landscape construction and maintenance works

8/13/2019 Landscape Construction and Maintenance Works

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Colin Moore P2C Landscape Constn and Maint Works - 22 October 20081

Chartered Landscape Architect

Tel: 020 8840 2963

Colin Moore

10 Haslemere Avenue London W13 9UJ

LANDSCAPE CONSTRUCTION

AND MAINTENANCE

WORKS

IMPLEMENTATION

P2C


INTRODUCTION TO CONTRACTS

Contracts generally

We all enter into contracts and/or perform contracts almost daily

Contracts needed in the construction/landscape industry because clients cant do it all

themselves Consultants Appointment contracts, contracts for construction, contracts for

maintenance

Parties to a contract need to know what they have to do and what the other will do and whatwill happen if things dont go entirely as planned

Standard Forms of Contract have been developed for different types of contract to cover

standard circumstances and resolve common issues which arise and are developed by therelevant industry to be fair to the parties

Imagine you are having your house built, what questions would you want answered? When

and how much do I have to pay? When will construction start and finish? If it is late I will

have to pay to stay in a hotel can this be recovered from the contractor? What if thescaffolding falls down and kills a pedestrian passing the site (an eminent young plastic

surgeon to the celebs) as landowner will it cost me? I dont know what to do will someone

administer the contract for me? What happens if a crack appears just after the contractorhas finished? Etc.

Now imagine you are the contractor and ask questions, and then the contract administrator

and ask questions. The contract conditions address such issues. You need to understand

the concepts behind the strange words (eg Liquidated Damages)


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INTRODUCTION TO CONTRACTS (cont)

Essential requirements for a valid contract Offer and acceptance (agreement)

Consideration (exchange, eg services for money)

Intent (to have a contract)

Purpose legal (cant contract to rob a bank)

Parties have capacity to enter contract (not under age, drunk, drugged, mentally

ill, etc)

Consent (no coercion, misrepresentation of facts, fraud)

Achievable

Formality if necessary (eg contracts for the sale of land must be in writing)

Consultants Appointments

The Landscape Consultants Appointment and the NEC Professional Services

Contract are Standard Forms of Contract for consultants services, in the same

way that JCLI LWC is a Standard Form of Contract for landscape construction

works. Many similarities eg due to Third Parties Act and HGCRA


TYPES OF CONSTRUCTION/MAINTENANCE CONTRACTS (cont)

Construction and Maintenance Contracts

Within construction industry, many different types of contract for different

circumstances and types of work and many different organisations producing

Standard Forms of Contract to suit

Types of construction contract

Traditional

Measurement

Cost reimbursement

Management

Construction Management

Design and Build

Serial

Package Deal

Measured term


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TYPES OF CONSTRUCTION/MAINTENANCE CONTRACTS (cont)

Framework Agreements

PFI, PPP, DBFO etc

STANDARD FORMS OF CONTRACT

Standard Forms of Contract: JCT

Mainly used for building works by architects, surveyors etc. Latest Editions 2005 with 2007revision. Many different types:

Traditional: JCT SBC (big); JCT IC (intermediate), JCT MW (small)

Prime cost: JCT PCC

Management: JCT MC

Design and Build: JCT DB

Measured term: JCT MTC

Major Projects: JCT MP

JCT CE: Constructing Excellence Contract (part of a CE pack)

Homeowner contracts: JCT HOB and HOC

Associated JCT Practice Notes, Guides, Subcontracts etc and also RIBA (and RICS)documents associated with contracts (eg RIBA Contract Administration Forms)


STANDARD FORMS OF CONTRACT (cont)

Standard Forms of Contract: JCLI

Mainly used for landscape construction and maintenance works by landscape

architects, Latest Editions 2008

Based on JCT MW

JCLI LWC (landscape construction) and LMWC (landscape maintenance) also

LWCD and Practice Notes, Model Forms and other documents

Standard Forms of Contract: GC/Works

Mainly used for Government and Authority work, Not used much now.

GC/Works/1 for larger Government Contracts and GC/Works/2 Minor Works

Contract; (/3 M&E; /4 M&E Minor Works; /5 Consultants Appointment; /6Dayworks; /7 Measured Term; /8 Specialist Term; /9 Lump Sum Maintenance


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Standard Forms of Contract: ICE Mainly used for engineering works by engineers.

ICE 7th: Measurement Version.

ICE Term Version

ICE Target Cost Version

ICE Minor Works

ICE Design and Construct

ICE Ground Investigation

ICE Archaeological Investigation

ICE Partnering Addendum

Associated Practice Notes and Guides etc



Standard Forms of Contract: NEC

Can be used for any construction work. Suite of documents including

consultants appointment. Latest Edition 3 (NEC3). Use continually increasing.

Modern contract, collaborative, very different terminology.

NEC3 Engineering and Construction Contract (core clauses)

NEC3 ECC Option A: Priced Contract with activity schedule

NEC3 ECC Option B: Priced Contract with bills of quantities

NEC3 ECC Option C: Target Contract with activity schedule

NEC3 ECC Option D: Target Contract with bills of quantity

NEC3 ECC Option E: Cost reimbursable contract

NEC3 ECC Option F: Management Contract

NEC3 Engineering and Construction Subcontract

NEC3 Engineering and Construction Short Contract

NEC3 Engineering and Construction Short Subcontract


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Standard Forms of Contract: NEC (cont)

NEC3 Professional Services Contract

NEC3 Adjudicators Contract

NEC3 Term Service Contract

NEC3 Framework Contract

Standard Forms of Contract: Others

SBCC: Scottish Forms of Contract based on JCT Forms

ACA: Association Consultant Architects Project Partnering and Term Partneringcontracts and traditional form

CIOB: formerly Architects and Surveyors Institute: Main, Small, Minor and Minicontracts

BE: Collaborating for the Built Environment: Collaborative Contract

FIDIC: International Forms (based on ICE): and others ILAM (now ISPAL) Model Conditions for landscape maintenance works

developed for local authorities for CCT and where Employer is ContractAdministrator. Not a Standard Form of Contract


LANDSCAPE CONSTRUCTION WORKS

Soft landscape works fundamentally different from building/engineering works

Living materials (plants, soils, )

Seasons affect works

Weather affects works

Planting is the beginning not the end, practical completion is the start ofestablishment, growth and development to maturity

These give rise to particular problems for soft landscape construction contracts

Maintenance required after practical completion in order to establish plants,by same contractor as did planting in order to have plant guarantee, arectification/defects period alone is not adequate

Watering during establishment maintenance essential; provisions neededfor when restrictions on use of water apply.

Frost damage to plants, pre practical completion and during establishmentmaintenance

Recompense for loss of amenity if Contractor fails to complete on time or ifplants die?


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LANDSCAPE CONSTRUCTION WORKS (cont)

Seasons: missing planting in the right season may mean delaying planting

for 6 months (or a year for some plants) possibly a change in sequence of

doing work (and possibly cost implications)

Payment for works being done post practical completion must be possible

Instructing additional work or revisions to works post practical completion

must be possible

Defining the site and securing it is not always possible for landscape works

Partial possession of the works by the Employer needs to be possible

particularly when part of the works is complete but the rest has to be

delayed (eg due to seasons)

Doing construction work during the rectification/defects period must be

possible (eg planting bulbs in September)

Maintenance starts when plants are planted (grass sown/turf laid) so somemaintenance work is pre practical completion

Mechanism to not pay for work not done after practical completion



Soft landscape construction works which forms part of a building or engineeringproject implemented in one of two ways:

Sub-contract to the building/engineering contract

A separate direct contract between Employer and Landscape Contractor

There are three types of sub-contract:

Domestic sub-contracts

Named sub-contracts

Nominated sub-contract

Domestic sub-contracts:

The most common type of sub-contract

Arrangement entirely between the main contractor and the sub-contractor

and main contractor remains entirely responsible for undertaking the work

involved as if he were doing the work himself.

A sub-contract under a JCLI contract will be domestic


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The works concerned are fully detailed in the main contract tenderdocuments. The specification may require the contractor to sub-contractspecific works to a specific specialist contractor (this is not naming ornominating) or to one of a list of 3 specialist contractors (ditto) but it will stillbe a domestic sub-contract and the main contractor usually wants to usesomeone else.

Most Standard Forms of construction contract require the Contractor tosubmit details of proposed sub-contractors for comment by CA.

Considerable disadvantages for soft landscape works, quality usually lower,landscape works are subject to damage by others (landscape sub-contractor required to put it right but isnt paid to do so)

Domestic sub-contracts often cheaper than named or nominated sub-contracts and in each case main contractor adds his %. A separate contractfor soft landscape works will be cheaper than nominated or named sub-contract, but not necessarily cheaper than domestic sub-contract but should

be better quality

Standard Forms for domestic sub-contracts are produced to go with theStandard Forms for main contracts



Named sub-contracts

Specific to the JCT Intermediate Building Contract (JCT IC 05)

Either: the person you require to do the work is named in the specification,

but the work is included in the main contract tender to be priced by the main

contractor and the named sub-contract form of tender and agreement

(ICSub/NAM) incorporated in the tender documents (already completed by

consultant and by named person). Main contractor enters into sub-contract

with named person within 21 days of acceptance of tender. Named person

may have been selected by a tender process by consultants prior to main

contract tendering

Or: Instruction issued to main contractor requiring work covered by a

provisional sum in the contract documents to be expended by the work

being done by a named person ICSub/NAM filled out as above, main

contractor can object to named person, named person may have been

selected by tender process by consultants prior to instruction, ideal to agree

tender list with main contractor. In this case detail for soft landscape works

can be done later than in the first option.


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Employer also enters an agreement with the named sub-contractor

(ICSub/NAM/E). Conditions for named subcontract ICSub/NAM/C

Procedure simpler than nominated subcontracts were under JCT SBC, but

still complicated.

Nominated sub-contracts

Prior to JCT 80 nominated sub-contracts were common, subsequently

declined (main contractor could claim delay due to nominated sub-

contractor and escape liquidated damages)

Nominated sub-contracts no longer in JCT SBC since 2005 Edition.

(probably not in any other JCT contracts. Not in NEC)

Nominated sub-contracts are included in ICE 7th but no forms and not over

complicated but their use is discouraged by Engineers

Nominated sub-contracts now seem to be almost extinct.

Nominated sub-contracts were good for soft landscape works (art works),

better quality, detail prepared later, sub-contractor protected



Establishment maintenance under building/engineering contracts and sub-contracts:

Not advisable to include establishment maintenance as part of building/

engineering contract even if soft landscape work undertaken as named or

nominated subcontract. Although this is common practice.

Ideal if the establishment maintenance is undertaken as a separate JCLI

LMWC back-to-back using the same landscape contractor, but can be

difficult to arrange, needs full cooperation of building/engineering contractor

Separate direct contracts for soft landscape works:

Contract between landscape Contractor and Employer entirely separate

from the building/engineering contract. Also can be used for installation of

artworks or any other specialist work.

Use JCLI LWC (or LWCD) for landscape works, or for larger (or more

complex) works JCT IC, or other appropriate Form; and JCLI LMWC back-

to-back for establishment maintenance (do not include maintenance in the

construction contract)


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Consecutive: landscape contract commences after practical completion of

the building/engineering contract. Advantages, quick implementation,

usually no disruption or damage to landscape works; Disadvantages,

planting not complete at completion of building (but often not a problem),

interface between contractors (eg builder leaves holes for landscaper to fill

with topsoil but usually not a problem in practice)

Concurrent: two contractors with different contracts on the same site at the

same time. Most contracts allow for it, ensure information in specifications

and details of any attendance or other work at interface. Usually

considered a recipe for disaster but used all over the world; problems are

exaggerated by consultants (QSs, Project Managers)

Stand-alone landscape projects not associated with building/engineering projects.Landscape consultant usually lead consultant. Contracts for implementation:

If no soft landscape: use JCT contract, MW, IC, or SBC depending on sizeand complexity; ICE Minor Works or 7th; NEC Short or long Contracts;

GC/Works/2 (minor works) or GC/Works/1. Choice depends on your

experience, client requirements, QS/Project Manager if any.



Soft and hard landscape (or just soft): JCLI LWC (to about 250,000)

depending on size and complexity; JCT IC (to about 500,000); JCT SBC.

Note many consultants use the contracts for larger projects than these

values complexity is often a more significant issue. JCT IC and SBC may

need modifications to accommodate soft landscape (eg only paying for

works properly executed at practical completion rather than 97.5% of

contract value).

All cases: if there are small elements requiring contractor design use

appropriate contracts or versions of the contracts; if project is phased use

appropriate form (JCLI LWC and JCT MW dont have provisions for

phasing); ditto named sub-contractors or nominated sub-contractors Establishment maintenance: JCLI LMWC back-to-back with the

construction contract (whatever Standard Form is used). Do not include

establishment maintenance in the construction contract.

Always use latest editions and revisions of Standard Forms with appropriate

Amendments (always check pre-tender)


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Landscape Architects powers/authority:

When landscape work undertaken as sub-contract to building / engineering

contract: no power/authority under the contract, only advisory to Contract

Administrator, line of communication is LA CA Main Contractor

Landscape Sub-contractor; unless LA given specific powers under specific

contract clauses by CA in writing, copied to Main Contractor

Where LA is CA then only have the powers / authority given to CA by the

construction contract (which vary between the different Standard Forms

In both cases LA will have duties from his appointment agreement (contract)

with client

Terminology varies between different Standard Forms. Eg. Contract

Administrator (JCT/JCLI) Architect (JCT) Landscape Architect (JCLI)

Supervising Officer Superintending Officer (GC/Wks) Engineer (ICE)

Project Manager + Supervisor (NEC); no CA in NEC Short Contract justContractor and Employer so you would be Employers Representative.


LANDSCAPE MAINTENANCE WORKS

Soft landscape maintenance works fundamentally different from landscapeconstruction works. Still working with living materials and work influenced by

seasons and weather, but differences need to be accommodated in maintenance

Standard Forms of Contract:

Repetitive operations, no defects, rectification period, or retention; the work

is done, not done or inadequately or incorrectly done; some failures cant

be corrected

Completion date, extension of time and liquidated damages for failure to

complete on time are irrelevant

Duration typically 3-5 years; Commencement date and end date or

duration, with extension by agreement

Need redress for not doing important item of work on time, eg failure to

prepare the cricket pitch for the game on Sunday (its no good doing it

Monday)

Defaults in performance need resolving as well as financial adjustment;

penalty point systems, rectification notices, default notices, damages for

defaults all common but negative bonus for doing well?


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LANDSCAPE MAINTENANCE WORKS (cont)

Inflation: annual increase in rates /annual sum needed

Annual Accounts better than Final Account

Interaction with public and/or owner. Contractor doesnt have possession of

site; mowing round sunbathers? Maintenance at a girls school! Collection

of money from the public for events/activities in parks?

TUPE for Authorities, QUANGOs and NGOs (also Standing Orders, Best

Value, OJEC, etc)

Use of Employers buildings, equipment?

Need to establish standards of work and performance (preferably pre-

tender)

If need to implement significant construction work use separate constructioncontract, only implement minor construction work under a maintenance contract,

no provisions for it in JCLI LMWC Conditions no commencement date,completion date, liquidated damages for late completion, rectification period,

retention etc for the construction element(s)


BACK-TO-BACK CONSTRUCTION & MAINTENANCE WORKS

JCLI LMWC is appropriate for the particular circumstance of establishmentmaintenance after practical completion of a construction contract, by the same

contractor for at least the duration of the rectification/defects period (as well as for

any other landscape maintenance contract)

Prior to 1996 the JCLI Landscape Works Contract included maintenance for theduration of the defects period within the Contract. However there were significant

problems:

No provision for interim payments for maintenance

Problems instructing variations after practical completion

Not clear whether retention applied to maintenance

No liquidated damages for performance failure during maintenance

No right to terminate for performance failure during maintenance

Over complex fluctuations provision

Long maintenance periods very difficult to accommodate

Problem accommodating different Employers for construction and

maintenance


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BACK-TO-BACK CONSTRUCTION & MAINTENANCE WORKS (cont)

Advantages of separate contracts for construction and maintenance

Less cumbersome than if two sets of conditions in one contract

Construction contract becomes more similar to JCT MW

Maintenance contract dual purpose

Potential for different Employers and novation of maintenance contract from

developer to landlord/tenant (but avoid different Employers before practical

completion of construction contract)

Potential to use maintenance contract for works constructed under

subcontract to JCT/ICE/NEC

Involving clients with maintenance contracts upfront

Potential for 5 year maintenance periods and 5 year plant replacement after

construction

More clarity to plant defects and replacement responsibilities

Makes designers more involved in maintenance and more involved with

Landscape Managers


BACK-TO-BACK CONSTRUCTION & MAINTENANCE WORKS (cont)

More clarity to consultants maintenance input in consultants appointments

(stages for preparation of tender documentation to completion on site need

to be repeated for maintenance)

Contractors perform extremely well on the construction contract because

they know they are liable for plant losses for 5 years (a good reason for

setting up the maintenance contract for 5 years even if it is terminated

early). This can reduce CAs inspection input substantially on the

construction contract as well as improving the product.


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