Scottish Futures Trust

July2011

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RESIDUAL WASTE TREATMENT CONTRACT

SCHEDULE

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CONTENTS

SCHEDULE PART 1

DEFINITIONS

SCHEDULE PART 2

AUTHORITY'S REQUIREMENTS

SCHEDULE PART 3

CONTRACTOR'S PROPOSALS

SCHEDULE PART 4

PAYMENT MECHANISM

SCHEDULE PART 5

ANCILLARY DOCUMENTS AND FINANCING AGREEMENTS

SCHEDULE PART 6

CONTRACTOR WARRANTED DATA

SCHEDULE PART 7

SITES INFORMATION

SCHEDULE PART 8

KEY DATES

SCHEDULE PART 9

REVIEW PROCEDURE

SCHEDULE PART 10

REQUIRED INSURANCES

SCHEDULE PART 11

TESTS

SCHEDULE PART 12

INDEPENDENT CERTIFIER'S DEED OF APPOINTMENT

SCHEDULE PART 13

AUTHORITY'S POLICIES

SCHEDULE PART 14

WASTE LAW LIST

SCHEDULE PART 15

BEST VALUE AND CONTINUOUS IMPROVEMENT

SCHEDULE PART 16

REFINANCING

SCHEDULE PART 17

COMPENSATION ON TERMINATION

SCHEDULE PART 18

LIAISON PROCEDURE

SCHEDULE PART 19

REVISION OF BASE CASE AND CUSTODY

SCHEDULE PART 20

EMPLOYMENT AND PENSIONS

SCHEDULE PART 21

CHANGE PROTOCOL

SCHEDULE PART 22

DISPUTE RESOLUTION PROCEDURE

SCHEDULE PART 23

COMMERCIALLY SENSITIVE INFORMATION

SCHEDULE PART 24

DIRECT AGREEMENT

SCHEDULE PART 25

FORM OF COLLATERAL WARRANTY

SCHEDULE PART 26

PLANNING

SCHEDULE PART 27

APPROACH TO PERMIT RISK

SCHEDULE PART 28

RELEVANT DISCHARGE TERMS

SCHEDULE PART 29

DESIGN PROPOSAL

SCHEDULE PART 30

OUTLINE SUBSTITUTE WASTE PLAN

SCHEDULE PART 31

INCOMING WASTE PARAMETERS

SCHEDULE PART 32

PROHIBITED MATERIALS

Schedule Part 1 –Definitions

SCHEDULE PART 1

DEFINITIONS[1]

1

Schedule Part 2 – Authority’s Requirements

SCHEDULE PART 2

AUTHORITY'S REQUIREMENTS

PART A

PERFORMANCE REQUIREMENTS

[Note: Please refer to Scottish Futures Trust guidance on the Authority’s Requirements/ Output Specification.]

1

Schedule Part 2 – Authority’s Requirements

SCHEDULE PART 2

AUTHORITY'S REQUIREMENTS

PR1 - WORKS REQUIREMENTS

1

Schedule Part 2 – Authority’s Requirements

SCHEDULE PART 2

AUTHORITY'S REQUIREMENTS

PR2 – COMMISSIONING REQUIREMENTS

1

Schedule Part 2 – Authority’s Requirements

SCHEDULE PART 2

AUTHORITY'S REQUIREMENTS

PR3 - SERVICE REQUIREMENTS

1

Schedule Part 2 – Authority’s Requirements

SCHEDULE PART 2

AUTHORITY'S REQUIREMENTS

PR4 – HANDBACK REQUIREMENTS

1

Schedule Part 2 – Authority’s Requirements

SCHEDULE PART 2

AUTHORITY'S REQUIREMENTS

PART B

PERFORMANCE MANAGEMENT FRAMEWORK

1

Schedule Part 2 – Authority’s Requirements

SCHEDULE PART2

AUTHORITY'S REQUIREMENTS

PART C

DEFINITIONS

1

Schedule Part 3 – Contractor’s Proposals

SCHEDULE PART3

CONTRACTOR'S PROPOSALS

PART 1

WORKS DELIVERY PLAN

(To include Works Method Statements)

1

Schedule Part 3 – Contractor’s Proposals

SCHEDULE PART3

CONTRACTOR'S PROPOSALS

PART 2

SERVICE DELIVERY PLAN

(To include Services Method Statements)

1

Schedule Part 3 – Contractor’s Proposals

SCHEDULE PART3

CONTRACTOR'S PROPOSALS

PART 3

CONSTRUCTION PROGRAMME[2]

1

Schedule Part 4 – Payment Mechanism

SCHEDULE PART4

PAYMENT MECHANISM

[Note: Please refer to Scottish Futures Trust guidance on the Payment Mechanism.]

1

Schedule Part 5 – Ancillary Documents and Financing Agreements

SCHEDULE PART5

ANCILLARY DOCUMENTS AND FINANCING AGREEMENTS

PART 1

ANCILLARY DOCUMENTS

[Note: Bidders to list those key documents related to the Project to which the Authority is not a party.

These shall include Construction Sub-Contracts, Operating Sub-Contracts, Off-Take Contracts, Third Party Waste Contracts and any arrangements or Sub-Contracts for Third Party Income (including where these are to be let by a special purpose trading company) but exclude Financing Agreements].

1

Schedule Part 5 – Ancillary Documents and Financing Agreements

SCHEDULE PART5

ANCILLARY DOCUMENTS AND FINANCING AGREEMENTS

PART 2

INITIAL FINANCING AGREEMENTS

1

Schedule Part 6 – Contractor Warranted Data

SCHEDULE PART6

CONTRACTOR WARRANTED DATA

1

Schedule Part 7 –Sites Information

SCHEDULE PART7

SITES INFORMATION

[Note: Site details and (to the extent applicable) proposed form of Lease(s)/Sub-Lease(s) relating to Site(s) to be included here.][3]

1

Schedule Part 8 – Key Dates

SCHEDULE PART8

KEY DATES

The purpose of this Schedule Part 8 (Key Dates) is to define those key dates relating to the Project that are either important in terms of the overall delivery programme or that have a contractual consequence if there is a delay. For the avoidance of doubt, this Schedule Part 8 (Key Dates) is intended to assist the Parties by bringing together such Key Dates into one Schedule Part but its purpose is to provide a summary explanation only so in the event of conflict between this Schedule Part and any other provision in the Contract (main body or any other Schedule Part) the main body or other Schedule Part shall take precedence.

Milestone / Date
[Note to Bidders: unless expressed otherwise, can be either a fixed date or on a time elapsed basis] / Contractual consequence
[Note to Bidders: please confirm proposed impact (if any) of delay or failure to achieve date e.g. in terms of remedies that would be available to the Authority]
Financial Close
[Interim Services Commencement Date]
Planning – preparation and pre application discussions
Environmental Permit – preparation and pre application discussions
Planning – submission of Planning Application
Planning Application Longstop Date / Failure to submit Planning Application by Planning Application Longstop Date is a Contractor Default
Environmental Permit – submission of Environmental Permit Application
Judicial review or challenge period assumed
Planning Permission Longstop Date / Where the Contractor fails to achieve Planning Permission or to secure an Environmental Permit by the Planning Permission Longstop Date:
(a)in the case of planning failure, the Authority is obliged to terminate the Contract pursuant to paragraph 3.5 of Schedule Part 26 (Planning) or to require the Contractor to submit a Revised Project Plan;
(b)in the case of failure to secure an Environmental Permit, the Authority is obliged to terminate the Contract pursuant to paragraph 11.1.5 of Schedule Part 27 (Approach to Permit Risk)
Planned Works Commencement Date / Failure to commence the Works by [ ] Months after the Planned Works Commencement Date is a Contractor Default
Works Period
Commissioning Period
Planned Readiness Date
Planned Acceptance Date
Planned Services Commencement Date
Readiness Longstop Date / [ ] Months after the Planned Readiness Date / [Failure to obtain Readiness Certificate by Readiness Longstop Date is a Contractor Default]
Acceptance Longstop Date / [12] Months after the Planned Services Commencement Date / Failure to obtain Acceptance Test Certificate by Acceptance Longstop Date is a Contractor Default
Expiry Date / The [ ] anniversary of the Commencement Date

1

Schedule Part 9 – Review Procedure

SCHEDULE PART9

REVIEW PROCEDURE

  1. SUBMITTED ITEMS
  2. The provisions of this Schedule Part 9 (Review Procedure) shall apply whenever any item, document or course of action is required to be reviewed, approved or otherwise processed in accordance with Schedule Part 9 (Review Procedure).
  3. Subject to any express provision of this Contract, the manner, form and timing of any submission to be made by the Contractor to the Authority for review under the Review Procedure shall be a matter for the Contractor to determine. Each submission under the Review Procedure shall be accompanied by a copy of the proposed document or course of action to be reviewed (including, where applicable, any Reviewable Design Data) or a statement of the proposed course of action (the entire contents of a submission being referred to in this Schedule Part 9 (Review Procedure) as a "Submitted Item"). In relation to each Submitted Item, the following procedure shall apply:
  4. as soon as reasonably practicable and, if the Submitted Item comprises an item of Reviewable Design Data within fifteen (15) Business Days of the date of receipt of a submission (or re-submission, as the case may be) of the Submitted Item to the Authority's Representative (or such other period as the Parties may agree), the Authority's Representative shall return one copy of the relevant Submitted Item to the Contractor endorsed "no comment" or (subject to and in accordance with paragraph 3) (Grounds of Objection) "comments" as appropriate; and
  5. subject to paragraph 1.4 below, if the Authority's Representative fails to return a copy of any Submitted Item (including any re-submitted Submitted Item) duly endorsed in accordance with paragraph 1.2.1, within fifteen (15) Business Days (or within such other period as the Parties may agree in writing) of the date of its submission to the Authority's Representative, then the Authority's Representative shall be deemed to have returned the Submitted Item to the Contractor endorsed "no comment" (and, in the case of Reviewable Design Data, endorsed "Level A - no comment").
  6. If the Authority's Representative raises comments on any Submitted Item in accordance with paragraph 3 (Grounds of Objection) he shall state the ground upon which such comments are based and the evidence or other information necessary to substantiate that ground. To the extent that the Authority's Representative comments on a Submitted Item other than on the basis set out in this Schedule Part 9 (Review Procedure), or fails to comply with the provisions of this paragraph, the Contractor may, in its discretion, either:
  7. request written clarification of the basis for such comments and, if clarification is not received within ten (10) Business Days of such request by the Contractor, refer the matter for determination in accordance with Schedule Part 22 (Dispute Resolution Procedure); or
  8. at its own risk, and without prejudice to Clause 15 (Design Development), proceed with further design or construction disregarding such comments.
  9. Should the Contractor submit any item of Reviewable Design Data later than was previously agreed with the Authority then the provisions of paragraph 1.2.2 shall not apply to such item of Reviewable Design Data. In such circumstances the Authority shall return the relevant item of Reviewable Design Data as soon as it is reasonably able to do so.
  10. FURTHER INFORMATION

The Contractor shall submit any further or other information, data and documents that the Authority's Representative reasonably requires in order to determine whether he has a basis for raising comments or making objections to any Submitted Item in accordance with this SchedulePart 9 (Review Procedure). If the Contractor does not submit any such information, data and documents, the Authority's Representative shall be entitled to:

2.1.comment on the Submitted Item on the basis of the information, data and documents which have been provided; or

2.2.object to the Submitted Item on the grounds that insufficient information, data and documents have been provided to enable the Authority's Representative to determine whether he has a legitimate basis for commenting or objecting in accordance with this Schedule Part 9 (Review Procedure).

  1. GROUNDS OF OBJECTION[4]

The expression "raise comments" in this paragraph shall be construed to mean "raise comments or make objections" unless the contrary appears from the context. The Authority's Representative may raise comments in relation to any Submitted Item on the grounds set out in paragraph 2 above or on the ground that the Submitted Item would (on the balance of probabilities) breach any Legislation but otherwise may raise comments in relation to a Submitted Item only as follows:

3.1.in relation to any Submitted Item if:

3.1.1.the Contractor's ability to perform its obligations under this Contract would (on the balance of probabilities) be adversely affected by the implementation of the Submitted Item; or

3.1.2.the implementation of the Submitted Item would (on the balance of probabilities) adversely affect any right of the Authority under this Contract or its ability to enforce any such right;

3.2.in relation to Reviewable Design Data submitted pursuant to Clause 15 (Design Development) if:

3.2.1.the Submitted Item is not in accordance with the Works Requirements;

3.2.2.the Submitted Item is not in accordance with the Method Statements; or

3.2.3.the Submitted Item would increase the likelihood of Deductions following the Services Commencement Date;

3.3.in relation to the submission of any proposed revision or substitution for the Commissioning Plans or any part of any Commissioning Plans (as the case may be) pursuant to Clause 21.2.1 (Testing and Commissioning), on the grounds that:

3.3.1.the proposed revision or substitution is not in accordance with Good Industry Practice;

3.3.2.the revised Commissioning Plan would materially increase disruption to the Authority in respect of Contract Waste deliveries pursuant to Clause 21 (Completion of the Works); or

3.3.3.the proposed revision or substitution would (on the balance of probabilities) result in an inferior standard of performance of the relevant Facility to the standard of performance in accordance with the Method Statement relating to that Facility prior to such proposed revision or substitution;

3.4.in relation to the submission of any Schedule of Programmed Maintenance, any revision to any Schedule of Programmed Maintenance pursuant to Clause 26.3 (Programmed Maintenance) on the grounds that:

3.4.1.carrying out the Programmed Maintenance in the period or at the times suggested would (on the balance of probabilities) interfere with the operations of the Authority and such interference could be avoided or mitigated by the Contractor rescheduling the Programmed Maintenance; or

3.4.2.the proposed method of performance of the Programmed Maintenance would not be in accordance with the requirements of Clause 26 (Maintenance), the Service Requirements and the Services Method Statements for that Service; or

3.4.3.the safety of users of the Facility would (on the balance of probabilities) be adversely affected; or

3.4.4.the period for carrying out the Programmed Maintenance would (on the balance of probabilities) exceed the period reasonably required for the relevant works;

3.5.in relation to the submission of the Substitute Waste Plan pursuant to Clause 25.2.1 and any subsequent revision thereto pursuant to Clause 25.2.2 on the grounds that:

3.5.1.the proposed Substitute Waste Plan does not comprehensively address the contents of a Substitute Waste Notice;

3.5.2.the proposed Substitute Waste Plan does not include potential sources of Waste which would be suitable for treatment at the Facility;

3.5.3.the Authority is able to identify a source of Waste which would result in a higher overall Substitute Waste Price;

3.5.4.in respect of the Substitute Waste Plan submitted pursuant to Clause 25.2.1, the plan does not demonstrate justifiable reasons for the departures from the Outline Substitute Waste Plan; [or]

3.5.5.[the proposed Substitute Waste Plan does not demonstrate that the Contractor will use reasonable endeavours; or]

3.5.6.the Authority does not consider (acting reasonably) that the plan could be implemented and that the Contractor would be able to comply with the provisions of Clause 25.2.4 in the event of a Contract Waste Shortfall; or

3.6.in relation to the submission of new or amended or replacement Sub-Contracts, Off-Take Contracts or Third Party Waste Contracts that the Submitted Item or proposed arrangement does not comply with:

3.6.1.Clause 51 (Third Party Waste and Off-Take Contracts); or

3.6.2.Clause 81.2 (Restriction on Contractor) and 81.6 (Refusal of Consent).

  1. EFFECT OF REVIEW
  2. Any Submitted Item which is returned or deemed to have been returned by the Authority's Representative endorsed "no comment" (and in the case of Reviewable Design Data, endorsed "Level A - no comment") shall be complied with or implemented (as the case may be) by the Contractor.
  3. In the case of any Submitted Item other than Reviewable Design Data, if the Authority's Representative returns the Submitted Item to the Contractor endorsed "comments", the Contractor shall comply with such Submitted Item after amendment in accordance with the comments unless the Contractor disputes that any such comment is on grounds permitted by this Contract, in which case the Contractor or the Authority's Representative may refer the matter for determination in accordance with Schedule Part 22 (Dispute Resolution Procedure) and the Contractor shall not act on the Submitted Item until such matter is so determined or otherwise agreed.
  4. In the case of a Submitted Item comprising Reviewable Design Data, if the Authority's Representative returns the Submitted Item endorsed other than "Level A - no comment", the Contractor shall:
  5. where the Authority's Representative has endorsed the Submitted Item "Level B - proceed subject to amendment as noted", either proceed to construct or proceed to the next level of design of the part of the Works to which the Submitted Item relates but take into account any amendments required by the Authority's Representative in his comments;
  6. where the Authority's Representative has endorsed the Submitted Item "Level C - subject to amendment as noted" not act upon the Submitted Item, amend the Submitted Item in accordance with the Authority's Representative's comments and re-submit the same to the Authority's Representative in accordance with paragraph 4.4; and
  7. where the Authority's Representative has endorsed the Submitted Item "Level D - rejected" not act upon the Submitted Item, amend the Submitted Item and re-submit the Submitted Item to the Authority's Representative in accordance with paragraph 4.4;

unless the Contractor disputes that any such comment or proposed amendment is on grounds permitted by this Contract, in which case the Contractor or the Authority's Representative may refer the matter for determination in accordance with Schedule Part 22 (Dispute Resolution Procedure) and the Contractor shall not act on the Submitted Item until such matter is so determined or otherwise agreed. If the Contractor commences or permits the commencement of construction during such a dispute and it is subsequently determined in accordance with Schedule Part 22 (Dispute Resolution Procedure) that the Contractor was not entitled to proceed with construction in accordance with paragraph 4 of this Schedule Part 9 (Review Procedure) then the Contractor shall forthwith, at its own cost, undo, remove from the Site and replace (in a manner complying with this Contract) any parts of the Works which it has been determined the Contractor was not entitled to construct.

4.4.Within [five (5)] Business Days of receiving the comments of the Authority's Representative on any Submitted Item comprising Reviewable Design Data, the Contractor shall (except in the case contemplated in paragraph 4.3.1 Level B) send a copy of the Submitted Item as amended to the Authority's Representative pursuant to paragraph 4.3 and the provisions of paragraphs 1.2.1, 4.1 and 4.3 shall apply (changed according to context) to such re-submission.

4.5.The return or deemed return of any Submitted Item endorsed "no comment" (or in the case of Reviewable Design Data endorsed "Level A - no comment" or otherwise endorsed in accordance with paragraph 4.3.1 Level B or 4.3.2 Level C) shall mean that the relevant Submitted Item may be used or implemented for the purposes for which it is intended but, save to the extent expressly stated in this Contract, such return or deemed return of any Submitted Item shall not otherwise relieve the Contractor of its obligations under this Contract nor is it an acknowledgement by the Authority that the Contractor has complied with such obligations.

  1. DOCUMENTATION MANAGEMENT
  2. The Contractor shall issue [three (3)] copies of all Submitted Items to the Authority and compile and maintain a register of the date and contents of the submission of all Submitted Items.
  3. The Contractor shall compile and maintain a register of the date of receipt and content of all Submitted Items that are returned or deemed to be returned by the Authority's Representative.
  4. Save as expressly provided in this Contract no review, comment or approval by the Authority shall operate to exclude or limit the Contractor's obligations or liabilities under the Contract (or the Authority's rights under the Contract).
  5. AUTHORITY CHANGE
  6. No approval or comment or any failure to give or make an approval or comment under this Schedule Part 9 (Review Procedure) shall constitute a Change save to the extent provided in this Schedule Part 9 (Review Procedure).
  7. If, having received comments from the Authority's Representative, the Contractor considers that compliance with those comments would amount to an Authority Change, the Contractor shall, before complying with the comments, notify the Authority of the same and, if it is agreed by the Parties or determined pursuant to Schedule Part 22 (Dispute Resolution Procedure) that an Authority Change would arise if the comments were complied with, the Authority may, if it wishes, implement the Authority Change and it shall be dealt with in accordance with Schedule Part 21 (Change Protocol). Any failure by the Contractor to notify the Authority that it considers compliance with any comments of the Authority's Representative would amount to an Authority Change shall constitute an irrevocable acceptance by the Contractor that any compliance with the Authority's comments shall be without cost to the Authority and without any extension of time.
  8. No alteration or modification to the design, quality and quantity of the Works arising from the development of detailed design or from the co-ordination of the design shall be construed or regarded as an Authority Change.
  9. CONTRACTOR CHANGES

If the Authority considers that any Submission amounts to a Contractor Change Notice pursuant to paragraph 4 of Part 5 (Contractor Changes) of Schedule Part 21 (Change Protocol) the Authority shall notify the Contractor accordingly whereupon the provisions of paragraph 4 of Part 5 (Contractor Changes) of Schedule Part 21 (Change Protocol) shall apply and not this Schedule Part 9 (Review Procedure).