KIER CONSTRUCTION LIMITED. Trading as Kier Construction-Eastern NEC3 SUBCONTRACT CAMBRIDGESHIRE COUNTY COUNCIL FRAMEWORK - OPTION [A, B, C, D, E]

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1 KIER CONSTRUCTION LIMITED Trading as Kier Construction-Eastern NEC3 SUBCONTRACT CAMBRIDGESHIRE COUNTY COUNCIL FRAMEWORK - OPTION [A, B, C, D, E] Originator: [insert] Approved for issue: [insert] Sub-contract order no.: [insert] NEC3.oA.EN.PM March 2016

2 Made the day of 20 Between: KIER CONSTRUCTION LIMITED TRADING AS KIER CONSTRUCTION-EASTERN (Company No ) whose registered office is situated at Tempsford Hall, Sandy. Bedfordshire SG19 2BD ( the Contractor ) and [INSERT NAME OF SUB-CONTRACTOR] (Company No. [insert relevant company no.]) whose registered office is situated at [insert relevant registered office] ( the Subcontractor ) for [INSERT DESCRIPTION OF SUBCONTRACT WORKS] ( the subcontract works ) as part of [DESCRIPTION OF MAIN CONTRACT WORKS] ( the main contract works ) at [DESCRIPTION OF SITE] Form of Subcontract: The Subcontractor shall carry out the subcontract works in accordance with this Subcontract Agreement which incorporates the conditions of subcontract for the NEC Engineering and Construction Subcontract (2005) (with amendments June 2006 and September 2011) published by the Institution of Civil Engineers (the conditions of subcontract) as amended in accordance with this Subcontract Agreement and Schedules A to I hereto all of which shall be deemed amended mutatis mutandis to correspond with the main contract. Subcontract Order No: [INSERT SUBCONTRACT ORDER NO.] NEC3.oA.EN.PM March 2016

3 THIS SUBCONTRACT is executed as a deed in duplicate and delivered on the date stated at the beginning of this Subcontract. EXECUTED as a DEED by the CONTRACTOR SIGNED as a Deed by as attorney for Kier Construction Limited trading as Kier Construction Eastern as attorney for Kier Construction Limited trading as Kier Construction - Eastern in the presence of: Name: Address: Building 3000 witness to signature of attorney Cambridge Research Park, Beach Drive, Waterbeach, Cambridge. CB25 9PD SIGNED as a Deed by as attorney for Kier Construction Limited trading as Kier Construction Eastern as attorney for Kier Construction Limited trading as Kier Construction - Eastern in the presence of: Name: Address: Building 3000 witness to signature of attorney Cambridge Research Park, Beach Drive, Waterbeach, Cambridge. CB25 9PD EXECUTED as a DEED by ) [INSERT NAME OF SUBCONTRACTOR] ) acting by two directors or a director and the ) Company secretary: ) Director: OR Director/Company Secretary: EXECUTED as a DEED by ) [INSERT NAME OF SUBCONTRACTOR] ) acting by a director in the presence of a witness ) Director: Witness signature: Witness name: Witness address: NEC3.oA.EN.PM March 2016

4 LIST OF SCHEDULES Schedule Description A. Background and Articles B. Subcontract Data Part One and Part Two C. Schedule of Amendments D. Subcontract Works Information and Site Information E. Project Specific Schedule of Amendments F. Subcontract Payment Dates G. Application for Payment H. Default Payment Notice I. Forms of warranty, bond and parent company guarantee NEC3.oA.EN.PM March 2016

5 SCHEDULE A Background The Contractor desires to have executed the subcontract works as described in the Subcontract Works Information; and the subcontract works are to be executed as part of the main contract works to be carried out by the Contractor for the Employer named in the Subcontract Data. Now it is hereby agreed as follows: Article 1: The Agreement 1.1 The Subcontractor will Provide the Subcontract Works in accordance with the conditions of contract identified in the Subcontract Data. 1.2 The Contractor will pay the Subcontractor the amount due and carry out his duties in accordance with the conditions of contract identified in the Subcontract Data. 1.3 The documents forming part of this Subcontract are this Subcontract Agreement and:- the conditions of subcontract the Subcontract Data Part one and Part two found at Schedule B and the documents referred to therein the main contract Schedules A to I In the event of any discrepancy, inconsistency or divergence arising between the provisions of this Subcontract or any other document forming part of this Subcontract, Schedule C and Schedule E shall prevail. In the event there is any discrepancy, inconsistency or divergence between Schedule C and Schedule E, then Schedule E shall prevail. 1.4 The conditions of subcontract are the core clauses of the NEC Engineering and Construction Subcontract (June 2005) (with amendments June 2006 and September 2011) and the clauses for Options indicated below: Option [A,B,C,D,E] Priced Contract with activity schedule and dispute resolution Option W2, together with the following Secondary Options: SECONDARY OPTION X1 X2 X4 X5 X7 X12 X13 X15 X16 [applies/does not apply] [applies/does not apply] [applies/does not apply] [applies/does not apply] [applies/does not apply] [applies/does not apply] [applies/does not apply] [applies/does not apply] [applies/does not apply] NEC3.oA.EN.PM March 2016

6 X17 X18 X20 X21 X22 Y(UK)3 Option Z [applies/does not apply] [applies/does not apply] [applies/does not apply] [applies/does not apply] [applies/does not apply] [applies/does not apply] Not used. all as amended by Schedule C and Schedule E. NEC3.oA.EN.PM March 2016

7 SCHEDULE B Subcontract Data The Subcontract Data shall be replaced as follows: Part one Data provided by the Contractor Statements given in all subcontracts 1 General The conditions of contract are those stated in Article 1.4. The works in the main contract are The subcontract works are The Contractor is Name: Kier Construction Limited t/a Kier Construction-Eastern. Address: [insert address] The Employer in the main contract is Name: Address: The Project Manager in the main contract is Name: Address: The Supervisor in the main contract is Name: Address: The Adjudicator in this subcontract is Name: Address: The main contract Adjudicator is Name: Address: The Subcontract Works Information is in Schedule D. The Site Information is in Schedule D. The boundaries of the site are The language of this subcontract is English NEC3.oA.EN.PM March 2016

8 The law of the subcontract is the law of England and Wales The period for reply is for a reply by the Contractor For a reply by the Subcontractor The Adjudicator nominating body is The tribunal is The following matters will be included in the Risk Register weeks weeks. 3 Time The subcontract starting date is The subcontract access dates are Part of the Site 1 2 Date 3 The Subcontractor submits revised programmes at intervals no longer than weeks. 4 Testing and Defects The defects date is weeks after Completion of the whole of the subcontract works. The defect correction period is weeks except that The defect correction period for is weeks The defect correction period for is weeks. 5 Payment The currency of this subcontract is Sterling. The assessment interval is monthly in accordance with the assessment dates in Schedule F. The due date for payment is as set out in Schedule F. The final date for payment is as set out in Schedule F. The interest rate is two per cent (2%) per annum above the base rate of the Bank of England. The specified person is Kier Construction Limited t/a Kier Construction- Eastern, [insert address]. The company secretary is the Company Secretary, Kier Construction Limited t/a Kier Construction-Eastern, Tempsford Hall, Sandy, Bedfordshire SG19 2BD. The percentage referred to in clause 50.4 is: [words] per cent ([numbers]%). 6 Compensation events The place where weather is to be recorded is The weather measurements to be recorded for each calendar month are the cumulative rainfall (mm) the number of days with rainfall more than 5 mm the number of days with minimum air temperature less than 0 degrees Celsius NEC3.oA.EN.PM March 2016

9 the number of days with snow lying at [ ] hours GMT and these measurements: The weather measurements are supplied by The weather data are the records of past weather measurements for each calendar month which were recorded at and which are available from Where no recorded data are available Assumed values for the ten year return weather data for each weather measurement for each calendar month are 8 Risks and insurance 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 [twenty million pounds ( 20,000,000) for any one occurrence or series of occurrences and unlimited in the period of insurance.] Optional statements 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 for any one event is [ten million pounds ( 10,000,000) for any one occurrence or series of occurrences and unlimited in the period of insurance.] If the tribunal is arbitration The arbitration procedure is The place where arbitration is to be held is The person or organisation who will choose an arbitrator if the Parties cannot agree a choice or if the arbitration procedure does not state who selects an arbitrator is The subcontract completion date for the whole of the subcontract works is If the Contractor is not willing to take over the subcontract works before the Subcontract Completion Date NEC3.oA.EN.PM March 2016

10 The Contractor is not willing to take over the subcontract works before the Subcontract Completion Date. If no programme is identified in part two of the Subcontract Data The Subcontractor is to submit a first programme for acceptance within weeks of the Subcontract Date. If the Contractor has identified work which is to meet a stated condition by a key date The key dates and conditions to be met are condition to be met key date If the Employer or Contractor is to provide Plant, Equipment and Materials The insurance against loss of or damage to the subcontract works, Plant, Equipment and Materials is to include cover for Plant and Materials provided by the Employer or Contractor for an amount of If the Employer or Contractor is to provide any of the insurances stated in the Insurance Table The Employer or Contractor provides these insurances from the Insurance Table 1. Insurance against Cover/indemnity is The deductibles are 2. Insurance against Cover/indemnity is The deductibles are 3. Insurance against Cover/indemnity is The deductibles are If additional insurances are to be provided The Employer or Contractor provides these additional insurances 1. Insurance against Cover/indemnity is The deductibles are 2. Insurance against Cover/indemnity is The deductibles are 3. Insurance against NEC3.oA.EN.PM March 2016

11 Cover/indemnity is The deductibles are The Subcontractor provides these additional insurances 1. Insurance against [All risks insurance] Cover/indemnity is [Full value of the Subcontract Works] 2. Insurance against [Professional indemnity insurance] Cover/indemnity is [ 10,000,000 each and every claim] 3. Insurance against Cover/indemnity is If Option X1 is used The proportions used to calculate the Price Adjustment Factor are 0. linked to the index for non-adjustable 1.00 The base date for indices is The indices are those prepared by If Option X5 is used The subcontract completion date for each section of the subcontract works is section description subcontract completion date If Options X5 and X7 are used together Delay damages for each section of the subcontract works are section description amount per day 1 2 NEC3.oA.EN.PM March 2016

12 3 4 Remainder of the subcontract works If Option X7 is used (but not if Option X5 is also used) Delay damages for Completion of the whole of the subcontract works are per day. If Option X12 is used The Client is Name Address The Client s objective is The Partnering Information is in If Option X13 is used The amount of the performance bond is If Option X16 is used The retention free amount is The retention percentage is %. If Option X17 is used The amounts for low performance damages are amount performance level for for for for If Option X18 is used The Subcontractor's liability to the Contractor for indirect or consequential loss is limited to NEC3.oA.EN.PM March 2016

13 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 matters arising under or in connection with this subcontract, other than the excluded matters, is limited to The end of liability date is years after Completion of the whole of the subcontract works. If Option X20 is used (but not if Option X12 is also used) The incentive schedule for Key Performance Indicators is in A report of performance against each Key Performance Indicator is provided at intervals of months. If Option Y(UK)3 is used term person or organisation None None NEC3.oA.EN.PM March 2016

14 Part two Data provided by the Subcontractor Statements given in all subcontracts The Subcontractor is Name Address The direct fee percentage is NOT USED %. The sub-subcontracted fee percentage is NOT USED %. The subcontract working areas are the Site and The key people are (1) Name Job Responsibilities Qualifications Experience (2) Name Job Responsibilities Qualifications Experience The following matters will be included in the Risk Register Optional statements If the Subcontractor is to provide Subcontract Works Information for his design The Subcontract Works Information for the Subcontractor s design is in If a programme is to be identified in the Subcontract Data The programme identified in the Subcontract Data is If the Subcontractor is to decide the completion date for the whole of the subcontract works NEC3.oA.EN.PM March 2016

15 The subcontract completion date for the whole of the subcontract works is The activity schedule is The tendered total of the Prices is Data for the Shorter The percentage for people overheads is NOT USED %. Schedule of Cost The published list of Equipment is the last edition of the list published Components by The percentage for adjustment for Equipment in the published list is % (state plus or minus). The rates for other Equipment are Equipment size or capacity rate The hourly rates for Defined Cost of design outside the Working Areas are category of employee NOT USED hourly rate NOT USED The percentage for design overheads is NOT USED %. The categories of design employees whose travelling expenses to and from the Working Areas are included in Defined Cost are NEC3.oA.EN.PM March 2016

16 SCHEDULE C SCHEDULE OF AMENDMENTS The core clauses and clauses for Options are amended and added to as follows: Core clauses NEC3.oA.EN.PM March 2016

17 Best value and The following should be inserted as supplementary clauses to Clause efficiency reviews Z2 10 Z2.1 The following should be inserted as new Clause Best Value The Subcontractor acknowledges that in accordance with Part 1 of the Local Government Act 1999 the Employer may from time to time review the 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: Participate in and fully co-operate with such reviews; and 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 Contractor or Employer in relation to the works and/or the subcontract works. Z2.2 The following should be inserted as new Clause Efficiency savings The subcontractor acknowledges that from time to time the Employer will require the Contractor to submit detailed proposals to it relating to efficiency savings on the works or any part of them. At the Contractor s request the Subcontractor submits 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. General Z3 The following should be amendments to Clause 11 Z3.1 [Option C only] At 11.2(25), at the end: the value of any work done, goods or material 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. Z3.2 The following should be inserted as new definitions at clause 11.2: (34) A Funder is [insert definition from main contract] (35) A Purchaser is [insert definition from main contract] (36) A Tenant is [insert definition from main contract] (37) Terrorism means any act of any person acting on behalf of or in connection with any organization with activities directed towards the overthrowing or influencing of any government de jure or de facto by force or violence. NEC3.oA.EN.PM March 2016 (38) Schedule of Cost Components means the schedule of cost

18 components in schedule D. (39) An Application for Payment is an application under clause 50.1 in the form set out in Schedule G of this subcontract. (40) A Default Payment Notice is a written notice and copied to the specified person in the form set out at Schedule H or such other form as the parties may agree in writing. (42) A Payment Notice is the payment notice issued by the Contractor or the specified person pursuant to clause 50.5; (43) The final date for payment and the Subcontractor application dates ( the Specified Dates ) are set out in Schedule F. (44) A Notified Sum is the sum (including where the sum is zero) that the Contractor, the specified person or the Subcontractor (as applicable) notifies in accordance with this subcontract was due at the relevant due date for payment; Interpretation Z4 The following should be inserted as a new clause 12.1 Z4.1 Delete existing clause 12.1 and replace with: In this contract, except where the context shows otherwise: words in the singular also mean in the plural and the other way around, words in the masculine also mean in the feminine and neuter and the other way around, references to a document include any revision made to it in accordance with this contract, references to a statute or statutory instrument include any amendment or re-enactment of it from time to time and any subordinate legislation or code of practice made under it and references to a standard include any current relevant standard that replaces it. Freedom of The following should be inserted as supplementary clauses to Clause Information Z5 13 Z5.1 The following should be inserted as new Clause 13.10: The Subcontractor acknowledges that: 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 subcontract (the "Information"), from the Employer; the Employer has a duty to communicate the Information to the individual making the request; and the Subcontractor co-operates with the Contractor and the Employer in complying with the Employer s 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 Contractor. NEC3.oA.EN.PM March 2016

19 Z5.2 Providing the works outside the contract period Z6 The following should be inserted as new Clause 13.11: The Subcontractor acknowledges that the Employer and the Contractor 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 and assists the Contractor and the Employer in discharging their obligations under the Act. The following should be inserted as supplementary clauses to Clause 20 Z6.1 The following should be inserted as new Clause 20.2: 20.2 The Contractor may instruct the Subcontractor to carry out works, including mobilisation, before the subcontract 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. Z6.2 The following should be inserted as new Clause 20.3: 20.3 The Contractor may instruct the Subcontractor to carry out works, including demobilisation, after the end of the contract 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. Design Z7 The following should be inserted as supplementary to Clause 21 Z7.1 The following should be inserted before the full stop in Clause 21.1 and in the provision of his design exercises all the reasonable skill, care and attention as it is reasonable to expect of a suitably qualified and experienced designer of the appropriate design discipline designing works for projects of a similar scope, purpose, size and complexity to the works. Equal opportunities The following should be inserted as supplementary clauses to Z8.0 Clause 24 Z8.1 The following should be inserted as new Clause 24.3: Before commencing the subcontract works, and in connection with the performance of the subcontract works, the Subcontractor shall: 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 Adopt a policy to comply with the Employer s and the Contractor 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: to eliminate unlawful racial discrimination; and to promote equality of opportunity and good relations between NEC3.oA.EN.PM March 2016

20 Provision of information during and at the end of the contract Z9.0 persons of different racial groups; and shall provide such evidence of the existence and application of such policy as the Contractor requests 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 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 Set out its policy on race relations: in instructions to those concerned with recruitment, training and promotion in documents available to employees, recognised trade unions or other representative groups of employees in recruitment advertisements or other literature. and shall provide such evidence of the instructions, documents, recruitment advertisements or other literature as the Contractor requests Where it is not subject to English law, comply with this clause 24.3 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 Require any Subsubcontractor employed by it under a subcontract of any part of the subcontract works to comply with the requirements of this clause 24.3, as if the Subsubcontractor was the Subcontractor and the Subcontractor was the Contractor Provide such information and documentation as the Contractor may require enabling monitoring by the Contractor of compliance by the Subcontractor with this clause Failure by the Subcontractor to comply with the requirements of this Clause Z24 will constitute a material breach of the Subcontractor s obligations. The following should be inserted as supplementary clauses to Clause 24 Z9.1 The following should be inserted as new Clause 24.4 NEC3.oA.EN.PM March 2016

21 24.4 The Subcontractor acknowledges 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 works, from various government agencies. e.g. the Department of Transport, The Home Office, Her Majesty s 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 Citizens 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). Z9.2 The following should be inserted as new Clause The Subcontractor acknowledges the Contractor s obligation under clause Z27.2 of the main contract and if requested to do so by the Contractor, the Subcontractor provides to the Contractor any and all relevant information relating to the subcontract works reasonably required by the Contractor to enable it to comply with its obligations under clause Z27.3 of the main contract. 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 to comply with its duties under the Transfer of Undertakings (Protection of Employment) Regulations 1981 as amended. Z9.3 The following should be inserted as new Clause Such information pursuant to Clause Z7 above shall be provided at no cost to the Contractor or Employer. Human Rights Act The following should be inserted as supplementary clauses to Clause 1998 Z Z10.1 The following should be inserted as new Clause 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 or the Employer 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 or the Employer. Recruitment of exoffenders Z11.0 Clause 24 The following should be inserted as supplementary clauses to Z11.1 The following should be inserted as new Clause The Subcontractor shall comply with the Employer s and Contractor s policies in relation to recruitment of ex-offenders and disclosures under the Police Act 1997 and the Serious Organised NEC3.oA.EN.PM March 2016

22 The Subcontractors Main Responsibilities Z12 Crime and Police Act Without prejudice to the generality of the foregoing, the Subcontractor shall either register with the Criminal Records Bureau (CRB) or any relevant successor organisation or make use of the Employer 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 The works will normally be contained within a separate and fenced compound under the Contractor 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 circumstances CRB checks for the relevant operatives will be required. Copies of all CRB certificates must be made available to the Contractor before relevant personnel enter existing occupied buildings At pre-contract meetings these conditions should be discussed and CRB certificates requested. The management of the subcontract in terms of expected visits to the school should be discussed with the Contractor and the end user and agreement made as to any personnel 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 Subcontractors staff should also be agreed, i.e. use of schools existing security, supervision and signing in procedures. The following should be amendments to Clauses 24 and 26 Z12.1 The following should be inserted as new Clause 24.9: 24.9 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. Z12.2 The following amendments should be made to Clause 26: Delete clause 26.2 and replace with the following: 26.2 The Subcontractor submits to the Contractor for acceptance: the name of each proposed Subsubcontractor and subsubconsultant, and details of the extent of the work that it is proposed to subsubcontract and the proposed contract data for the subsubcontract. Z12.3 The following amendments should be made to Clause 26: Delete clause 26.3 and replace with the following: NEC3.oA.EN.PM March 2016

23 26.3 The Subcontractor does not appoint a proposed Subsubcontractor on the proposed subcontract conditions until the Contractor has accepted them. A reason for not accepting them would be: they will not allow the Subcontractor to Provide the Subcontract Works, they do not include a statement that the parties to the subcontract shall act in a spirit of mutual trust and co-operation, or the procedures and requirements in the Subcontract Works Information for the appointment of a Subsubcontractor have not been complied with. Z12.4 The following should be inserted as new Clause 26.5: Notwithstanding clause 93.6, the Subcontractor is only authorized to carry out the subcontract works, including design, procurement, off-site prefabrication and work on site to the value of [AMOUNT], and such sum shall be the Contractor s maximum liability whether in contract, tort, under statute or otherwise. Z12.5 The following should be inserted as new Clause 26.6: 26.6 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. Z12.7 The following should be inserted as new Clause 26.7: Notwithstanding the date of this subcontract: 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 [ ] (called the Authority ) are deemed to be carried out under this subcontract; and 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. Z12.8 The following should be inserted as new Clause 27A: 27A.1 The Subcontractor may be required by the Contractor to provide collateral warranties to [the Employer/a Purchaser/a Tenant/a Funder/[IDENTIFY ANY OTHER RELEVANT BENEFICIARIES] 2 in relation to the subcontract works in the form attached at Appendix I and: 27A.1.2 the Subcontractor shall, within 14 days from receipt of a notice from the Contractor that identifies the 1 Delete if not applicable 2 Delete if applicable. NEC3.oA.EN.PM March 2016

24 beneficiary and requires execution of such a collateral warranty, execute and deliver the warranty to the Contractor as he may direct; 27A.1.3 such warranty shall be executed as a deed. Quality management System Z13.0 The following should be inserted as supplementary clauses to Clause 27 Z13.1 The following should be inserted as new Clause : The Subcontractor operates a quality management system for Providing the Subcontract Works. Z13.2 The following should be inserted as new Clause : Health & safety Z The Subcontractor provides the Contractor, within the period stated in the Contract Data, with a quality policy statement and a quality plan for acceptance. The following should be inserted as supplementary clauses to Clause 27 Z The Subcontractor must comply at all times with all of the requirements and obligations imposed by the Construction (Design and Management) Regulations 2015, the Health and Safety at Work etc. Act 1974, the regulations made under the 1974 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. Z14.2 The following should be inserted as new Clause : 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. Z14.3 The following should be inserted as new Clause : The Subcontractor acknowledges that the Contractor 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 ) form part of the main contract and the Subcontractor complies therewith at all times when carrying out this subcontract. Z14.4 The following should be inserted as new Clause : 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 Contractor and 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. Z14.5 The following should be inserted as new Clause : 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. Z14.6 The following should be inserted as new Clause : The Subcontractor is to report all serious accidents and incidents NEC3.oA.EN.PM March 2016

25 (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, sub contractors, agents, or members of the public, to the Contractor. Z14.7 The following should be inserted as new Clause : The Subcontractor acknowledges that the Employer is empowered to suspend the provision of the main works and that the Contractor is 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 Z Z14.8 The following should be inserted as new Clause : 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. Z14.9 The following should be inserted as new Clause : Observance of Statutory Requirement Z The Contractor will not incur any liability under the subcontract as the result of any action taken by the Contractor to suspend provision of the subcontract works in the event of noncompliance by the Subcontractor and such suspension is not a compensation event. The following should be inserted as supplementary clauses to Clause 27 Z15.1 The following should be inserted as new Clause 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. Complaints procedure Z16.0 Z16.1 The following should be inserted as new Clause The Subcontractor shall: - The following should be inserted as supplementary clauses to Clause establish the complaints procedure operate it from the beginning of the Contract Period. Z16.2 The following should be inserted as new supplementary Clause 27.9: 27.9 The Contractor is committed to improving safety performance and standards in the industry as part of the Major Contractors Group (MCG) initiative as described in the MCG Health and Safety Charter published in April 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 subsubcontractors (including any agency labour NEC3.oA.EN.PM March 2016

26 employed by it) possess and produces to the Contractor prior to such operatives/subsubcontractors 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 subsubcontractors (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. Z16.3 The following should be inserted as new supplementary Clause 27.10: 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 fall 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. Z16.4 The following should be inserted as new supplementary Clause 27.11: 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 Contractor s need of any such return, account, notice or information from him. Z16.5 The following should be inserted as new supplementary Clause 27.12: 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 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. Value engineering Z17 The following should be inserted as new supplementary Clause 28 Z17.1 The following should be inserted as new Clause 28.1: NEC3.oA.EN.PM March 2016

27 28.1 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 Employer of maintaining the works. Z17.2 The following should be inserted as new Clause 28.2: 28.2 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. Z17.3 The following should be inserted as new Clause 28.3: 28.3 If the Contractor accepts the Subcontractor s proposal the Contractor gives an instruction to the Subcontractor within [28] days which changes the Subcontract Works Information. Time Z18 The following should be inserted as new supplementary Clauses 30, 31 and 34 Z18.1 The following should be inserted as new Clause 30.2: 30.2 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 30.2 of the main contract. Z18.2 The following should be inserted as new Clause 31.5: 31.5 The Subcontractor acknowledges that the Accepted Programme reflects the entire agreements made between the Subcontractor and the Contractor in relation to the execution of the subcontract works and that all other references to commencement, sequence of the subcontract works, periods for carrying out and completion, periods for notice and periods for off site work in relation to the programme are deleted. Z18.3 The following should be inserted as new Clause 31.6: 31.6 For the purposes of the programme only, reference to weeks means all weeks except the Winter and Easter (Spring) Holiday weeks as defined in the Construction Industry Joint Council Working Rule Agreement. Z18.4 The following should be inserted as new Clause 34.2: 34.2 In the event that the Contractor shall have reasonable cause to believe that the Subcontractor is unwilling, unable or unlikely to complete the subcontract works within the time required by the subcontract, then the Contractor may, without prejudice to his other powers and remedies but after consultation with the Subcontractor: NEC3.oA.EN.PM March 2016

28 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 payment until Completion of the subcontract works nor shall the Subcontractor be entitled to any adjustment to the Prices associated therewith; and/or 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. Payment Z19.0 The following should be amendments to Clause 50 Z19 Delete clause 50.1 and substitute: Following substantial commencement of the Subcontract Works, the Subcontractor, no later than seven (7) days prior to the next Subcontract application date ( the Specified Date as set out in Schedule F) and thereafter no later than seven (7) days prior to subsequent Subcontract application dates, submits to the Contractor in the form of the Application for Payment (Schedule G) a written statement of the value of all work properly done under the Subcontract and if allowable under the main contract all materials delivered to the Site and incorporated into the Subcontract Works and the value of off-site materials for incorporation in the Subcontract Works at the date of such statement. Z19.1a The following should be amendments to Clause 50.2: [Options A and B only] In clause 50.2 after retained from 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). Z19.2 The following should be amendments to Clause 50.4: Delete and substitute: Assessing the amount due It is a condition precedent to payment of the percentage set out in the Sub- Contract Data Part one (including any release of retention and payments following the final assessment) becoming due to the Subcontractor that the Subcontractor shall have provided to the Contractor: a) the subcontract, duly executed and delivered by the Subcontractor; NEC3.oA.EN.PM March 2016

29 b) the Subcontractor warranty to the Employer; and/or any Subcontractor warranties to a Funder and/or a Purchaser and/or a Tenant and/or Other Beneficiary in the form annexed at Schedule I. c) a ten per cent (10%) Subcontractor performance bond (Option X13) given by a surety acceptable to the Contractor and/or a Subcontractor parent company guarantee (Option X4) (both in the forms set out in Schedule I, if required); d) all/any sub-sub-consultant/subcontractor warranties to the Contractor from any designer(s) contributing to the design of the Subcontract Works; e) all/any sub-sub-contractor warranties (substantially in the same format as the Sub-Contractor warranty to the Employer) to be provided in respect of significant sub-subcontractors, sub-sub-contractors who carry out design or performance specified works and/or sub-sub-contractors who supply and/or install significant materials, products, and/or equipment; f) manufacturer warranties and/or guarantees to be provided from suppliers of significant materials, products and/or equipment, if any; and g) documentary evidence that the insurances required under the Subcontract are being maintained at the date of payment as requested in accordance with clause Z19.2a Delete clause 50.5 and substitute: Subject to the Subcontractor having provided all information required by clause 50.4 or as otherwise required by this sub-contract, the Contractor or the specified person no later than five (5) days after the relevant due date for payment following the Subcontract application date, issues a Payment Notice to the Subcontractor specifying the Notified Sum and the basis on which the Notified Sum has been calculated and such Notified Sum shall be calculated by the Contractor or the specified person in accordance with this subcontract. Z19.2b Insert a new clause 50.6: Where the Contractor or the specified person does not issue a Payment Notice in accordance with clause 50.5, the Subcontractor may at any time following the five (5) day period after the relevant due date for payment give the Contractor a Default Payment Notice in the terms attached at Schedule H. Z19.3 The following should be inserted as new Clause 50.7: A Default Payment Notice is deemed to be compliant with the provisions of this subcontract and section 110B of the Act only if: (a) the Subcontractor specifies in the Default Payment Notice the Notified Sum provided that the parties agree that the Notified Sum shall not exceed the amount set out in the relevant Application for Payment; NEC3.oA.EN.PM March 2016