SCHEDULE 11 - APPOINTMENT OF THE INDEPENDENT CERTIFIER
DATED 2013
(1) WAKEFIELD WASTE PFI LIMITED
- and -
(2) COUNCIL OF THE CITY OF WAKEFIELD
- and -
(3) SHANKS WASTE MANAGEMENT LIMITED
- and -
(4) BARCLAYS BANK PLC
- and -
(5) FICHTNER CONSULTING ENGINEERS LIMITED
INDEPENDENT CERTIFIER
APPOINTMENT
WALKER MORRIS Kings Court
12 King Street LEEDS
LS1 2HL Tel: 0113 2832500 Fax: 0113 2459412
CONTENTS 1 INTERPRETATION 2
2 APPOINTMENT 3
3 DURATION 6
4 PAYMENT 6
5 LIMITATIONS ON AUTHORITY 8
6 TERMINATION 8
7 CONFIDENTIAL INFORMATION 11
8 PROFESSIONAL INDEMNITY INSURANCE 12
9 COPYRIGHT 13
10 QUALITY ASSURANCE 13
11 LIMITATION OF LIABILITY 14
12 NOTICE 14
13 ASSIGNMENT 16
14 CUMULATIVE RIGHTS AND ENFORCEMENT 17
15 WAIVER 17
16 SEVERABILITY 17
17 VARIATION 18
18 THIRD PARTY RIGHTS 18
19 DISPUTE RESOLUTION PROCEDURE 18
20 ENTIRE AGREEMENT 19
21 GOVERNING LAW AND JURISDICTION 19
22 COUNTERPARTS 19
SCHEDULE 1 - THE IC SERVICES 22
PART A - The Basic Services 21 PART B - The Additional Services 32 SCHEDULE 2 - PAYMENTS 34
PART 1- The Basic Services Payments 34
PART 2- Rates 36
APPENDIX 1- FORM OF PRACTICAL COMPLETION CERTIFICATE 37
APPENDIX 2- FORM OF COMPLETION CERTIFICATE 38
APPENDIX 3- FORM OF SOUTH KIRKBY MAIN FINAL PRACTICAL COMPLETION CERTIFICATE 39
APPENDIX 4 - FORM OF WRITTEN CONFIRMATION 39
THIS AGREEMENT is made on 2013
BETWEEN
(1) WAKEFIELD WASTE PFI LIMITED, a company incorporated in England and Wales with
registered number 08193325 whose registered office is at Dunedin House, Auckland Park,
Mount Farm, Bletchley, Milton Keynes, Buckinghamshire MK1 1BU (the "Contractor");
(2) COUNCIL OF THE CITY OF WAKEFIELD of Town Hall, Wood Street, Wakefield, West
Yorkshire, WF1 2HQ, (the "Council");
(3) SHANKS WASTE MANAGEMENT LIMITED a company incorporated in England and
Wales under number 02393309 whose registered office is at Dunedin House, Auckland Park,
Mount Farm, Bletchley, Milton Keynes, Buckinghamshire MK1 1BU (the "Construction Sub-
Contractor");
(4) BARCLAYS BANK PLC, as Agent and Security Trustee for the Senior Lenders from time to
time under the Common Terms Agreement (the "Facility Agent"), which term shall include any
substitute or replacement agent from time to time under the Common Terms Agreement); and
(5) FICHTNER CONSULTING ENGINEERS LIMITED, a company incorporated in England
and Wales with registered number 02605319 having its registered office at Kingsgate,
Wellington Road North, Stockport, Cheshire SK4 1LW (the "Independent Certifier").
Whereas
(A) The Contractor has entered into a contract with the Council in respect of the Project on or about
the date of this Agreement ("Contract").
(B) The Contractor will undertake the Works in accordance with the terms of the Contract.
(C) The Contractor and the Facility Agent have entered into the Common Terms Agreement pursuant
to which the Facility Agent has agreed to provide certain finance to the Contractor in relation to
the Project.
(D) The Independent Certifier is an independent adviser willing to provide services to the Contractor,
the Council and the Facility Agent in relation to the Contract.
(E) Under a separate appointment, the Contractor and the Facility Agent have engaged the
Independent Certifier to undertake a separate role as technical adviser in relation to the Financing
Agreements.
(F) The Appointers have agreed to engage the Independent Certifier to carry out the duties and
obligations ascribed to the Independent Certifier in the Contract and upon the terms of this
Agreement.
IT IS AGREED as follows:
1 INTERPRETATION
1.1 Unless the context otherwise requires, words and expressions defined in the Contract
have the same meanings in this Agreement.
Additional Services those duties, functions and obligations to be performed
by the Independent Certifier as set out in Part B of
Schedule 1 (The IC Services) and paragraphs 5.5, 5.10,
5.15, 6.6, 6.11 and 7.3 of Part A of Schedule 1 (The IC
Services);
Appointers collectively the Contractor, the Council and the Facility
Agent;
Basic Services those duties, functions and obligations to be performed
by the Independent Certifier as set out in Part A of
Schedule 1 (The IC Services) with the exception of
those duties, functions and obligations set out in
paragraphs 5.5, 5.10, 5.15, 6.6, 6.11 and 7.3 of Part A
of Schedule 1 (The IC Services);
Cap
Fee the fee for the Basic Services including but not limited
to all labour and all reasonable costs and expenses of
every kind incurred by the Independent Certifier in
connection therewith;
IC Documents the Contract, the Construction Contract, the Operating
Contract, the Interface Agreement and the Common
Terms Agreement;
IC Services the Basic Services and the Additional Services;
Joint Notice a written notice signed by a duly authorised
representative of each of the Appointers;
Interface Agreement the interface agreement made between the Contractor,
the Construction Sub-Contractor and the Operating
Sub-Contractor dated on or about the date of this
Agreement;
Rates the hourly rates set out in Part 2 of Schedule 2
(Payment) to this Agreement;
Reports has the meaning set out in Clause 9.1 (Copyright).
1.2 The headings in this Agreement do not affect its interpretation;
1.3 Unless the context otherwise requires, all references to Clauses and Schedules are
references to Clauses of and Schedules to this Agreement.
2 APPOINTMENT
2.1 The Appointers engage the Independent Certifier and the Independent Certifier agrees
to perform the IC Services.
2.2 The Independent Certifier shall provide the IC Services in accordance with this
Agreement independently, fairly and impartially to and as between the Appointers at
such times and at such locations as the Appointers and the Independent Certifier shall
agree from time to time. Whilst the Independent Certifier may take account of any
representations made by the Appointers or the Construction Sub-Contractor the
Independent Certifier shall not be bound to comply with any such representations made
by them in connection with any matter on which the Independent Certifier is required to
exercise its professional judgment.
2.3 The Independent Certifier shall promptly and efficiently provide the IC Services:
2.3.1 with the degree of skill, care and diligence reasonably to be expected of a
properly qualified and competent professional adviser who has experience of
rendering such services for projects of similar size, nature, scope complexity
and value to the Project; and
2.3.2 in compliance with all Law and Good Industry Practice.
2.4 The Independent Certifier acknowledges that it owes a duty of care pursuant to and as
set out in Clause 2.3 to the Appointers and to the Construction Sub-Contractor in the
provision by it of the IC Services.
2.5 All instructions to the Independent Certifier shall be given in writing jointly by the
Contractor and the Council, and the Council and the Contractor (acting jointly) shall
provide a copy of the same to the Facility Agent immediately following issue. The
Independent Certifier shall promptly and fully comply with all reasonable instructions
given to it by the Council and the Contractor (acting jointly) except and to the extent
that the Independent Certifier reasonably considers that any such instructions vary or
might vary the IC Services or its authority or responsibilities under this Agreement or
prejudices or might prejudice the exercise by the Independent Certifier of its
professional judgment in accordance with Clauses 2.1, 2.2 and 2.3. In such event the
Independent Certifier shall notify and consult with the Council and the Contractor
(acting jointly) as soon as reasonably possible in order to resolve the conflict before
acting upon the instruction.
2.6 The Council, the Contractor and the Construction Sub-Contractor agree to (and the
Contractor and the Construction Sub-Contractor shall procure that any of their sub-
contractors shall) co-operate with and provide reasonable assistance to the Independent
Certifier, to familiarise the Independent Certifier with all necessary aspects of the
Project and to enable the Independent Certifier to carry out its obligations under this
Agreement or duties under the Contract.
2.7 The Independent Certifier acknowledges that it has been provided with a complete copy
of the IC Documents. Accordingly, the Independent Certifier shall be deemed to have
full knowledge of the provisions of the IC Documents and shall be deemed to be aware
of and to have taken full account of all the undertakings and warranties, both expressed
and implied, on the part of the Appointers which are set out in the IC Documents. The
Independent Certifier further acknowledges that any breach by it of this Agreement
may result in the Appointers and/or the Construction Sub-Contractor incurring
liabilities under the IC Documents and other costs and losses and all such liabilities,
costs and losses are hereby agreed to be within the contemplation of the Independent
Certifier as being the probable result of any such breach by the Independent Certifier.
2.8 Subject to Clauses 2.8.1 and 2.8.2, the Independent Certifier shall use in
connection with the performance of the IC Services, who shall be available to the extent
that and for so long as may be necessary to ensure the proper performance by the
Independent Certifier of the IC Services. Such person shall have full authority to act on
behalf of the Independent Certifier for all purposes in connection with this Agreement.
2.8.1 Subject to Clause 2.8.2, the person specified in this Clause 2.8 shall not be
removed or replaced by the Independent Certifier unless he ceases to work as
a director or employee of the Independent Certifier or is unable to work
because of death, ill health or other exceptional circumstances. The
Independent Certifier shall, as soon as reasonably practicable, notify the
Appointers of any such circumstances and shall be responsible for finding a
replacement who shall previously have been approved in writing by the
Appointers, provided that such approval shall not be unreasonably withheld or
delayed. The replacement shall be of equal standing, experience and technical
competence as the person previously appointed.
2.8.2 The Independent Certifier shall, within fifteen (15) Business Days of receipt
of a Joint Notice issued by the Appointers, remove and replace the person
specified in this Clause 2.8 provided that such notice shall have been jointly
issued by the Appointers on reasonable grounds.
2.9 Nothing in this Agreement shall be construed as imposing on the Independent Certifier
liability in respect of design work prepared by others for the Project, provided that the
Independent Certifier shall not be relieved by virtue of this Clause 2.9 from his duty to
notify the Appointers of any issues adversely affecting the Project of which the
Independent Certifier becomes aware in the course of performing the IC Services.
2.10 The Independent Certifier shall provide the Appointers upon reasonable request with:
2.10.1 copies of any reports and correspondence issued or required to be provided by
the Independent Certifier in accordance with this Agreement and/or the IC
Services; and
2.10.2 any other information relating to the Project which is in its possession in its
role as Independent Certifier pursuant to this Agreement,
and shall regularly update the Appointers as to progress in the carrying out of the IC
Services and shall provide to the Appointers copies of minutes of all meetings it attends
relating to the Project.
2.11 The Independent Certifier shall give reasonable notice to the Appointers and the
Construction Sub-Contractor in writing of the date and time of any proposed inspection
of the Sites, the Works, the New Waste Management Facilities and any proposed
attendance in connection with the carrying out of the Acceptance Tests in order to
perform the IC Services and any other obligations under this Agreement and the
Contract and shall allow all parties to accompany it on the inspections or attendances.
3 DURATION
This Agreement shall have effect as from the date hereof in relation to all IC Services performed
by the Independent Certifier (whether before or after the date hereof) and shall continue until all
the IC Services have been performed or this Agreement is otherwise terminated in accordance
with the terms of this Agreement.
4 PAYMENT
4.1 The Contractor shall be liable to pay to the Independent Certifier the Fee up to the Cap
which shall be payable in accordance with this Clause 4 and Schedule 2 (Payment).
4.2 Subject to the provisions of Clause 4.3 the Contractor shall have no liability to pay to
the Independent Certifier any Fee in excess of the Cap in respect of the Basic Services.
4.3 If the Independent Certifier is required to perform any Additional Services in
connection with the Project then the Independent Certifier and the Contractor shall
agree in writing a fair and reasonable additional payment to the Independent Certifier
calculated by reference to the extent of such Additional Services and the Rates provided
that the Independent Certifier has notified the Appointers in advance of undertaking any
such Additional Services that it is or may be entitled to payment in respect of such
Additional Services and, so far as is possible, the amount of such payment shall be
agreed in writing by the Contractor and the Independent Certifier prior to performance
of any such Additional Services.
4.4 Nothing in this Agreement shall make the Council, the Facility Agent or the
Construction Sub-Contractor liable to the Independent Certifier for any payment or
other sum due to the Independent Certifier pursuant to this Clause 4 and liability for any
such payment or other sums shall remain exclusively with the Contractor.
4.5 The provisions of Clause 4.3 in relation to additional payment shall not apply where
and to the extent that any Additional Services shall have been necessitated, in whole or
in part, by any negligence, omission or default on the part of the Independent Certifier
in the performance of the IC Services.
4.6 The Fee shall be paid by instalments as specified in Part 1 of Schedule 2 (Payment) in
accordance with the provisions of Clauses 4.8 to 4.10 (inclusive).
4.7 The Independent Certifier shall submit to the Contractor accounts from time to time as
and when any sums become due to the Independent Certifier under this Agreement (but
no more frequently than monthly) showing:
4.7.1 the instalment of the Fee which is due to the Independent Certifier;
4.7.2 the instalments of the Fee previously paid by the Contractor to the
Independent Certifier; and
4.7.3 any other sums due to the Independent Certifier under this Agreement
including payment for any Additional Services
such account shall be supported by such documents, vouchers and receipts as shall be
reasonably necessary for computing the same or as may be reasonably required by the
Contractor to verify and understand the same.
4.8 Subject to Clause 4.9 and to any deductions or set-offs which the Contractor is entitled
to make under the terms of this Agreement or otherwise at law, payment shall be made
within thirty (30) days following receipt by the Contractor of the Independent Certifier's
accounts (the "Payment Date") in accordance with Clause 4.7. For the purposes of this
Clause 4.8, the Independent Certifier's accounts shall be deemed to have been received
in accordance with Clause 12 (Notice). Any payment which is not made by the Payment
Date shall thereafter bear simple interest at a daily rate equivalent to
per annum above the Royal Bank of Scotland plc base rate from time to time until the
date of actual payment.
4.9 If the Contractor wishes to question or dispute any item or part of an item of the
Independent Certifier's accounts the Contractor may, not later than five (5) days after
receipt of the Independent Certifier's accounts, give the Independent Certifier written
notice stating the amount which the Contractor proposes to pay, the basis on which that
amount is calculated, any amount to be withheld and the grounds for withholding
payment of that amount. Where no such notice is given, the amount to be paid is that
stated in the Independent Certifier's accounts. Where such notice is given the Contractor
shall pay to the Independent Certifier all amounts which are not to be withheld.
4.10 The Contractor shall pay to the Independent Certifier the total amount of VAT properly
chargeable by the Independent Certifier on the supply of the IC Services under this
Agreement.
5 LIMITATIONS ON AUTHORITY
5.1 The Independent Certifier shall not, without the written consent (in the form of a Joint
Notice) of the Appointers:
5.1.1 make or purport to make any alteration or addition to or omission from the
design of the Works (including, without limitation, the setting of performance
standards) or issue any instruction or direction to any contractor or
professional consultant employed or engaged in connection with the Project;
5.1.2 consent or agree to any waiver or release of any obligation of the Contractor
or the Council under the Contract or of any contractor or professional
consultant employed or engaged in connection with the Project;
5.1.3 sanction, approve or accept any design submitted by the Contractor or any
other contractor or professional consultant employed or engaged in
connection with the Project;
5.1.4 issue any instruction or give any approval or make any agreement which, save
as may be necessary for the performance of the IC Services, would or might
delay completion of the Project or increase the cost to the Contractor of the
Project; or
5.1.5 express an opinion on and shall not interfere with or give any advice or make
any representations in respect of any matters which are beyond its role and
responsibilities under this Agreement.
6 TERMINATION
6.1 The Appointers may by issuing a Joint Notice to the Independent Certifier immediately
terminate the Independent Certifier's Appointment under this Agreement if the
Independent Certifier:
6.1.1 is in breach of any of the terms of this Agreement which, in the case of a
breach capable of remedy, has not been remedied by the Independent Certifier
within fourteen (14) days of receipt by the Independent Certifier of a Joint
Notice specifying the breach and requiring its remedy;
6.1.2 is incompetent, guilty of gross misconduct and/or any negligence or delay in
the provision of the IC Services;
6.1.3 fails to comply with Clause 2 (Appointment);
6.1.4 is unable to admit its inability to pay its debts when they become due within
the circumstances specified in section 123(1)(c) of the Insolvency Act 1986
without the need to prove any fact or matter to the satisfaction of the Court as
provided thereon;
6.1.5 enters into a voluntary arrangement under Part I of the Insolvency Act 1986 or
enters into a scheme of arrangement with its creditors generally in satisfaction
of its debts;
6.1.6 makes any arrangement or composition with creditors generally, other than
for the purposes of a solvent internal reorganisation;
6.1.7 is the subject of an administration order made under Part II of the Insolvency
Act 1986;
6.1.8 is subject to an encumbrancer taking possession or undergoes the appointment
of a receiver or manager (including an administrative receiver) either under
Part II of the Insolvency Act 1986 or under the Law of Property Act 1925 or
otherwise (and in the case of a receiver only, not being discharged within
twenty one (21) days of his appointment);
6.1.9 is the subject of the passing of a resolution to wind up or a provisional
liquidator is appointed or a winding-up order is made under Part IV of the
Insolvency Act 1986 (except for a voluntary winding up solely for the purpose
of amalgamation or reconstruction, the terms of which have previously been
notified to and approved in writing by the Appointers);
6.1.10 is the subject of a proposal made for a scheme of arrangement under part 26
of the Companies Act 2006; or
6.1.11 fails or refuses after written warning to provide the IC Services reasonably
and properly required of it.
6.2 The Appointers may by issuing a Joint Notice to the Independent Certifier suspend the
Independent Certifier's Appointment at any time. During the period of any such
suspension payment of the Fee and/or payment in respect of Additional Services by the
Contractor pursuant to Clause 4 (Payment) shall be suspended.
6.3 If the Contract is rescinded, terminated or repudiated for any reason and,
notwithstanding that the validity of such rescission, termination or repudiation may be
disputed, the Independent Certifier's Appointment under this Agreement may be
terminated by Joint Notice and with immediate effect.
6.4 Following any termination of the Independent Certifier's Appointment under this
Agreement, the Independent Certifier shall be entitled to be paid in full and final
settlement in respect of any claim which the Independent Certifier may have for any
payments due under Clause 4 in respect of the IC Services carried out in accordance
with this Agreement prior to the date of termination.
6.5 Termination of this Agreement shall be without prejudice to any party's accrued rights
and obligations under this Agreement as at the date of termination (including the right
of the Appointers to recover damages from the Independent Certifier).
6.6 If this Agreement is terminated pursuant to Clause 6.1, the Independent Certifier shall
pay to the Appointers, as the case may be, any reasonable incremental loss, damage or
additional costs suffered by each of them including but not limited to any liability under
the IC Documents as contemplated by the provisions of Clause 2.7 (Payment).
6.7 Each party's further rights and obligations shall cease immediately on termination
except that termination of this Agreement shall not affect the continuing rights and
obligations of the Appointers under Clauses 7 (Confidential Information), 8
(Professional Indemnity Insurance), 11 (Limitation of Liability), 19 (Dispute Resolution
Procedure), and this Clause 6 or under any other clause which is expressed to survive
termination or which is required to give effect to such termination or the consequences
of such termination.
6.8 The Independent Certifier shall only be entitled to terminate this Agreement with
immediate effect by written notice to the Appointers where:
6.8.1 the Contractor fails to make payment by the Payment Date;
6.8.2 following the Payment Date the Independent Certifier has served notice on
each of the Appointers indicating that this sum remains unpaid; and
6.8.3 such sum remains unpaid for a period of twenty (20) Business Days from the
date of' service by the Independent Certifier of the notice pursuant to Clause
6.8.2.
6.9 The Council or the Facility Agent may elect to make payment to the Independent
Certifier of the monies owed by the Contractor pursuant to Clause 4 before the expiry
of the period set out in Clause 6.8.3 (or at any time thereafter prior to the termination of
this Agreement by the Independent Certifier in accordance with Clause 6.8) provided
that the Council or the Facility Agent gives five (5) Business Days' notice to the other
Appointers of its election to make such payment to the Independent Certifier. Upon
receipt of such payment the Independent Certifier's right to terminate this Agreement
under Clause 6.8 shall cease.
6.10 If the Council elects to make payment to the Independent Certifier of the monies owed
by the Contractor pursuant to Clause 4 (Payment) before the expiry of the period set out
in Clause 6.8.3 (or at any time thereafter prior to the termination of this Agreement by
the Independent Certifier in accordance with Clause 6.8), the Council shall be entitled
to deduct any such sums from the Unitary Charge.
7 CONFIDENTIAL INFORMATION
7.1 Save as may be necessary for the proper provision of the IC Services by the
Independent Certifier under this Agreement, the Independent Certifier shall treat as
secret and confidential and shall not at any time for any reason disclose or permit to be
disclosed to any person or otherwise make use of or permit to be made use of any
information relating to the Project or to any of the Appointers', the Construction Sub-
Contractor's or the Operating Sub-Contractor's technology or other know how, business
plans or finances or any such information relating to a subsidiary, supplier, customer or
client of any of the Appointers, the Construction Sub-Contractor or the Operating Sub-
Contractor where the information was received during the period of this Agreement.
7.2 Upon termination of this Agreement for whatever reasons the Independent Certifier
shall deliver up to the Contractor and/or the Council (as appropriate) all working
papers, computer disks and tapes or other material and copies provided to the
Independent Certifier, together with copies of any document or report produced by the
Independent Certifier, pursuant either to this Agreement or to any previous obligation
owed to the Contractor and/or the Council. The Independent Certifier shall retain in
safe storage at its own cost, for a period of not less than ten (10) years following
termination of this Agreement, all working papers, computer disks, tapes and other
material arising out of its performance of this Agreement.
8 PROFESSIONAL INDEMNITY INSURANCE
8.1 Without prejudice to its obligations under this Agreement, or otherwise at law, the
Independent Certifier shall, subject to such insurance being available at commercially
reasonable rates and on commercially reasonable terms, maintain professional
indemnity insurance with a limit of indemnity of not less than
for any one (1) claim (except for pollution/contamination claims where
the amount is "in the aggregate") in respect of any neglect, error or omission on the
Independent Certifier's part in the performance of its obligations under this Agreement
for the period commencing on the date on which the IC Services are first provided
under this Agreement and expiring twelve (12) years after:
8.1.1 the date of the completion of the IC Services; or
8.1.2 the termination of this Agreement
whichever is the earlier.
8.2 The Independent Certifier shall maintain such insurance with reputable insurers
licensed to carry out insurance business in Europe who are acceptable to the
Appointers, such acceptance not to be unreasonably withheld or delayed.
8.3 The Independent Certifier shall, prior to commencing the provision of the IC Services
and no less than five (5) Business Days prior to renewal dates, produce for inspection
by the Appointers documentary evidence that such insurance is being properly
maintained.
8.4 The Independent Certifier shall comply with all conditions and obligations of such
insurance policy and shall inform the Appointers as soon as reasonably practicable if
such insurance ceases to be maintained. If such insurance ceases to be available at
commercially reasonable rates and on commercially reasonable terms, other than by
reason of the Independent Certifier's own claims record or other acts, omissions or other
matters particular to the Independent Certifier, the Independent Certifier shall notify the
Appointers and shall discuss the best means of protecting each party's position and the
Independent Certifier shall, if requested by the Appointers, take out such insurance with
such a limit of indemnity as is available in the market at commercially reasonable rates
and upon commercially reasonable terms.
8.5 The obligations in this Clause 8 shall continue notwithstanding termination of this
Agreement for any reason whatsoever, including (without limitation) breach by the
Appointers.
9 COPYRIGHT
9.1 The copyright in all reports, statements, summaries, certificates, calculations and other
similar documents provided by or on behalf of the Independent Certifier in connection
with the Project (the "Reports") shall remain vested in the Independent Certifier, but
the Appointers shall have an irrevocable, royalty-free transferable licence to copy and
use the Reports and to reproduce their contents for any purpose related to the Project,
including but without limitation, the construction, completion, maintenance, operation,
reinstatement, extension and repair of the Project. The Independent Certifier shall not
be liable for any misuse by the Appointers of the Reports (which shall be determined by
reference to, inter alia, the purposes for which the same were prepared).
9.2 The licence referred to in Clause 9.1 shall carry the right to grant sub-licences and shall
be transferable to third parties. The Independent Certifier shall, if so requested by the
Appointers, at any time execute such documents and perform such acts as may be
required fully and effectively to assure to the Appointers (as the case may be) the rights
referred to in Clause 9.1.
9.3 Where a claim or proceeding is made or brought against the Appointers and/or the
Construction Sub-Contractor which arises out of the infringement of any copyright,
unless such infringement has arisen out of the use of the Reports by or on behalf of the
Appointers and/or the Construction Sub-Contractor otherwise than in accordance with
the terms of this Agreement, the Independent Certifier shall indemnify the Appointers
and the Construction Sub-Contractor at all times from and against all such claims and
proceedings.
10 QUALITY ASSURANCE
10.1 The Independent Certifier shall implement a quality system in a form reasonably
acceptable to the Appointers in respect of the IC Services, to comply with the
requirements of this Agreement and the Contract. Implementation and compliance with
the quality system or acceptance by the Appointers of the quality system shall not
relieve the Independent Certifier of its responsibility for the performance of its
obligations in accordance with this Agreement.
11 LIMITATION OF LIABILITY
11.1 No action or proceedings under or in respect of this Appointment shall be commenced
against the Independent Certifier after the expiry of twelve (12) years from the date of
the completion of the IC Services or the termination of this Agreement, if earlier.
11.2 The Independent Certifier's aggregate liability to the Appointers and the Construction
Sub-Contractor under or in connection with this Agreement shall be limited to
in the aggregate.
11.3 The following liabilities shall not be subject to the limitation on liability referred to in
clause 11.2:
11.3.1 any liability arising out of fraud, abandonment, corruption or wilful default of
the Independent Certifier;
11.3.2 any liability caused by any death or personal injury.
12 NOTICE
12.1 A notice or other communication under or in connection with this Agreement shall be
in writing and shall be either delivered personally, sent by pre paid first class post, by
email or by facsimile, as follows:
12.1.1 if to the Contractor, to: Company Secretary
Address: Dunedin House, Auckland Park, Mount
Farm, Bletchley, Milton Keynes,
Buckinghamshire MK1 1BU
Fax: +44 908 650 651
Email Address:
Attention: Company Secretary
12.1.2 if to Construction Sub-Contractor, to: Company Secretary
Address: Dunedin House, Auckland Park, Mount
Farm, Bletchley, Milton Keynes,
Buckinghamshire MK1 1BU
Fax: +44 908 650 651
Email Address:
Attention: Company Secretary
12.1.3 if to Facility Agent, to: Barclays Bank PLC
Address: Infrastructure & Structured Project
Finance SRU, 27th Floor, 1 Churchill
Place, London E14 5HP
Fax: +44 207 116 7613
Email Address:
Attention:
12.1.4 if to the Council, to: Council Representative
Address: Wakefield Metropolitan District
Council, Normanton Town Hall, High
Street, Normanton, WF6 2DZ
Fax: 01924 223807
Email Address: [email protected]
Attention:
12.1.5 if to Independent Certifier, to:
Address: Fichtner Consulting Engineers Ltd
Kingsgate (Floor 3) Wellington Road North Stockport Cheshire SK4 1LW
Fax: 0161 474 0618
Email Address:
Attention:
or to such other address or facsimile number as a party to this Agreement may
notify in writing to the other parties to this Agreement.
12.2 Any such notice or communication shall be deemed to have been duly served:
12.2.1 if delivered by hand, when left at the proper address for service; or
12.2.2 if given or made by pre paid first class post, two (2) Business Days after being
posted; or
12.2.3 if sent by facsimile, on the day of transmission provided that a confirmatory
copy is on the same day that the facsimile is transmitted, sent by pre paid first
class post in the manner provided for in Clause 12.1; or
12.2.4 if sent by email, on the day of transmission
provided in each case that if the time of such deemed service is either after 4.00 pm on
a Business Day or on a day other than a Business Day service shall be deemed to occur
instead at 10.00 am on the following Business Day.
13 ASSIGNMENT
13.1 The Independent Certifier shall not assign or transfer, or purport to assign or transfer,
any of its rights or obligations under this Agreement or sub contract the whole or any
part of the IC Services.
13.2 The Independent Certifier's consent shall not be required in the case of any assignment
or transfer by the Contractor or the Facility Agent or the Construction Sub-Contractor
of all or any of the Contractor's or the Facility Agent's or the Construction Sub-
Contractor's rights and obligations arising out of or under this Agreement to any party
providing finance in relation to the Project or to any such party's nominee.
13.3 The Council shall have the right to assign, novate or otherwise transfer any of its rights
or obligations under this Agreement to any person to whom the Council is allowed to
assign, novate or otherwise transfer its rights and obligations under the Contract.
14 CUMULATIVE RIGHTS AND ENFORCEMENT
14.1 Any rights and remedies provided for in this Agreement whether in favour of the
Contractor, the Construction Sub-Contractor, the Facility Agent, the Council or the
Independent Certifier are cumulative and in addition to any further rights or remedies
which may otherwise be available to the parties.
14.2 The duties and obligations of the Independent Certifier arising under or in connection
with this Agreement are owed to the Appointers and the Construction Sub-Contractor
jointly and severally and the Appointers and the Construction Sub-Contractor may
accordingly enforce the provisions hereof and, subject to Clause 11 (Limitation of
Liability), pursue their respective rights hereunder in their own name, whether
separately or with each other.
14.3 The Appointers and the Construction Sub-Contractor covenant with each other that they
shall not waive any rights, remedies or entitlements or take any other action under this
Agreement which would or might reasonably be expected to adversely affect the rights,
remedies or entitlements of the other without the other's prior written consent, which
consent shall not be unreasonably withheld or delayed.
14.4 The parties to this Agreement agree that the Council, the Facility Agent and the
Construction Sub-Contractor shall have no liability to the Independent Certifier in
respect of any act or omission of, or breach of this Agreement by, the Contractor.
15 WAIVER
The failure of any party at any one time to enforce any provision of this Agreement shall in no
way affect its right thereafter to require complete performance by any other party, nor shall the
waiver of any breach or any provision be taken or held to be a waiver of any subsequent breach
of any provision or be a waiver of the provision itself.
16 SEVERABILITY
In the event that any term, condition or provision contained in this Agreement shall be held to be
invalid, unlawful or unenforceable to any extent, such term, clause or provision shall, to that
extent, be omitted from this Agreement and the rest of this Agreement shall stand, without
affecting the remaining clauses.
17 VARIATION
A variation of this Agreement is valid only if it is in writing and signed by or on behalf all
parties.
18 THIRD PARTY RIGHTS
No term of this Agreement is enforceable under the Contracts (Rights of Third Parties) Act 1999
by a person who is not a party to this Agreement.
19 DISPUTE RESOLUTION PROCEDURE
19.1 Subject to Clause 21 (Governing Law and Jurisdiction) all disputes shall be resolved in
accordance with the Dispute Resolution Procedure subject only to Clause 19.2 and any
reference to "Party" or "Parties" in Clauses 104.4 to 104.21 (Dispute Resolution) of
the Contract shall include a reference to any party to this Agreement.
19.2 If a dispute under this Agreement is referred to the Adjudicator Clause 104.9 (Dispute
Resolution) of the Contract shall be replaced with the following provisions:
19.2.1 The Adjudicator's costs of any reference shall be borne as the Adjudicator
shall specify or, in default, equally by the parties;
19.2.2 All parties shall bear their own costs arising out of a reference including legal
costs and the costs and expenses of any witnesses except in the following
circumstances:
(a) where the Independent Certifier is called as a witness by any party that
party shall pay the Independent Certifier's costs and expenses at the
Rates; or
(b) where the Independent Certifier is called as a witness by the
Adjudicator the Independent Certifier's costs and expenses shall be paid
equally by the parties at the Rates.
19.3 If a dispute under this Agreement raises issues which are substantially the same as or
connected with issues raised in a dispute between Contractor and the Council under the
Contract and if the related dispute has already been referred for determination pursuant
to the Contract the dispute under this Agreement may be referred at the option of
Contractor or the Council for determination with the related dispute pursuant to the
Contract.
19.4 The Appointers, the Construction Sub-Contractor and the Independent Certifier shall
co-operate to facilitate the proper, just, economical and expeditious resolution of any
and all such disputes which arise under this Agreement.
20 ENTIRE AGREEMENT
This Agreement sets out the entire agreement between the Parties with respect to the subject
matter covered by it and supersedes and replaces all prior communications, representations (other
than fraudulent representations), warranties, stipulations, undertakings and agreements whether
oral or written between the Parties.
21 GOVERNING LAW AND JURISDICTION
21.1 This Agreement shall be governed by and construed in accordance with the laws of
England and Wales.
21.2 Subject to Clause 19.1 (Dispute Resolution), the parties to this Agreement submit to the
exclusive jurisdiction of the courts of England and Wales.
22 COUNTERPARTS
This Agreement may be executed in any number of counterparts which together shall constitute
one agreement. Any party may enter into this Agreement by executing a counterpart and this
Agreement shall not take effect until it has been executed by all parties.
Executed as a deed by WAKEFIELD WASTE PFI LIMITED acting by its director/attorney ________________________________:
) ) ) )
Signature of director/attorney
Signature of witness
Name of witness
Address of witness
Occupation of witness
………………………………………………………………… …………………………………………………………………… …………………………………………………………………. …………………………………………………………………. …………………………………………… ……………………………………………
THE COMMON SEAL OF )
THE COUNCIL OF THE CITY )
OF WAKEFIELD )
Was affixed to this Deed )
In the presence of: )…………………………………………….
Authorised Signatory
EXECUTED as a deed by SHANKS WASTE MANAGEMENT LIMITED acting by its duly authorised director / attorney
) ) )
Witness signature:
Witness name:
Witness address:
Witness occupation:
EXECUTED as a deed by BARCLAYS BANK PLC acting by its duly authorised attorney
) ) )
Witness signature:
Witness name:
Witness address:
Witness occupation:
EXECUTED as a deed by FICHTNER CONSULTING ENGINEERS LIMITED acting by its duly authorised attorney
) ) ) )
Witness signature:
Witness name:
Witness address:
Witness occupation:
SCHEDULE 1 - THE IC SERVICES
Part A - The Basic Services
1 GENERAL
1.1 The Independent Certifier shall perform all of the duties, functions and obligations
attributed to the Independent Certifier under the Contract and relevant Schedules and
Annexes (including complying with any time limits specified in such Contract,
Schedules and Annexes). Without prejudice to the generality of the foregoing, the
Independent Certifier's duties under this Agreement shall include the following.
1.2 The Independent Certifier shall familiarise itself with:
1.2.1 the Contract;
1.2.2 the Output Specification;
1.2.3 the Works Delivery Plan;
1.2.4 the Service Delivery Plan;
1.2.5 the quality assurance procedures established, implemented and maintained by
the Contractor in accordance with Clause 49 (Quality Assurance) of the
Contract and any changes issued from time to time, and any other relevant
documentation or information referred to in the Contract;
1.2.6 the Construction Contract and any subsidiary sub-contracts;
1.2.7 the Operating Contract and any subsidiary sub-contracts; and
1.2.8 all Necessary Consents
to the extent necessary to fulfil its obligations within the terms of the Contract and this
Agreement.
2 WORKS DESIGN COMPLIANCE CHECK
2.1 For the avoidance of doubt, this Agreement shall not impose any design obligations on
the Independent Certifier and any liability for design shall remain with the parties
obliged to undertake and complete the design under the Contract and the Construction
Contract. The services required under this paragraph 2 shall be supervisory in nature
and shall not require the Independent Certifier to approve (or otherwise) the suitability
of the design under the Project.
2.2 The Independent Certifier shall:
2.2.1 monitor the construction, structural and services design for the Project to
establish that the design is generally in accordance with the Works Delivery
Plan;
2.2.2 monitor the detailed working drawings and specifications to verify that they
comply with the approved outline design as described in the Works Delivery
Plan; and
2.2.3 review the detailed design information, Reviewable Design Data and Design
Visibility Information in accordance with the obligations of the Independent
Certifier referred to in paragraph 1.2 above.
3 WORKS REVIEW PROCEDURE
3.1 To the extent necessary in order to be in a position to carry out the IC Services referred
to in this paragraph 3 (Works Review Procedure), paragraph 4 (Programme Approval
Procedure), paragraph 5 (Practical Completion), paragraph 6 (Acceptance Tests) and
paragraph 7 (Capital Contribution Milestones) below the Independent Certifier shall:
3.1.1 obtain from the Contractor such additional information as it reasonably
requires to perform and properly discharge its obligations under this
Agreement;
3.1.2 where necessary attend project meetings (both on and off site);
3.1.3 review the proposed procedures and programmes for testing, commissioning
and operation of the New Waste Management Facilities in accordance with
the Contract;
3.1.4 provide all documentation and information to the Contractor as required in
accordance with the terms of this Agreement;
3.1.5 provide all reasonable assistance to the Contractor in carrying out its
obligations or enforcing any of its rights under the Project Documents but
excluding any detailed consideration of, or involvement in, formal claims or
disputes;
(a) be entitled to enter each Site and from time to time monitor the Works
to view the general state and progress of the Works, to review overall
workmanship, samples of goods and materials used or about to be used
in the Works, and to ascertain generally that the terms of the Contract
have been and are being complied with by the Contractor. The
frequency and timing of the Independent Certifier's visits are dependent
on the progress of construction on each Site as applicable. All visits are
to be included in the Fee;
3.1.6 randomly check to see whether the Works are being undertaken in accordance
with the Works Delivery Plan, all Necessary Consents, Law, the requirements
of the Contract and Good Industry Practice; and
3.1.7 report each month on the status of the Works for each Site (and at any other
time as appropriate) identifying any work that is non-compliant with the terms
of the Contract.
4 PROGRAMME APPROVAL PROCEDURE
4.1 The Independent Certifier shall:
4.1.1 upon receipt of the Snagging Programme from the Contractor and where such
programme provides for any Snagging Matter to be made good more than
twenty (20) Business Days from the date of provision of the programme
agree with the Contractor such other time as is reasonably practicable;
4.1.2 within ten (10) Business Days of receipt of the Acceptance Test Programme
from the Contractor agree the Acceptance Test Programme with the Council
and the Contractor with or without modifications or reject the Acceptance
Test Programme (together with its reasons for any such rejection or
modifications);
4.1.3 if the Acceptance Test Programme is rejected or agreed subject to
modifications and the Acceptance Test Programme is resubmitted to the
Council and the Independent Certifier by the Contractor, review the
Acceptance Test Programme in conjunction with the Council until the
Acceptance Test Programme is agreed; and
4.1.4 once the Acceptance Test Programme has been agreed by the Council and the
Independent Certifier, within five (5) Business Days approve or reject in
writing any subsequent modification to the Acceptance Test Programme
requested by the Contractor (together with its reasons for any such rejection or
modifications).
5 PRACTICAL COMPLETION
5.1 The Independent Certifier shall within five (5) Business Days of the date specified in
the notice served by the Contractor pursuant to Clause 35.3.1 of the Contract commence
the Practical Completion Inspections of the relevant New Waste Management Facility.
5.2 No later than five (5) Business Days after completion of the Practical Completion
Inspections of the relevant New Waste Management Facility the Independent Certifier
shall either:
5.2.1 issue to the Contractor and the Council a Practical Completion Certificate in
respect of the relevant New Waste Management Facility (which may be
subject to Snagging Matters and where this is the case the Independent
Certifier shall require the Contractor to prepare a draft Snagging List within
three (3) Business Days of such requirement) stating the Practical Completion
Date; or
5.2.2 notify the Contractor and the Council that Practical Completion in respect of
the relevant New Waste Management Facility has not occurred specifying all
outstanding matters that must be completed before a Practical Completion
Certificate can be issued.
5.3 Where the Independent Certifier has notified the Contractor and the Council of
outstanding matters under paragraph 5.2.2 or paragraph 5.4.2 (as applicable) and the
Contractor has notified the Independent Certifier and the Council that all outstanding
matters have been completed in accordance with Clause 35.3.5 of the Contract, the
Independent Certifier shall within five (5) Business Days inspect the relevant New
Waste Management Facility to establish if all outstanding matters have been completed.
5.4 Following the inspection referred to in paragraph 5.3 the Independent Certifier shall
either:
5.4.1 issue the Practical Completion Certificate for the New Waste Management
Facility if it is satisfied that all outstanding matters have been completed; or
5.4.2 notify the Contractor and the Council that all outstanding matters have not
been completed and paragraphs 5.3 and 5.4 shall apply as appropriate until
the Independent Certifier issues a Practical Completion Certificate.
5.5 Where paragraph 5.4.2 applies the performance by the Independent Certifier of its
duties, functions and obligations under paragraphs 5.3 and 5.4 shall not form part of the
Basic Services but shall be Additional Services and the costs of performing such duties,
functions and obligations shall not be included within the Fee but shall be payable in
accordance with paragraph 4.3 of this Agreement.
5.6 The Independent Certifier shall issue a Practical Completion Certificate
notwithstanding the existence of Snagging Matters. Where the Practical Completion
Certificate is expressed to be subject to Snagging Matters the Independent Certifier
shall within five (5) Business Days of the issue of the relevant Practical Completion
Certificate issue to the Contractor and the Council the Snagging List provided that the
draft Snagging List has previously been provided by the Contractor to the Independent
Certifier in accordance with paragraph 5.2.1 and the Independent Certifier has reviewed
and revised the draft Snagging List as necessary;
5.7 Upon receipt of notification from the Contractor that all Snagging Matters have been
made good in accordance with the Snagging Programme and Clause 35.3.7 (c) of the
Contract the Independent Certifier shall within five (5) Business Days inspect the
relevant New Waste Management Facility and shall either:
5.7.1 issue written confirmation to the Council and the Contractor that all Snagging
Matters have been made good to its satisfaction; or
5.7.2 if it is not satisfied that all Snagging Matters have been made good to its
reasonable satisfaction notify the Contractor and the Council of the Snagging
Matters which have not been made good and shall specify in such notice the
timescales within which the Contractor shall make good such Snagging
Matters.
5.8 Where the Independent Certifier has notified the Contractor and the Council of
outstanding matters under paragraph 5.7.2 or paragraph 5.9.2 (as applicable) and the
Contractor has notified the Independent Certifier and the Council that the Snagging
Matters have been completed, the Independent Certifier shall within five (5) Business
Days inspect the relevant New Waste Management Facility to establish whether the
Snagging Matters have been made good to its reasonable satisfaction.
5.9 Following the inspection referred to in paragraph 5.8 the Independent Certifier shall
either:
5.9.1 issue written confirmation to the Council and the Contractor that all Snagging
Matters have been made good to its satisfaction; or
5.9.2 if it is not satisfied that all Snagging Matters have been made good to its
reasonable satisfaction notify the Contractor and the Council of the Snagging
Matters which have not been made good and the provisions of paragraphs 5.8
and 5.9 shall apply as appropriate until the Independent Certifier issues
written confirmation to the Council and the Contractor that all Snagging
Matters have been made good to its reasonable satisfaction.
5.10 Where paragraph 5.9.2 applies the performance by the Independent Certifier of its
duties, functions and obligations under paragraphs 5.8 and 5.9 shall not form part of the
Basic Services but shall be Additional Services and the costs of performing such duties,
functions and obligations shall not be included within the Fee but shall be payable in
accordance with paragraph 4.3 of this Agreement.
5.11 Following the issue by the Independent Certifier of all Practical Completion Certificates
in respect of the New Waste Management Facilities at the South Kirkby Main Site and
following receipt of notification from the Contractor that the South Kirkby Main Site is
considered Practically Complete and ready for the Practical Completion Inspections the
Independent Certifier shall within five (5) Business Days commence the Practical
Completion Inspections of the South Kirkby Main Site to establish whether the South
Kirkby Main Site is Practically Complete.
5.12 Following completion of the Practical Completion Inspections of the South Kirkby
Main Site in accordance with paragraph 5.11 the Independent Certifier shall:
5.12.1 if it is satisfied that the South Kirkby Main Site is Practically Complete issue
the South Kirkby Main Final Practical Completion Certificate to the
Contractor and the Council; or
5.12.2 if it is not so satisfied notify the Contractor and the Council that Practical
Completion in respect of the South Kirkby Main Site has not occurred,
specifying the outstanding matters that must be completed before the South
Kirkby Main Final Practical Completion Certificate can be issued pursuant to
this paragraph 5.12.2.
5.13 Where the Independent Certifier has notified the Contractor and the Council of
outstanding matters under paragraph 5.12.2 or paragraph 5.14.2 (as applicable) and the
Contractor has notified the Independent Certifier and the Council that the outstanding
matters have been completed, the Independent Certifier shall within five (5) Business
Days re-inspect the South Kirkby Main Site to establish if the outstanding matters have
been completed and whether the South Kirkby Main Site is Practically Complete.
5.14 Following the inspection referred to in paragraph 5.13 the Independent Certifier shall
either:
5.14.1 issue the South Kirkby Main Final Practical Completion Certificate if it is
satisfied that all outstanding matters have been completed; or
5.14.2 notify the Contractor and the Council that the outstanding matters have not
been completed and paragraphs 5.13 and 5.14 shall apply as appropriate until
the Independent Certifier issues the South Kirkby Main Final Practical
Completion Certificate.
5.15 Where paragraph 5.14.2 applies the performance by the Independent Certifier of its
duties, functions and obligations under paragraphs 5.13 and 5.14 shall not form part of
the Basic Services but shall be Additional Services and the costs of performing such
duties, functions and obligations shall not be included within the Fee but shall be
payable in accordance with paragraph 4.3 of this Agreement.
6 ACCEPTANCE TESTS
6.1 Where the Contractor has provided to the Independent Certifier and the Council notice
of the anticipated date when an Acceptance Test Facility is ready to proceed with the
appropriate Acceptance Tests pursuant to Clause 35.6.3 of the Contract and such date is
less than five (5) Business Days from the date of the notice the Independent Certifier
shall agree with the Contractor the date on which the Acceptance Tests shall
commence.
6.2 During the period of the Acceptance Tests for each Acceptance Test Facility the
Independent Certifier shall:
6.2.1 inspect the relevant Acceptance Test Facility to ascertain whether the
Acceptance Tests have been satisfied; and/or
6.2.2 attend at the relevant Acceptance Test Facility and observe the Acceptance
Tests and/or the results of the Acceptance Tests carried out in accordance with
Part 2 of Schedule 9 (Practical Completion and Acceptance Tests).
6.3 No later than five (5) Business days after completion of the inspection of the relevant
Acceptance Test Facility and/or his observance of the Acceptance Tests and/or the
results of the Acceptance Tests and receipt of the certified copies of the results of the
Acceptance Tests the Independent Certifier shall either:
6.3.1 issue to the Contractor and the Council a Completion Certificate in respect of
the relevant Acceptance Test Facility (which may be subject to Snagging
Matters and where this is the case the Independent Certifier shall require the
Contractor to prepare a draft Snagging List within three (3) Business Days of
such requirement) stating the Completion Date; or
6.3.2 notify the Contractor and the Council that all the Acceptance Tests for the
relevant Acceptance Test Facility have not been satisfactorily passed and
therefore Completion has not occurred specifying the outstanding matters that
must be completed before the Acceptance Tests can be passed and a
Completion Certificate can be issued pursuant to this paragraph 6.3.
6.4 Where the Independent Certifier has notified the Contractor and the Council of
outstanding matters under paragraph 6.3.2 or paragraph 6.5.2 (as applicable) and the
Contractor has notified the Independent Certifier and the Council that the outstanding
matters have been completed in accordance with Clause 35.6.9 of the Contract, the
Independent Certifier shall during the period of the Acceptance Tests for each
Acceptance Test Facility:
6.4.1 inspect the relevant Acceptance Test Facility to establish if the outstanding
matters have been completed and the Acceptance Tests have been satisfied;
and/or
6.4.2 attend the relevant Acceptance Test Facility and observe the Acceptance Tests
and the results of the Acceptance Tests carried out in accordance with Part 2
of Schedule 9 (Practical Completion and Acceptance Tests).
6.5 Following the inspection and/or the observation of the results referred to in paragraph
6.4 the Independent Certifier shall either:
6.5.1 issue the Completion Certificate for the Acceptance Test Facility if it is
satisfied that all outstanding matters have been completed; or
6.5.2 notify the Contractor and the Council that the outstanding matters have not
been completed and paragraphs 6.4 and 6.5 shall apply as appropriate until the
Independent Certifier issues a Completion Certificate in respect of the
relevant Acceptance Test Facility.
6.6 Where paragraph 6.5.2 applies the performance by the Independent Certifier of its
duties, functions and obligations under paragraphs 6.4 and 6.5 shall not form part of the
Basic Services but shall be Additional Services and the costs of performing such duties,
functions and obligations shall not be included within the Fee but shall be payable in
accordance with paragraph 4.3 of this Agreement.
6.7 The Independent Certifier shall issue a Completion Certificate notwithstanding the
existence of Snagging Matters. Where the Completion Certificate is expressed to be
subject to Snagging Matters the Independent Certifier shall within five (5) Business
Days of the issue of the relevant Completion Certificate issue to the Contractor and the
Council the Snagging List provided that the draft Snagging List has previously been
provided by the Contractor to the Independent Certifier in accordance with paragraph
6.3.1 and the Independent Certifier has reviewed and revised the draft Snagging List as
necessary;
6.8 Upon receipt of notification from the Contractor that all Snagging Matters have been
made good in accordance with the Snagging Programme and Clause 35.6.11 (c) of the
Contract the Independent Certifier shall within five (5) Business Days inspect the
relevant Acceptance Test Facility and shall either:
6.8.1 issue written confirmation to the Council and the Contractor that all Snagging
Matters have been made good to its satisfaction; or
6.8.2 if it is not satisfied that all Snagging Matters have been made good to its
reasonable satisfaction notify the Contractor and the Council of the Snagging
Matters which have not been made good and shall specify in such notice the
timescales within which the Contractor shall make good such Snagging
Matters.
6.9 Where the Independent Certifier has notified the Contractor and the Council of
outstanding matters under paragraph 6.8.2 or paragraph 6.10.2 (as applicable) and the
Contractor has notified the Independent Certifier and the Council that the Snagging
Matters have been completed, the Independent Certifier shall within five (5) Business
Days inspect the relevant New Waste Management Facility to establish whether the
Snagging Matters have been made good to its reasonable satisfaction.
6.10 Following the inspection referred to in paragraph 6.9 the Independent Certifier shall
either:
6.10.1 issue written confirmation to the Council and the Contractor that all Snagging
Matters have been made good to its satisfaction; or
6.10.2 if it is not satisfied that all Snagging Matters have been made good to its
reasonable satisfaction notify the Contractor and the Council of the Snagging
Matters which have not been made good and the provisions of paragraphs 6.9
and 6.10 shall apply as appropriate until the Independent Certifier issues
written confirmation to the Council and the Contractor that all Snagging
Matters have been made good to its reasonable satisfaction.
6.11 Where paragraph 6.10.2 applies the performance by the Independent Certifier of its
duties, functions and obligations under paragraphs 6.9 and 6.10 shall not form part of
the Basic Services but shall be Additional Services and the costs of performing such
duties, functions and obligations shall not be included within the Fee but shall be
payable in accordance with paragraph 4.3 of this Agreement.
6.12 This paragraph 6 is subject to Clauses 37.1.6 and 37.1.7 of the Contract and where
Clause 37.1.8 of the Contract applies references in this paragraph 6 to the Acceptance
Tests shall be read subject to the provisions of Clause 37.1.8 of the Contract.
7 CERTIFICATION OF THE CAPITAL CONTRIBUTION MILESTONES
7.1 Where the Contractor has provided to the Independent Certifier and the Council notice
of the anticipated date when any part of the Works relevant to a Capital Contribution
Milestone is due to be completed, the Independent Certifier shall attend the relevant
Site and inspect the relevant part of the Works to establish whether the relevant part of
the Works has been duly completed to its reasonable satisfaction.
7.2 Following the inspection referred to in paragraph 7.1, the Independent Certifier shall
either:
7.2.1 issue written confirmation in the form set out in Appendix 4 (Form of Written
Confirmation) to this Agreement to the Council and the Contractor that the
relevant part of the Works has been duly completed to its reasonable
satisfaction; or
7.2.2 if it is not so satisfied that the relevant part of the Works has been duly
completed to its reasonable satisfaction, notify the Council and the Contractor
to this effect, specifying the outstanding matters that must be completed to
enable it to issue written confirmation in accordance with paragraph 7.2.1 and
paragraphs 7.1 and this paragraph 7.2 shall apply as appropriate until the
Independent Certifier issues written confirmation in accordance with
paragraph 7.2.1.
7.3 Where paragraph 7.2.2 applies the performance by the Independent Certifier of its
duties, functions and obligations under paragraphs 7.1 and 7.2 shall not form part of the
Basic Services but shall be Additional Services and the costs of performing such duties,
functions and obligations shall not be included within the Fee but shall be payable in
accordance with paragraph 4.3 of this Agreement.
7.4 Paragraphs 7.1 to 7.3 shall not apply in respect of those Capital Contribution
Milestones which require the issue of a Practical Completion Certificate as set out in
Schedule 39 (Capital Contribution Milestones) of the Contract and for the avoidance of
doubt those Capital Contribution Milestones shall be deemed to be completed
immediately following the issue of the relevant Practical Completion Certificate.
Part B - The Additonal Services
1 GENERAL
1.1 In addition to performing the Basic Services set out in Part A of this Schedule 1 the
Independent Certifier shall also perform the Additional Services as and when required.
2 ISSUE OF COUNCIL NOTICE OF CHANGE
2.1 Any additional duties, functions and obligations required to be performed by the
Independent Certifier as a result of the issue of a Council Notice of Change.
3 DAMAGE TO OR DESTRUCTION OF THE WORKS
3.1 Any additional duties, functions and obligations required to be performed by the
Independent Certifier in connection with the reinstatement of the Works or any part
thereof arising out of any significant damage to or destruction of the Works or any part
thereof during the course of construction.
4 ADDITIONAL DUTIES IN CONNECTION WITH THE CERTIFICATION OF NEW WASTE
MANAGEMENT FACILITIES AND SITES
4.1 Any additional duties, functions and obligations required to be performed by the
Independent Certifier in connection with the certification of the New Waste
Management Facilities and the South Kirkby Main Site in accordance with paragraphs
5.5, 5.10, 5.15, 6.6, 6.11 of Part A of this Schedule 1.
4.2 In the event that Clause 37.1.9 of the Contract applies any duties, functions and
obligations required to be performed by the Independent Certifier pursuant to paragraph
6 of Part A of Schedule 1 to this Agreement in connection with the issue of an
additional Completion Certificate in respect of the autoclave facility at the South
Kirkby Main Residual Waste Treatment Facility to enable the Contractor to satisfy the
requirements of Clause 37.1.9 of the Contract.
5 ADDITIONAL DUTIES IN CONNECTION WITH THE CERTIFICATION OF CAPITAL
CONTRIBUTION MILESTONES
5.1 Any additional duties, functions and obligations required to be performed by the
Independent Certifier in connection with the certification of the Capital Contribution
Milestones in accordance with paragraph 7.3 of Part A of this Schedule 1.
SCHEDULE 2 - PAYMENTS
PART 1- The Basic Services Payments
Month
(following financial close)
Fee
£
Month 1
Month 2
Month 3
Month 4
Month 5
Month 6
Month 7
Month 8
Month 9
Month 10
Month 11
Month 12
Month 13
Month 14
Month 15
Month 16
Month 17
Month 18
Month
(following financial close)
Fee
£
Month 19
Month 20
Month 21
Month 22
Month 23
Month 24
Month 25
Month 26
Month 27
Month 28
Month 29
Month 30
Month 31
PART 2- Rates
Hourly Rate (£)
Director:
Senior Consultant or Project
Manager:
Specialist:
Consultant:
Project or Design Engineer:
Technician with CAE tools:
Contracted staff
Bought in services (e.g.
analysis, measurement, testing)
Mileage
Subsistence, fares and
accommodation
The above Rates will be adjusted each year (on the anniversary of the date of this Agreement) in
accordance with the percentage change stated in the UK Weekly Earnings Index - Whole Economy
(ref: KA5Q) as published by the Office of National Statistics for the latest available 12 months or
failing such publication being available then such other index as the parties acting reasonably may agree
and that provides the most similar outcome as the discounted index published in previous years. A fall
in the index will not lead to a reduction in fees and rates.
APPENDIX 1- FORM OF PRACTICAL COMPLETION CERTIFICATE
Practical Completion Certificate - Wakefield Waste Management PFI Project
Contractor:
Construction Sub-Contractor:
Independent Certifier:
New Waste Management Facility certified:
Certificate issued pursuant to:
Date of Practical Completion: [ ]
We hereby certify that the [ ] Facility/Site has achieved Practical Completion.
Signed
on behalf of Fichtner Consulting Engineers Limited
Date [ ] ______________________________
[Insert name of individual certifier]
APPENDIX 2- FORM OF COMPLETION CERTIFICATE
Completion Certificate – Wakefield Waste Management PFI Project
Contractor:
Construction Sub-Contractor:
Independent Certifier:
Acceptance Test Facility certified:
Certificate issued pursuant to:
Date of Completion: [ ]
We hereby certify that the [ ] Facility has achieved Completion
Signed
on behalf of Fichtner Consulting Engineers Limited
Date [ ] ______________________________
[Insert name of individual certifier]
APPENDIX 3- FORM OF SOUTH KIRKBY MAIN FINAL PRACTICAL COMPLETION
CERTIFICATE
South Kirkby Main Final Practical Completion Certificate - Wakefield Waste Management PFI
Project
Contractor:
Construction Sub-Contractor:
Independent Certifier:
Site certified:
Certificate issued pursuant to:
Date of Practical Completion: [ ]
We hereby certify that the South Kirkby Main Site has achieved Practical Completion
Signed
on behalf of Fichtner Consulting Engineers Limited
Date [ ] ______________________________
[Insert name of individual certifier]
APPENDIX 4- FORM OF WRITTEN CONFIRMATION
Capital Contribution Milestone - Wakefield Waste Management PFI Project
Contractor:
Construction Sub-Contractor:
Independent Certifier:
Capital Contribution Milestone:
Confirmation issued pursuant to:
Date of Confirmation: [ ]
We hereby certify that the Capital Contribution Milestone referred to above has been completed.
Signed
on behalf of Fichtner Consulting Engineers Limited
Date [ ] ______________________________
[Insert name of individual certifier]
KEG/KEG/331411/1/UKM/40905835.5
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