Appointment of the Consultant

ARTICLES OF AGREEMENT

This Agreementis made by DEEDthis day of 2016

BETWEEN:

1. [ ] (hereinafter called "the Client")

and

2. [ ] a company registered in England with registration number [ ] and whose registered office [ ] (hereinafter called “the Consultant”)

WHEREAS (Recitals)

  1. The Client requires a Multi- Disciplinary Consultant Team to to support its proposal to develop a housing scheme for over 55’s in line with HAPPI principles on Calcutta Roadin accordance with the details set out in the Specification of Works in Annex C(“the Project”). ’The Contract Area’ isCalcutta Road, Tilbury with the details set out or referred to in the Annex C.
  2. [ ] Client undertook a procurement process of the contract by holding a compliant open Invitation To Tender (“ ITT”) competition and procured and evaluated the tenders received according to local government and EU procurement legislation. Following a tender exercise and evaluation process based on a Price and Quality model (“the ITT Documents”) the Client selected the Consultant.
  3. For the purposes of the Project the Client has requested the Consultant to act in the capacity specified in the Contract Particulars and, for the fee specified in Annex A (“the Fee”), to provide the services set out in Annex C (“Specification of Works”),
  4. The Consultant hereby agrees to provide the required services at the specified rates as set out in Annex A or as otherwise determined in accordance with the Conditions set out in Annex C herein.
  5. The form of Contract shall be the JCT Consultants Agreement (2011 edition) as amended herein and shall be made of and comprise:

6.1 These Articles of Agreement

6.2 The Articles as set out in Schedule 1

6.3 The Contract Particulars as set out in Schedule 2

6.4 Special Conditions as set out in Schedule 3

6.5 Schedule 4:

6.5.1 Annex A – Fee and Other Payments

6.5.2 Annex B – Consultant Bid –[ ] including the Questions from Tenderer and Post Tender Clarification

6.5.3 Annex C – ITT Document including the Specification of Works

6.5.4 Annex D –Performance Bondsand Parent Company Guarantee

6.5.5 Annex E – Collateral Warranty

NOTWITHSTANDING anything contained in the Conditions the amendments to the Conditions specified above shall prevail.

IN WITNESS whereof the parties hereto have caused their respective Common Seals to be hereunto affixed the day and year first above written.

EXECUTED AS A DEED by the undersigned on 2016
EXECUTED AND DELIVERED as a deedon behalf of[ ] by affixing its Common Seal in the presence of:
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EXECUTED AS A DEED by the undersigned on 2016
EXECUTED AND DELIVERED as a deedby [ ] LTD and signed by two directors or a director and a secretary in the presence of:
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Witness Sign
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Director Sign
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SCHEDULE 1

ARTICLES

Now it is hereby agreed as follows

Article 1 / Consultant's obligations
The Consultant shall perform the Services in accordance with the Conditions.
Article 2 / Payment
The Client shall pay the Consultant in accordance with the Conditions.
Article 3 / Principal Designer
The Principal Designer for the purpose of the CDM Regulations(all references to the CDM regulations are substituted to mean the Construction(design and Management ) Regulations 2015) is [ ]., or, if he ceases to be the Principal Designer, such other person as the contractor shall appoint to fulfil that role.
Article 4 / Adjudication
If any dispute or difference arises under this Contract, either Party may refer it to adjudication in accordance with clause 12.2.
Article 5 / Arbitration
Where Article 5 applies, then, subject to Article 4 and the exceptions set out below, any dispute or difference between the Parties of any kind whatsoever arising out of or in connection with this Contract, whether before, during or after termination of the Contract or the Consultant’s engagement, shall be referred to arbitration in accordance with clauses 12.3 to 12.8 and the JCT 2011 edition of the Construction Industry Model Arbitration Rules (CIMAR). The exceptions to this Article 5 are:
  • any disputes or differences arising under or in respect of VAT, and
  • any disputes or differences in connection with the enforcement of any decision of an Adjudicator

Article 6 / Legal proceedings
Subject to Article 7 and (where it applies) to Article 8, the English courts shall have jurisdiction over any dispute or difference between the Parties which arises out of or in connection with this Contract.

SCHEDULE 2

Contract Particulars

Part 1: General

Clause / Subject
Second Recital / The Consultant is appointment as / as set out in Annex C
Article 5 / Arbitration
(if neither entry is deleted, Article 5 and clauses 12.3 to 12.8 will not apply. If disputes and differences are to be determined by arbitration and not by legal proceedings, it must be stated that Article 5 and clauses 12.3 to 12.8 apply.) / Article 5 and clauses 12.3 to 12.8 (Arbitration) apply
1.1 / Client’s Brief
(State reference number and date or other identifier of the relevant document(s) in which this is set out.) / As set out in Annex C
1.1 / Client’s Representative
(as at the date of this Agreement) / Thurrock Council
1.1 / Consultant’s Representative
(as at the date of this Agreement)
1.1 / Consultant’s Team
(other than the Consultant)
[Name] / [Function]
1.1 / Cost Plan
(State reference number and date or other identifier of the document(s) in which this is set out.) / N/A
1.1 / Key Personnel
(Names and Functions)
[Name] /
  • are set out in the following document
  • are as follows
[Function]
1.1 / Programme
(State reference number and date or other identifier of the current document(s) in which this is set out.) / Completion of services is Appendix 2 of the Consultants bid and set out in Appendix B of this Agreement.
1.1 / Programme dates under the current Programme / The date of commencement of the service is
estimated to be September 2016.
1.1 / Project Team
(other than Consultant Team members)
[Name]
1.1 / Third Party Agreements
[Parties] / [Date][Subject]
1.3 / Interim Agreements etc.
Details of any interim agreements etc (or provisions of them) not superseded by this Agreement) / None
1.5 / Addresses for service of notices by the Parties
(if none is stated, the address in each case, subject to clause 1.5.3, shall be that shown at the commencement of the Agreement.) / Client Thurrock Council, Civic Offices, New Road, Grays, RM17 6SL
Consultant
2.11.1 / Consultant’s aggregate liability for personal injury or death) is limited to (if no limit is specified, liability is unlimited.) / £Unlimited
2.11.2 / Consultant’s liability in respect of pollution or contamination damage (excluding liability for personal injury or death) is ,limited to (if no limit is specified, liability is unlimited) / £Unlimited
3.2.3 / Contract administration – site visits
The requirements for visits /
  • are as follows/
  • are set out in the following documents

3.3.1.4.2 / Limits of Consultant’s authority
Maximum increase in overall Project cost is
(If no limit is specified, any increase requires Client approval.)
Maximum increase per item is
(if no limit is specified, any increase requires Client approval.) / £______
£______
8.1.1 / Professional Indemnity Insurance
Level of cover
(if an alternative is not selected, the amount shall be the aggregate amount for any one period of insurance. A period of insurance for these purposes shall be one year less otherwise stated.)
(If no amount is stated, insurance under clause 8.1.1 shall not be required.)
Sub-limits within the overall level of cover
Cover for pollution and contamination claims
(If no amount is stated, such cover shall not be required; unless otherwise stated, the required limit of indemnity is an annual aggregate amount.)
Cover for asbestos claims
(If no amount is stated, such cover shall not be required; unless otherwise stated, the required limit of indemnity is an annual aggregate amount.)
Cover for fungal mould claims / Amount of indemnity required
  • Is the aggregate amount for any one period of insurance
and is£ 10 million.
  • Is required, with a limit of indemnity of
£______
  • Is not required /
  • Is required, with a limit of indemnity of
£______/
  • Is not required
  • Is required /
  • Is not required

8.1.2 / Public Liability Insurance
(If neither entry is deleted or cover level is not stated, such insurance is not required.) /
  • Is required with a cover level of:
£ 10 million.
8.2.1 / Professional Indemnity Insurance – expiry of required period of insurance is
(If no period is selected, the expiry date shall be 6 years from the date of completion of the Services) /
  • 12 years
(not exceeding 12 years) from the date of completion of the Services
8.2.2 / Public Liability Insurance – required period (if shorter than the period of the Consultant’s engagement) is
10.1 / Delete 10.1 and replace with the following wording adjacent to this column / Subject to clause 10.2 the Client may assign its entire rights and benefits under this Consultancy to any person or legal entity irrespective of whether or not they or it has acquiring an interest in the Services and the Client's said rights and benefits may be charged and/or assigned by way of security and may be re-assigned on redemption. The Consultant may not assign the benefit of this Consultancy without the written consent of the Client
10.2 / Novation
Clause 10.2
(If neither entry is deleted, clause 10.2 will not apply.)
Where clause 10.2 applies, the form of Novation Agreement
(Identity the form or the document in which it is set out.) / N/A
11.2 / Suspension: Remobilisation - period for recommencement instructions (if other than 2 months) is
12.2 / Adjudication
Nominating body – where no Adjudicator is unwilling or unable to act (whenever that is established)
(Where an Adjudicator is not named and a nominating body has nt been selected, the nominating body shall be one of the bodies listed opposite selected, the nominating body shall be one of the bodies listed opposite selected by the Party requiring the reference to adjudication.) / The Adjudicator is
  • The Royal Institute of British Architects

12.3 / Arbitration – appointor of Arbitrator (and of any replacement)
(If no appointor is selected, the appointor shall be the President or a Vice- President of the Chartered Institute of Arbitrators.) /
  • Royal Institution of British Architects

Part 2: Third Party Rights and Collateral Warranties

If such rights or warranties are required from the Consultant, complete the particulars below:

Identity of Beneficiaries
Name, category or description of beneficiary and interests in the Project at [ / Collateral Warranty (CW)/ Third Party Rights (TPR)
All Collateral Warranty
Paragraph 5.2 of the Schedule / Third Party Rights (Purchaser or Tenant)
Paragraph 5.2
(Unless paragraph 5.2 is stated to apply and the maximum liability is stated, that paragraph does not apply.) / £______/
  • Does/does not apply

Clause 10.3.2 / Collateral Warranties
Where any Beneficiaries are entitled to a Collateral Warranty, the form of warranty
((If no form is annexed or sufficiently identified – or if the further particulars required by the following entry are not given – the identified Beneficiaries shall only be entitled to Third Party Rights under clause 10.3.1.) /
  • Is annexed to this Agreement as Annex E
  • Is ______

Clause 10.3.2 / Collateral Warranties – Further particulars
The further details required for completion of the form of Collateral Warranty are:
[Clause etc. Number] / [Entry}
Additional Clause 13 / The Consultant shall within 7 days of the date of this Agreement enter into a Performance Bond in the form as set out in Part 1 of Appendix D representing 10% of the value of the total price referred to in Appendix 1 and or a Parent Company Guarantee Part 2 of Appendix D

(If insufficient particulars are given to complete the form, identified beneficiaries are only entitled to Third Party Rights under clause 10.3.1)

SCHEDULE 3

SPECIAL CONDITIONS

Definitions

Bribery Act: the Bribery Act 2010 and any subordinate legislation made under that Act from time to time together with any guidance or codes of practice issued by the relevant government department concerning the legislation.

Commercially Sensitive Information: the information listed in Annex [E ] (if any ) comprising the information of a commercially sensitive nature relating to the Consultant , its intellectual property rights or its business or which the Consultant has indicated to the Client that, if disclosed by the Client, would cause the Consultant significant commercial disadvantage or material financial loss.

Confidential Information: any information, however it is conveyed, that relates to the business, affairs, developments, trade secrets, know-how, personnel and Consultant s of the Consultant , including intellectual property rights, together with all information derived from the above, and any other information clearly designated as being confidential (whether or not it is marked as "confidential") or which ought reasonably to be considered to be confidential, including Commercially Sensitive Information.

Consultant 's Personnel: all employees, staff, other workers, agents and consultants of the Consultant and of any Sub-Contractors who are engaged in the provision of the Services from time to time.

Default: any breach of the obligations of the relevant Party (including abandonment of this Agreement in breach of its terms, repudiatory breach or breach of a fundamental term) or any other default, act, omission, negligence or statement

(a) in the case of the Client, of its employees, servants, agents; or

(b) in the case of the Consultant , of its Sub-Contractors or any Consultant 's Personnel, in connection with or in relation to the subject matter of this Agreement and in respect of which such Party is liable to the other.

Effective Date: the date on which this Agreement is signed by both Parties

Environmental Information Regulations: the Environmental Information Regulations 2004 together with any guidance and/or codes of practice issued by the Information Commissioner or relevant government department in relation to such regulations.

FOIA: the Freedom of Information Act 2000, and any subordinate legislation made under the Act from time to time, together with any guidance and/or codes of practice issued by the Information Commissioner or relevant government department in relation to such legislation.

Information: has the meaning given under section 84 of FOIA.

Law: any law, statute, subordinate legislation within the meaning of section 21(1) of the Interpretation Act 1978, bye-law, enforceable right within the meaning of section 2 of the European Communities Act 1972, regulation, order, mandatory guidance or code of practice, judgment of a relevant court of law, or directives or requirements of any regulatory body with which the Consultant is bound to comply

Prohibited Act: the following constitute Prohibited Acts:

(a) to directly or indirectly offer, promise or give any person working for or engaged by the Client a financial or other advantage to:

(a) induce that person to perform improperly a relevant function or activity; or

(a) reward that person for improper performance of a relevant function or activity;

(b) to directly or indirectly request, agree to receive or accept any financial or other advantage as an inducement or a reward for improper performance of a relevant function or activity in connection with this Agreement;

(c) committing any offence:

(c) under the Bribery Act 2010 (or any legislation repealed or revoked by such Act);

(c) under legislation or common law concerning fraudulent acts;

(c) defrauding, attempting to defraud or conspiring to defraud the Client.

(d) any activity, practice or conduct which would constitute one of the offences listed under (c) above if such activity, practice or conduct had been carried out in the UK.

Request for Information: a request for information or an apparent request under the Code of Practice on Access to Government Information, FOIA or the Environmental Information Regulations.

Services: the services to be delivered by or on behalf of the Consultant under this agreement.

Sub-Contract: any contract or agreement, or proposed contract or agreement between the Consultant and any third party whereby that third party agrees to provide to the Consultant the Services or any part of the Services, or facilities or services necessary for the provision of the Services or any part of the Services, or necessary for the management, direction or control of the Services or any part of the Services.

Sub-Contractor: the third parties that enter into a Sub-Contract with the Consultant .

1.Equality and diversity

The Consultant shall:

(a)perform its obligations under this Agreement (including those in relation to the Services) in accordance with:

(i)all applicable equality Law (whether in relation to race, sex, gender reassignment, age, disability, sexual orientation, religion or belief, pregnancy, maternity or otherwise);
(ii)the Client’s equality and diversity policy as provided to the Consultant from time to time; and
(iii)any other requirements and instructions which the Client reasonably imposes in connection with any equality obligations imposed on the Client at any time under applicable equality Law; and

(b)take all necessary steps, and inform the Client of the steps taken, to prevent unlawful discrimination designated as such by any court or tribunal, or the Equality and Human Rights Commission or (any successor organisation).

2.PREVENTION OF FRAUD AND BRIBERY

2.1The Consultant represents and warrants that neither it, nor to the best of its knowledge any Consultant 's Personnel, have at any time prior to the Effective Date:

(a)committed a Prohibited Act or been formally notified that it is subject to an investigation or prosecution which relates to an alleged Prohibited Act; and/or

(b)been listed by any government department or agency as being debarred, suspended, proposed for suspension or debarment, or otherwise ineligible for participation in government procurement programmes or contracts on the grounds of a Prohibited Act.

2.2The Consultant shall not during the term of this Agreement:

(a)commit a Prohibited Act; and/or

(b)do or suffer anything to be done which would cause the Client or any of the Client's employees, consultants, contractors, sub-contractors or agents to contravene any of the Bribery Act or otherwise incur any liability in relation to the Bribery Act.

2.3The Consultant shall during the term of this Agreement:

(a)establish, maintain and enforce, and require that its Sub-contractors establish, maintain and enforce, policies and procedures which are adequate to ensure compliance with the Bribery Act and prevent the occurrence of a Prohibited Act; and

(b)keep appropriate records of its compliance with its obligations under Clause 2.3(a) and make such records available to the Client on request.

2.4The Consultant shall immediately notify the Client in writing if it becomes aware of any breach of Clause 2.1 and/or 2.2, or has reason to believe that it has or any of the Consultant 's Personnel have:

(a)been subject to an investigation or prosecution which relates to an alleged Prohibited Act;

(b)been listed by any government department or agency as being debarred, suspended, proposed for suspension or debarment, or otherwise ineligible for participation in government procurement programmes or contracts on the grounds of a Prohibited Act; and/or

(c)received a request or demand for any undue financial or other advantage of any kind in connection with the performance of this Agreement or otherwise suspects that any person or Party directly or indirectly connected with this Agreement has committed or attempted to commit a Prohibited Act.

2.5If the Consultant makes a notification to the Client pursuant to Clause 2.4, the Consultant shall respond promptly to the Client's enquiries, co-operate with any investigation, and allow the Client to audit any books, records and/or any other relevant documentation in accordance with Clause 5: AUDIT.

2.6If the Consultant is in Default under Clauses 2.1 and/or 2.2, the Client may by notice:

(a)require the Consultant to remove from performance of this Agreement any Consultant 's Personnel whose acts or omissions have caused the Default; or

(b)immediately terminate this Agreement.

2.7Any notice served by the Client under Clause 2.6 shall specify the nature of the Prohibited Act, the identity of the Party who the Client believes has committed the Prohibited Act and the action that the Client has elected to take (including, where relevant, the date on which this Agreement shall terminate).

3.Freedom of information

3.1The Consultant acknowledges that the Client is subject to the requirements of the FOIA and the EIRs. The Consultant shall:

(a)provide all necessary assistance and cooperation as reasonably requested by the Client to enable the Client to comply with its obligations under the FOIA and EIRs;