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SUBCONTRACT AGREEMENT
BETWEEN
KIER CONSTRUCTION LIMITED TRADING AS
KIER CONSTRUCTION - EASTERN
AND
RELATED TO
AT
CONTRACT NO.
SUBCONTRACT NO.
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Subcontract No:
SUBCONTRACT ARTICLES OF AGREEMENT
This Agreement made the ............................day of.....................20...............
BETWEEN
Kier Construction Limited trading as Kier Construction - Eastern whose registered
office is at Tempsford Hall, Sandy, Bedfordshire. SG19 2BD and whose Company
Registered Number is 2099533 (hereinafter called “the Contractor”) of the one
part
and
whose registered office is at
and whose Company Registered Number is (hereinafter
called "the Subcontractor") of the other part.
WHEREAS the Contractor has entered into a contract (hereinafter called "the main
contract") particulars of which are set out in the Subcontract Data Part One –
Data provided by the Contractor, documents referred to therein and the Invitation
to Tender AND WHEREAS the Subcontractor having been afforded the opportunity
to read and note the provisions of the main contract including the relevant parts
of the main contract Works and Site Information (other than details of the
Contractor's prices thereunder), has agreed to execute upon the terms
hereinafter appearing the Works which are described in the Subcontract Data Part
One - Data provided by the Contractor, documents referred to therein and the
Invitation to Tender and which form part of the works to be executed by the
Contractor under the main contract.
NOW THIS AGREEMENT WITNESSETH as follows:
1. In this Agreement words and expressions shall have the same meanings
as are respectively assigned to them in the conditions herein referred to.
2. In consideration of the payments to be made by the Contractor to the
Subcontractor as hereinafter mentioned the Subcontractor hereby
covenants with the Contractor to execute and complete the subcontract
works and remedy any defects therein in conformity in all respects with
the provisions of the subcontract.
3. The Contractor hereby covenants to pay the Subcontractor in
consideration of the execution and completion of the subcontract works
and the remedying of defects therein such amount or amounts as may
become payable to the Subcontractor under the provisions of the
subcontract at the times and in the manner prescribed by the subcontract.
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4. This subcontract incorporates the provisions of the following documents
and it shall read as if the same had been set out herein at length.
1. This Agreement and the conditions of the NEC3 Engineering and
Construction Subcontract dated June 2005 (with Amendments June
2006, September 2011 and April 2013), Core clauses 1 to 9, Dispute
Resolution Option W2 and the Main and Secondary Options listed
herein.
2. Section One Subcontract Data Part One – Data provided by
the Contractor, Schedules 1-3 and the
documents and terms referred to therein.
3. Section Two Subcontract Data Part Two – Data provided by
the Subcontractor.
4. Section Three Other documents listed in Subcontract Data
forming part of this subcontract.
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IN WITNESS whereof the parties hereto have caused this Agreement to be executed the day and year first above
written
(A)
SIGNED on behalf of the above named Contractor by
in the presence of
SIGNED on behalf of the above named Sub-Contractor by
in the presence of
(B)
SIGNED as a Deed on behalf of the above named Contractor
by
in the presence of:
Witness
Signatory
Address
Occupation
SIGNED as a Deed on behalf of the above named Sub-Contractor
by
in the presence of:
Witness
Signatory
Address
Occupation
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(C)
THE COMMON SEAL of the above named Contractor
was hereunto affixed as a Deed in the presence of
DIRECTOR
DIRECTOR/SECRETARY
THE COMMON SEAL of the above named Sub-
Contractor was hereunto affixed as a Deed in the
presence of
DIRECTOR
DIRECTOR/SECRETARY
(D)
SIGNED as a Deed by
as attorney for Kier Construction Limited
trading as Kier Construction - Eastern
in the presence of:
as attorney for Kier Construction Limited
trading as Kier Construction - Eastern
Name:
Address: witness to signature of attorney
SIGNED as a Deed by
as attorney for Kier Construction Limited
trading as Kier Construction - Eastern
in the presence of:
as attorney for Kier Construction Limited
trading as Kier Construction - Eastern
Name:
Address:
witness to signature of attorney
SIGNED as a Deed on behalf of the above named
Sub-Contractor by
DIRECTOR
DIRECTOR/SECRETARY
INSERT NAME OF SIGNATORY INSERT NAME OF SIGNATORY
NOTE: Part A is applicable if the document is to be executed under hand and not as a Deed.
Part B is applicable if the document is to be executed by an individual on his own behalf or is a duly authorised signatory of his firm. Part C is applicable if the document is to be executed as a Deed and the Common Seal is used. Part D is applicable if the document is to be executed as a Deed by a Company and the Common Seal is not used. If the document is to be executed pursuant to Scots law, separate requirements may apply.
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SECTION ONE
SUBCONTRACT DATA PART 1 – DATA PROVIDED BY THE CONTRACTOR
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Subcontract Data Part one - Data provided by the Contractor Statements given in all subcontracts
1. General
1.1(a) The conditions of the main contract are as detailed in Section 1
Schedule 1 of the document.
1.1(b) The conditions of sub-contract are the Core clauses 1 to 9, Dispute
Resolution Option W2 and the Main and Secondary Option clauses
of the NEC3 Engineering and Construction Subcontract dated June
2005 (with Amendments June 2006 and September 2011) as
detailed below: -
Main Options
A (priced subcontract with activity schedule)
B (priced subcontract with bill of quantities)
C (target subcontract with activity schedule)
Secondary Options
X2 Changes in law
X4 Parent Company Guarantee
X5 Sectional completion
X7 Delay Damages
X12 Partnering
X13 Performance Bond
X15 Limitation of Subcontractor’s liability for his design to
reasonable skill & care
X16 Retention
X17 Low Performance Damages
X18 Limitation of Liability
Y(UK)2 The Housing Grants, Construction and Regeneration Act
1996
Y(UK)3 The Contracts (Rights of Third Parties) Act 1999 shall/shall
not form part of this agreement
Z Additional conditions of subcontract are Z1 – Z10 inclusive
as listed hereinafter
1.2 The works in the main contract are the Procurement, Construction
with some elements of Installation, Commissioning and
Rectification of defects for the
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1.3 The subcontract works are
including but not limited to [design] [detailed design] [design of xxxx]
construction, erection, installation, completion, testing, commissioning and
correction of Defects, all in accordance with the provisions of this
subcontract and as set out in Schedule 2 – Additional Sub-Contract Works
Information.
1.4 The Contractor is:
Name:
Address:
1.5 The Employer in the main contract is:
Name:
Address:
1.6 The Project Manager in the main contract is:
Name:
Address:
1.7 The Supervisor in the main contract is:
Name:
Address:
1.8 The Adjudicator in this subcontract is:
Name:
Address:
1.9 The main contract Adjudicator is:
Name:
Address:
1.10 The Subcontract Works Information is set out in Schedule 2 and
appended hereto. Documentation not included in Schedule 2 but
included within the Main Contract documentation is available for
inspection at the Contractor’s Head Office by prior appointment.
The Subcontract Works Information is not to be construed as to
limit any obligation and liability of the Subcontractor to provide the
subcontract works to the extent that such obligation or liability is
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stated elsewhere in this subcontract or reasonably to be inferred
therefrom.
1.11 The Site Information is set out in Schedule 2 and appended hereto.
Documentation not included in Schedule 2 but included within the
Main Contract documentation is available for inspection at the
Contractor’s Head Office by prior appointment.
The Subcontractor acknowledges his responsibility to inspect this
information and is deemed to have full knowledge thereof.
1.12 The boundaries of the site are detailed in
1.13 The language of this subcontract is English.
1.14 The law of the subcontract is the law of England and Wales.
1.15 The period for reply to a communication is:
for a reply by the Contractor 14 calendar days.
for a reply by the Subcontractor 7 calendar days.
1.16 The Adjudicator nominating body is the President or Vice President
of the Royal Institution of Chartered Surveyors.
1.17 The tribunal is the English Courts
1.18 The following matters will be included in the Risk Register……….
………………………………………………………………………….
………………………………………………………………………….
Optional clauses
2. Not used in NEC3
3. Time
3.1 The indicative subcontract starting date is
[subject to weeks written notice to commence the Sub-
Contract Works on Site] [The Sub-Contractor agrees to waive their
requirement for any written notice to commence the Sub-Contract
Works].
3.2 The subcontract access date, Subcontract Completion Date(s)
and/or Period(s) for Completion of the Subcontract Works are as
set out in Schedule 3 hereto.
Optional clauses
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3.3 Unless otherwise agreed by the Contractor in writing following a
request from the Subcontractor, the Contractor is not willing to
take over the subcontract works before the Subcontract Completion
Date
3.4 Unless otherwise agreed by the Contractor the Subcontractor
submits his first programme for acceptance within 14 days of the
subcontract date and thereafter the Subcontractor submits a
revised programmes within 7 days of a request therefore from the
Contractor.
3.5 If the Contractor has identified work which is to meet a stated
condition by the key date, the key date and conditions to be met
are: -
None
condition to be met key date
1.
2.
4. Testing and Defects
4.1 The defects date is 52 weeks after Completion of the whole of the
main contract works.
4.2 The defect correction period is generally four (4) weeks and also as
detailed in Appendix 5 of the Main Contract and listed in Section
Three of the document.
5. Payment
5.1 The currency of this subcontract is pounds sterling.
5.2 The assessment interval is 4-5 weeks all as set out in Section 8 of
Contractor’s letter dated
The interest rate is two (2) % per annum above the base lending
rate of the Bank of England which the parties agree and hereby
acknowledge is a “substantial remedy” within the meaning of and
for the purposes of The Late Payment of Commercial Debts
(Interest) Act 1988.
5.3 For the purposes of Option Y(UK)2, the date on which payment
becomes due is 35 days from the assessment date, the final date
for payment is 7 days after the date when payment is due and the
prescribed period is one day before the final date for payment.
6. Compensation events
6.1 The place where weather is to be recorded is The Meteorological
Office nearest to the Site.
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6.2 The weather measurements to be recorded for each calendar
month are:
(a) the cumulative rainfall (mm)
(b) the number of days with rainfall more than 5 mm
(c) the number of days with minimum air temperature
less than 0 degrees Celsius
(d) the number of days with snow lying at 0800 hours
GMT
6.3 The weather measurements are supplied by the Meteorological
Office nearest to the Site.
6.4 The weather data are the records of past weather measurements
for each calendar month which were recorded at the Meteorological
Office nearest to the Site and which are available from the
Meteorological Office.
Optional clauses
6.5 Where no recorded data are available, the assumed values for the
ten year return weather data for each weather measurement for
each calendar month are those taken and recorded from the
Meteorological Office Station nearest to the Site or available by the
Meteorological Office.
6.6 these are additional compensation events: None
7. Not Used in NEC3
8. Risks and Insurance
8.1 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 is the amount required by the applicable law for any
one event is £10,000,000.
8.2 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
£5,000,000
Optional clauses
8.3 These are additional Employer’s risks Sonic Boom
Terrorism
Existing Structures and
Contents
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8.4 These are additional Contractor’s risks: None
8.5 The minimum limit of indemnity for insurance in respect of loss of
or damage to the subcontract works including Plant and Materials is
£ (to include cover for the replacement of any Plant
and Materials provided by the Contractor or the Employer).
8.6 The Employer or Contractor provides these insurances from the
Insurance Table
1. Insurance against………………………………..
Cover/Indemnity is………………………………
The deductibles are………………………………
8.7 The Employer or Contractor provides these additional insurances
1. Insurance against………………………………..
Cover/Indemnity is………………………………
The deductibles are………………………………
8.8 The Subcontractor provides these additional insurances
1. Insurance against………………………………..
Cover/Indemnity is………………………………
The deductibles are………………………………
9. Disputes and Termination
Intentionally blank
10. If Option B is used.
The method of measurement is Builders Quantities as amended by the
Preamble to Bill of Quantities/Schedule of Rates and Prices (as detailed in
Section 3) and the final method of measurement will be the same.
11. If Option C or D is used
The Subcontractor’s share percentages and share ranges are
share range
Subcontractor’s share percentage
Less than ……………..% …………………………..%
From……% to ……….% …………………………..%
From……% to ……….% …………………………..%
Greater than ………….% …………………………..%
12. If Option C, D or E are used
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13. If Option X1 is used
14. If Option X5 is used
15. If Option 12 is used
Partnering Contract for Capital Construction Projects – Partnering
Information, a copy of which is available for inspection by appointment at
the Contractor’s office.
16. If Option X13 is used
17. If Option X16 is used
The retention free amount is Nil
The retention percentage is 3%.
18. If Option X18 is used
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 matter arising
under or connection with this subcontract, other than excluded matters is
limited to £ .
The end of the liability date is 12 Years after Completion of the whole of
the subcontract works.
19. If Option Y(UK)3 is used
None
20. If Option X7 is used But not if option X5 is also used
21. If options X5 and X7 are used together
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Delay damages for each section of the subcontract works are
Section Description Amount per day
Remainder of the subcontract works ………………..per day
22. Option Z
Z0 Additional conditions of subcontract
Z0.1 The additional conditions of subcontract stated in the Subcontract Data
are part of this subcontract. In the event of any inconsistency between
additional conditions of subcontract and the other conditions of the
subcontract, the additional conditions of subcontract are to prevail.
Note: option clauses X4, X13, X20 apply
Amendments to Core Clauses
Z1 General
Z1.1 Remove clause 11.2 (10) and replace with:
11.2 (10) Others are people or organisations who are not the
Employer, the Contractor, the Adjudicator, the
Subcontractor or an employee, or Subsubcontractor of
the Consultant or Subcontractor.
Z1.2 [Option C only] At 11.2 (25) at the end:
“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.”
Z1.3 “(31) Main Contract means the agreement between the Employer and
the Contractor in relation to the works dated [ ].”
Z1.4 “(32) The Schedule of Cost Components is the Schedule of Cost
Components in …………………………….”
Z1.5 Add new clause 13.9:
Not Applicable
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“All communications may be made by electronic means with the
exception of any notice that is to be given under the subcontract which
is to be sent by pre-paid post and where required under the subcontract
by Special or Recorded means; unless it is a notice under clause 5
relating to payment which may be given electronically. The following
formats are to be adopted for electronic communication:
- Any Microsoft Office formats;
- Files with extensions dwg, dwf, pdf, jpg and jpeg.”
Z2 The Subcontractors main responsibilities
Z2.1 Insert as new clause 24.4:
“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.”
Z2.21 Insert as new clause 29:
“Extent of subcontract works
29.1 Notwithstanding 93.7 the Subcontractor is only authorised to
carry out the subcontract works, including design, procurement,
off-site prefabrication and work on site to the value of £ ,
and such sum shall be the Contractor’s maximum liability
whether in contract, tort, under statute or otherwise.
29.2 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.”
Z2.32 Add as new clause 26.3:
“Notwithstanding the date of the subcontract:
.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
1 Delete if no financial limit is to be imposed
2 Delete if not applicable
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…………………….. (called the “Authority”) are deemed to be carried
out under the subcontract; and
.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.”
Z3 Time
Z3.1 Delete existing 30.2 and insert:
“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 3.20 of the Main Contract.”
Z3.2 Insert as new clause 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.”
Z3.3 Insert as new clause 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.”
Z3.4 Insert as new clause 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:
.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
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payment until Completion of the subcontract works nor shall
the Subcontractor be entitled to any adjustment to the Prices in
connection therewith; and/or
.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.”
Z5 Payment
Z5.1 [Options A and B only] In 50.2 after “retained by 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).”
Z5.2 Insert at the end of 50.4:
“and to what it relates by no later than the date the payment becomes
due.”
Z5.3 Insert new clause 50.7:
“No later than 1 day before the final date payment is due, the
Contractor shall give notice to the Subcontractor specifying the amount
the Contractor considers to be due to the Sub-contractor and the basis
upon which that sum was calculated. Unless such notice is given by the
Contractor, the Contractor shall pay the amount notified at 50.4 no later
than the final date for payment.”
Z5.4 Add the additional sub clause 50.8:
“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.”
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Z5.5 [Option C only] Add as new clause 50.9:
“The Price for Work Done to Date and Prices have not been prepared in
accordance with the Standard Method of Measurement. Each item is as
described and 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] Add as new clause 50.9:
“The Bills of Quantities have not been prepared in accordance with the
Standard Method of Measurement. Each item is as described and 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.”
Z5.6 Add as new clause 50.10:
“For the avoidance of doubt the Price for Work Done to Date and Prices
includes for:
.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;
.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);
.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
.4 Where the subcontract works include design, the integration of
that design with the main contract works and/or design of
others.”
Z5.7 Add as new clause 50.11:
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“The Subcontractor shall not less than 7 days before each assessment
date (and such assessment date shall be the “Specified Date”) or
otherwise as agreed submit to the Contractor a written statement of the
amount due at the date of such statement. The statement shall be in
such form and contain such details as the Contractor may reasonably
require. The statement submitted by the Subcontractor shall constitute
a “valid statement” for the purposes of these conditions but not
otherwise.”
Z5.8 Add as new clause 50.12
“35 days after the Specified Date or otherwise as agreed but subject as
hereinafter provided there shall become due to the Subcontractor in
respect of the value of the work and materials if included in a valid
statement a payment of a sum calculated and determined by the
Contractor in accordance with the subcontract. The final date for
payment shall be 7 days after the date when the payment becomes
due.”
Z5.9 [Option A only] Add as new clause 50.13:
“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.”
Z5.10 [Option A only] Add as new clause 50.14:
“The Prices will not be adjusted, other than in respect of written
instructions issued by the Contractor varying the Subcontract Works
Information, in which case the Contractor will value the instructions
having regard to the breakdown of the Prices.”
Z5.11 [Option A only] Add as new clause 50.15:
“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 in accordance with the Standard
Method of Measurement. Each item is as described and 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.”
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Z5.12 Add as new clause 51.5:
“Without prejudice to any other rights and remedies which the
Contractor may possess, if in the bona fide opinion of the Contractor:
.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
.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 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.”
Z5.13 Add as new clause 51.6:
“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.”
Z5.14 Add as new clause 51.7:
“Not withstanding anything to the contrary contained elsewhere in the
subcontract, no payment shall become due to the Subcontractor unless
the Subcontractor shall have first produced to the Contractor
documentary evidence that the insurances required under the
subcontract are being maintained.”
Z5.15 Add as new clause 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)
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(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.”
Z5.16 Add as new clause 51.9:
“Notwithstanding anything to the contrary elsewhere in this subcontract
if the Employer is insolvent as defined in 91.1, 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.”
Z5.17 Add as clause 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.”
Z5.18 Add as clause 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.”
Z5.19 Add clause 53.9:
Until final Prices and final Defined Costs are available, the Subcontractor
forecasts the share and reports this to the Contractor each month.
Additionally the Subcontractor advises the Contractor each month the
forecast of the share.
Z5.20 Add as new clause 53.10:
“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
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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.”
Z5.21 Add new clause 53.11:
“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.”
Z5.22 Add new clause 53.12:
“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 the following:
.1 parent company guarantee (X4)
.2 10% performance bond (X13)
Z5.23 [Options A and B only] Insert new clause 54:
“Particular items of attendance which the Contractor will provide to the
Subcontractor free of charge are stated within the Subcontract Works
Information.”
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Z6 Clause 60 Compensation Events
Z6.1 Remove clauses 60.1 (6), (8) and (9)
Z6.2 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 Employer, Project Manager, Consultant, Contractor or
Subcontractor could prevent,
• An experienced member of the Contractor 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 .
Z6.3 In clause 60.1 add to end:
(20) Any other compensation event listed in the Subcontract Works
Information.
Z6.4 Remove clauses 60.3
and replace with
If there is an ambiguity or inconsistency within the site information
(including the information referred to in it), the Subcontractor is
assumed to have taken into account the physical conditions least
favourable to doing the work
Z6.5 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
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• 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.
Z7 Title
Z7.1 Insert new clause 70.3:
“Property in all Subcontractor’s Equipment and temporary works owned
by or vested in the Subcontractor shall, when on Site, vest in the
Contractor.”
Z7.2 Insert new clause 70.4:
“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.”
Z7.3 Add the additional clauses:
70.5 “The Contractor 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 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 .”
Z7.4
70.6 “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.”
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Z7.5
70.7 “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
Contractor pursuant to the Subcontract or prepared by the
Subcontractor pursuant to the Subcontract, all of which
information shall be deemed to be confidential.”
Z7.6
70.8 “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.”
Z7.7
70.9 “The Subcontractor shall not advertise the relationship with the
Employer or use the Employer’s name or logo in any printed
material without the Employer’s express written permission.”
Z7.8
70.10 “The Subcontractor shall not (in connection with the
performance of the services) 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.”
Clause 74 Confidentiality
Insert the following new clause 74:
Z7.9
74.1 The Subcontractor has the right to use the subcontract 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.
Z7.10
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74.2 The Subcontractor provides information to the Contractor set
out in the Subcontract Works Information.
Z7.11
74.3 The Parties do not disclose to Others information obtained in
connection with the subcontract works except
• to the extent required by the law of the contract, or
• when necessary to carry out their duties under this contract.
Clause 75 Publicity
Insert the following new clause 75:
Z7.12
75.1 “The Subcontractor may publicise the subcontract works only
with the Contractor’s written agreement.”
Z8 Risks and insurance
Z8.1 At the end of clause 84.2 add:
“or such later date as is stated in the Subcontract Data.”
Z8.2 Insert new clause 84.3:
“The Subcontractor shall effect insurance for his owned and hired
construction plant against all risks loss or damage during the period of
the subcontract.”
Z9 Termination
Z9.1 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”
Z9.2 In clause 90.4 after “total of previous payments.” Insert:
“The Contractor issues the payment certificate to both Parties.”
Z9.3 Insert new clause 90.6:
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“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/service.”
Z9.43 Add new clause 90.7:
“The Contractor has been appointed by the Employer to carry out
certain work in relation to the project and is currently working under a
limited contractual relationship. Therefore notwithstanding any other
provision of this subcontract, until such time as the terms and
conditions of the main contract have been agreed, the Contractor may,
at his sole and absolute discretion, at any time issue written notification
giving seven days notice of termination of the Subcontractor’s
employment under this subcontract.”
Z9.5 Delete the first bullet point in Clause 91.2 and replace with:
“Substantially failed to Provide the Subcontract Works.”
Z9.6 Add the following new clause 91.8:
Either Party may terminate the subcontract if changes to the extent of
subcontract works substantially change the viability of the subcontract
(R22).
Availability of Funds to Construct the Project
There is no guarantee as to the level of funds that will be made
available by the Employer to deliver the subcontract works. If sufficient
funds are not available to meet the Objectives then the Contractor may
terminate the subcontract. (R22)
Z9.7 Add as new clause 91.9:
“For the purposes of this subcontract a Company becomes insolvent if it
is unable to pay its debts as they fall due or on the making of an
Administration Order against it under Part II or Schedule B1 of the
Insolvency Act 1986, on the appointment of 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
3 Delete where main contract is agreed
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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
References to the Insolvency Act 1986 are to it as amended, extended
or re-enacted from time to time.”
Z9.8 Add the following new clause 92.3:
“In the event that the subcontract is terminated at any time prior to or
at the end of the Agreement’s completion, the Subcontractor is required
to handover to the Contractor within 13 weeks of the date of the
termination all the information listed below relating to the scheme 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 (2 number) and electronic
copies, where available, (2 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 Contractor.”
(a) copies of all reports, documents and brochures prepared during
the subcontract which were submitted to and approved by the
Contractor.
(b) copies and computer files of all drawings prepared during the
subcontract that were submitted to the Contractor.
(c) 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.
(d) all work relating to the subcontract works including all
preparation work and any other information whether or not
complete.
(e) all information relating to liaison with the public including copies
of all correspondence
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(f) details of all computer systems and programs used together
with all relevant tapes, disks and printouts in connection with
the work described at (a) to (e) above.
(g) 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 project sponsor that will be in accordance with the
Quality System. 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 3 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.”
Z9.94 Add as new clause 93.7:
“Where the subcontract is terminated in accordance with clause 90.5,
the amount due shall be:
• An amount due as assessed for normal payments;
• The Defined Cost for Plant and Materials:
- within the Working Areas where the Subcontractor can
demonstrate ownership of such items has passed to the
Contractor in accordance with 70.2
- outside the Working Areas where the Subcontractor can
demonstrate ownership of such items has passed to the
Contractor in accordance with 70.1;
• Any other entitlement accruing up to the date of termination of the
subcontract but excluding sums arising out of the termination of
the Subcontractor’s employment itself.
4 Delete where main contract is agreed
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For the avoidance of doubt the Subcontractor will not be entitled to
recovery of loss of profit, under recovery of preliminary costs, loss
and/or expense or any other costs arising or accruing as a result of the
termination of the Subcontractors employment, whether in contract,
tort, under statute or otherwise.”
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. The Notice of
Adjudication and the appointment of the Adjudicator shall,
where the Adjudicator is named in the subcontract, be as
provided in the Kier Adjudication Procedure (1998). Any
dispute referred to adjudication shall be conducted in
accordance with the Kier Adjudication Procedure (1998).
References to “the contract” therein shall be read as references
to “the Sub-Contract”
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“(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 subcontract (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 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 shall execute the bond as a deed within 14 days
from the date of a written request from the Contractor.”
ZX16 RETENTION
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Delete “at” within the first bullet point of clause 16.2 and insert
month after” and within the second bullet point after
“assessment” insert months
Delete the last paragraph and insert the following
“The balance of any retention held will be released no earlier than
months after the release of the first half of retention providing
all defects have been completed”
Z10.1 Value Engineering
Z10.1.1 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:
• enhance the quality or durability of the subcontract works or
• improve the efficiency of carrying out the subcontract works or
• Reduce the cost to the Contractor of maintaining the subcontract
works.
The Subcontractor includes with his proposals:
• the value of any savings that will arise
• the effect if any on the Accepted Programme
• the forecast Actual Cost of implementing the change.
Z10.1.2 If the Contractor accepts the Subcontractor’s proposal the Contractor
gives an instruction to the Subcontractor within 21 days which changes
the Subcontract Works Information.
Z10.2 UKCG Health and Safety Charter
“The Contractor is committed to improving safety performance and
standards in the industry as part of the UK Contractors Group (UKCG)
initiative. 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
subcontractors (including any agency labour employed by it) possess
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and produces to the Contractor prior to such operatives/subcontractors
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 subcontractors (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.”
Z10.3 Accurate Systems
“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
fail 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”
Z10.4 Providing works outside of the Subcontract’s period
Z10.4.1 The Contractor may instruct the Subcontractor to carry out works,
including mobilisation, before the 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.
Z10.4.2 The Contractor may instruct the Subcontractor to carry out works,
including demobilisation, after the end of the subcontract 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.
Z10.5 Quality Management System
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Z10.5.1 The Subcontractor operates a quality management system for Providing
the Subcontract Works.
Z10.5.2 The Subcontractor provides the Contractor, within the period stated in
the Subcontract Data, with a quality policy statement and a quality plan
for acceptance.
Z10.6 Waiver
Z10.6.1 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 subcontract 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 subcontract or the right of the Contractor to enforce any
provision in accordance with its terms.
Z10.7 Severability
Z10.7.1 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.
Z10.8 Health and safety
Z10.8.1 The Subcontractor must comply at all times with the Health and Safety
at Work etc. Act 1974, the regulations made under the 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.
Z10.8.2 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.
Z10.8.3 The Subcontractor’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’) submitted to the Contractor form part of the
subcontract and the Subcontractor is to comply therewith at all times
when carrying out this subcontract.
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Z10.8.4 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 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.
Z10.8.5 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.
Z10.8.6 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, subsubcontractors, agents, or members of the public, to the
Contractor and to the Employer’s Health and Safety Officer.
Z10.8.7 The Contractor and the Employer’s Health and Safety Officers are
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
Z10.8.3.
Z10.8.8 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.
Z10.8.9 The Contractor will not incur any liability under the contract as the
result of any action taken by the Contractor or the Employer’s Health
and Safety Officers to suspend provision of the subcontract works in the
event of non-compliance by the Subcontractor.
Z10.9 Cartels, bribery and corruption
Z10.9.1 The Subcontractor shall not breach any provision of the Bribery Act
2010 or 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 cancel the
subcontract and to recover the amount of any losses, damages, charges
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or costs which it may directly or indirectly sustain by reason of such
cancellation.
Z10.9.2 The Contractor shall be entitled to cancel the subcontract and recover
from the Subcontractor the amount of any loss or damage resulting
from such cancellation if:
(i) 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
(ii) the like acts shall have been done by any subsubconsultant
employed by the Subcontractor or acting on its behalf (whether
with or without the knowledge of the Subcontractor); or
(iii) if in relation to any contract or agreement with the Contractor
the Subcontractor or any subsubconsultant employed by him or
acting on its behalf shall:
(a) have committed an offence under the Prevention of
Corruption Acts 1889 to 1916: or
(b) have given any fee or reward the receipt of which is an
offence under Section 117 (2) of the Local Government
Act 1972.
Z10.10 Gratuities
Z10.10.1 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 subcontract works/ service other
than bona fide charges approved by the Contractor.
Z10.11 Value Added Tax
Z10.11.1 Prices and charges quoted in this subcontract shall exclude VAT. All
invoices and charges must show VAT as a separate figure at the ruling
rate.
Z10.12 No Partnership
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Z10.12.1 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.
Z10.13 Recovery of Sums Due From the Subcontractor
Z10.13.1 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.
Z10.14 Assistance in Legal Proceedings
Z10.14.1 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 Contractor may
become involved, or any relevant disciplinary hearing internal to the
Contractor, arising out of the provision of the subcontract works or the
Subcontractor’s presence on the Contractor’s premises, and the
Subcontractor shall give evidence in such inquiries, arbitration’s,
proceedings or hearings.
Z10.14.2 For the avoidance of doubt this clause Z10.14 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, or
any other enquiries, arbitrations, proceedings or hearings of which the
Subcontractor is subject.
Z10.14.3 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.
Z10.14.4 Such information provided or assistance rendered pursuant to the
obligation in this Condition, in whatever form, shall be at no cost to the
Contractor.
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(i) The Subcontractor acknowledges that the Commissioner for
Local Administration (the Local Government Ombudsman) may
investigate the performance of the subcontract by the
Subcontractor and any act or omission in connection with the
contract by the Subcontractor, its agents, employees or
subsubcontractors.
(ii) 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.
(iii) 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.
Z10.15 Observance of Statutory Requirements
Z10.15.1 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.
Z10.16 Intellectual Property Rights
Z10.16.1 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 Subcontractor.
Z10.17 Data Protection Acts
Z10.17.1 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.
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Z10.17.1 Without limiting the generality of its obligations under this clause the
Subcontractor ensures in respect of all information which constitutes
personal information as defined the Data Protection Acts that:
• the Subcontractor’s use to or access is within the limits of the
Employer’s registration;
• 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 Employer notifies to the Subcontractor in writing from
time to time;
• where maintained by the Subcontractor it is made available, at no
charge to the Employer, in response to any subject access
request;
• it is kept secure.
Z10.17.2 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.
Z10.17.2 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.
Z10.18 Equal Opportunities
Z10.18.1 Before commencing the subcontract works, and in connection with the
performance of the subcontract works, the Subcontractor shall:
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.
2. Adopt a policy to comply with the Employer’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:
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2.1 to eliminate unlawful racial discrimination; and
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 Employer or the Contractor requests.
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.
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.
5. Set out its policy on race relations:
5.1 In instructions to those concerned with recruitment, training
and promotion.
5.2 In documents available to employees, recognised trade unions
or other representative groups of employees.
5.3 In recruitment advertisements or other literature.
and shall provide such evidence of the instructions, documents,
recruitment advertisements or other literature as the Employer or the
Contractor requests.
6. Where it is not subject to English law, comply with this clause
Z10.18 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 Z10.18.
7. Require any subsubconsultant employed by it under a
subsubcontract of any part of the subcontract works to comply
with the requirements of this clause Z10.18 as if the
subsubconsultant was the Subcontractor and the Subcontractor
was the Employer or the Contractor.
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8. Provide such information and documentation as the Contractor
or Employer may require enabling monitoring by the Contractor
of compliance by the Subcontractor with this clause Z10.18.
Z10.18.2 Failure by the Subcontractor to comply with the requirements of this
clause Z10.18 will constitute a material breach of the Subcontractor’s
obligations.
Z10.19 Provision of Information during and at end of the subcontract
Z10.19.1 The Subcontractor should recognise 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 subcontract works, from various
government agencies. e.g. the Department of Transport, The Home
Office, HM 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 Citizen’s 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).
Z10.19.2 If requested to do so by the Contractor, the Subcontractor provides to
the Employer any and all relevant information relating to the
subcontract works reasonably required by the Contractor or Employer to
enable it to prepare the necessary documentation in respect of any
subsequent tendering or re-tendering of the subcontract works. 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 and the Contractor to comply with its duties under the
Transfer of Undertakings (Protection of Employment) Regulations 1981
as amended.
Z10.19.3 Such information pursuant to clause Z10.19 above shall be at no cost to
the Employer or the Contractor.
Z10.20 Human Rights Act 1998.
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Z10.20.1 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 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.
Z10.21 Freedom of Information
Z10.21.1 The Contractor and the Subcontractor acknowledge that:
(a) 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
Agreement (the "Information"), from the Employer;
(b) the Employer has a duty to communicate the Information to the
individual making the request; and
(c) the Subcontractor co-operates with the Employer in complying
with its 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 Employer.
Z10.21.2 The following sub-clauses apply to the Subcontractor and the
Contractor:
(a) Both Parties 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.
(b) Where either Party receives a request for information in writing
and that information is held by the other on behalf of the Party
in receipt of the request the Party holding the information on
behalf of the other shall promptly provide the Party in receipt of
the request with such information as is necessary to enable it to
comply or consider the request.
(c) for the purposes of clause Z10.21.2 (b) "in writing" shall also
include any request for information where the text of the
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request is (i) transmitted by electronic means (ii) is received in
legible form, and (iii) is capable of being used for subsequent
reference.
(d) unless it is clear that no exemption applies under the Freedom
of Information Act each Party shall notify the other within 24
hours of any requirement arising as a result of the Freedom of
Information Act whereby it may be compelled to disclose
information provided to it by the other Party and shall consult
with it as to whether such information should be disclosed.
(e) Clause Z10.21.2 (d) shall not apply where the Party which has
been provided information by the other does not intend to
disclose such information.
Z10.21.3 Exemptions to the Information Act
Note: Subcontractors must complete and sign the Form in
Schedule 5 if they wish this clause to apply.
In the event that a request is made to the Contractor for information
under the Information Act, the Contractor agrees that the information
referred to in Schedule 5 of this subcontract has been provided by the
Subcontractor on a confidential basis (the “Commercially Sensitive
Information”) and that any disclosure of the Commercially Sensitive
Information, unless directed to do so by a court of law, would cause the
Contractor to be in breach of its obligations under this subcontract.
Z10.22 Recruitment of Ex-offenders
Z10.22.1 The Subcontractor shall comply with the Employer’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.
Without prejudice to the generality of the foregoing, the Subcontractor
shall either register with the Criminal Records Bureau or make use of
the council’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.
Z10.22.2 The subcontract works will normally be contained within a separate and
fenced compound under the Subcontractor’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
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circumstances CRB checks for the relevant operatives will be required.
As a minimum requirement for all contracts the Subcontractor’s Site
Agent will require CRB clearance. The only exception to this would be
during the construction phase of a new building, on a new site,
completely remote from any existing establishment. Copies of all CRB
certificates must be made available to the Contractor before relevant
personnel enter existing occupied buildings.
Z10.22.3 At pre-contract meetings clause Z10.22.1 of these conditions should be
discussed and CRB certificates requested. The Subcontractor should
check that all certificates are valid for the duration of the subcontract
and hold copies in the project file. The management of the subcontract
in terms of expected visits to the school should be discussed with the
Head and agreement made as to any personnel, in addition to the
Subcontractors Site Agent, 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 Subcontractor’s staff should also be
agreed, i.e. use of school’s existing security, supervision and signing-in
procedures.
Z10.23 Complaints Procedure
Z10.23.1 The Subcontractor shall:
(a) Establish the complaints procedure identified within Schedule 7
– Section 8.
(b) Operate it from the beginning of the subcontract period.
Z10.24 Returns, Accounts and Notices
“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 Contractors need of
any such return, account, notice or information from him.”
Z10.25 Best Value and Efficiency Reviews
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Z10.25.1 Best Value
In accordance with Part 1 of the Local Government Act 1999 the
Employer may from time to time review the subcontract 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:
(a) Participate in and fully co-operate with such reviews; and
(b) 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 Employer in relation to the Services.
Z10.25.2 Efficiency Savings
(1) From time to time the Contractor will require the Subcontractor
to submit 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.
Z10.26 Fire Prevention on Construction Sites
“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 Main Contract 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.”
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SCHEDULE 1 – THE MAIN CONTRACT
DOCUMENTS COMPRISING THE MAIN CONTRACT ARE AS FOLLOWS:-
The Conditions of Contract are the NEC Engineering and Construction
Contract Third edition (dated June 2005) (with Amendments June 2006
and September 2011) with Main Option A, Dispute Resolution Option W2
and secondary options X2, X4, X5, X7, X12, X13, X15, X16, X17, X18,
Y(UK)2, Y(UK)3, and Z
FORM OF AGREEMENT
CONTRACT DATA
Part One Data Provided by Employer
Part Two Data Provided by Contractor
APPENDICES – 1 to 9
Appendix 1 – Works Information
Appendix 2 – Site Information
Appendix 3 – Risk Register
Appendix 4 – Key dates and Conditions
Appendix 5 – Defects Correction Periods
Appendix 6 – Working Areas
Appendix 7 – Works Information for Contractors design
Appendix 8 – Programme
Appendix 9 – Tender submission
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SCHEDULE 2 – ADDITIONAL SUBCONTRACT WORKS INFORMATION/
LISTED DOCUMENTS REFERRED TO IN THE CONTRACT DATA,
WORKS INFORMATION AND SITE INFORMATION
The Subcontractor will comply with the following documents and terms:
a) Contractor’s “Safety Health and Environmental Requirements for Sub-Contractors” as
set out on Form KGSHE002 (Revised March 2013), attached.
b) “Supplementary Conditions” dated May 2011”, attached.
c) Contractor’s “Drugs and Alcohol Policy” dated January 2012, attached.
d) Cambridgeshire County Council: Z Clauses to NEC3 Subcontract, attached.
e) Cambridgeshire County Council: Additional Z Clauses to NEC3 Subcontract, attached.
f) “Kier Adjudication Procedure 2011”, attached.
g) Contractor’s Enquiry for quotation – Sub-Contract dated together
with all the details and documents referred to therein already in the Sub-Contractor’s
possession and not annexed in full hereto.
Facilities available on Site will be as set out in Section 14 of Contractor’s letter dated
No Conditions attached to or forming part of the Sub-Contractor’s offer will form part of
the Sub-Contract Agreement unless agreed to within the attached documentation.
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SCHEDULE 3 – POSSESSION DATES, COMPLETION DATES AND
PERIODS FOR COMPLETION
1.0 The subcontract possession date, subcontract Completion date and/or
Period for Completion of the subcontract works are as set out below.
Possession
Date
Completion
Date
Period for
Completion
The whole of the subcontract
works
Section No (if applicable)
2.0 The Period for Completion for the subcontract works (if stated above)
commences on the subcontract starting date/first possession date.
3.0 The Subcontractor’s programme for the subcontract works complies with
the key dates and Completion Dates stated in Contractor’s programme
as the same may be amended from time to time by the Contractor and
notified to the Subcontractor.
4.0 All as set out in Section 10 of Contractor’s letter dated .
All as set
out in
Section 4.0 below
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SECTION TWO
SUBCONTRACT DATA PART 2 - DATA PROVIDED BY THE
SUBCONTRACTOR
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Subcontract Data Part two - Data provided by the
Subcontractor
1. Statements given in all sub-contracts
1.1 The Subcontractor is
Name
Address
Company Registered No:
1.2(a) The direct fee percentage is…………………………………%
1.2(b) The subsubcontracted fee percentage is ……………………%
1.3 The subcontract working areas are the Site and……………
1.4 The key people are
(1) Name…………………………………………………..
Job…………………………………………………….
Responsibilities……………………………………….
………………………………………………………..
Qualifications…………………………………………
Experience……………………………………………
………………………………………………………..
(2) Name…………………………………………………..
Job…………………………………………………….
Responsibilities……………………………………….
………………………………………………………..
Qualifications…………………………………………
Experience……………………………………………
1.5 The following matters will be included in the Risk Register
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…………………………………………………………………………..
…………………………………………………………………………...
……………………………………………………………………………
……………………………………………………………………………
2. If Option C,D or E is used] - Data for Schedule of Cost Components
2.1 The listed items of Equipment purchased for work on this subcontract, with
an on cost charge, are
Equipment Time related charge Per time period
…………………… ……………………………………….. Per…………….
…………………… ……………………………………….. Per……………….
…………………… ……………………………………….. Per………………
…………………… ……………………………………….. Per……………..
2.2 The rates for special Equipment are
Equipment Size or capacity rate
…………………… ……………………………………….. …………….
…………………… ……………………………………….. ……………….
…………………… ……………………………………….. ………………
…………………… ……………………………………….. ……………..
2.3 The percentage for Working Areas overheads is…………………………%
2.4 The hourly rates for Defined Cost of manufacture or fabrication outside the
Working Areas are
Category of Employee Hourly Rate
………………………………. ……………………
………………………………. ……………………
………………………………. ……………………
………………………………. ……………………
2.5 The percentage for manufacture or fabrication overheads is……………..%
Data for both Schedules of Cost Components
2.6 The hourly rates for Defined Cost of design outside the Working Areas are
Category of Employee Hourly Rate
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……………………………… ……………………
……………………………… ……………………
……………………………… ……………………
……………………………… ……………………
2.7 The percentage for design overheads is…………………………………..%
2.8 The categories of employees whose travelling expenses to and from the
Working Areas are included in Defined Cost are
…………………………………………………………………………….
…………………………………………………………………………….
…………………………………………………………………………….
…………………………………………………………………………….
Data for the Shorter Schedule of Cost Components – Not Used
2.9 The percentage for people overheads is……………………………………%
2.10 The published list of Equipment is the last edition of the list published by
…………………………………………………………………………….
2.11 The percentage for adjustment for listed Equipment in the published list
is…………………….% (state plus or minus)
2.12 The rates of other Equipment are
Equipment Size or capacity Rate (£/hr)
…………………………… ………………………….. …………
…………………………… ………………………….. …………
…………………………… ………………………….. …………
…………………………… ………………………….. …………
3. [If Options A or B is used - Data for Shorter Schedule of Cost
Components]
3.1 The percentage for people overheads is……………………………………%
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3.2 The published list of Equipment is the last edition of the list published by
…………………………………………………………………………….
3.3 The percentage for adjustment for listed Equipment in the published list
is…………………….% (state plus or minus)
3.4 The rates of other Equipment are
Equipment Size or capacity Rate (£/hr)
…………………………… ………………………….. …………
…………………………… ………………………….. …………
…………………………… ………………………….. …………
…………………………… ………………………….. …………
3.5 The hourly rates for Defined Cost of design outside the Working Areas are
Category of Employee Hourly Rate
……………………………… ……………………
……………………………… ……………………
……………………………… ……………………
……………………………… ……………………
…………………………………………………………………………….
4. Optional Statements
if the Subcontractor is to provide Subcontract Works information
for his design
4.1 The Subcontract Works Information for the Subcontractor’s design is in
………………………………………………………………………………
………………………………………………………………………………
The provision of Subcontract Works Information in respect of the
Subcontractor’s design in this Subcontract Data Part Two shall not in any
way relieve the Subcontractor of his obligation to comply with the
subcontract and the Subcontract Works Information.
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if a programme is to be identified by the Subcontractor in the
Subcontract Data
4.2 The Programme identified in the Subcontract Data is……………………
……………………………………………………………………………..
The provision of Subcontractor’s programme in this Subcontract Data Part
Two shall not in any way relieve the Subcontractor of his obligation to
comply with the subcontract and the Subcontract Works Information
included in the Subcontract Data Part One.
6. If Option A or C is used
The activity schedule is as set out in
7 If Option B or D is used
The bill of quantities is…………………………………………………..
8 The Tendered total of the Price is £
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SECTION THREE
Other documents listed in Subcontract Data forming part of this subcontract
SUBCONTRACT DOCUMENTATION
Refer to Section 1 - Sub-Contract Data Part 1 - Schedule 2
1. Preamble to Bill of Quantities/Schedule of Rates and Prices (1 page),
attached.
2. Partnering Contract for Capital Construction Projects – Partnering
Information, a copy of which is available for inspection by appointment at
the Contractor’s office.
3. Appendix 5 – Defects Correction Periods (1 page), attached.