is a condition precedent to any payment by the Contractor becoming due under this subcontract, that the Subcontractor shall within 14 days from the date of a written request from the Contractor execute as a deed and provide to the Contractor the following:

.1 parent company guarantee (X4); and/or

.2 10% performance bond (X13); and/or

.3 collateral warranties to the Contractor from the designers contributing to the design of the subcontract works; and/or

.4 collateral warranty to the Employer; and/or

.5 collateral warranty to the Funder; and/or

.6 collateral warranty to the Purchaser; and/or

.7 collateral warranty to the Tenant.”

Z19.22a The following should be inserted as a new clause 53.8:

“53.8.1 No later than twenty five (25) working days prior to the next assessment date following Completion of the subcontract works, the Subcontractor submits to the Contractor its final Application for Payment (Schedule G) and supporting documentation showing in detail the value in accordance with the Subcontract together with all further sums which the Subcontractor considers due to him under the terms and conditions of the Subcontract (including the release to the Subcontractor of half of the retention). 53.8.2 Should the Subcontractor fail to submit such final Application for Payment within the time period stipulated in clause 53.1, the Contractor no later than twenty five (25) working days after such time period determines the final amount due to the Subcontractor under this Subcontract and notifies the Subcontractor accordingly and such notice is deemed a valid final Payment Notice. Notwithstanding any other provision of this Subcontract the Contractor shall not be liable to the Subcontractor for any sum in excess of such final Payment Notice. 53.8.3 The Subcontractor does not re-submit or duplicate its final Application for Payment. Any re-submission of the final Application for Payment shall not constitute a valid application. 53.8.4 Notwithstanding anything to the contrary elsewhere in this Subcontract if the Employer (or any other party responsible for making payments under the main contract) is or becomes insolvent within the meaning of section 113(2) to 113(5) of the Housing Grants, Construction and Regeneration Act 1996 or any amendment or re-enactment thereof then the Contractor shall not be obliged to make any further payment to the




Subcontractor of any amount which is due or may become due to the Subcontractor (unless the Contractor has received payment in respect thereof from the Employer and then only to the extent of such receipt), or where the Subcontractor is insolvent.”

Z19.23 The following should be inserted as new Clause 54A:

[Options A and B only]

1.3 “54A Particular items of attendance which the Contractor will provide to the Subcontractor free of charge are stated within the Subcontract Works Information.”

Z19.24 Insert a new clause 55.2: “The Contractor may at any time, without notice to the Subcontractor, set off any liability of the Subcontractor and/or any member of its Group to the Contractor and/or any member of its Group against any liability of the Contractor to the Sub-Contractor, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under this Subcontract or otherwise including, but not limited to, under any other agreement between the Parties and/or members of their respective Groups. Any exercise by the Contractor of its rights under this clause shall not limit or affect any other rights or remedies available to it under this Subcontract or otherwise.”

Gratuities Z20.0 The following should be inserted as new supplementary Clause 76

Z20.1 The following should be inserted as Clause 76:

“76.1 The Subcontractor shall not, whether himself, or by any other person, solicit any gratuity, tip or any other form of money taking or reward, collection, or charge for any part of the works/ service other than bona fide charges approved by the Contractor.”

No partnership Z22.0

The following should be inserted as new supplementary clause 56

Z22.1 The following should be inserted as Clause 56.1:

“56.1 Nothing in this subcontract shall constitute or be deemed to constitute a partnership, agency or joint venture between the parties or constitute or be deemed to constitute either party the agent of the other for any purpose whatsoever and neither party shall have any authority or power to bind the other or to contract in the name of or create a liability against the other.”

Recovery of sums due from the Subcontractor Z23.0

The following should be inserted as new supplementary Clause 57

Z23.1 The following should be inserted as Clause 57.1:

“57.1 When, under the subcontract, any sum of money is recoverable from or payable by the Subcontractor such sum may be deducted from or reduced by the amount of any sum or sums then due or which at any time after may become due to the Subcontractor under this subcontract or any other contract with the Contractor.”

Compensation events Z24.0

The following should be amendments to Clause 60


Remove Clauses 60.1 (6),(8) and (9)




Z24.2 Remove Clauses 60.1 (19)

and replace with

“60.1(19)

An event which

Stops the Subcontractor completing the subcontract works or

Stops the Subcontractor completing the subcontract works by the date shown on the Accepted Programme,

And which

Neither the Contractor, Employer, Project Manager nor Subcontractor could prevent,

An experienced member of the subcontractor would have judged at the Subcontract Date to have such a small chance of occurring it would have been unreasonable to have allowed for it,

Is not one of the compensation events stated in this subcontract.”


In clause 60.1 add to end:

“(20) Any other compensation event listed in the Subcontract Works Information.”


In clause 63.1 at the end add:

“Effects on Defined Cost are assessed separately for

each section of the Schedule of the Cost Components, and

each Subsubcontractor for work that is subsubcontracted.

The Subcontractor shows how each of these effects is built up in each quotation for a compensation event.”

Title Z25.0 The following should be inserted as supplementary clauses to Clauses 70


“70.3 The Contractor or Employer (as applicable) retains ownership of the “Intellectual Property Rights” (being rights including copyright, patents, patent rights, registered and unregistered design rights, trade marks, service marks and all other intellectual property rights wherever enforceable) in all documents produced by the Contractor or Employer (as applicable) in connection with or arising out of the subcontract. The Subcontractor may obtain or make at his own expense any further copies of such documentation required solely for use by him in performing the subcontract.”


“70.4 The Intellectual Property Rights in any and all documents, drawings, designs, data or other material in any format created by




the Subcontractor in the course or and for the purpose of performing the services, shall belong to the Contractor. The Subcontractor agrees that he shall execute or cause to be executed (by his staff as necessary) all deeds, documents and acts required to vest such Intellectual Property Rights in the Contractor.”


“70.5 The Subcontractor shall not, during the subcontract period or any time thereafter, make use for his own purposes of, or disclose to any person (except as may be required by law) any information contained in any material provided to him by the Employer or Contractor pursuant to the Subcontract or the Main Contract or prepared by the Contractor or Employer pursuant to the Subcontract or the Main Contract, all of which information shall be deemed to be confidential.”


“70.6 The Subcontractor and the Subcontractor’s personnel shall regard as confidential (and shall not disclose to any person other than a person authorised by the Contractor) any information acquired by the Subcontractor or the Subcontractor’s staff whilst employed on

the Employer’s premises or otherwise in connection with this

subcontract.” Z25.5 The following should be inserted as Clause 70.7:

“70.7 The Subcontractor shall not advertise the contractual relationship with the Contractor or the contractual relationship between the Contractor and the Employer or use the Employer’s or Contractor’s name or logo in any printed material without the Contractor’s

express written permission.”


“70.8 The Subcontractor shall not (in connection with the performance of the subcontract works) use, manufacture, supply or deliver any process, article, matter or thing, the use, manufacture, supply, or delivery of which would be an infringement of any Intellectual Property Rights of any third party.”


“70.9 Property in all Subcontractor’s Equipment and temporary works owned by or vested in the Subcontractor shall when on Site, vest in the Contractor”.


“70.10 Where it is provided by the main contract that the property in any Subcontractor’s goods, materials or things whatsoever shall in certain events vest in the Employer or revest in the Contractor, then in so far as such Subcontractor’s goods, materials or things are to be provided by the Subcontractor in connection with the subcontract works, the property therein shall pass from the Subcontractor to the Contractor immediately before it is due to vest in the Employer in pursuance of the main contract.”

Confidentiality Z26 The following should be inserted as a new supplementary Clause 74





“74.1 The Subcontractor has the right to use the Works Information or any other material provided by the Contractor only to Provide the Subcontract Works and subject to the limitations set out in the Subcontract Works Information.”


“74.2 The Subcontractor provides information to the Contractor set out in the Subcontract Works Information.”


“74.3 The Subcontractor does not disclose to Others information obtained in connection with the subcontract works except:

74.3.1 to the extent required by the law of the subcontract, or

74.3.2 When necessary to carry out its duties under this subcontract.”

Publicity Z27 The following should be inserted as a new supplementary Clause 75


“75.1 The Subcontractor may publicise the subcontract works only with the Contractor’s written agreement.”

Intellectual property rights Z28.0



“76.1 Any and all Intellectual Property Rights developed under this subcontract or arising from Providing the Subcontract Works by the Subcontractor belong to the Contractor and the Subcontractor agrees that he will execute or cause to be executed (by his staff if necessary) all deeds, documents and acts required to vest such Intellectual Property Rights in the Contractor.”

Data Protection Acts Z29.0



“77.1 The Subcontractor ensures all staff are aware of the requirements of the Data Protection Acts 1984 and 1998 (and the Employer’s policy and practices with regard to Data Protection) and of the consequences of breaches of the Data Protection Act.”


“77.2 Without limiting the generality of its obligations under this Clause 77 the Subcontractor ensures in respect of all information which constitutes personal information as defined the Data Protection Acts that:

77.2.1 the Subcontractor’s use to or access is within the limits of the Employer’s registration;

7.2.2 where collected, maintain, manipulated or transferred or otherwise used by the Subcontractor, those acts are only in accordance with the requirements of the Data Protection Act and Principles and also the Employer’s policies and practices as to Data Protection, which the Contractor notifies to the Subcontractor in writing from time to time;




77.2.3 where maintained by the Subcontractor it is made available, at no charge to the Contractor and the Employer, in response to any subject access request;

77.2.4 it is kept secure.”


“77.3 The Subcontractor ensures, without prejudice to the provisions of this clause, that all its agents, employees and Subsubcontractors engaged on work in connection with the subcontract shall comply with the terms of this clause.”


77.4 The Subcontractor ensures its staff and subsubcontractors are aware of and observe the requirements of the Data Protection Acts (and the Employer’s policy and practices with regard to Data Protection) and of the consequences of breaches of the Data Protection Acts.

Risks & Insurance Z30.0

The following should be amendments to Clause 80


Delete sub-bullet 3 in bullet 1 and replace with:

“a fault of the Employer (other than a fault in his design) or a fault of the Contractor or a fault in the Contractor’s design (other than such design for which the Subcontractor has responsibility under the subcontract).”


“80.2 The Contractor shall, prior to the commencement of the subcontract works ensure that there is in place a policy of insurance including the Employer and Contractor as composite insured and under which the insurers have no right of recourse against any person named as an insured for physical loss or damage to work executed and materials within the Working Areas or to an existing structure and/or its contents caused by Terrorism.”


At the end of clause 84.2 add:

“or such later date as is stated in the Subcontract Data.‟

Assistance in legal proceedings Z31.0



“88.1 If requested to do so by the Contractor, the Subcontractor provides to the Contractor any relevant information (including but not limited to documentation and statements from staff) in connection with any legal inquiry, arbitration or court proceedings in which the Employer or Contractor may become involved, or any relevant disciplinary hearing internal to the Employer or Contractor, arising out of the provision of the subcontract works or the Subcontractor’s presence on the Employer’s premises, and if required the Subcontractor shall give evidence in such inquiries, arbitrations, proceedings or hearings





“88.2 For the avoidance of doubt this Clause 88 will not oblige the Subcontractor to compromise its legal position in relation to any insurances entered into by the Subcontractor pursuant to the subcontract or in respect of any criminal enquiries or proceedings.”


“88.3 Where the Subcontractor or any of his staff become aware of any incident, accident or other matter which may give rise to a claim or legal proceedings in respect of the provision or failure to Provide the Subcontract Works, he shall notify the Contractor immediately in writing. Such notification is to include all relevant information to enable the Contractor to investigate the matter fully.


“88.4 Such information provided or assistance rendered pursuant to the obligation in this Clause 88, in whatever form, shall be at no cost to the Contractor or the Employer.

88.4.1 The Subcontractor acknowledges that the Commissioner for Local Administration (the Local Government Ombudsman) may investigate the performance of the main contract by the Contractor which may included investigating the performance of the subcontract by the Subcontractor and any act or omission connection with the subcontract by the Subcontractor, its agents, employees or Subsubcontractors

88.4. The Subcontractor shall at all times and without notice allow access to the Local Government Ombudsman or to any investigating officer appointed by the Local Government Ombudsman, in connection with any complaint to the Local Government Ombudsman relating to the subcontract. This shall

extend to the Subcontractor’s premises and to all

documentation and information relating to the subcontract, to which the Subcontractor has access and to the Subcontractor‟s agents, employees and Subsubcontractors.

88.4.3 The Subcontractor shall promptly make any payments resulting from any investigation, formal report or any local settlement suggested by the Local Government Ombudsman, to any complainant or to the Contractor, as the Contractor may direct.”

Termination Z32.0 The following should be amendments to Clauses 90 and 91

Z32.1 In the table at Clause 90.2, in the Reasons stated for each Terminating

Party, delete “R17 or R20” and replace with: R17, R20, R22, or R23 Z32.2

The following should be inserted as new Clause 90.6:

“90.6 After termination the Parties continue to comply with the constraints and obligations in this subcontract on the use of material or information obtained in connection with the subcontract works.”


“91.8 The Contractor may terminate the subcontract if changes to the extent of works under the main contract substantially change




the viability of the main contract (R22).

Availability of Funds to Construct the Project

There is no guarantee as to the level of funds that will be made available to deliver the works. If sufficient funds are not available to meet the Objectives then the Contractor may terminate the subcontract if the main contract is terminated for this reason. (R22)

Procedures on termination Z33.0

The following should be additions to Clause 92

Z33.1 The following amendments should be made to Clause 92.2:

In procedure P2 after “assign the benefit of” insert “and/or enter into a novation of (in such format as the Contractor may reasonably require)”.

Z33.2 The following should be inserted as new clause 92.3

“92.3 In the event that the subcontract is terminated at any time prior to

or at the end of the subcontract’s completion, the Subcontractor is required to handover to the Contractor within 10 weeks of the date of the termination all the information listed below relating to the subcontract and arising from the subcontract and any other documentation related to the project in the possession of the Subcontractor.

All documents to be supplied as hard copies (3 number) and electronic copies, where available, (3 copies of all CDs to be supplied) using Microsoft Office 2003 or latest version of AutoCAD as appropriate. The use of any other format to be agreed in advance with the Project Manager and the Contractor.

92.3.1 copies of all reports, documents and brochures prepared during the subcontract which were submitted to and approved by the Contractor.

92.3.2 copies and computer files of all drawings prepared during the subcontract that were submitted to the Contractor.

92.3.3 copies of all correspondence and records of consultations and meetings relating to the subcontract, including copies of correspondence with the various public and private bodies and interests.

92.3.4 all work relating to the subcontract including all preparation work and any other information whether or not complete.

92.3.5 all information relating to liaison with the public including copies of all correspondence.

92.3.6 details of all computer systems and programs used together with all relevant tapes, disks and printouts in connection with the work described at (93.3.1) to (93.3.5) above.

92.3.7 all documents issued to the Subcontractor on appointment including all background information.




The information will be catalogued and indexed by the Subcontractor in a form agreed by the Contractor. Certain data may be stored electronically and will be in a format capable of transfer to readily available equipment in general use.

The Subcontractor will attend meetings for a period of up to 4 months after termination if necessary to explain details of the work carried out during the subcontract and to answer queries arising from the information provided.

If required the Subcontractor shall accompany the Contractor on a visit to the site of the scheme to relate the physical features of the site to the information being handed over to the Contractor.”

Waiver Z34.0 The following should be inserted as new supplementary Clause 94


“94.1 Failure by the Contractor at any time to enforce the provisions of the subcontract or to require performance by the Subcontractor of any of the provisions of the s u b contract shall not be construed as a waiver of any such provision and shall not affect the validity of the whole or any part of the su bcontract or the right of the Contractor to enforce any provision in accordance with its terms.”

Severability Z35.0 The following should be inserted as new supplementary Clause 95


“95.1 If any provision of this subcontract is held by a Court or other competent authority to be unlawful, void or unenforceable it shall be deemed to be deleted from this subcontract and shall be of no force and effect and this subcontract shall remain in full force and effect as if such provision had not originally been contained in this subcontract. In the event of any such deletion, the Parties shall negotiate in good faith in order to agree the terms of a mutually acceptable and satisfactory alternative provision in place of the provision so deleted.”

Cartels, bribery and corruption Z36.0



“96.1 The Subcontractor shall not be a party to a cartel involving or including any commercial or other arrangement between individuals and/or corporations which is intended or organised so as to share or control marketing arrangements or prices (whether or not that arrangement is a concealed or hidden commercial venture) and in the event of the Subcontractor being a party to such a cartel the Contractor shall be entitled to terminate the subcontract and to recover the amount of any losses, damages, charges or costs which it may directly or indirectly sustain by reason of such termination.”


“96.2 The Contractor shall be entitled to terminate the subcontract and recover from the Subcontractor the amount of any loss or damage resulting from such termination if:

96.2.1 the Subcontractor shall have offered or given or agreed to give to any person any gift, consideration, inducement or reward of any kind for doing or not doing any action in relation to the subcontract or any other contract with the Contractor or the




3 [WHERE THERE ARE THIRD PARTY AGREEMENTS INCLUDE OPTION X21 AND LIST IN

SUB CONTRACT DATA]

Employer; or

96.2.2 he like acts shall have been done by any Subcontractor employed by the Subcontractor or acting on its behalf (whether with or without the knowledge of the Subcontractor ); or

96.2.3 if in relation to any contract or agreement with the Contractor or the Employer the Subcontractor or any sub-consultant employed by him or acting on its behalf shall:

96.2.3.1 have committed an offence under the Bribery Act 2010: or

96.2.3.2 have given any fee or reward the receipt of which is an offence under Section 117 (2) of the Local Government Act 1972.”

Third Party Agreements Z37.0

The following should be inserted as supplementary clauses to Secondary Option Clauses X21

3

Z37.1 “X21.1 The Third Party Agreements are those identified as such in the Subcontract Data.

X21.2 Copies of the whole or parts of the Third Party Agreements (excluding matters related to price and payment) have been or will be provided to the Subcontractor.

X21.3 The Subcontractor Provides the Subcontract Works in conformity with the Contractor’s obligations under the Third Party Agreements including those relating to provision of information and the giving of notice and permitting inspections.

X21.4 The Subcontractor performs his obligations under this sub contract in such manner and at such times so that no act, omission or default of the Subcontractor shall constitute, cause or contribute to any breach by the Contractor of any of his obligations under the Third Party Agreements.”

ZW2 OPTION W2 – DISPUTE RESOLUTION

ZW2.1 Delete W2.1, and insert:

“(1) The Contractor and the Subcontractor shall attempt in good faith to resolve any dispute or difference through negotiations between the respective Chairmen of the Contractor and the Subcontractor (or such other Director as either of the said Chairmen may nominate, being a person who is not directly involved with the day to day performance of the subcontract) who shall jointly attempt to resolve such dispute or difference within a reasonable time of the matter being so referred.”

“(2) if the dispute or difference is not resolved promptly through negotiation aforesaid the Contractor and the Subcontractor shall, with the help of the Centre for Dispute Resolution (CEDR) In England seek to resolve it through an Alternative Dispute Resolution (ADR) mediation procedure.”

“(3) All matters and Information placed before a mediator pursuant to this clause shall be deemed to be submitted to him without prejudice and the Mediator shall not be called as witness by the parties or anyone claiming through them in connection with any




adjudication, arbitration or other legal proceedings arising out of or connected with any matter so referred to him.”

“(4) The Contractor and the Subcontractor each has the right to refer any dispute under the subcontract for adjudication and either party may at any time give notice in writing (hereinafter called the “Notice of Adjudication”) to the other at any time of his intention to refer the dispute to adjudication. Any such adjudication shall be in accordance with the Scheme for Construction Contracts (England and Wales) Regulations 1998 as amended.

“(5) In this Option, time periods stated in days exclude Christmas Day, Good Friday and bank holidays.”

ZW2.2 Delete W2,2 (1), (3) and insert:

“(3) The Adjudicator may take the initiative in ascertaining the facts and the law.”

ZW2.3 Insert new clauses:

“(13) If, when a dispute in connection with the main contract (hereinafter called a “Main Contract Dispute”) is referred to an Adjudicator under the main contract, and the Contractor is of the opinion that the Main Contract Dispute has any connection with the subcontract works, then the Contractor may by notice in writing require that the Subcontractor shall as soon as is practicable provide such information and attend such meetings in connection with the Main Contract Dispute as the Contractor may request.”

“(14) If a Main Contract Dispute has been referred to adjudication under the Main Contract and the Contractor is of the opinion that the Main Contract Dispute has any connection with a dispute which is to be (but has not yet been) referred for adjudication under the (hereinafter called a “Connected Dispute”), the Contractor may by notice in writing require that the Connected Dispute be referred to the Adjudicator to whom the Main Contract Dispute has been referred.”

ZX4 PARENT COMPANY GUARANTEE

Delete last sentence of X4.1 and add new clause X4.2:

“The Subcontractor’s parent shall execute the guarantee as a deed within 14 days from the date of a written request from the Contractor.”

ZX13 PERFORMANCE BOND

On line 1 before “performance bond” insert “10%”. Delete last sentence of X13.1 and add new clause X13.2:

“The Subcontractor’s bondsman shall execute the bond as a deed within 14 days from the date of a written request from the Contractor.”




SCHEDULE D

SUBCONTRACT WORKS INFORMATION AND SITE INFORMATION




SCHEDULE E

PROJECT SPECIFIC SCHEDULE OF AMENDMENTS

The core clauses and clauses for Options (as amended by Schedule C above) are further amended by this Schedule E. Subject to the exceptions below, the clauses in this Schedule E shall take precedence over the clauses in Schedule C in the event of any ambiguity or inconsistency.

[Insert Clauses from Main Contract]




SCHEDULE F

SUBCONTRACT PAYMENT DATES

(1) The Specified Dates are those dates [specified in the Schedule of Specified Dates (each being a specified Date) contained or referred to in Schedule D] or [set out below] or as otherwise agreed.

(2) The due date is [53] days after the Specified Date.

(3) The final date for payment is [7] days after the due date.




SCHEDULE G

APPLICATION FOR PAYMENT

(Application for Payment proforma to be produced on the Subcontractor’s letterhead)

(Insert Date of Submission)

For the attention of [•]

Kier Construction Limited

t/a Kier Construction-Limited

[INSERT ADDRESS]

Application for Payment

Subcontract Order Number: S-_________ / _____

We submit in accordance with the above subcontract our application for payment for the subcontract works

provided and properly completed up to the [application date/milestone].

We accept that this application for payment is not and shall be deemed not to be a payment notice for the

purposes of the subcontract or section 110A of the Housing Grants, Construction and Regeneration Act

1996.

To assist the subcontract payment transaction process, we summarise below the following information:

Works provided up to: [Insert date]

Application for payment (cumulative value) £ excluding VAT

Material/plant (this application) * Only required if your

payments are subject to tax deductions

£

Yours faithfully

On behalf of the Subcontractor




SCHEDULE H

DEFAULT PAYMENT NOTICE

(Default Payment Notice pro forma to be produced on the Subcontractor’s letterhead)

(Insert date of submission)

For the attention of [•]


t/a Kier Construction-Eastern

[INSERT ADDRESS]

and

For the attention of the company secretary


t/a Kier Construction-Eastern

Tempsford Hall

Sandy

Bedfordshire

SG19 2BD

Default Payment Notice

Subcontract order number: S-_________ / _____

We submit in accordance with the above subcontract this default payment notice for the purposes of the

subcontract as neither you nor the specified person has issued a payment notice not later than five (5)

days after the relevant due date for payment (i.e. by [•]) in accordance with the subcontract.

We acknowledge that this Default Payment Notice shall be deemed to be compliant with the provisions of

the subcontract and section 110B of the Act only if:

we specify the Notified Sum (including where such Notified Sum may be zero) and we agree that

the Notified Sum shall not exceed the amount set out in the relevant application for payment;

the basis on which the Notified Sum has been calculated;

we demonstrate that such Notified Sum has been calculated by us in accordance with the

pricing documents (as defined in the subcontract), or by reference to the price (subcontract), as

the case may require; and

it is served on the company secretary (as defined in the subcontract) in accordance with the

relevant provisions of the subcontract.

To assist you we provide you with the following information:




Relevant application for payment: [Insert details]

Due date for payment: [Insert date]

Last day for serving the payment notice: [Insert date]

Works provided up to: [Insert date]

Amount set out in the relevant application for

payment:

£[Insert details] excluding VAT

Notified Sum: £[Insert details] excluding VAT

Basis on which the notified sum has been calculated: [Insert details]

Details of relevant pricing documents or reference to

the relevant part of the price (as the case may be:

[Insert details and attach copies of all

relevant information]

We accept that if we do not provide you with all necessary relevant information, this default payment notice

shall not be deemed to be compliant and that you (acting reasonably) will be entitled under the subcontract

to set out reasons why you consider that this default payment notice is not compliant. We will address

those reasons and will reissue this default payment notice. We also accept that this procedure may be

repeated until we issue a compliant default payment notice.

Yours faithfully

On behalf of the Subcontractor




SCHEDULE I

FORMS OF WARRANTY, BOND AND PARENT COMPANY GUARANTEE

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