articles of agreement and conditions of subcontract

ARTICLES OF AGREEMENT AND CONDITIONS OF SUBCONTRACT _________________________________________________________________________

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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:



Name:

Address: witness to signature of attorney

SIGNED as a Deed by



in the presence of:



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

ARTICLES OF AGREEMENT AND CONDITIONS OF SUBCONTRACT

_________________________________________________________________________

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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




8.8 The Subcontractor provides these additional insurances




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


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.



The retention free amount is Nil

The retention percentage is 3%.


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.”


“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.”


“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.”


“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.”


“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.”



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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.”


“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.”


“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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“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.”


“Whenever under this Subcontract any sum of money shall be

recoverable from or payable by the Subcontractor to the Contractor it

may be deducted from the amount of any sum or sums then due, or,

which at any time thereafter may become due to the Subcontractor

under this Subcontract or any other contract with the Contractor.”


“Not 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.”


“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.”


“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.


“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.”


“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.”


“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


“Property in all Subcontractor’s Equipment and temporary works owned

by or vested in the Subcontractor shall, when on Site, vest in the

Contractor.”


“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.”


“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.”



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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.”


“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)


“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.”


“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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- 31 -

“(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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- 32 -

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



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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


……………………………… ……………………

……………………………… ……………………

……………………………… ……………………

……………………………… ……………………

…………………………………………………………………………….

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.

articles of agreement and conditions of subcontract

Documents