schedule 11 - appointment of the independent certifier ... management project/13. schedules... ·...

SCHEDULE 11 - APPOINTMENT OF THE INDEPENDENT CERTIFIER

DATED 2013

(1) WAKEFIELD WASTE PFI LIMITED

- and -

(2) COUNCIL OF THE CITY OF WAKEFIELD

- and -

(3) SHANKS WASTE MANAGEMENT LIMITED

- and -

(4) BARCLAYS BANK PLC

- and -

(5) FICHTNER CONSULTING ENGINEERS LIMITED

INDEPENDENT CERTIFIER

APPOINTMENT

WALKER MORRIS Kings Court

12 King Street LEEDS

LS1 2HL Tel: 0113 2832500 Fax: 0113 2459412

CONTENTS 1 INTERPRETATION 2

2 APPOINTMENT 3

3 DURATION 6

4 PAYMENT 6

5 LIMITATIONS ON AUTHORITY 8

6 TERMINATION 8

7 CONFIDENTIAL INFORMATION 11

8 PROFESSIONAL INDEMNITY INSURANCE 12

9 COPYRIGHT 13

10 QUALITY ASSURANCE 13

11 LIMITATION OF LIABILITY 14

12 NOTICE 14

13 ASSIGNMENT 16

14 CUMULATIVE RIGHTS AND ENFORCEMENT 17

15 WAIVER 17

16 SEVERABILITY 17

17 VARIATION 18

18 THIRD PARTY RIGHTS 18

19 DISPUTE RESOLUTION PROCEDURE 18

20 ENTIRE AGREEMENT 19

21 GOVERNING LAW AND JURISDICTION 19

22 COUNTERPARTS 19

SCHEDULE 1 - THE IC SERVICES 22

PART A - The Basic Services 21 PART B - The Additional Services 32 SCHEDULE 2 - PAYMENTS 34

PART 1- The Basic Services Payments 34

PART 2- Rates 36

APPENDIX 1- FORM OF PRACTICAL COMPLETION CERTIFICATE 37

APPENDIX 2- FORM OF COMPLETION CERTIFICATE 38

APPENDIX 3- FORM OF SOUTH KIRKBY MAIN FINAL PRACTICAL COMPLETION CERTIFICATE 39

APPENDIX 4 - FORM OF WRITTEN CONFIRMATION 39

THIS AGREEMENT is made on 2013

BETWEEN

(1) WAKEFIELD WASTE PFI LIMITED, a company incorporated in England and Wales with

registered number 08193325 whose registered office is at Dunedin House, Auckland Park,

Mount Farm, Bletchley, Milton Keynes, Buckinghamshire MK1 1BU (the "Contractor");

(2) COUNCIL OF THE CITY OF WAKEFIELD of Town Hall, Wood Street, Wakefield, West

Yorkshire, WF1 2HQ, (the "Council");

(3) SHANKS WASTE MANAGEMENT LIMITED a company incorporated in England and

Wales under number 02393309 whose registered office is at Dunedin House, Auckland Park,

Mount Farm, Bletchley, Milton Keynes, Buckinghamshire MK1 1BU (the "Construction Sub-

Contractor");

(4) BARCLAYS BANK PLC, as Agent and Security Trustee for the Senior Lenders from time to

time under the Common Terms Agreement (the "Facility Agent"), which term shall include any

substitute or replacement agent from time to time under the Common Terms Agreement); and

(5) FICHTNER CONSULTING ENGINEERS LIMITED, a company incorporated in England

and Wales with registered number 02605319 having its registered office at Kingsgate,

Wellington Road North, Stockport, Cheshire SK4 1LW (the "Independent Certifier").

Whereas

(A) The Contractor has entered into a contract with the Council in respect of the Project on or about

the date of this Agreement ("Contract").

(B) The Contractor will undertake the Works in accordance with the terms of the Contract.

(C) The Contractor and the Facility Agent have entered into the Common Terms Agreement pursuant

to which the Facility Agent has agreed to provide certain finance to the Contractor in relation to

the Project.

(D) The Independent Certifier is an independent adviser willing to provide services to the Contractor,

the Council and the Facility Agent in relation to the Contract.

(E) Under a separate appointment, the Contractor and the Facility Agent have engaged the

Independent Certifier to undertake a separate role as technical adviser in relation to the Financing

Agreements.

(F) The Appointers have agreed to engage the Independent Certifier to carry out the duties and

obligations ascribed to the Independent Certifier in the Contract and upon the terms of this

Agreement.

IT IS AGREED as follows:

1 INTERPRETATION

1.1 Unless the context otherwise requires, words and expressions defined in the Contract

have the same meanings in this Agreement.

Additional Services those duties, functions and obligations to be performed

by the Independent Certifier as set out in Part B of

Schedule 1 (The IC Services) and paragraphs 5.5, 5.10,

5.15, 6.6, 6.11 and 7.3 of Part A of Schedule 1 (The IC

Services);

Appointers collectively the Contractor, the Council and the Facility

Agent;

Basic Services those duties, functions and obligations to be performed

by the Independent Certifier as set out in Part A of

Schedule 1 (The IC Services) with the exception of

those duties, functions and obligations set out in

paragraphs 5.5, 5.10, 5.15, 6.6, 6.11 and 7.3 of Part A

of Schedule 1 (The IC Services);

Cap

Fee the fee for the Basic Services including but not limited

to all labour and all reasonable costs and expenses of

every kind incurred by the Independent Certifier in

connection therewith;

IC Documents the Contract, the Construction Contract, the Operating

Contract, the Interface Agreement and the Common

Terms Agreement;

IC Services the Basic Services and the Additional Services;

Joint Notice a written notice signed by a duly authorised

representative of each of the Appointers;

Interface Agreement the interface agreement made between the Contractor,

the Construction Sub-Contractor and the Operating

Sub-Contractor dated on or about the date of this

Agreement;

Rates the hourly rates set out in Part 2 of Schedule 2

(Payment) to this Agreement;

Reports has the meaning set out in Clause 9.1 (Copyright).

1.2 The headings in this Agreement do not affect its interpretation;

1.3 Unless the context otherwise requires, all references to Clauses and Schedules are

references to Clauses of and Schedules to this Agreement.

2 APPOINTMENT

2.1 The Appointers engage the Independent Certifier and the Independent Certifier agrees

to perform the IC Services.

2.2 The Independent Certifier shall provide the IC Services in accordance with this

Agreement independently, fairly and impartially to and as between the Appointers at

such times and at such locations as the Appointers and the Independent Certifier shall

agree from time to time. Whilst the Independent Certifier may take account of any

representations made by the Appointers or the Construction Sub-Contractor the

Independent Certifier shall not be bound to comply with any such representations made

by them in connection with any matter on which the Independent Certifier is required to

exercise its professional judgment.

2.3 The Independent Certifier shall promptly and efficiently provide the IC Services:

2.3.1 with the degree of skill, care and diligence reasonably to be expected of a

properly qualified and competent professional adviser who has experience of

rendering such services for projects of similar size, nature, scope complexity

and value to the Project; and

2.3.2 in compliance with all Law and Good Industry Practice.

2.4 The Independent Certifier acknowledges that it owes a duty of care pursuant to and as

set out in Clause 2.3 to the Appointers and to the Construction Sub-Contractor in the

provision by it of the IC Services.

2.5 All instructions to the Independent Certifier shall be given in writing jointly by the

Contractor and the Council, and the Council and the Contractor (acting jointly) shall

provide a copy of the same to the Facility Agent immediately following issue. The

Independent Certifier shall promptly and fully comply with all reasonable instructions

given to it by the Council and the Contractor (acting jointly) except and to the extent

that the Independent Certifier reasonably considers that any such instructions vary or

might vary the IC Services or its authority or responsibilities under this Agreement or

prejudices or might prejudice the exercise by the Independent Certifier of its

professional judgment in accordance with Clauses 2.1, 2.2 and 2.3. In such event the

Independent Certifier shall notify and consult with the Council and the Contractor

(acting jointly) as soon as reasonably possible in order to resolve the conflict before

acting upon the instruction.

2.6 The Council, the Contractor and the Construction Sub-Contractor agree to (and the

Contractor and the Construction Sub-Contractor shall procure that any of their sub-

contractors shall) co-operate with and provide reasonable assistance to the Independent

Certifier, to familiarise the Independent Certifier with all necessary aspects of the

Project and to enable the Independent Certifier to carry out its obligations under this

Agreement or duties under the Contract.

2.7 The Independent Certifier acknowledges that it has been provided with a complete copy

of the IC Documents. Accordingly, the Independent Certifier shall be deemed to have

full knowledge of the provisions of the IC Documents and shall be deemed to be aware

of and to have taken full account of all the undertakings and warranties, both expressed

and implied, on the part of the Appointers which are set out in the IC Documents. The

Independent Certifier further acknowledges that any breach by it of this Agreement

may result in the Appointers and/or the Construction Sub-Contractor incurring

liabilities under the IC Documents and other costs and losses and all such liabilities,

costs and losses are hereby agreed to be within the contemplation of the Independent

Certifier as being the probable result of any such breach by the Independent Certifier.

2.8 Subject to Clauses 2.8.1 and 2.8.2, the Independent Certifier shall use in

connection with the performance of the IC Services, who shall be available to the extent

that and for so long as may be necessary to ensure the proper performance by the

Independent Certifier of the IC Services. Such person shall have full authority to act on

behalf of the Independent Certifier for all purposes in connection with this Agreement.

2.8.1 Subject to Clause 2.8.2, the person specified in this Clause 2.8 shall not be

removed or replaced by the Independent Certifier unless he ceases to work as

a director or employee of the Independent Certifier or is unable to work

because of death, ill health or other exceptional circumstances. The

Independent Certifier shall, as soon as reasonably practicable, notify the

Appointers of any such circumstances and shall be responsible for finding a

replacement who shall previously have been approved in writing by the

Appointers, provided that such approval shall not be unreasonably withheld or

delayed. The replacement shall be of equal standing, experience and technical

competence as the person previously appointed.

2.8.2 The Independent Certifier shall, within fifteen (15) Business Days of receipt

of a Joint Notice issued by the Appointers, remove and replace the person

specified in this Clause 2.8 provided that such notice shall have been jointly

issued by the Appointers on reasonable grounds.

2.9 Nothing in this Agreement shall be construed as imposing on the Independent Certifier

liability in respect of design work prepared by others for the Project, provided that the

Independent Certifier shall not be relieved by virtue of this Clause 2.9 from his duty to

notify the Appointers of any issues adversely affecting the Project of which the

Independent Certifier becomes aware in the course of performing the IC Services.

2.10 The Independent Certifier shall provide the Appointers upon reasonable request with:

2.10.1 copies of any reports and correspondence issued or required to be provided by

the Independent Certifier in accordance with this Agreement and/or the IC

Services; and

2.10.2 any other information relating to the Project which is in its possession in its

role as Independent Certifier pursuant to this Agreement,

and shall regularly update the Appointers as to progress in the carrying out of the IC

Services and shall provide to the Appointers copies of minutes of all meetings it attends

relating to the Project.

2.11 The Independent Certifier shall give reasonable notice to the Appointers and the

Construction Sub-Contractor in writing of the date and time of any proposed inspection

of the Sites, the Works, the New Waste Management Facilities and any proposed

attendance in connection with the carrying out of the Acceptance Tests in order to

perform the IC Services and any other obligations under this Agreement and the

Contract and shall allow all parties to accompany it on the inspections or attendances.

3 DURATION

This Agreement shall have effect as from the date hereof in relation to all IC Services performed

by the Independent Certifier (whether before or after the date hereof) and shall continue until all

the IC Services have been performed or this Agreement is otherwise terminated in accordance

with the terms of this Agreement.

4 PAYMENT

4.1 The Contractor shall be liable to pay to the Independent Certifier the Fee up to the Cap

which shall be payable in accordance with this Clause 4 and Schedule 2 (Payment).

4.2 Subject to the provisions of Clause 4.3 the Contractor shall have no liability to pay to

the Independent Certifier any Fee in excess of the Cap in respect of the Basic Services.

4.3 If the Independent Certifier is required to perform any Additional Services in

connection with the Project then the Independent Certifier and the Contractor shall

agree in writing a fair and reasonable additional payment to the Independent Certifier

calculated by reference to the extent of such Additional Services and the Rates provided

that the Independent Certifier has notified the Appointers in advance of undertaking any

such Additional Services that it is or may be entitled to payment in respect of such

Additional Services and, so far as is possible, the amount of such payment shall be

agreed in writing by the Contractor and the Independent Certifier prior to performance

of any such Additional Services.

4.4 Nothing in this Agreement shall make the Council, the Facility Agent or the

Construction Sub-Contractor liable to the Independent Certifier for any payment or

other sum due to the Independent Certifier pursuant to this Clause 4 and liability for any

such payment or other sums shall remain exclusively with the Contractor.

4.5 The provisions of Clause 4.3 in relation to additional payment shall not apply where

and to the extent that any Additional Services shall have been necessitated, in whole or

in part, by any negligence, omission or default on the part of the Independent Certifier

in the performance of the IC Services.

4.6 The Fee shall be paid by instalments as specified in Part 1 of Schedule 2 (Payment) in

accordance with the provisions of Clauses 4.8 to 4.10 (inclusive).

4.7 The Independent Certifier shall submit to the Contractor accounts from time to time as

and when any sums become due to the Independent Certifier under this Agreement (but

no more frequently than monthly) showing:

4.7.1 the instalment of the Fee which is due to the Independent Certifier;

4.7.2 the instalments of the Fee previously paid by the Contractor to the

Independent Certifier; and

4.7.3 any other sums due to the Independent Certifier under this Agreement

including payment for any Additional Services

such account shall be supported by such documents, vouchers and receipts as shall be

reasonably necessary for computing the same or as may be reasonably required by the

Contractor to verify and understand the same.

4.8 Subject to Clause 4.9 and to any deductions or set-offs which the Contractor is entitled

to make under the terms of this Agreement or otherwise at law, payment shall be made

within thirty (30) days following receipt by the Contractor of the Independent Certifier's

accounts (the "Payment Date") in accordance with Clause 4.7. For the purposes of this

Clause 4.8, the Independent Certifier's accounts shall be deemed to have been received

in accordance with Clause 12 (Notice). Any payment which is not made by the Payment

Date shall thereafter bear simple interest at a daily rate equivalent to

per annum above the Royal Bank of Scotland plc base rate from time to time until the

date of actual payment.

4.9 If the Contractor wishes to question or dispute any item or part of an item of the

Independent Certifier's accounts the Contractor may, not later than five (5) days after

receipt of the Independent Certifier's accounts, give the Independent Certifier written

notice stating the amount which the Contractor proposes to pay, the basis on which that

amount is calculated, any amount to be withheld and the grounds for withholding

payment of that amount. Where no such notice is given, the amount to be paid is that

stated in the Independent Certifier's accounts. Where such notice is given the Contractor

shall pay to the Independent Certifier all amounts which are not to be withheld.

4.10 The Contractor shall pay to the Independent Certifier the total amount of VAT properly

chargeable by the Independent Certifier on the supply of the IC Services under this

Agreement.

5 LIMITATIONS ON AUTHORITY

5.1 The Independent Certifier shall not, without the written consent (in the form of a Joint

Notice) of the Appointers:

5.1.1 make or purport to make any alteration or addition to or omission from the

design of the Works (including, without limitation, the setting of performance

standards) or issue any instruction or direction to any contractor or

professional consultant employed or engaged in connection with the Project;

5.1.2 consent or agree to any waiver or release of any obligation of the Contractor

or the Council under the Contract or of any contractor or professional

consultant employed or engaged in connection with the Project;

5.1.3 sanction, approve or accept any design submitted by the Contractor or any

other contractor or professional consultant employed or engaged in

connection with the Project;

5.1.4 issue any instruction or give any approval or make any agreement which, save

as may be necessary for the performance of the IC Services, would or might

delay completion of the Project or increase the cost to the Contractor of the

Project; or

5.1.5 express an opinion on and shall not interfere with or give any advice or make

any representations in respect of any matters which are beyond its role and

responsibilities under this Agreement.

6 TERMINATION

6.1 The Appointers may by issuing a Joint Notice to the Independent Certifier immediately

terminate the Independent Certifier's Appointment under this Agreement if the

Independent Certifier:

6.1.1 is in breach of any of the terms of this Agreement which, in the case of a

breach capable of remedy, has not been remedied by the Independent Certifier

within fourteen (14) days of receipt by the Independent Certifier of a Joint

Notice specifying the breach and requiring its remedy;

6.1.2 is incompetent, guilty of gross misconduct and/or any negligence or delay in

the provision of the IC Services;

6.1.3 fails to comply with Clause 2 (Appointment);

6.1.4 is unable to admit its inability to pay its debts when they become due within

the circumstances specified in section 123(1)(c) of the Insolvency Act 1986

without the need to prove any fact or matter to the satisfaction of the Court as

provided thereon;

6.1.5 enters into a voluntary arrangement under Part I of the Insolvency Act 1986 or

enters into a scheme of arrangement with its creditors generally in satisfaction

of its debts;

6.1.6 makes any arrangement or composition with creditors generally, other than

for the purposes of a solvent internal reorganisation;

6.1.7 is the subject of an administration order made under Part II of the Insolvency

Act 1986;

6.1.8 is subject to an encumbrancer taking possession or undergoes the appointment

of a receiver or manager (including an administrative receiver) either under

Part II of the Insolvency Act 1986 or under the Law of Property Act 1925 or

otherwise (and in the case of a receiver only, not being discharged within

twenty one (21) days of his appointment);

6.1.9 is the subject of the passing of a resolution to wind up or a provisional

liquidator is appointed or a winding-up order is made under Part IV of the

Insolvency Act 1986 (except for a voluntary winding up solely for the purpose

of amalgamation or reconstruction, the terms of which have previously been

notified to and approved in writing by the Appointers);

6.1.10 is the subject of a proposal made for a scheme of arrangement under part 26

of the Companies Act 2006; or

6.1.11 fails or refuses after written warning to provide the IC Services reasonably

and properly required of it.

6.2 The Appointers may by issuing a Joint Notice to the Independent Certifier suspend the

Independent Certifier's Appointment at any time. During the period of any such

suspension payment of the Fee and/or payment in respect of Additional Services by the

Contractor pursuant to Clause 4 (Payment) shall be suspended.

6.3 If the Contract is rescinded, terminated or repudiated for any reason and,

notwithstanding that the validity of such rescission, termination or repudiation may be

disputed, the Independent Certifier's Appointment under this Agreement may be

terminated by Joint Notice and with immediate effect.

6.4 Following any termination of the Independent Certifier's Appointment under this

Agreement, the Independent Certifier shall be entitled to be paid in full and final

settlement in respect of any claim which the Independent Certifier may have for any

payments due under Clause 4 in respect of the IC Services carried out in accordance

with this Agreement prior to the date of termination.

6.5 Termination of this Agreement shall be without prejudice to any party's accrued rights

and obligations under this Agreement as at the date of termination (including the right

of the Appointers to recover damages from the Independent Certifier).

6.6 If this Agreement is terminated pursuant to Clause 6.1, the Independent Certifier shall

pay to the Appointers, as the case may be, any reasonable incremental loss, damage or

additional costs suffered by each of them including but not limited to any liability under

the IC Documents as contemplated by the provisions of Clause 2.7 (Payment).

6.7 Each party's further rights and obligations shall cease immediately on termination

except that termination of this Agreement shall not affect the continuing rights and

obligations of the Appointers under Clauses 7 (Confidential Information), 8

(Professional Indemnity Insurance), 11 (Limitation of Liability), 19 (Dispute Resolution

Procedure), and this Clause 6 or under any other clause which is expressed to survive

termination or which is required to give effect to such termination or the consequences

of such termination.

6.8 The Independent Certifier shall only be entitled to terminate this Agreement with

immediate effect by written notice to the Appointers where:

6.8.1 the Contractor fails to make payment by the Payment Date;

6.8.2 following the Payment Date the Independent Certifier has served notice on

each of the Appointers indicating that this sum remains unpaid; and

6.8.3 such sum remains unpaid for a period of twenty (20) Business Days from the

date of' service by the Independent Certifier of the notice pursuant to Clause

6.8.2.

6.9 The Council or the Facility Agent may elect to make payment to the Independent

Certifier of the monies owed by the Contractor pursuant to Clause 4 before the expiry

of the period set out in Clause 6.8.3 (or at any time thereafter prior to the termination of

this Agreement by the Independent Certifier in accordance with Clause 6.8) provided

that the Council or the Facility Agent gives five (5) Business Days' notice to the other

Appointers of its election to make such payment to the Independent Certifier. Upon

receipt of such payment the Independent Certifier's right to terminate this Agreement

under Clause 6.8 shall cease.

6.10 If the Council elects to make payment to the Independent Certifier of the monies owed

by the Contractor pursuant to Clause 4 (Payment) before the expiry of the period set out

in Clause 6.8.3 (or at any time thereafter prior to the termination of this Agreement by

the Independent Certifier in accordance with Clause 6.8), the Council shall be entitled

to deduct any such sums from the Unitary Charge.

7 CONFIDENTIAL INFORMATION

7.1 Save as may be necessary for the proper provision of the IC Services by the

Independent Certifier under this Agreement, the Independent Certifier shall treat as

secret and confidential and shall not at any time for any reason disclose or permit to be

disclosed to any person or otherwise make use of or permit to be made use of any

information relating to the Project or to any of the Appointers', the Construction Sub-

Contractor's or the Operating Sub-Contractor's technology or other know how, business

plans or finances or any such information relating to a subsidiary, supplier, customer or

client of any of the Appointers, the Construction Sub-Contractor or the Operating Sub-

Contractor where the information was received during the period of this Agreement.

7.2 Upon termination of this Agreement for whatever reasons the Independent Certifier

shall deliver up to the Contractor and/or the Council (as appropriate) all working

papers, computer disks and tapes or other material and copies provided to the

Independent Certifier, together with copies of any document or report produced by the

Independent Certifier, pursuant either to this Agreement or to any previous obligation

owed to the Contractor and/or the Council. The Independent Certifier shall retain in

safe storage at its own cost, for a period of not less than ten (10) years following

termination of this Agreement, all working papers, computer disks, tapes and other

material arising out of its performance of this Agreement.

8 PROFESSIONAL INDEMNITY INSURANCE

8.1 Without prejudice to its obligations under this Agreement, or otherwise at law, the

Independent Certifier shall, subject to such insurance being available at commercially

reasonable rates and on commercially reasonable terms, maintain professional

indemnity insurance with a limit of indemnity of not less than

for any one (1) claim (except for pollution/contamination claims where

the amount is "in the aggregate") in respect of any neglect, error or omission on the

Independent Certifier's part in the performance of its obligations under this Agreement

for the period commencing on the date on which the IC Services are first provided

under this Agreement and expiring twelve (12) years after:

8.1.1 the date of the completion of the IC Services; or

8.1.2 the termination of this Agreement

whichever is the earlier.

8.2 The Independent Certifier shall maintain such insurance with reputable insurers

licensed to carry out insurance business in Europe who are acceptable to the

Appointers, such acceptance not to be unreasonably withheld or delayed.

8.3 The Independent Certifier shall, prior to commencing the provision of the IC Services

and no less than five (5) Business Days prior to renewal dates, produce for inspection

by the Appointers documentary evidence that such insurance is being properly

maintained.

8.4 The Independent Certifier shall comply with all conditions and obligations of such

insurance policy and shall inform the Appointers as soon as reasonably practicable if

such insurance ceases to be maintained. If such insurance ceases to be available at

commercially reasonable rates and on commercially reasonable terms, other than by

reason of the Independent Certifier's own claims record or other acts, omissions or other

matters particular to the Independent Certifier, the Independent Certifier shall notify the

Appointers and shall discuss the best means of protecting each party's position and the

Independent Certifier shall, if requested by the Appointers, take out such insurance with

such a limit of indemnity as is available in the market at commercially reasonable rates

and upon commercially reasonable terms.

8.5 The obligations in this Clause 8 shall continue notwithstanding termination of this

Agreement for any reason whatsoever, including (without limitation) breach by the

Appointers.

9 COPYRIGHT

9.1 The copyright in all reports, statements, summaries, certificates, calculations and other

similar documents provided by or on behalf of the Independent Certifier in connection

with the Project (the "Reports") shall remain vested in the Independent Certifier, but

the Appointers shall have an irrevocable, royalty-free transferable licence to copy and

use the Reports and to reproduce their contents for any purpose related to the Project,

including but without limitation, the construction, completion, maintenance, operation,

reinstatement, extension and repair of the Project. The Independent Certifier shall not

be liable for any misuse by the Appointers of the Reports (which shall be determined by

reference to, inter alia, the purposes for which the same were prepared).

9.2 The licence referred to in Clause 9.1 shall carry the right to grant sub-licences and shall

be transferable to third parties. The Independent Certifier shall, if so requested by the

Appointers, at any time execute such documents and perform such acts as may be

required fully and effectively to assure to the Appointers (as the case may be) the rights

referred to in Clause 9.1.

9.3 Where a claim or proceeding is made or brought against the Appointers and/or the

Construction Sub-Contractor which arises out of the infringement of any copyright,

unless such infringement has arisen out of the use of the Reports by or on behalf of the

Appointers and/or the Construction Sub-Contractor otherwise than in accordance with

the terms of this Agreement, the Independent Certifier shall indemnify the Appointers

and the Construction Sub-Contractor at all times from and against all such claims and

proceedings.

10 QUALITY ASSURANCE

10.1 The Independent Certifier shall implement a quality system in a form reasonably

acceptable to the Appointers in respect of the IC Services, to comply with the

requirements of this Agreement and the Contract. Implementation and compliance with

the quality system or acceptance by the Appointers of the quality system shall not

relieve the Independent Certifier of its responsibility for the performance of its

obligations in accordance with this Agreement.

11 LIMITATION OF LIABILITY

11.1 No action or proceedings under or in respect of this Appointment shall be commenced

against the Independent Certifier after the expiry of twelve (12) years from the date of

the completion of the IC Services or the termination of this Agreement, if earlier.

11.2 The Independent Certifier's aggregate liability to the Appointers and the Construction

Sub-Contractor under or in connection with this Agreement shall be limited to

in the aggregate.

11.3 The following liabilities shall not be subject to the limitation on liability referred to in

clause 11.2:

11.3.1 any liability arising out of fraud, abandonment, corruption or wilful default of

the Independent Certifier;

11.3.2 any liability caused by any death or personal injury.

12 NOTICE

12.1 A notice or other communication under or in connection with this Agreement shall be

in writing and shall be either delivered personally, sent by pre paid first class post, by

email or by facsimile, as follows:

12.1.1 if to the Contractor, to: Company Secretary

Address: Dunedin House, Auckland Park, Mount

Farm, Bletchley, Milton Keynes,

Buckinghamshire MK1 1BU

Fax: +44 908 650 651

Email Address:

Attention: Company Secretary

12.1.2 if to Construction Sub-Contractor, to: Company Secretary

Address: Dunedin House, Auckland Park, Mount

Farm, Bletchley, Milton Keynes,

Buckinghamshire MK1 1BU

Fax: +44 908 650 651

Email Address:

Attention: Company Secretary

12.1.3 if to Facility Agent, to: Barclays Bank PLC

Address: Infrastructure & Structured Project

Finance SRU, 27th Floor, 1 Churchill

Place, London E14 5HP

Fax: +44 207 116 7613

Email Address:

Attention:

12.1.4 if to the Council, to: Council Representative

Address: Wakefield Metropolitan District

Council, Normanton Town Hall, High

Street, Normanton, WF6 2DZ

Fax: 01924 223807

Email Address: [email protected]

Attention:

12.1.5 if to Independent Certifier, to:

Address: Fichtner Consulting Engineers Ltd

Kingsgate (Floor 3) Wellington Road North Stockport Cheshire SK4 1LW

Fax: 0161 474 0618

Email Address:

Attention:

or to such other address or facsimile number as a party to this Agreement may

notify in writing to the other parties to this Agreement.

12.2 Any such notice or communication shall be deemed to have been duly served:

12.2.1 if delivered by hand, when left at the proper address for service; or

12.2.2 if given or made by pre paid first class post, two (2) Business Days after being

posted; or

12.2.3 if sent by facsimile, on the day of transmission provided that a confirmatory

copy is on the same day that the facsimile is transmitted, sent by pre paid first

class post in the manner provided for in Clause 12.1; or

12.2.4 if sent by email, on the day of transmission

provided in each case that if the time of such deemed service is either after 4.00 pm on

a Business Day or on a day other than a Business Day service shall be deemed to occur

instead at 10.00 am on the following Business Day.

13 ASSIGNMENT

13.1 The Independent Certifier shall not assign or transfer, or purport to assign or transfer,

any of its rights or obligations under this Agreement or sub contract the whole or any

part of the IC Services.

13.2 The Independent Certifier's consent shall not be required in the case of any assignment

or transfer by the Contractor or the Facility Agent or the Construction Sub-Contractor

of all or any of the Contractor's or the Facility Agent's or the Construction Sub-

Contractor's rights and obligations arising out of or under this Agreement to any party

providing finance in relation to the Project or to any such party's nominee.

13.3 The Council shall have the right to assign, novate or otherwise transfer any of its rights

or obligations under this Agreement to any person to whom the Council is allowed to

assign, novate or otherwise transfer its rights and obligations under the Contract.

14 CUMULATIVE RIGHTS AND ENFORCEMENT

14.1 Any rights and remedies provided for in this Agreement whether in favour of the

Contractor, the Construction Sub-Contractor, the Facility Agent, the Council or the

Independent Certifier are cumulative and in addition to any further rights or remedies

which may otherwise be available to the parties.

14.2 The duties and obligations of the Independent Certifier arising under or in connection

with this Agreement are owed to the Appointers and the Construction Sub-Contractor

jointly and severally and the Appointers and the Construction Sub-Contractor may

accordingly enforce the provisions hereof and, subject to Clause 11 (Limitation of

Liability), pursue their respective rights hereunder in their own name, whether

separately or with each other.

14.3 The Appointers and the Construction Sub-Contractor covenant with each other that they

shall not waive any rights, remedies or entitlements or take any other action under this

Agreement which would or might reasonably be expected to adversely affect the rights,

remedies or entitlements of the other without the other's prior written consent, which

consent shall not be unreasonably withheld or delayed.

14.4 The parties to this Agreement agree that the Council, the Facility Agent and the

Construction Sub-Contractor shall have no liability to the Independent Certifier in

respect of any act or omission of, or breach of this Agreement by, the Contractor.

15 WAIVER

The failure of any party at any one time to enforce any provision of this Agreement shall in no

way affect its right thereafter to require complete performance by any other party, nor shall the

waiver of any breach or any provision be taken or held to be a waiver of any subsequent breach

of any provision or be a waiver of the provision itself.

16 SEVERABILITY

In the event that any term, condition or provision contained in this Agreement shall be held to be

invalid, unlawful or unenforceable to any extent, such term, clause or provision shall, to that

extent, be omitted from this Agreement and the rest of this Agreement shall stand, without

affecting the remaining clauses.

17 VARIATION

A variation of this Agreement is valid only if it is in writing and signed by or on behalf all

parties.

18 THIRD PARTY RIGHTS

No term of this Agreement is enforceable under the Contracts (Rights of Third Parties) Act 1999

by a person who is not a party to this Agreement.

19 DISPUTE RESOLUTION PROCEDURE

19.1 Subject to Clause 21 (Governing Law and Jurisdiction) all disputes shall be resolved in

accordance with the Dispute Resolution Procedure subject only to Clause 19.2 and any

reference to "Party" or "Parties" in Clauses 104.4 to 104.21 (Dispute Resolution) of

the Contract shall include a reference to any party to this Agreement.

19.2 If a dispute under this Agreement is referred to the Adjudicator Clause 104.9 (Dispute

Resolution) of the Contract shall be replaced with the following provisions:

19.2.1 The Adjudicator's costs of any reference shall be borne as the Adjudicator

shall specify or, in default, equally by the parties;

19.2.2 All parties shall bear their own costs arising out of a reference including legal

costs and the costs and expenses of any witnesses except in the following

circumstances:

(a) where the Independent Certifier is called as a witness by any party that

party shall pay the Independent Certifier's costs and expenses at the

Rates; or

(b) where the Independent Certifier is called as a witness by the

Adjudicator the Independent Certifier's costs and expenses shall be paid

equally by the parties at the Rates.

19.3 If a dispute under this Agreement raises issues which are substantially the same as or

connected with issues raised in a dispute between Contractor and the Council under the

Contract and if the related dispute has already been referred for determination pursuant

to the Contract the dispute under this Agreement may be referred at the option of

Contractor or the Council for determination with the related dispute pursuant to the

Contract.

19.4 The Appointers, the Construction Sub-Contractor and the Independent Certifier shall

co-operate to facilitate the proper, just, economical and expeditious resolution of any

and all such disputes which arise under this Agreement.

20 ENTIRE AGREEMENT

This Agreement sets out the entire agreement between the Parties with respect to the subject

matter covered by it and supersedes and replaces all prior communications, representations (other

than fraudulent representations), warranties, stipulations, undertakings and agreements whether

oral or written between the Parties.

21 GOVERNING LAW AND JURISDICTION

21.1 This Agreement shall be governed by and construed in accordance with the laws of

England and Wales.

21.2 Subject to Clause 19.1 (Dispute Resolution), the parties to this Agreement submit to the

exclusive jurisdiction of the courts of England and Wales.

22 COUNTERPARTS

This Agreement may be executed in any number of counterparts which together shall constitute

one agreement. Any party may enter into this Agreement by executing a counterpart and this

Agreement shall not take effect until it has been executed by all parties.

Executed as a deed by WAKEFIELD WASTE PFI LIMITED acting by its director/attorney ________________________________:

) ) ) )

Signature of director/attorney

Signature of witness

Name of witness

Address of witness

Occupation of witness

………………………………………………………………… …………………………………………………………………… …………………………………………………………………. …………………………………………………………………. …………………………………………… ……………………………………………

THE COMMON SEAL OF )

THE COUNCIL OF THE CITY )

OF WAKEFIELD )

Was affixed to this Deed )

In the presence of: )…………………………………………….

Authorised Signatory

EXECUTED as a deed by SHANKS WASTE MANAGEMENT LIMITED acting by its duly authorised director / attorney

) ) )

Witness signature:

Witness name:

Witness address:

Witness occupation:

EXECUTED as a deed by BARCLAYS BANK PLC acting by its duly authorised attorney

) ) )

Witness signature:

Witness name:

Witness address:

Witness occupation:

EXECUTED as a deed by FICHTNER CONSULTING ENGINEERS LIMITED acting by its duly authorised attorney

) ) ) )

Witness signature:

Witness name:

Witness address:

Witness occupation:

SCHEDULE 1 - THE IC SERVICES

Part A - The Basic Services

1 GENERAL

1.1 The Independent Certifier shall perform all of the duties, functions and obligations

attributed to the Independent Certifier under the Contract and relevant Schedules and

Annexes (including complying with any time limits specified in such Contract,

Schedules and Annexes). Without prejudice to the generality of the foregoing, the

Independent Certifier's duties under this Agreement shall include the following.

1.2 The Independent Certifier shall familiarise itself with:

1.2.1 the Contract;

1.2.2 the Output Specification;

1.2.3 the Works Delivery Plan;

1.2.4 the Service Delivery Plan;

1.2.5 the quality assurance procedures established, implemented and maintained by

the Contractor in accordance with Clause 49 (Quality Assurance) of the

Contract and any changes issued from time to time, and any other relevant

documentation or information referred to in the Contract;

1.2.6 the Construction Contract and any subsidiary sub-contracts;

1.2.7 the Operating Contract and any subsidiary sub-contracts; and

1.2.8 all Necessary Consents

to the extent necessary to fulfil its obligations within the terms of the Contract and this

Agreement.

2 WORKS DESIGN COMPLIANCE CHECK

2.1 For the avoidance of doubt, this Agreement shall not impose any design obligations on

the Independent Certifier and any liability for design shall remain with the parties

obliged to undertake and complete the design under the Contract and the Construction

Contract. The services required under this paragraph 2 shall be supervisory in nature

and shall not require the Independent Certifier to approve (or otherwise) the suitability

of the design under the Project.

2.2 The Independent Certifier shall:

2.2.1 monitor the construction, structural and services design for the Project to

establish that the design is generally in accordance with the Works Delivery

Plan;

2.2.2 monitor the detailed working drawings and specifications to verify that they

comply with the approved outline design as described in the Works Delivery

Plan; and

2.2.3 review the detailed design information, Reviewable Design Data and Design

Visibility Information in accordance with the obligations of the Independent

Certifier referred to in paragraph 1.2 above.

3 WORKS REVIEW PROCEDURE

3.1 To the extent necessary in order to be in a position to carry out the IC Services referred

to in this paragraph 3 (Works Review Procedure), paragraph 4 (Programme Approval

Procedure), paragraph 5 (Practical Completion), paragraph 6 (Acceptance Tests) and

paragraph 7 (Capital Contribution Milestones) below the Independent Certifier shall:

3.1.1 obtain from the Contractor such additional information as it reasonably

requires to perform and properly discharge its obligations under this

Agreement;

3.1.2 where necessary attend project meetings (both on and off site);

3.1.3 review the proposed procedures and programmes for testing, commissioning

and operation of the New Waste Management Facilities in accordance with

the Contract;

3.1.4 provide all documentation and information to the Contractor as required in

accordance with the terms of this Agreement;

3.1.5 provide all reasonable assistance to the Contractor in carrying out its

obligations or enforcing any of its rights under the Project Documents but

excluding any detailed consideration of, or involvement in, formal claims or

disputes;

(a) be entitled to enter each Site and from time to time monitor the Works

to view the general state and progress of the Works, to review overall

workmanship, samples of goods and materials used or about to be used

in the Works, and to ascertain generally that the terms of the Contract

have been and are being complied with by the Contractor. The

frequency and timing of the Independent Certifier's visits are dependent

on the progress of construction on each Site as applicable. All visits are

to be included in the Fee;

3.1.6 randomly check to see whether the Works are being undertaken in accordance

with the Works Delivery Plan, all Necessary Consents, Law, the requirements

of the Contract and Good Industry Practice; and

3.1.7 report each month on the status of the Works for each Site (and at any other

time as appropriate) identifying any work that is non-compliant with the terms

of the Contract.

4 PROGRAMME APPROVAL PROCEDURE

4.1 The Independent Certifier shall:

4.1.1 upon receipt of the Snagging Programme from the Contractor and where such

programme provides for any Snagging Matter to be made good more than

twenty (20) Business Days from the date of provision of the programme

agree with the Contractor such other time as is reasonably practicable;

4.1.2 within ten (10) Business Days of receipt of the Acceptance Test Programme

from the Contractor agree the Acceptance Test Programme with the Council

and the Contractor with or without modifications or reject the Acceptance

Test Programme (together with its reasons for any such rejection or

modifications);

4.1.3 if the Acceptance Test Programme is rejected or agreed subject to

modifications and the Acceptance Test Programme is resubmitted to the

Council and the Independent Certifier by the Contractor, review the

Acceptance Test Programme in conjunction with the Council until the

Acceptance Test Programme is agreed; and

4.1.4 once the Acceptance Test Programme has been agreed by the Council and the

Independent Certifier, within five (5) Business Days approve or reject in

writing any subsequent modification to the Acceptance Test Programme

requested by the Contractor (together with its reasons for any such rejection or

modifications).

5 PRACTICAL COMPLETION

5.1 The Independent Certifier shall within five (5) Business Days of the date specified in

the notice served by the Contractor pursuant to Clause 35.3.1 of the Contract commence

the Practical Completion Inspections of the relevant New Waste Management Facility.

5.2 No later than five (5) Business Days after completion of the Practical Completion

Inspections of the relevant New Waste Management Facility the Independent Certifier

shall either:

5.2.1 issue to the Contractor and the Council a Practical Completion Certificate in

respect of the relevant New Waste Management Facility (which may be

subject to Snagging Matters and where this is the case the Independent

Certifier shall require the Contractor to prepare a draft Snagging List within

three (3) Business Days of such requirement) stating the Practical Completion

Date; or

5.2.2 notify the Contractor and the Council that Practical Completion in respect of

the relevant New Waste Management Facility has not occurred specifying all

outstanding matters that must be completed before a Practical Completion

Certificate can be issued.

5.3 Where the Independent Certifier has notified the Contractor and the Council of

outstanding matters under paragraph 5.2.2 or paragraph 5.4.2 (as applicable) and the

Contractor has notified the Independent Certifier and the Council that all outstanding

matters have been completed in accordance with Clause 35.3.5 of the Contract, the

Independent Certifier shall within five (5) Business Days inspect the relevant New

Waste Management Facility to establish if all outstanding matters have been completed.

5.4 Following the inspection referred to in paragraph 5.3 the Independent Certifier shall

either:

5.4.1 issue the Practical Completion Certificate for the New Waste Management

Facility if it is satisfied that all outstanding matters have been completed; or

5.4.2 notify the Contractor and the Council that all outstanding matters have not

been completed and paragraphs 5.3 and 5.4 shall apply as appropriate until

the Independent Certifier issues a Practical Completion Certificate.

5.5 Where paragraph 5.4.2 applies the performance by the Independent Certifier of its

duties, functions and obligations under paragraphs 5.3 and 5.4 shall not form part of the

Basic Services but shall be Additional Services and the costs of performing such duties,

functions and obligations shall not be included within the Fee but shall be payable in

accordance with paragraph 4.3 of this Agreement.

5.6 The Independent Certifier shall issue a Practical Completion Certificate

notwithstanding the existence of Snagging Matters. Where the Practical Completion

Certificate is expressed to be subject to Snagging Matters the Independent Certifier

shall within five (5) Business Days of the issue of the relevant Practical Completion

Certificate issue to the Contractor and the Council the Snagging List provided that the

draft Snagging List has previously been provided by the Contractor to the Independent

Certifier in accordance with paragraph 5.2.1 and the Independent Certifier has reviewed

and revised the draft Snagging List as necessary;

5.7 Upon receipt of notification from the Contractor that all Snagging Matters have been

made good in accordance with the Snagging Programme and Clause 35.3.7 (c) of the

Contract the Independent Certifier shall within five (5) Business Days inspect the

relevant New Waste Management Facility and shall either:

5.7.1 issue written confirmation to the Council and the Contractor that all Snagging

Matters have been made good to its satisfaction; or

5.7.2 if it is not satisfied that all Snagging Matters have been made good to its

reasonable satisfaction notify the Contractor and the Council of the Snagging

Matters which have not been made good and shall specify in such notice the

timescales within which the Contractor shall make good such Snagging

Matters.



Contractor has notified the Independent Certifier and the Council that the Snagging

Matters have been completed, the Independent Certifier shall within five (5) Business

Days inspect the relevant New Waste Management Facility to establish whether the

Snagging Matters have been made good to its reasonable satisfaction.


either:





Matters which have not been made good and the provisions of paragraphs 5.8

and 5.9 shall apply as appropriate until the Independent Certifier issues

written confirmation to the Council and the Contractor that all Snagging

Matters have been made good to its reasonable satisfaction.






5.11 Following the issue by the Independent Certifier of all Practical Completion Certificates

in respect of the New Waste Management Facilities at the South Kirkby Main Site and

following receipt of notification from the Contractor that the South Kirkby Main Site is

considered Practically Complete and ready for the Practical Completion Inspections the

Independent Certifier shall within five (5) Business Days commence the Practical

Completion Inspections of the South Kirkby Main Site to establish whether the South

Kirkby Main Site is Practically Complete.

5.12 Following completion of the Practical Completion Inspections of the South Kirkby

Main Site in accordance with paragraph 5.11 the Independent Certifier shall:

5.12.1 if it is satisfied that the South Kirkby Main Site is Practically Complete issue

the South Kirkby Main Final Practical Completion Certificate to the

Contractor and the Council; or

5.12.2 if it is not so satisfied notify the Contractor and the Council that Practical

Completion in respect of the South Kirkby Main Site has not occurred,

specifying the outstanding matters that must be completed before the South

Kirkby Main Final Practical Completion Certificate can be issued pursuant to

this paragraph 5.12.2.



Contractor has notified the Independent Certifier and the Council that the outstanding

matters have been completed, the Independent Certifier shall within five (5) Business

Days re-inspect the South Kirkby Main Site to establish if the outstanding matters have

been completed and whether the South Kirkby Main Site is Practically Complete.


either:

5.14.1 issue the South Kirkby Main Final Practical Completion Certificate if it is

satisfied that all outstanding matters have been completed; or

5.14.2 notify the Contractor and the Council that the outstanding matters have not

been completed and paragraphs 5.13 and 5.14 shall apply as appropriate until

the Independent Certifier issues the South Kirkby Main Final Practical

Completion Certificate.


duties, functions and obligations under paragraphs 5.13 and 5.14 shall not form part of

the Basic Services but shall be Additional Services and the costs of performing such

duties, functions and obligations shall not be included within the Fee but shall be

payable in accordance with paragraph 4.3 of this Agreement.

6 ACCEPTANCE TESTS

6.1 Where the Contractor has provided to the Independent Certifier and the Council notice

of the anticipated date when an Acceptance Test Facility is ready to proceed with the

appropriate Acceptance Tests pursuant to Clause 35.6.3 of the Contract and such date is

less than five (5) Business Days from the date of the notice the Independent Certifier

shall agree with the Contractor the date on which the Acceptance Tests shall

commence.

6.2 During the period of the Acceptance Tests for each Acceptance Test Facility the

Independent Certifier shall:

6.2.1 inspect the relevant Acceptance Test Facility to ascertain whether the

Acceptance Tests have been satisfied; and/or

6.2.2 attend at the relevant Acceptance Test Facility and observe the Acceptance

Tests and/or the results of the Acceptance Tests carried out in accordance with

Part 2 of Schedule 9 (Practical Completion and Acceptance Tests).

6.3 No later than five (5) Business days after completion of the inspection of the relevant

Acceptance Test Facility and/or his observance of the Acceptance Tests and/or the

results of the Acceptance Tests and receipt of the certified copies of the results of the

Acceptance Tests the Independent Certifier shall either:

6.3.1 issue to the Contractor and the Council a Completion Certificate in respect of

the relevant Acceptance Test Facility (which may be subject to Snagging

Matters and where this is the case the Independent Certifier shall require the

Contractor to prepare a draft Snagging List within three (3) Business Days of

such requirement) stating the Completion Date; or

6.3.2 notify the Contractor and the Council that all the Acceptance Tests for the

relevant Acceptance Test Facility have not been satisfactorily passed and

therefore Completion has not occurred specifying the outstanding matters that

must be completed before the Acceptance Tests can be passed and a

Completion Certificate can be issued pursuant to this paragraph 6.3.



Contractor has notified the Independent Certifier and the Council that the outstanding

matters have been completed in accordance with Clause 35.6.9 of the Contract, the

Independent Certifier shall during the period of the Acceptance Tests for each

Acceptance Test Facility:

6.4.1 inspect the relevant Acceptance Test Facility to establish if the outstanding

matters have been completed and the Acceptance Tests have been satisfied;

and/or

6.4.2 attend the relevant Acceptance Test Facility and observe the Acceptance Tests

and the results of the Acceptance Tests carried out in accordance with Part 2

of Schedule 9 (Practical Completion and Acceptance Tests).

6.5 Following the inspection and/or the observation of the results referred to in paragraph

6.4 the Independent Certifier shall either:

6.5.1 issue the Completion Certificate for the Acceptance Test Facility if it is

satisfied that all outstanding matters have been completed; or

6.5.2 notify the Contractor and the Council that the outstanding matters have not

been completed and paragraphs 6.4 and 6.5 shall apply as appropriate until the

Independent Certifier issues a Completion Certificate in respect of the

relevant Acceptance Test Facility.






6.7 The Independent Certifier shall issue a Completion Certificate notwithstanding the

existence of Snagging Matters. Where the Completion Certificate is expressed to be

subject to Snagging Matters the Independent Certifier shall within five (5) Business

Days of the issue of the relevant Completion Certificate issue to the Contractor and the

Council the Snagging List provided that the draft Snagging List has previously been

provided by the Contractor to the Independent Certifier in accordance with paragraph

6.3.1 and the Independent Certifier has reviewed and revised the draft Snagging List as

necessary;

6.8 Upon receipt of notification from the Contractor that all Snagging Matters have been

made good in accordance with the Snagging Programme and Clause 35.6.11 (c) of the

Contract the Independent Certifier shall within five (5) Business Days inspect the

relevant Acceptance Test Facility and shall either:





Matters which have not been made good and shall specify in such notice the

timescales within which the Contractor shall make good such Snagging

Matters.



Contractor has notified the Independent Certifier and the Council that the Snagging

Matters have been completed, the Independent Certifier shall within five (5) Business

Days inspect the relevant New Waste Management Facility to establish whether the

Snagging Matters have been made good to its reasonable satisfaction.


either:





Matters which have not been made good and the provisions of paragraphs 6.9

and 6.10 shall apply as appropriate until the Independent Certifier issues

written confirmation to the Council and the Contractor that all Snagging

Matters have been made good to its reasonable satisfaction.


duties, functions and obligations under paragraphs 6.9 and 6.10 shall not form part of

the Basic Services but shall be Additional Services and the costs of performing such

duties, functions and obligations shall not be included within the Fee but shall be

payable in accordance with paragraph 4.3 of this Agreement.

6.12 This paragraph 6 is subject to Clauses 37.1.6 and 37.1.7 of the Contract and where

Clause 37.1.8 of the Contract applies references in this paragraph 6 to the Acceptance

Tests shall be read subject to the provisions of Clause 37.1.8 of the Contract.

7 CERTIFICATION OF THE CAPITAL CONTRIBUTION MILESTONES

7.1 Where the Contractor has provided to the Independent Certifier and the Council notice

of the anticipated date when any part of the Works relevant to a Capital Contribution

Milestone is due to be completed, the Independent Certifier shall attend the relevant

Site and inspect the relevant part of the Works to establish whether the relevant part of

the Works has been duly completed to its reasonable satisfaction.

7.2 Following the inspection referred to in paragraph 7.1, the Independent Certifier shall

either:

7.2.1 issue written confirmation in the form set out in Appendix 4 (Form of Written

Confirmation) to this Agreement to the Council and the Contractor that the

relevant part of the Works has been duly completed to its reasonable

satisfaction; or

7.2.2 if it is not so satisfied that the relevant part of the Works has been duly

completed to its reasonable satisfaction, notify the Council and the Contractor

to this effect, specifying the outstanding matters that must be completed to

enable it to issue written confirmation in accordance with paragraph 7.2.1 and

paragraphs 7.1 and this paragraph 7.2 shall apply as appropriate until the

Independent Certifier issues written confirmation in accordance with

paragraph 7.2.1.






7.4 Paragraphs 7.1 to 7.3 shall not apply in respect of those Capital Contribution

Milestones which require the issue of a Practical Completion Certificate as set out in

Schedule 39 (Capital Contribution Milestones) of the Contract and for the avoidance of

doubt those Capital Contribution Milestones shall be deemed to be completed

immediately following the issue of the relevant Practical Completion Certificate.

Part B - The Additonal Services

1 GENERAL

1.1 In addition to performing the Basic Services set out in Part A of this Schedule 1 the

Independent Certifier shall also perform the Additional Services as and when required.

2 ISSUE OF COUNCIL NOTICE OF CHANGE

2.1 Any additional duties, functions and obligations required to be performed by the

Independent Certifier as a result of the issue of a Council Notice of Change.

3 DAMAGE TO OR DESTRUCTION OF THE WORKS


Independent Certifier in connection with the reinstatement of the Works or any part

thereof arising out of any significant damage to or destruction of the Works or any part

thereof during the course of construction.

4 ADDITIONAL DUTIES IN CONNECTION WITH THE CERTIFICATION OF NEW WASTE

MANAGEMENT FACILITIES AND SITES


Independent Certifier in connection with the certification of the New Waste

Management Facilities and the South Kirkby Main Site in accordance with paragraphs

5.5, 5.10, 5.15, 6.6, 6.11 of Part A of this Schedule 1.

4.2 In the event that Clause 37.1.9 of the Contract applies any duties, functions and

obligations required to be performed by the Independent Certifier pursuant to paragraph

6 of Part A of Schedule 1 to this Agreement in connection with the issue of an

additional Completion Certificate in respect of the autoclave facility at the South

Kirkby Main Residual Waste Treatment Facility to enable the Contractor to satisfy the

requirements of Clause 37.1.9 of the Contract.

5 ADDITIONAL DUTIES IN CONNECTION WITH THE CERTIFICATION OF CAPITAL

CONTRIBUTION MILESTONES


Independent Certifier in connection with the certification of the Capital Contribution

Milestones in accordance with paragraph 7.3 of Part A of this Schedule 1.

SCHEDULE 2 - PAYMENTS

PART 1- The Basic Services Payments

Month

(following financial close)

Fee

£

Month 1

Month 2

Month 3

Month 4

Month 5

Month 6

Month 7

Month 8

Month 9

Month 10

Month 11

Month 12

Month 13

Month 14

Month 15

Month 16

Month 17

Month 18

Month

(following financial close)

Fee

£

Month 19

Month 20

Month 21

Month 22

Month 23

Month 24

Month 25

Month 26

Month 27

Month 28

Month 29

Month 30

Month 31

PART 2- Rates

Hourly Rate (£)

Director:

Senior Consultant or Project

Manager:

Specialist:

Consultant:

Project or Design Engineer:

Technician with CAE tools:

Contracted staff

Bought in services (e.g.

analysis, measurement, testing)

Mileage

Subsistence, fares and

accommodation

The above Rates will be adjusted each year (on the anniversary of the date of this Agreement) in

accordance with the percentage change stated in the UK Weekly Earnings Index - Whole Economy

(ref: KA5Q) as published by the Office of National Statistics for the latest available 12 months or

failing such publication being available then such other index as the parties acting reasonably may agree

and that provides the most similar outcome as the discounted index published in previous years. A fall

in the index will not lead to a reduction in fees and rates.

APPENDIX 1- FORM OF PRACTICAL COMPLETION CERTIFICATE

Practical Completion Certificate - Wakefield Waste Management PFI Project

Contractor:

Construction Sub-Contractor:


New Waste Management Facility certified:

Certificate issued pursuant to:

Date of Practical Completion: [ ]

We hereby certify that the [ ] Facility/Site has achieved Practical Completion.

Signed

on behalf of Fichtner Consulting Engineers Limited

Date [ ] ______________________________

[Insert name of individual certifier]

APPENDIX 2- FORM OF COMPLETION CERTIFICATE

Completion Certificate – Wakefield Waste Management PFI Project

Contractor:



Acceptance Test Facility certified:


Date of Completion: [ ]

We hereby certify that the [ ] Facility has achieved Completion

Signed


Date [ ] ______________________________


APPENDIX 3- FORM OF SOUTH KIRKBY MAIN FINAL PRACTICAL COMPLETION

CERTIFICATE

South Kirkby Main Final Practical Completion Certificate - Wakefield Waste Management PFI

Project

Contractor:



Site certified:


Date of Practical Completion: [ ]

We hereby certify that the South Kirkby Main Site has achieved Practical Completion

Signed


Date [ ] ______________________________


APPENDIX 4- FORM OF WRITTEN CONFIRMATION

Capital Contribution Milestone - Wakefield Waste Management PFI Project

Contractor:



Capital Contribution Milestone:

Confirmation issued pursuant to:

Date of Confirmation: [ ]

We hereby certify that the Capital Contribution Milestone referred to above has been completed.

Signed


Date [ ] ______________________________


KEG/KEG/331411/1/UKM/40905835.5