ace agreement

ACE Agreements 2002. (revised 2004)

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About this agreement

The ACE Agreements A( l ) and A(2) are intended for use when

the consulting engineer is appointed as lead consultant. ACE

Agreements B(1) and B(2) are intended for use when the

consulting engineer is appointed directly by the client but not as

lead consultant. A(1) and B(1) are intended for use in the

provision of civiVstructural engineering services and A(2) and B(2)

are intended for use in the provision of mechanical and electrical

engineering 'services. This guidance document should be used in

conjunction with the ACE Agreements A(1), A(2), B(1) and B(2)

issued with this publication.

This edition revised February 2004

About ACE

ACE is the business association for consultancy and engineering and represents over 750 companies, which employ over 35,000 3)e - staff working in the built and natural environment. ACE member

E firms regularly win awards for the excellence of their work and are generally regarded as some of the most innovative consultancy and engineering companies in the world.

ACE lobbies the UK Parliaments and national assemblies and the European Parliament and maintains regular contact with ministers and officials in order to influence legislation and promote the expertise of its members. ACE is active in the key UK industry organisations and is also the British member both of the European Federation of Engineering Consultancy Associations (EFCA) and FIDIC, the International Federation of Consulting Engineers.

ACE Agreements are the industry standard contract documents for consultancy appointments. ACE membership demonstrates that a company has the experience and skills necessary to provide a high-quality service to clients. ACE'S code of conduct sets high standards and the distinctive ACE logo displayed on members' signboards is a recognised mark of qualityand excellence

To promote best practice and better ways of working in the industry, ACE also publishes a range of briefing notes and guidance documentation for both clients and consultan's. ",etails of the information available is listed on the ACE website at www.acenet.co.uk

For further information contact ACE, Alliance House, 12Caxton Street, London SW1 H OQL Tel: 020 7222 6557, Fax: 020 7222 0750 email: [email protected], website: www.acenet.co.uk

0 ACE. No part of this agreement may be copied or stored electronically without the expressed permission in writing of the ACE. ACE can accept no liability in respect of any use to which the Agreement may be put.

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ACE Agreements A(l), A(2), B(1) and B(2) 2002

/ General 1 The Memorandum of Agreement is a major element of the contract and contains all the spaces

which must be filled in to create an Agreement for a specific commission. It is vitally important that it should be completed correctly in order to create a legally valid and comprehensive contract.

The Project 2 The Project needs to be described at the beginning of the Memorandum. It is the totality of work

to be constructed. It may be a phase or stage of an overall scheme sufficient in itself to provide a useable outcome; it will normally include work in more than one discipline. The description of the Project should be in outline terms with quantitative data where possible.

Client acting for or on behalf of others 3 Professionals and contractors have been alerted by recent cases (such as St Martins, Panatown

and Darlington) that substantial damages could be recovered from them either by Clients (who have suffered no loss) for and on behalf of certain owners/occupiers or direct by an owner/occupier who was not the Client and who had no contractual relationship with the professional or contractor. Such damages will normally only be recoverable where there is a close relationship between the Client and owner/occupier and the professional or contractor knows that the development was being built for the benefit of that owner/occupier.

The right of the Client to recover on behalf of an owner/occupier, which is an exception to the rule of privity, will not exist where the professional or contractor (as the case may be) has given a direct collateral warranty to the owner/occupier. It does not matter that the damages recoverable under that collateral warranty are different or less generous.

The right of recovery could arise in circumstances where the Client was acting, or decided subsequently to act, on behalf of, or for the benefit of, others. This should be considered for each appointment and, if necessary, legal advice should be sought as to whether or not any limitation should be put on the Client's right to recover damages on behalf of those third parties.

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5 One way to limit the Client's recovery of damages to those it itself has suffered would be to add the following sentence immediately before A1 :

"The Client confirms that it is entering into this Agreement wholly on its own behalf and not on behalf of or for the benefit of any other party and agrees that in the event of any claim for breach of contract arising out of or in connection with this Agreement it shall be entitled to recover from the Consultant only the losses, if any, it has itself suffered."

6 It is possible that in similar circumstances to those in the Panatown case third parties could now be given a right to sue the professional or contractor direct because such a benefit has been conferred on them under the professionalk or contractor's contract with the Client by virtue of the Contracts (Rights of Third Parties) Act 1999. The ACE Conditions, however, expressly exclude this Act.

A3 to A6: Information about the Project, Lead and Other Consultants 7 It is essential to record in A3 the proposed method of procurement, since the services to be

provided by the Consultant differ widely between different procurement routes.

8 The insertion of the estimated project cost and forecast completion date in A4 and A5 is to help describe the scope of the proposed Project, so that both parties are aware of what the Client intends.

9 If, as the Conditions assume, the Client provides an adequate brief describing his requirements, then it is sufficient to enter for the Project description, method of procurement and against the cost and completion date items: "as described in Brief dated xxxxx". Guidance on the preparation of a brief for consulting services is available from the Association.

10 The Project will be under the direction of one Lead Consultant who is the Consultant engaged under Agreement A(1) or A(2). Otherwise, the Lead Consultant should be named in A6 of Agreements B(1) and B(2). Other Consultants may also be engaged. If so, they too should be named in A6.

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ACE Agreements A(1), A(2), B(1) and B(2) 2002 _ _ - -~ - -- _ _ -

A7: The Works 11 The Works are those aspects for the Project for which the Consultant has to provide services.

Space is provided for this at A7. This is especially important where his responsibility does not include all the work in the particular discipline for the entire Project. Examples are restrictions to some phases only of a multi-phase project or in respect of work such as curtain walling or drainage which is sometimes covered by a structural engineer and at other times by an architect or a services engineer. As with the description of the Project, details of the requirements and whether, for instance, any work is to be included within the scope of a design and construct contract should also be mentioned. A range of work elements is listed in A7, which should be amended by deletions or additions to show those work elements which are applicable for that commission.

A8 to A9: The Project Leader and the Client's Representative 12 The names of the Consultant's Project Leader and the Client's Representative, whose designation

is required by B2 and 63, should be recorded at A8 and A9.

A10 to A15: Limits of Liability, etc - Agreements A(l), A(2), B(1) and B(2) 2002 13

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Limits and duration of liability, the levels and duration of PI1 and PLI cover and whether any annual aggregate limit will apply in respect of pollution and contamination cover should be discussed between Client and Consultant prior to completing A1 0 to A1 5.

68.1 is drafted on the basis that a limit of liability will be agreed with the Client and two options have been provided in A1 0, one of which must be deleted.

The monetary amounts need to be completed, whichever option is used.

Any limitation of liability clause must be "reasonable" if it is to be effective and the options are drafted on the basis that Consultants will have professional indemnity insurance on an each and every claim basis for all claims except those arising out of pollution and contamination risks, where there are generally annual aggregate limits on claims for these risks, although sometimes such claims are excluded altogether. Clients and their Consultants need to be aware of this and both parties should discuss, agree and record in writing prior to any commission how pollution and contamination risks are carried.

Option 1 provides a monetary limit per claim and an aggregate limit of an agreed monetary sum for pollution and contamination claims. That aggregate limit (or any balance left of that aggregate limit) is then further limited to the lesser of (i) the direct costs of clean up; or (ii) the amount recoverable under the Consultant's professional indemnity insurance. If so agreed with the Client, the limitation restricting the amount to the direct costs of clean up can be omitted by deleting the words ''the lesser of (i) the direct costs reasonably incurred by the Client in cleaning up the site of the Project or the Works as the case may be or any part thereof or (ii)".

When considering the amount to be agreed per claim, this should be appropriate for the project and risks in question and not necessarily be the amount of the Consultant's professional indemnity insurance cover. It may be appropriate for the aggregate limit for pollution and contamination claims to be less than the amount offered per claim to allow for the possibility that other Clients may have pollution and contamination claims which have already reduced the aggregate amount available. The restriction in this option, that the maximum payable in any event is the amount (if any) recoverable under the professional indemnity insurance policy, restricts liability to the amount left at the time in question under the aggregate policy and this could be nothing (hence it is sometimes known as an "evaporation clause").

Option 2 excludes all liability for pollution and contamination claims but liability is otherwise.limited to an amount to be agreed per claim. Such a clause is only appropriate where it has been agreed with the Client that the Consultant has no responsibility to advise on pollution and contamination matters. This is necessary in order to explain why liability for pollution and contamination is being excluded and to demonstrate the "reasonableness'' of the exclusion.

68.2 differs from the traditional joint and several formula and provides for 'Inet contribution", ie that the Consultant will be liable for only his fair share of the loss, taking into account his share of responsibility.

This clause has been revised to reflect the House of Lords' decision in the Co-operative Retail Services case. (For further details concerning this case see www.acenet.co.uk legal section.) Sp

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ACE Agreements A(1), A(2), B(1) and B(2) 2002 ~

21 A1 1 to A1 5 must record the period of the Consultant's liability for claims, the amount of the professional indemnity insurance the Consultant will maintain, the period for which it is to be maintained, the annual aggregate amount of insurance for pollution and contamination claims that will be maintained and the amount of the public liability insurance which the Consultant will maintain. When considering the number of years to be inserted at A1 1 and A1 3, it must be remembered that by statute the time within which claims can be brought in respect of contracts signed under hand is six years from the date of breach, while for contracts signed under seal or as a deed it is 12 years. In Scotland, the time limits for claims is five years and ten years. However, any limitation on the time within which claims can be brought is also subject to the "reasonableness" test and claims in tort for latent defects, for example, can be brought later than six years from the date of the breach. A limitation somewhere between six and 12 years may be considered reasonable, depending on the commission. Once a period is agreed the same period should be inserted in A1 3, ie the period for which the Consultant is obliged to maintain professional indemnity insurance. (Obviously it is prudent to continue to maintain professional indemnity insurance beyond that period, for example, to meet claims by third parties or under collateral warranties. However, there is no need to undertake an obligation to the Client to this effect.) In A1 1 and A13 of Agreements A(1) and B(1) the option of %ubstantial completion 'I should be used for civil engineering projects and for structural projects it should be "practical completion". In A(2) and B(2) "practical completion" only is referred to.

22 Agreeing to maintain professional indemnity insurance in a certain sum is not the same as agreeing to limit the Consultant's liability to that amount. That must be agreed separately.

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A10 to A15: Limits of Liability, etc - Amendments to Agreements A(1) and A(2) and 2004 revisions to Agreements B(1) and B(2)

Since the publication of the Agreements 2002, professional indemnity insurance has excluded the liabilitv of insurers for the effects of any act of terrorism. The definitions of terrorism differ in such policies. Further, cover for claims arising out of or in connection with asbestos is now available only on a very limited basis, if at all.

The limitation of liability clauses in these Agreements have therefore .been revised to take account of these new restrictions and in particular to limit the Consultant's contractual liability to his Client in respect of terrorism and asbestos.

As before, 88.1 is drafted on the basis that an overall limit of liability per claim will be agreed with the Client. This is set out in A1 0.

A new B8.2 has been added to provide that in respect of any claim the amount payable will not exceed the amount recoverable under the Consultant's professional indemnity insurance. This is dependent on the Consultant complying with his obligation to maintain insurance under B8.11 as is set out at the end of B8.2.

B8.3 is the net contribution clause as described in paragraph 20. It has been expanded to include all consultants, advisers, contractors and sub-contractors involved in the Project.

Terrorism is dealt with in the new A1 OA and B8.4. A1 OA states that the Consultant is not responsible for designing or advising on measures to prevent or mitigate the effect of acts of terrorism. If the Consultant is so designing or advising this clause would not of course be correct and A1 OA should be deleted. Further, the limitation of liability that follows (see below) may not be acceptable to the Client, despite the Consultant having no insurance in respect of the consequences of terrorism, in which case the Consultant would be well advised to take legal advice as to other steps he could take to limit liability in such circumstances.

B8.4 then states that if, notwithstanding A1 OA if it is applicable, liability is incurred it shall not exceed the amount of insurance cover, if any. As already explained, there is in fact unlikely to be any such cover. This limitation of liability is already provided for by B8.2 but in view of the specific and recent exclusion of the consequences of terrorism from professional indemnity insurance, it has been thought sensible to set it out expressly in a separate clause, without prejudice to the generality of 88.2.

B8.5 deals with claims in relation to asbestos. Liability shall not exceed the amount of cover available at the time the claim is made, again on the basis that the Consultant has complied with his obligation to maintain insurance. Again, this limitation of liability follows anyway from B8.2 but,

Spec

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ACE Agreements A(1), A(2), B(1) and B(2) 2002

as with terrorism, it has been thought sensible to set it out expressly, in view of possible changes to the scope of insurance cover affecting liability in connection with asbestos.

31 It is important to remember that the limitations of liability in this agreement only limit liability to the Client and not to third parties and do not limit liability for death or personal injury at all (see 88.8). However, if it is clear that the Consultant has no contractual responsibility for, say, matters relating to terrorist acts or asbestos, it may be more difficult for a third party claim in respect of such matters to be made successfully against the Consultant.

32 An indemnity from the Client in respect of third party claims in relation to asbestos is included in B8.6. If the Consultant has failed to comply with his obligations to maintain insurance (or to report any claim timeously) the Client's indemnity is limited to the excess of the amount which would have been so recoverable but for such breach.

33 These limitations of liability for terrorism and asbestos claims are considered to be reasonable, especially in view of the current difficulties in obtaining insurance cover against such claims. The limitations are conditional upon the Consultant complying with its obligations to maintain insurance in accordance with 88.1 1 and with the terms of that insurance. It is therefore hoped that the limitations would be upheld by the Courts if they were challenged under the Unfair Contract Terms Act 1977, though it is not possible to be sure of this.

34 The basis of liability for claims in respect of pollution and contamination is as in the Agreements 2002 and the options are set out in A1 OB - see paragraphs 16 to 19.

35 88.9 is the same as B8.3 of the Agreements 2002 save that individual has been changed to Consultant's Personnel in B8.9.

36 B8.1 1 (B8.5 in the Agreements 2002) - the obligation to maintain professional indemnity insurance - has been extended to refer to all other exceptions, exclusions, and limitations commonly included in such insurance and specifically states that there is no obligation to maintain such insurance for terrorism claims unless it becomes available at commercially reasonable rates.

37 B8.12 (maintaining public liability insurance) and B8.13 (insurance documentation) are the same as B8.6 and B8.7 in the Agreements 2002.

38 Paragraphs 21 and 22 apply equally to the revised conditions B8.10 to B8.13.

A16: Collateral Warranties 39 When the Client requires the Consultant to provide one or more collateral warranties for the benefit

of third parties, and the Consultant consents, this should be recorded in A1 6. B8.8 (B8.14 in the 2004 revised Agreements) is drafted on the basis that the Client and Consultant agree before the commencement of the appointment whether or not collateral warranties are to be given and their terms. The Construction Industry Council (CIC) has produced a form of warranty for a Funder (CIC/ConsWa/F first edition 2003) and for a PurchasedTenant (CIC/ConsWa/P&T first edition 2003). These forms are recommended for use. Once completed, the CIC Warranties will also be suitable for use. It must be remembered that there is no general obligation on Consultants to provide collateral warranties and their number (which should be as restricted as possible) and form are a matter for agreement. If requested later, warranties will normally be provided only on payment of additional fees or other consideration to reflect the additional costs and liabilities.

A17: Site Visits 40 The number of site visits by the Consultant during the Construction Stage to be allowed for in the

Normal Services should be agreed and recorded in A1 7.

A18: Applicable Law 41 In A1 8 the appropriate deletions or amendments must be made, depending on the applicable law.

A19: Services 42 Schedule C, the Schedule of Services, lists various engineering duties to be performed by the

Consultant under both Normal Services and Additional Services. The Services in Schedule C of Agreements A(1) A(2) and B( l ) have not been substantially changed from those in the 1995 editions. The Services for Agreement B(2) have been divided into two Schedules: C(I) Detailed Design Services and C(II) Performance Services. The Services described as "Normal Services" in these two

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ACE Agreements A(l), A(2), B(1) and B(2) 2002

Schedules correspond roughly to the Abridged Duties and Performance Duties respectively in the 1981 Agreements 4A. One of these Schedules must be chosen when Agreement B(2) is used.

43 Whichever Schedule is being used the Services should be checked carefully so that the Consultant records correctly in A1 9 those services he has agreed to undertake as "Normal Services" and those which will constitute "Additional Services" for that particular appointment. If all of the duties in C1 to C9 are to comprise the Normal Services for that appointment A1 9 does not need to be completed. If some are to be excluded and/or some "Additional Services" and/or any other services are to be included in "Normal Services", A1 9 should be completed appropriately. Additional Services are then defined as being all those in C10 except for any that have been included as "Normal Services" and any other further services requested by the Client which the Consultant agrees to carry out. For example, A1 9 could be completed by writing after "the Services set out in C1 to C9" words such as "except those in C7.3, C3.2, C8.4 plus the Services set out in C 7 0.7 0, C 7 0.7 7 and C 7 0.7 3 plus the provision to the planning supervisor of a statement of the measures designed to reduce the risks involved in cleaning the external surfaces of the building".

In relation to Agreements A(2) and B(2), the BSRIA Technical Note TN 22/97 gives guidance and examples as to what Coordination, Detailed Design, Record, Schematic and Sketch Drawings should contain. .

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45 There is attached at the back of Agreement B(2) a table showing how the Work Stages referred to in Schedules C(I) and C(II) of Agreement B(2) now follow those in the RlBA Plan of Work. As the notes to the table explain, where the Consultant is employed to carry out Performance Services (Schedule C(II)) the Services for the Tender Documentation and Tender Action Stage are carried out at the Outline Proposals Stage.

46 The Work Stages referred to in all versions of Schedules C now follow those in the RlBA Plan of Work.

The Stages in Agreements A(1), A(2), B(1) and B(2) are described by the RlBA as follows:

A Appraisal Stage Identification of Client's requirements and of possible constraints on development. Preparation of studies to enable the Client to decide whether to proceed and to select the probable procurement method.

B Strategic Briefing Preparation of Strategic Brief confirming key requirements and constraints. Identification of procedures, organisation structure and range of consultants and others to be engaged for the Project.

C Outline Proposals Commence development of Strategic Brief into full Project Brief. Preparation of Outline Proposals and estimate of cost. Review of procurement route.

D Detailed Proposals Complete development of the Project Brief. Preparation of Detailed Proposals. Application for full Development Control approval.

E Final Proposals Preparation of final proposals for the Project sufficient for co-ordination of all components and elements of the Project.

F Production Information F1 Preparation of production information in sufficient detail to enable a tender or tenders

to be obtained.

F2 Preparation of further production information required under the building contract.

G Tender Documentation Preparation and collation of tender documentation in sufficient detail to enable a tender or tenders to be obtained for the construction of the Project.

H Tender Action

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ACE Agreements A(1), A(2), B(1) and B(2) 2002

Identification and evaluation of potential Contractors and/or Specialists for the construction of the Project. Obtaining and appraising tenders and submission of recommendations to the Client.

J Mobilisation Letting the building contract, appointing the contractor. Issuing of production information to the contractor. Arranging site handover to the contractor.

K Construction to Practical Completion Administration of the building contract up to and including practical completion. Provision to the contractor of further information as and when reasonably required.

L After Practical Completion Administration of the building contract after practical completion. Making final inspections and settling the final account.

All the Services Schedules have combined the Tender Documentation and Tender Action Stages. The Mobilisation, Construction to Practical Completion, and After Practical Completion Stages are also combined and called “Mobilisation, Construction and Completion Stage”.

A20 to A22: Payment of Fees and Expenses 47 Spaces are provided in A20 to A22 to give precise details of the arrangements to apply. Particular

care must be taken to transfer the wording given in this guidance without alteration to ensure that the arrangements are legally valid and comply with the Housing Grants, Construction and Regeneration Act (‘the Act’). Details of the fee basis are to go in A20 and details about the instalment intervals and how sums due at those intervals are to be calculated are to go in A21. Payment by instalments for any fee basis is required by the Act for any commission over 45 days.

These details are essential if the payment provisions of the Scheme for Construction Contracts, which are unsuitable for Consultants, are not to apply.

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49 The Act also provides that contracts must provide a date when payments become “due” and a final date for payment. 86.6.1 provides that payment becomes “due” on the submission of the Consultant’s invoice and that the final date for payment is 28 days thereafter. The provisions required by the Act in relation to notices of payment or where any payment is going to be withheld are in 86.6.2 and 86.6.3.

50 Payment for Services may be as time based fees, lump sum or percentage fees and the chosen basis is to be set out in A20 (see below).

51 It is essential that the arrangements for time based fees be completed, irrespective of the arrangements made for payment for Normal Services, since payment for any Additional Services will be on time charges (unless otherwise agreed) and it is the basis for payment under 86.4 (Site Staff) and 86.7 (Variations etc).

52 If any basis other than those described in these Guidance Notes is chosen the Consultant should take advice on how to comply with the.Act and whether any alterations are required to the Conditions.

Time based fees 53 If the fee is to be on a time basis, A20 should be completed as follows:

A20.1 Payment of fees for Normal Services shall be on a time basis as set out in A20.2.

54 The rates may be specified as stated hourly sums for listed levels or grades of staff. If so a suitable form of words for A20.2 is as follows: Sp

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ACE Agreements A(1), A(2), B(1) and B(2) 2002 I

A20.2 The rates for time based fees where applicable shall be:

Rate per hour

Le vel/Grade (e.g. Principal) Level/Grade (e.g. Senior Engineer) etc

55 If site staff may also be employed on the same basis a rate for both office based staff and site staff will need to be given. A suitable form of words for A20.2 would then be as follows:

A20.2 The rate for time based fees for office based staff and for Site Staff (i.e. staff seconded to site) where applicable shall be:

Office based per hour

Site Staff per hour

LevellGrade (e.g. Principal) LevellGrade (e.g. Senior Engineer) etc

56 If time based fees are to be revised annually, there should be added to A20.2 words such as:

Rates for the time based fees set out above shall remain fixed for one year from the effective date of this Agreement after which they shall be revised to reflect the annual increase in salary for the staff in question.

57 Instalments: The intervals for the payment of time based fees and the date from which they start (or the interval dates) should be agreed and recorded in A21 .l. This will apply to the Normal Services if on a time basis but has to be completed in any event for Additional Services, site staff if any and for additional payment under B6.7. The intervals should be given as monthly/quarterly (or as appropriate) from the effective date of this Agreement.

Lump sum fees 58

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The fee for the Normal Services may be agreed as a single lump sum which should be set out in A20.1. A suitable form of words is:

A20.1 Payment of fees for Normal Services shall be a lump sum of

Alternatively the fee for Normal Services may be agreed as the total of lump sums for the various Stages set out in Schedule C. This should be set out in A20.1. A suitable form of words is:

A20.1 Payment of fees for Normal Services shall be the total of the following lump sums

ac on completion of the ac on completion of the ‘x on completion of the

Stage Stage Stage

(Note: the Stages referred to must be those in Schedule C.)

Instalments: The intervals for payment by instalments for lump sum fees and the date from which they start (or the interval dates) should be completed and recorded in A21.3 in order to comply with the Act. The amount also needs to be specified or capable of calculation.

Where the lump sum fee is a single sum a suitable form of words is:

A21.3 Otherwise payment by instalments shall be in equal monthly/quarterly instalments from the effective date of this Agreement.

or

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ACE Agreements A( 1 ), A(2), B( 1) and B(2) 2002

Otherwise payment by instalments shall be as follows:

Date Amount

62 Where the lump sum fee is to be the total of lump sums for the various Stages, the amount and the fact that it is to be invoiced on completion of each Stage should be stated e.g.:

A21.3 Otherwise payment by instalments shall be as follows:

.€ to be invoiced on completion of the Outline Proposals Stage.

63 If instalments of the lump sum are to be paid during a Stage, this will need to be stated e.g.:

A21.3 Otherwise payment by instalments shall be as follows:

.€ commencement of the Outline Proposals Stage to completion of the Production Information Stage.

to be invoiced in equal monthlylquarterly instalments from the

Percentage fees 64 If the fee is to be based on the final Works Cost or Project Cost, A20.1 should be completed as

follows:

A20.1 Payment of fees for Normal Services shall be CostlProject Cost.

O/o of the final Works

65 If the fee is to be based on estimates of the Works Cost or of the Project Cost made at the completion of various Stages, A20.1 should be completed as follows:

A20.1 Payment of fees for Normal Services shall be the percentage indicated below of the Works CostlProject Cost as calculated by reference to the Consultant’s estimate of the Works CostlProject Cost at completion of the relevant Stage or Stages:

Stage Stage Stage Stage

O/O O!O

O/O O!O


66 Instalments: The intervals, the date from which they start and the amounts to be paid at those intervals must be put in A21.3. In these examples, they are calculated by reference to the Consultant’s estimate of the Works Cost/Project Cost.

67 Where the percentage fee is based on the final Works Cost/Project Cost a suitable form of words for A21.3 is:

A21.3 Otherwise payment by instalments shall be in monthlylquarterly instalments from ’

the effective date of this Agreement. Such instalments shall be paid during the Stage or Stages of the Consultant’s Services indicated below and shall be calculated by reference to the Consultant’s estimate of the Works CostlProject Cost and so that by the completion of the relevant Stage or Stages the cumulative total of all instalments then paid shall amount to the relevant cumulative proportion of the estimated total sum to become payable to the Consultant for the performance of Normal Services as follows: Sp

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ACE Agreements A(1), A(2), B( l ) and B(2) 2002

Completion of Stage or Stages Percentage of the total Fee

Stage Stage Stage Stage

O/O O/O O/O

l O O ~ / O

The instalments so paid shall be no more than payments on account and a statement of the total sum due to the Consultant shall be prepared when the Works CostlProject Cost is fully known. Such statement, after giving credit to the Client for all instalments previously paid, shall state the balance (if any) due from the Client to the Consultant or from the Consultant to the Client, as the case may be, which balance shall be paid to or by the Consultant as the case may require.


68 Where the percentage fee is based on estimates of the Works Cost or the Project Cost made at the completion of various Stages, a suitable form of words for A21.3 is:

A21.3 Otherwise payment by instalments shall be in monthlylquarterly instalments from the start of the relevant Stage. Such instalments shall be paid during the Stage or Stages set out in A20.1 and shall be calculated by reference to the Consultant's estimate of the Works CostlProject Cost.

The instalments so paid shall be no more than payments on account. Statements of the sum due to the Consultant shall be prepared at the completion of each Stage or Stages and shall be calculated by reference to the Consultant's estimate of the Works CostlProject Cost at the completion of the relevant Stage or Stages. Such statements, after giving credit to the Client for all instalments previously paid, shall state the balance (if any) due from the Client to the Consultant or from the Consultant to the Client as the case may be which balance shall be paid to or by the Consultant as the case may require.

Additional Services 69 B6.2.2 provides that fees for Additional Services shall be on a time basis, unless a lump sum is

agreed. A20.2 and A21.1 cover payment and instalments under time based fees. To comply with the Act in the event of a lump sum fee being agreed for Additional Services, the equivalent details required under A21.2 must also be agreed to provide for instalments and the amounts of those instalments. This will need to be done at the time the lump sum is agreed and should be recorded.

Expenses 70 The arrangement for payment of expenses should be specified in A22. The recovery of expenses

may be dealt with in a number of ways, which may be different for Normal Services and Additional Services, e.g. at cost; at cost plus a handling charge; lump sum(s); a percentage of Works Cost or Project Cost; or none, the fee being inclusive of expenses. Refer to 86.3, which lists those expenses which will be paid for (unless agreed to the contrary, when the agreement reached between the Client and Consultant should be recorded in A22). Suitable forms of words have been included in the Memorandum.

71 Instalments are due at either monthly or quarterly intervals and one should be deleted. If different intervals are to apply the wording should be amended accordingly but the words "the amount invoiced.. .. . . to the end should remain, to provide an amount as required by the Act.

A23: Rate of Interest 72 Interest has been provided for in A23. It is to be calculated in accordance with the Late Payment

of Commercial Debts (Interest) Act 1998. This provides a "reference rate" for the six month period in which the debt becomes late to which is added the statutory rate of interest (currently 8%). The relevant rates can be found at www.payontime.co.uk. Sp

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For further information contact Association of Consulting Engineers

Alliance House

12 Caxton Street

London SW1 H OQL

Tel: 020 7222 6557

Fax: 020 7222 0750

Email: [email protected]

Website: www.acenet.co.uk

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Agreement B(l) 2002

Civi I/Structural Engineering '\

(revised 2004) '\

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a About this agreement I This ACE Agreement B(1) is intended for use when the consulting

engineer is appointed directly by the client but not as lead

consultant for the provision of civiI/structural engineering services.

This agreement should be used in conjunction with the guidance

document issued with this publication.

This edition revised February 2004 I

About ACE

A ACE is the business association for consultancy and engineering - and represents over 750 companies, which employ over 35,000 c staff working in the built and natural environment. ACE member E firms regularly win awards for the excellence of their work and are

generally regarded as some of the most innovative consultancy and engineering companies in the world.

ACE lobbies the UK Parliaments and national assemblies and the European Parliament and maintains regular contact with ministers and officials in order to influence legislation and promote the expertise of its members. ACE is active in the key UK industry organisations and is also the British member both of the European Federation of Engineering Consultancy Associations (EFCA) and FIDIC, the International Federation of Consulting Engineers.

ACE Agreements are the industry standard contract documents for consultancy appointments. ACE membership demonstrates that a company has the experience and skills necessary to provide a high-quality service to clients. ACE'S code of conduct sets high standards and the distinctive ACE logo displayed on members' signboards is a recognised mark of quality and excellence

To promote best practice and better ways of working in the industry, ACE also publishes a range of briefing notes and guidance documentation for both clients and consultants. Details of the information available is listed on the ACE website at www.acenet.co.uk

For further information contact ACE, Alliance House, 12Caxton Street, London SW1 H OQL Tel: 020 7222 6557, Fax: 020 7222 0750 email: [email protected], website: www.acenet.co.uk

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0 ACE. No part of this agreement may be copied or stored electronically without the expressed permission in writing of the ACE. ACE can accept no liability in respect of any use to which the Agreement may be put.

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ACE Agreement B(1) 2002

ASSOCIATION OF CONSULTING ENGINEERS

AGREEMENT B(1) 2002 Civil/Structural Engineering Non Lead Consultant

CONTENTS Page

A MEMORANDUM OF AGREEMENT

B CONDITIONS

4

16

B1 B2 B3 B4 B5

B6 B7 B8 B9 B10

Definitions Obligations of the Consultant Obligations of the Client Site Staff Commencement, Determination, Suspension, Disruption and Delay Payment Intellectual Property and Confidentiality Liability, Insurance and Warranties Disputes and Differences Notices

C SCHEDULE OF SERVICES

Normal Services

C1 Appraisal Stage C2 Strategic Briefing Stage C3 Outline Proposals Stage C4 Detailed Proposals Stage C5 Final Proposals Stage C6 Production Information Stage C7 C8 C9 General

Tender Documentation and Tender Action Stage Mobilisation, Construction and Completion Stage

Additional Services

16 18 19 20

20 21 24 24 27 27

28

28

28 28 28 29 29 30 30 31 31 , , .

32

C10 C11

Additional Services to be performed by the Consultant Additional Services to be performed by others

- . . .

32 33

This Agreement is published as a model form and the Memorandum must be completed to suit the requirements and circumstances of the particular commission for which it is to be used. A separate Guidance booklet is provided with each Agreement and its use is strongly recommended.

The Association of Consulting Engineers can accept no liability in respect of any use to which the Agreement may be put.

Q Association.of Consulting Engineers - No part of this Agreement may be copied or stored electronically without the express permission in writing of the Association of Consulting Engineers.

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MEMORANDUM OF AGREEMENT made the (---> day of (-) (-’ BETWEEN (

7 (“the Client”)’

and ((’ 3 -

-

(“the Consultant”). -

__

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The Client is proposing to (I’

, 7 (“the Project”)

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and hereby appoints the Consultant to provide the professional services as described in this Agre,ement and the Consultant agrees to provide such services. Save in respect of the benefits or rights conferred on the Consultant’s Personnel pursuant to B8.9 nothing in this Agreement confers or purports to confer on any third party any benefit or right to enforce any term of this Agreement pursuant to the Contracts (Rights of Third Parties) Act 1999.

LI1)) This Agreement comprises A: Memorandum of Agreement B: Conditions C: Schedule of Services

The Services to be performed under this Agreement shall be h e professional civil/structural engineering services listed at A1 9 in relation to those particular parts of the Project for which the Client has appointed the Consultant and comprising the work elements listed at A7.

fl 7 3 The Client proposes to use as the method for procurement of the Project. Sp

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ACE Agreement B( 1) 2002

- 3 The Client’s estimated costs for the Project are S ( \

The intended date for completion of the Project is scheduled to be (

L The Client has appointed or proposes to appoint

of i and (

as Lead Consultant ,

-? -

Of ;r

and - ’i Of 1 1 and (I - 3

.I of 1 .

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as Other Consultants to provide professional services in respect of other aspects of the Project.

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The particular parts of the Project for which the Client hasappointed the Consultant are

and which shall comprise the following work elements (“the Works”)’. /-

Earthworks and excavation Dredging and land reclamation Foundations including forms of piling but not the design of the piling Earth and water retaining structures including reinforced earth Ground and surface treatment Local and main, public health and land drainage; inspection chambers, sewers, interceptors, tanks, treatment works and ground dewatering Irrigation systems Paving and surfacing; roads, carparks and footpaths Fencing and landscaping Railways including permanent way Tunnels; excavations, linings, supports and ground stabilisation Structures in in-situ or precast concrete employing unreinforced, reinforced or prestressed techniques Structures in masonry, brickwork or blockwork, unreinforced or reinforced Structures in metalwork, ferrous or non-ferrous Structures in timber or reinforced plastics Demolition of structures

l J

’ Delete elements in respect of which the Services are not required and add others as necessary.

Spec

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A1OB Notwithstanding anything to the contrary in this Agreement and without prejudice to any provision

(B2.7 refers)

(B3.5 refers)

The sum referred to in B8.1 in respect of the liability of the Consultant for any claim or series of claims arising out of the same occurrence or series of occurrences is S

(B8.1 refers) The Consultant is not responsible under this Agreement or otherwise for designing or advising on or otherwise taking measures to prevent or mitigate the effect of any act of terrorism or any action that may be taken in controlling preventing supressing or in any way relating to an act of terrorism’.

(a) the total liability of the Consultant in respect of all claims under or in connection with this Agreement arising out of or in connection with pollution and contamination shall not exceed in

aggregate the sum of S ci (b) such pollution or contamination liability as limited by the aggregate or balance thereof under (a)

shall not exceed in respect of any one claim or series of claims arising out of the same occurrence or series of occurrences the lesser of (i) the direct costs reasonably incurred by the Client in cleaning up the site of the Project or the Works as the case may be or any part thereof or (ii) the amount, if any, recoverable by the Consultant by way of indemnity against the claim or claims in question under any professional indemnity insurance taken out by the Consultant and in force at the time that the claim or claims or (if earlier) circumstances that might give rise to the claim or claims is or are reported to the insurers in question. Alternative (ii) shall not apply if no such amount is recoverable due to the Consultant having been in breach of his obligations under B8.11 or of the terms of any insurance maintained in accordance therewith or having failed to report the claim or such circumstances to the insurers in question timeously.

Or

x 3 The liability of the Consultant for any claim or claims arising out of or in connection with pollution and contamination is excluded.

(88.7 refers)

The period of the Consultant’s liability is from the effective date hereof to years after the

(B8.10 refers) date of substantial/practicaI3 completion of the Project.

’ Delete if not applicable - see Guidance on Completion Delete one of the paragraphs A1 OB - see Guidance on Completion Delete as applicable

Spec

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(B8.11 refers)

For the purposes of this Agreement, “Normal Services” shall mean the Services set out in c 1 to c94 (------

(B8.14 refers)

and “Additional Services” shall mean all Additional Services set out in C10 save for those if any listed above as Normal Services together with any other further Services requested by the Client and consented to by the Consultant.

(including attendance at site meetings and additional to the presence of Site Staff, if any, appointed under B4) allowed for in the Normal Services is 3

(C8.6 refers)

L ’ Delete as applicable.

Delete as applicable.

I I Delete as applicable. If a different law is to apply, amend as appropriate. ~ Complete as appropriate.

Spec

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ACE Agreement B( 1 ) 2002

Basis of Payment of Fees'

20.1 Payment of fees for Normal Services shall be

f

,/ ' 20.2 The rates for time based fees f

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Payment by Instalments

21.1

',, Time based fees shall be paid by instalments and the amount due in each instalment shall be the sum calculated in accordance with B6.2.4 for the period in question. ,

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21.2 Fees for Additional Services shall (if a lump sum hasbeen agreed) be paid by instalments from the date of commencement I ',

\\ of the Additional-SZGices. \\

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21.3 Otherwise payment by instalments shall be , -.

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' Refer to Guidance on Completion.

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7 9 Payment of Expenses

22.1 Expenses incurred in performing the Normal Services shall be paid at cost/paid at cost plus a handling charge of 3 O/o /paid as a lump sum of E (-) O/o of the Works Cost/Project Cost/included in the fee’. Invoices for the recovery of expenses shall be submitted monthly/quarterly’ and the amount invoiced shall be the total of all expenses incurred during the interval in question.

/ / paid as

22.2 Expenses incurred in performing Additional Services shall be paid at costlpaid at cost plus a handling charge at a 9’0 included in the,fee’. Invoices for the recovery of expenses shall be submitted monthly/quarterly’ and the amount invoiced shall be the total of all expenses incurred during the interval in question.

1 2 9 Rate of Interest

Interest shall be calculated in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 and at the relevant reference rate plus the statutory rate of interest.

(66.6.1 refers)

FOR EXECUTION OF THE AGREEMENT UNDER HAND

The Client and the Consultant should sign below.

SIGNED by or on behalf of the Client

SIGNED by or on behalf of the Consultant

’ Delete and complete as applicable.

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FOR EXECUTION OF THE AGREEMENT AS A DEED

The Client and the Consultant should sign below in the appropriate places, depending on whether they are doing so as companies, as partners, as members of a limited liability partnerShip or individuals.

In Witness whereof the Parties have executed this Agreement as a Deed the day and year first before written.

For use when the Client is a company

EXECUTED as a Deed by the Client

by (Director)'

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Director2 )/

and (Director)'

1 DirectorlSecretary2

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The Company Seal need not be affixed.

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Signatures of Director and Director or Company Secretary.

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Or, for use when the Client is an individual

SIGNED as a Deed by the Client'

in the presence of2 witness3 ,/

For use when the Consultant is a company

EXECUTED as a Deed by the Consultant

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The Company Seal need not be affixed.

' \\ Director/Secreta,ry5\

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Signature of individual Client. Name and address of witness Signature of witness Insert names and indicate offices of signatories Signatures of Director and Director or Company Secretary

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For use when the Consultant is a limited liability partnership ,-

Executed as a Deed by the Consultant

by

and

(Member)’

(Member)’

/

,,” /’

/‘ Member2 / c Member2 /.

’ Insert name of member of the limited liability partnership * Signature of member of the limited liability partnership Sp

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ACE Agreement B(l) 2002

Or, for use when the Consultant is a sole practitioner or partnership

SIGNED as a Deed by the Consultant:

by (partner or sole practitioner)’

in the presence of3

f 7

partner or sole practitioner2”

F

witness4 ,/’

by (partner)’

9

in the presence of3

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by (partner)’

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in the presence of3

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partner2 J

‘\~ witness4 \,

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‘\ k, partner2

witness4 \

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’ Insert name of signatory. 2 Signature of partner or sole practitioner.

Name and address of witness. Signature of witness.

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FOR USE WHERE THE APPLICABLE LAW IS THAT OF SCOTLAND

In witness whereof these presents together with Sections B and C and'

executed as follows: ,

They are executed for and on behalf of the Client by being subscribed for and on behalf of the Client by2

who is a director/secretary/person/partner/proper off ice? authorised to sign these presents for and on behalf of the Client, before this witness

c---------- 7)

c- Person authorised 3 to sign

for and on behalf of the Client

r------ Signature of Witness4

(l) FUII name of Witness \

'\ (\I Address of Witness

( ) Occupation

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' Insert full details of any separate pages or schedules which are to form part of the document including the number of pages if more than one. Also include full,details on each annexation eg the names of the Client and the Consultant and the site, so as to clearly identify the annexation as referable to the Conditions. Insert full name of directorlsecretarylperson or authorised signatorylpartner of Client/proper officer if a Local Authority. Delete as applicable. A witness must know the person whose signature they are witnessing but preferably should have no interest in the document e.g. one signatory should not witness the signature of another signatory. If the usual signature of the witness is not hidher full name (eg if James Donald Smith's signature is Jim Smith) then the witness should state this (eg James Donald Smith [subscribing "Jim Smith"]).

Spec

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They are executed for and on behalf of the Consultant by being subscribed for and on behalf of the Consultant by '

who is director/secretary/person/partner/mernber* authorised to sign these presents for and on behalf of the Consultant, before this witness:-

L / Person authorised to sign

for and on behalf of the Consultant

Signature of witness3 [

FUII name of Witness

)Address of Witness

\

()I Occupation

\ .. ' Insert full name of director/secretary/person or authorised signatory/partner of Consultant/member of limited liability

partnership. Delete as applicable. A witness must know the person whose signature they are witnessing but preferably should have no interest in the document e.g. one signatory should not witness the signature of another signatory. If the usual signature of the witness is not hidher full name (eg if James Donald Smith's signature is Jim Smith) then the witness should state this (eg James Donald Smith [subscribing "Jim Smith"]).

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B1 DEFINITIONS

The following definitions shall apply throughout this Agreement:

Additional Services

Brief

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Client

Client’s Representative

Consu I ta nt

Consultant’s Intellectual Property Rights

Consultant’s Personnel

Con tractor

I Coordination Drawings

Cost Plan

Insolvency

, Intellectual Property Rights

Lead Consultant

Normal Services

As so described in A1 9.

A description of the requirements for the Works (which may also include information on the Project) and for the relevant Services to be performed by the Consultant.

As identified in the Memorandum of Agreement.

The person designated by the Client under B3.5 and named as such in A9, or his replacement appointed in accordance with B3.5.


Any and all Intellectual Property Rights created, developed, embodied in or in connection with any drawing, report, specification, bill of quantity, calculation or other document and information prepared by or on behalf of the Consultant in connection with the Project for delivery to the Client.

Any employee or member of the Consultant including any officer or director of a company or a member of a limited liability partnership.

A contractor appointed by the Client to execute or procure the execution of all or part of the Project or the Works and to coordinate and supervise or to procure the co-ordination and supervision of such execution.

Drawings showing the inter-relationship of two or more engineering services and their relation to the structure and fabric of the Project or of the Works as the case may be.

A document showing the estimated cost of all parts of the Project and how it is to be spent.

Either party becoming bankrupt, going into liquidation (either voluntarily or compulsory unless as part of a bona fide scheme of reconstruction or amalgamation), being dissolved, compounding with its creditors or having a receiver administrative receiver or administrator appointed of the whole or any part of its assets.

All intellectual and industrial property rights including (without limitation) patents, trade marks, service marks, registered designs, copyrights, database rights, design rights, moral rights or know-how, howsoever arising, whether or not registered and any other similar protected rights in any country and any applications for the registration or protection of such rights,and all extensions thereof throughout the world.

A person or firm appointed by the Client to coordinate the work of the Consultant and Other Consultants.

As so described in A1 9.

Spec

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Notice

Other Consultants

Project

Project Cost

Project Leader

Services

Site Staff

Stages

Su b-Contractor

Tender Documentation

Works

A notice given in accordance with 81 0.

Persons or firms other than the Consultant and the Lead Consultant appointed or to be appointed by the Client to perform professional services in relation to the Project.


The total cost to the Client-of the Project including:

(i) the total amounts paid or payable to the Contractor or Contractors responsible for managing and/or executing the Project and all its constituent parts;

(ii) the amounts of any liquidated damages or similar payments paid or payable by any Contractor or Contractors responsible for the execution of the Project;

(iii) a fair proportion of the total cost to the Client of any work in connection with the provision removal or diversion of any utilities systems associated with the Project which is carried out other than by any Contractor or any Sub-Contractor, under arrangements made by the Consultant; the said fair proportion shall be assessed by the Consultant with reference to the costs incurred in making such arrangements;

(including the use of plant) provided by the Client for the Project;

whether carried out on site or elsewhere.

(iv) the fair value of all labour materials goods plant and machinery

(v) the cost of any investigations or tests in respect of the Project,

The Project Cost shall not include: administration expenses incurred by the Client; costs incurred by the Client under this Agreement or agreements with the Lead Consultant or Other Consultants; interest on capital during construction and the cost of raising monies required for carrying out the construction of the Project; and the cost of land and wayleaves.

The person designated by the Consultant under 82.7 and named as such in A8, or his replacement appointed in accordance with 82.7.

The totality of Normal Services and Additional Services.

Any person or persons appointed under 64 including any staff of the Consultant seconded to Site or premises outside the Consultant's offices on work in connection with the Works on a full time or part time basis.

The stages for the performance of the Services as described in the Schedule of Services.

A person or firm appointed by or on behalf of a Contractor to execute part of the Project or of the Works or to manufacture or supply material for incorporation therein.

Drawings and other documentation as appropriate to the agreed procurement method prepared to enable those tendering to interpret the design for the Works and to submit a tender for executing all or any part of the Works.

As so described in A7. Spec

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Works Cost The total cost to the Client of the Works including:

(i) the total amounts paid or payable to the Contractor or Contractors responsible for managing and/or executing the Works and all its constituent parts including associated builders’ work attendance and profit and the cost of the preliminary and general items in the proportion that the Works Cost bears to the Project Cost;

paid or payable by any Contractor or Contractors responsible for the execution of the Works;

(iii) a fair proportion of the total cost to the Client of any work in connection with the provision removal or diversion of any utilities systems associated with the Works which is carried out other than by any Contractor or Sub-Contractor, under arrangements made by the Consultant; the said fair proportion shall be assessed with reference to the costs incurred by the Consultant in making such arrangements;

(including the use of plant) provided by the Client for the Works;

(v) the cost of any investigations or tests in respect of the Works whether carried out on site or elsewhere.

(ii) the amounts of any liquidated damages or similar payments

(iv) the fair value of all labour materials goods plant and machinery

The Works Cost shall not include: administration expenses incurred by the Client; costs incurred by the Client under this Agreement or agreements with the Lead Consultant or Other Consultants; interest on capital during construction and the cost of raising monies required for carrying out the construction of the Works; and the cost of land and wayleaves.

I Headings are explanatory and do not form part of the Conditions.

I B2 OBLIGATIONS OF THE CONSULTANT

Normal Services 2.1

Additional Services 2.2

The Consultant shall perform the Normal Services. ! !

The Consultant shall perform such Additional Services as may be requested or consented to by the Client.

Skill and Care 2.3 The Consultant shall exercise reasonable skill, care and diligence in the performance of the

Services.

Assignment 2.4 The Consultant shall not, without the written consent of the Client which consent shall not

unreasonably be delayed or withheld, assign or transfer any benefit or obligation under this Agreement .

Specialist Sub-Consultants 2.5 The Consultant may recommend to the Client that the Consultant sub-lets to a specialist sub-

consultant the performance of any of the Services. The Client shall not unreasonably withhold consent to such recommendation and the Consultant shall integrate such sub-consultant’s services with his own. The Consultant shall be responsible for the performance and the payment of any sub-Consultant. Sp

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ACE Agreement B(1) 2002 I

Design by Contractors or Sub-Contractors 2.6 The Consultant may recommend to the Client that the detailed design of any part of the Works

should be carried out by a Contractor or Sub-Contractor and the Client shall not unreasonably withhold consent to such recommendation. The Consultant shall examine in accordance with C8.2 that detailed design and integrate it into his own design. The Consultant shall not be responsible for such detailed design or liable for defects in or omissions from it.

Project Leader 2.7 The Consultant shall designate a Project Leader who shall be deemed to have authority to make

decisions on behalf of the Consultant under this Agreement. The Project Leader shall not be replaced without the consent of the Client, which consent shall not unreasonably be delayed or withheld.

Cooperation 2.8 The Consultant shall cooperate in the coordination and integration by the Lead Consultant of the

design of the Works with that of the Project and shall in performing the Services cooperate with the Lead Consultant and any Other Consultant but shall only be responsible for the Services he has performed in relation to the Works.

Ti me1 i ness 2.9 All requests to the Client by the Consultant for information, assistance or decisions required in

accordance with 83.1, 83.2 and 83.3 shall be made in a timely fashion. Subject always to conditions beyond his reasonable control, (including acts or omissions of the Client or third parties) the Consultant shall use reasonable endeavours to perform the Services in accordance with any programme agreed with the Consultant from time to time.

Authority 2.1 0 The Consultant shall not without the further approval of the Client alter the design once approved

by the Client. Save in the event of any emergency, the Consultant shall not without the approval of the Client issue instructions to any Contractor the effect of which would be to alter any design already approved by the Client or to incur additional costs to the Client beyond whatever limits may have been agreed for such additional costs.

Consultant’s Discretion 2.1 1 If in the performance of the Services the Consultant has a discretion exercisable as between the

Client and a Contractor or Sub-Contractor the Consultant shall exercise that discretion fairly.

B3 OBLIGATIONS OF THE CLIENT

Information needed by the Consultant 3.1 The Client shall supply to the Consultant, without charge and in such time so as not to delay or

disrupt the performance by the Consultant of the Services, all necessary and relevant data and information (including details of the services to be performed by the Lead Consultant and any Other Consultants) in the possession of the Client, his agents, servants, the Lead Consultant, Other Consultants or Contractors.

Assistance 3.2 The Client shall give, and shall procure that his agents, servants, the Lead Consultant, Other

Consultants and Contractors give, such assistance as shall reasonably be required by the Consultant in the performance of the Services.

Decisions 3.3 The Client shall ensure that his decisions, instructions, consents or approvals on or to all matters

properly referred to him shall be given in such reasonable time so as not to delay or disrupt the performance of the Services by the Consultant. _ -

Assig n men t 3.4 The Client shall not, without the written consent of the Consultant which consent shall not

unreasonably be delayed or withheld, assign or transfer any benefit or obligation under this Agreement.

Spec

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Client’s Representative 3.5 The Client shall designate a Client’s Representative who shall be deemed to have authority to make

decisions on behalf of the Client under this Agreement. The Client shall notify the Consultant immediately if the Client’s Representative is replaced.

Co n t ra ctors 3.6 The Client shall appoint Contractors to execute and/or to manage the execution of the Project and

the Works. The Client shall require that the Contractors execute the Project and the Works in accordance with the terms of the relevant contracts. Neither the provision of Site Staff nor periodic visits by the Consultant or his staff to the site shall in any way affect the responsibilities of the Contractors or any Sub-Contractors for constructing the Project and the Works in compliance with the relevant contract documents and any instructions issued by the Consultant.

B4 SITE STAFF

Provision of Site Staff 4.1 If in the opinion of the Consultant the execution of the Works including any geotechnical

investigations warrants full time or part time Site Staff to be deployed at any stage the Client shall not unreasonably withhold consent to the employment and/or deployment of such reasonably qualified technical and clerical Site Staff as the Consultant shall consider necessary. The Client and the Consultant shall discuss, agree and confirm in writing in advance of such deployment the number and levels of staff to be deployed to site, the duration of such deployments, the frequency of occasional visits and the duties to be performed by Site Staff. I

Terms of Employment of Site Staff 4.2 Site Staff shall be employed either by the Consultant or by the Client directly. The terms of service

of all Site Staff to be employed by the Consultant shall be subject to the approval of the Client, which approval shall not unreasonably be delayed or withheld.

Instructions to Site Staff 4.3 The Client shall procure that the contracts of employment of Site Staff employed by the Client

empower the Consultant to issue instructions to such staff in relation to the Works and shall stipulate that staff so employed shall in no circumstances take or act upon instructions in connection with the Works other than those given by the Consultant.

I I Responsibility for Site Staff

4.4 Where duties are performed by Site Staff employed other than by the Consultant, the Consultant shall not be responsible for any failure on the part of such staff properly to comply with any instructions given by the Consultant.

Facilities and Arrangements for Site Staff 4.5 The Client shall be responsible for the cost and provision of such local office ?.!ccommodation,

furniture, telephones and facsimile apparatus and other off ice equipment, protective clothing and transport on site as shall reasonably be required for the use of Site Staff and for the reasonable running costs of such necessary local office accommodation and other facilities, including those of stationery, telephone and facsimile charges, and postage. Unless agreed between the Client and the Consultant that the Client shall arrange for such facilities, the Consultant shall arrange, whether through Contractors or otherwise, for the provision of such local office accommodation and other facilities.

B5 COMMENCEMENT, TERM INATION, SUSPENSION, DISRUPTION AND DELAY

Duration of Appointment 5.1 Notwithstanding the date stated in the Memorandum of Agreement, the effective date of the

appointment of the Consultant shall be the date upon which the Memorandum of Agreement was executed by the parties or the date when the Consultant shall have first commenced performance of the Services, whichever is the earlier. Unless terminated, the appointment of the Consultant shall be concluded when the Consultant has performed the Services required under this Agreement.

Spec

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ACE Agreement B(1) 2002 I I

Termination by the Client 5.2 The Client may terminate the appointment of the Consultant at any time by four weeks' Notice in

respect of all or any part of the Services.

Termination by the Consultant in Certain Circumstances 5.3 If circumstances arise for which the Consultant is not responsible and which he considers make it

irresponsible for him to perform all or any part of the Services the Consultant shall be entitled to terminate his appointment by two weeks' Notice in respect of all or such part of the Services.

Suspension by the Client 5.4 The Client may at any time by Notice require the Consultant to suspend the performance of all or

any part of the Services. On Notice of suspension of all or any part of the Services the Consultant shall cease such suspended Services in an orderly and economical manner compatible with a possible order to restart. If the suspension of the performance of all or any part of the Services exceeds twelve months in aggregate the Consultant may by giving four weeks' Notice treat the Works or that part of the Works as having been abandoned and the appointment of the Consultant in respect of all or any part of the Services affected shall be automatically terminated.

Termination by the Client following a Breach of this Agreement by the Consultant 5.5 In the event of a breach of this Agreement by the Consultant the Client may give two weeks'

Notice of his intention to terminate the appointment of the Consultant setting out the acts or omissions of the Consultant relied upon as evidence of such breach. If the Consultant does not, to the reasonable satisfaction of the Client, take expeditious steps to repair the breach during the notice period the Client may forthwith on the expiry of the notice period terminate the appointment of the Consultant by a further Notice.

Suspension by the Consultant 5.6 Upon the occurrence of any circumstance beyond the control of the Consultant which is such as to

prevent or significantly impede the performance by the Consultant of the Services under this Agreement, the Consultant may without prejudice to any other remedy and upon not less than four weeks' Notice suspend for a period of up to twenty-six weeks the performance of the Services under this Agreement in respect of all or such parts of the Works as are affected and at the expiry of the said period of suspension either continue with the performance of the Services under this Agreement or if he is.still prevented from performing such Services for reasons beyond his control terminate his appointment forthwith by a further Notice in respect of all or any part of the Services affected.

Termination by the Consultant following a Breach of this Agreement by the Client 5.7 In the event of a breach of this Agreement by the Client the Consultant may give two weeks'

Notice of his intention to terminate the appointment of the Consultant setting out the acts or omissions of the Client relied upon as evidence of such breach. If the Client does not, to the reasonable satisfaction of the Consultant, take expeditious steps to repair the breach during the notice period the Consultant may forthwith on the expiry of the notice period terminate the appointment of the Consultant by a further Notice. Notwithstanding the foregoing, in the event of the failure of the Client to make any payment properly due to the Consultant in accordance with the provisions of 66 by the final date for payment the Consultant may, upon not less than two weeks' Notice, terminate his appointment.

Insolvency 5.8 The appointment of the Consultant may be terminated in the event of Insolvency of either party.

Notice of termination must be given to the party which is insolvent by the other party.

Accrued Rights 5.9 Termination of the Consultant's appointment under this Agreement shall not prejudice or affect the

accrued rights or claims of either party to this Agreement.

B6 PAYMENT

Payment of Fees and Expenses 6.1 Payment by the Client to the Consultant for the performance of the Services shall comprise fees

and if so agreed expenses.

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Fees . i I. Y

6.2

Normal Services 6.2.1 Fees for the performance of the Normal Services shall be paid in accordance with these

Conditions and A20.1 and A21.

Additional Services 6.2.2 Fees for the performance of Additional Services if any shall unless otherwise agreed be

time based and paid in accordance with these Conditions and A20.2 and A21.1, save that the instalments shall start at the next instalment date provided by A21 -1. If a lump sum fee has been agreed, it shall be paid in accordance with A21.2.

Services performed by Others 6.2.3 Where the Consultant has arranged for the performance by others on behalf of the Client

of any of the services specified'in C11 , the Client shall pay direct to such person or persons their fees and expenses for performing such services. The Consultant shall obtain the prior agreement of the Client to the arrangements which he proposes to make as agent for the Client for the performance by others of any services specified in C1 1.

Time Based Fees 6.2.4 Where time based fees are to be paid, they shall be at the rates set out in A20.2 and

calculated by multiplying the hourly or daily rates applicable to the persons concerned by the number of hours or days (as the case may be) spent by such persons in performing the Services, including time spent in travelling in connection with the Project or the Works. Payment shall be by instalments in accordance with A21 .le

Lump Sum Fees 6.2.5 Where lump sum fees are to be paid, they shall be as set out in A20.1 with payment by

instalments in accordance with A21.3.

Percentage Fees 6.2.6 Where payment is to be based on the final Works Cost/ Project Cost, the fee shall be the

percentage of the final Works Cost/ Project Cost set out in A20.1 with payment by instalments in accordance with A21.3. Where payment is to be based on estimates of the Works Cost/ Project Cost made at the completion of each Stage, the fees for each Stage shall be calculated as set out in A20.1 with payment by instalments in accordance with A21.3.

Expenses 6.3 Unless included in the fees, the Client shall pay the Consultant's expenses incurred in performing

the Services in accordance with A22. Unless otherwise agreed, expenses shall comprise those payments reasonably and properly made by the Consultant for:

(i) printing, reproduction and purchase of documents, maps, records and photographs; (ii) courier charges; (iii) travelling, hotel expenses and subsistence payments; (iv) any other expenses for which repayment is authorised.

Site Staff 6.4 In addition to any other payment to be made under this Agreement, the Client shall pay the

Consultant for all Site Staff employed by the Consultant. Unless otherwise agreed, payment for Site Staff shall be on a time basis and at the rates set out in A20.2 with instalments in accordance with A21.1 , save that the instalments shall start at the next instalment date provided by A21 .l.

Local Authority Charges 6.5 Notwithstanding anything to the contrary contained in this Agreement, the Client shall pay the

Consultant for any fees, costs or charges paid by the Consultant to local or other authorities for seeking and obtaining statutory permissions. Sp

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Time for Payment 6.6

Due Date and Final Date 6.6.1 Payments due to the Consultant under this Agreement shall become due for payment on

submission of the Consultant’s invoice therefor and the final date for payment shall be 28 days thereafter. Interest shall be added to all amounts remaining unpaid thereafter as set out in A23.

Notice of Payment 6.6.2 The Client shall not later than five days after the date on which a payment becomes due

from him under this Agreement or would have become due if:

(i) the Consultant had carried out his obligations under this Agreement, and (ii) no set off or abatement was permitted by reference to any sum claimed to be due

under one or more other contracts

give a Notice specifying the amount (if any) of the payment made or proposed to be made and the basis on which that amount was calculated.

Notice of Withholding 6.6.3 The Client may not withhold any payment after the final date for payment of any sum due

under this Agreement unless he gives, not later than seven days before such final date, a Notice specifying the amount proposed to be withheld and the ground for withholding payment or if there is more than one ground, each ground and the amount attributable to it.

Variation or Disruption of Consultant’s Work 6.7 If the Consultant has to carry out additional work and/or suffers disruption in the performance of

the Services because:

(i) the Project or the Works or Brief is or are varied by the Client; or (ii) of any delay by the Client in fulfilling his obligation or in taking any other step necessary for the

execution of the Project or the Works; or (iii) the Consultant is delayed by others (or by events which were not reasonably foreseeable); or (iv) the Project or the Works is damaged or destroyed; or (v) of other reasons beyond the control of the Consultant

the Client shall make an additional payment to the Consultant in respect of the additional work carried out and additional resources employed (unless and to the extent that the additional work has been occasioned by the failure of the Consultant to exercise reasonable skill, care and diligence) and/or the disruption suffered. The additional payment shall be calculated (unless otherwise agreed) on the basis of time based fees as set out in A20.2 with payment by instalments in accordance with A21.1 save that instalments shall start at the next instalment date provided by A21 .l. The Consultant shall advise the Client when he becomes aware that any such additional work shall be required or disruption shall be suffered and shall if so requested by the Client give an initial estimate of the additional payment likely to be incurred. Where the Client requires that payment for such additional work or disruption is to be in the form of lump sums, these lump sums and the intervals at which instalments shall be paid and the amounts of each instalment should be agreed prior to the additional work being commenced. For the avoidance of doubt it is hereby agreed that if the Consultant carries out any work which subsequently becomes redundant the Client shall (unless otherwise agreed) pay the Consultant therefor on the basis of time based fees as herein set out.

Effect of Termination or Suspension 6.8 In the event of any termination or suspension by the Client or the Consultant in accordance with

8 5 other than termination by the Client following breach of this Agreement by the Consultant or Insolvency of either party the Client shall pay the Consultant a fair and reasonable amount on account of the fees due under B6 commensurate with the Services performed to the date of such termination or suspension and any outstanding expenses together with a sum for loss and costs of disruption (calculated on the basis of the loss to the Consultant and costs to which the Consultant is committed in respect of planned future work on the Works). In the event of any termination by the Client following breach of this Agreement by the Consultant or Insolvency of either party in accordance with B5 the Client shall pay the Consultant a fair and reasonable amount on account

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of the fees due under B6 commensurate with the Services performed to the date of termination and any outstanding expenses.

Further Payments 6.9 Further payments due to the Consultant in accordance with B6.4, B6.5, B6.7 and 86.8 shall be

invoiced with the n’ext account to be presented by the Consultant.

VAT 6.1 0 All sums due under this Agreement are exclusive of Value Added Tax, the amount of which shall be

paid by the Client to the Consultant at the rate and in the manner prescribed by law. I

I I B7 INTELLECTUAL PROPERTY AND CONFIDENTIALITY

Consultant’s Intellectual Property Rights 7.1 The Consultant’s Intellectual Property Rights shall, as the case may be, vest in or remain vested in

the Consultant but the Client shall have a licence to use the Consultant’s Intellectual Property Rights for any purpose related to the Project. Such licence shall enable the Client to use such Consultant’s Intellectual Property Rights for the extension of the Project but such use shall not include a licence to reproduce the designs contained therein for any extension of the Project. In the event of the Client being in default of payment of any fees or other amounts due under this Agreement the Consultant may revoke the licence granted herein on giving seven days’ Notice. Save as above, the Client shall not make copies of any of the Consultant’s drawings or other documents or information, nor shall he use any of the Consultant’s Intellectual Property Rights in connection with any other works without the prior written approval of the Consultant which shall not unreasonably be withheld and upon such terms as may be agreed between the Client and the Consultant. The Consultant shall not be liable for the use by any person of any of the Consultant’s Intellectual Property Rights for any purpose other than that for which the same were prepared by or on behalf of the Consultant.

i

Publication and Confidentiality 7.2 The Consultant shall not, without written consent of the Client, publish alone or in conjunction with

any other person any articles, photographs or other illustrations relating to the Project. Neither party shall disclose to any other person any private or confidential information unless so authorised by the other party save in the proper course of his duties or as required or permitted by law.

B8 LIABILITY, INSURANCE AND WARRANTIES

Limitation of Liability 8.1 Notwithstanding anything to the contrary contained in this Agreement and without prejudice to any

provision in this Agreement whereby liability is excluded or limited to a lesser amount, the liability of the Consultant under or in connection with this Agreement whether in contract or in tort, in negligence, for breach of statutory duty or otherwise for any claim or series of claims arising out of the same occurrence or series of occurrences shall not exceed the sum set out in A1 0.

Liability not to exceed amount of Insurance 8.2 Further and notwithstanding anything to the contrary contained in this Agreement and without

prejudice to any provision in this Agreement whereby liability is excluded or limited to a lesser amount, the liability of the Consultant under or in connection with this Agreement whether in contract or in tort, in negligence, for breach of statutory duty or otherwise for any claim shall not exceed the amount, if any, recoverable by the Consultant by way of indemnity against the claim in question under professional indemnity insurance taken out by the Consultant and in force at the time that the claim or (if earlier) circumstances that may give rise to the claim is or are reported to the insurers in question. This limitation shall not apply if no such amount is recoverable due to the Consultant having been in breach of his obligations under 88.1 1 or the terms of any insurance maintained in accordance therewith or having failed to report any such claim or circumstances to the insurers in question timeously.

Net Contribution 8.3 Further and notwithstanding anything to the contrary contained in this Agreement and without

prejudice to any provision in this Agreement whereby liability is excluded or limited to a lesser amount, the liability of the Consultant, if any, for any loss or damage (“the loss and damage”) shall not exceed such sum as it would be just and equitable for the Consultant to pay having regard to

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the extent of his responsibility for the loss and damage and on the assumptions that:

(i) all other consultants and advisers, contractors and sub-contractors involved in the Project shall have provided contractual undertakings on terms no less onerous than those set out in 62.3 to the Client in respect of the carrying out of their obligations in connection with the Project;

(ii) there are no exclusions of or limitations of liability nor joint insurance or co-insurance provisions between the Client and any other party referred to in this clause and any such other party who is responsible to any extent for the loss and damage is contractually liable to the Client for the loss and damage; and

(iii) all the parties referred to in this clause have paid to the Client such proportion of the loss and damage which it would be just and equitable for them to pay having regard to the extent of their responsibility for the loss and damage.

Terrorism 8.4 If notwithstanding A1 OA, if it is applicable, the Consultant incurs any liability under or in connection

with this Agreement, whether in contract or in tort, in negligence, for breach of statutory duty or otherwise, for any claim arising out of or in connection with:

(i) an act of terrorism or any action that may be taken in controlling preventing suppressing or in any way relating to an act of terrorism or

(ii) any consequence whatsoever resulting directly or indirectly from an act of terrorism or from any action that may be taken in controlling preventing suppressing or in any way relating to an act of terrorism (regardless of any other contributory cause or event),

such liability, notwithstanding anything to the contrary contained in this Agreement and without prejudice to the generality of 68.2 and to any provision in this Agreement whereby liability is excluded or limited to a lesser amount, shall not exceed the amount, if any, recoverable by the Consultant by way of indemnity against the claim in question under professional indemnity insurance taken out by the Consultant and in force at the time that the claim or (if earlier) circumstances that may give rise to the claim is or are reported to the insurers in question. This limitation of liability shall not apply if no such amount is recoverable due to the Consultant having been in breach of his obligations under 68.1 1 or of the terms of any insurance maintained in accordance therewith or having failed to report any such claim or circumstances to the insurers in question timeously.

Asbestos 8.5 Further and notwithstanding anything to the contrary contained in this Agreement and without

prejudice to the generality of B8.2 and to any provision in this Agreement whereby liability is excluded or limited to a lesser amount, any liability under or in connection with this Agreement, whether in contract or in tort, in negligence, for breach of statutory duty or otherwise, for any claim for loss or damage wholly, partly, directly or indirectly arising out of or resulting from or associated in any way with asbestos or any product or waste that contains asbestos (including without limitation the costs of testing for, monitoring, abatement, mitigation, removal, remediation or disposal of any asbestos or product or waste that contains asbestos) shall not exceed the amount, if any, recoverable by the Consultant by way of indemnity against the claim in question under professional indemnity insurance taken out by the Consultant and in force at the time that the claim or (if earlier) circumstances that may give rise to the claim is or are reported to the insurers in question. This limitation of liability shall not apply if no such amount is recoverable due to the Consultant having been in breach of his obligations under 68.1 1 or of the terms of any insurance maintained in accordance therewith or having failed to report the claim or such circumstances to the insurers in question timeously.

Indemnity from the Client in relation to Asbestos Claims 8.6 The Client will indemnify the Consultant against liability for any claim for injury, death, loss or

damage wholly, partly, directly or indirectly arising out of or resulting from or associated in any way with asbestos or any product or waste that contains asbestos (including without limitation the costs of testing for, monitoring, abatement, mitigation, removal, remediation or disposal of any asbestos or product or waste that contains asbestos) in excess of the amount, if any, recoverable by the Consultant by way of indemnity against the claim in question under professional indemnity insurance taken out by the Consultant and in force at the time that the claim or (if earlier) circumstances that may give rise to the claim is or are reported to the insurers in question or, in the event that no such amount is recoverable due to the Consultant having been in breach of his

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obligations under 68.1 1 or of the terms of any insurance maintained in accordance therewith or having failed to report the claim or such circumstances to the insurers in question timeously, the Client will indemnify the Consultant against any such liability in excess of the amount which would have been so recoverable but for such breach or failure.

Po I I u t io n and Co n ta m i n a tion 8.7 The liability of the Consultant in respect of pollution and contamination is limited or excluded, as

the case may be, in accordance with A1 OB.

Liability for Death or Personal Injury 8.8 If the Client is an individual, no exclusion or limitation of liability in this Agreement shall affect any

liability for death or personal injury suffered by the Client.

Lia bi I ity of Employees 8.9

I

Save in respect of death or personal injury the Client shall look only to the Consultant (and not to any of the Consultant’s Personnel) for redress if the Client considers that there has been any breach of this Agreement. The Client agrees not to pursue any claims in contract tort or statute (including negligence) against any of the Consultant’s Personnel as a result of carrying out its obligations under or in connection with this Agreement at any time and whether named expressly in this Agreement or not.

Limitation of Time within which to bring Claims 8.1 0 No action or proceedings under or in respect of this Agreement whether in contract or in tort or in

negligence or for breach of statutory duty or otherwise shall be commenced against the Consultant after the expiry of the period of liability stated in A1 1 or such earlier date as may be prescribed by law.

Professional Indemnity Insurance 8.1 1 The Consultant shall maintain professional indemnity insurance in an amount not less than that

stated in A1 2 for any one occurrence or series of occurrences arising out of this Agreement and for the period stated in A1 3, provided that the Consultant shall not be obliged to maintain insurance in respect of pollution and contamination on the basis of any one occurrence or series of occurrences and provided that within the amount stated in A1 2 any annual aggregate stated in the relevant insurance policy in respect of claims for pollution and contamination shall not be less than the amount stated therefor in A1 4, and provided always that such professional indemnity insurance is available at commercially reasonable rates and subject to all exceptions, exclusions and :limitation to the scope of cover that are commonly included in such insurance at the time the insurance is taken out or renewed, as the case may be. Without prejudice to the generality of the foregoing, the Consultant shall in particular not be under an obligation to take out or maintain insurance against liability in respect of terrorism unless and until such professional indemnity insurance is available at commercially reasonable rates. The Consultant shall immediately inform the Client if such professional indemnity insurance ceases to be available on the terms required by this Condition at commercially reasonable rates in order that the Client and the Consultant can discuss means of best protecting their respective positions in the absence of such professional indemnity insurance.

Public Liability Insurance 8.1 2 The Consultant shall maintain public liability insurance covering the Consultant, his employees,

agents and in respect of the acts of sub-consultants from the effective date of this Agreement until the completion of the Services in the sum stated in A1 5, provided always that such insurance is available at commercially reasonable rates.

Insurance Documentation 8.1 3 As and when reasonably requested to do so .by the Client, the Consultant shall produce for

inspection brokers’ certificates to show that the insurance cover required under 68.1 1 and 68.1 2 is being maintained.

Collateral Warranties 8.1 4 When the Client and the Consultant have so agreed before the commencement of the

appointment, the Consultant shall enter into and provide collateral warranties for the benefit of other parties. It shall be a condition of the provision of such warranties that they shall give no greater benefit to those to whom they are issued in quantum, duration or otherwise than is given to the Client under the terms of this Agreement. Should the Client request alterations to the

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previously agreed terms or the execution of warranties in addition to those previously agreed, and the Consultant consents to such a requeSt,'these may be entered into and provided by the Consultant for such additional fee or other consideration as the parties may agree.

B9 DISPUTES AND DIFFERENCES

Mediation 9.1 The parties shall attempt in good faith to settle any dispute by mediation.

Adjudication 9.2 Where this Agreement is a construction contract within the meaning of the Housing Grants,

Construction and Regeneration Act 1996 either party may refer any dispute arising under this Agreement to adjudication in accordance with the Construction Industry Council Model Adjudication Procedure.

B10 NOTICES

10.1 Any Notice to be given under this Agreement shall be in writing and given by sending the same by fax or by first class letter to the Client or the Consultant at the appropriate address as shown on the Memorandum of Agreement. Notices shall take effect when they have been received by the Client or the Consultant as the case may be.

I I

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C1 -C9 NORMAL SERVICES

C1 Appraisal Stage

1.1

1.2

1.3

c2

2.1

2.2

2.3

2.4

2.5

2.6

2.7

2.8

2.9

Seek the Brief and instructions from the Client describing his requirements in respect of the Works, what they are intended to achieve, their cost and programme.

Discuss with the Client the role of the Consultant and his relationship with the Lead Consultant and any Other Consultants, the various Contractors and Sub-Contractors and any planning supervisor appointed in accordance with the Construction (Design and Management) Regulations.

Discuss with the Client the likely requirements for Site Staff; these shall be considered again prior to and following the appointment of Contractors.

Strategic Briefing Stage

Seek from the Client all information and documents to be provided by the Client under 83.1.

Prepare a questionnaire for the Client following study of the above information to. seek his strategic brief confirming key objectives and constraints.

Outline the effects of limitations of the site on the Works caused by the topography and any reasonably identifiable previous uses thereof and the presence or possible presence of contaminants as a result of such uses where such matters are apparent from the documents and other information provided by the Client under B3.1.

Advise the Client on any limitations on road and public transport access to the site, both during construction of the Works and on completion which may affect design options.

Obtain such information as is reasonably available from documents on the existence and extent of public services such as water, gas, electricity, sewerage, culverts, tunnels and telecommunications services and comment to the Client on any effect that these may have on the Works, both during construction of the Works and on completion.

Comment to the Client on any physical site restrictions which may affect the engineering options for the Works.

Prepare a desk study of the site. If. necessary, and with the Client’s agreement, bring forward from C3.2 of the next stage a full site investigation.

Collaborate with the Lead Consultant and any Other Consultants in seeking from the Client any further information needed so that they can perform their services under their various agreements with the Client.

Collaborate with the Lead Consultant and any Other Consultants in making initial recommendations to the Client on the technical viability of the Works.

2.1 0 Seek through the Lead Consultant the Client’s consent to proceed to the Outline Proposals Stage.

C3 Outline Proposals Stage

After receiving the Client’s consent to proceed to the Outline Proposals Stage:

3.1 Visit the site and study data and information relating to the Project and relevant to the Works which are reasonably accessible to the Consultant, and consider reports relating to the Works which have either been prepared by the Consultant or have been prepared by others and made available to the Consultant by the Client.

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ACE Agreement B(1) 2002 I

3.2

3.3

3.4

3.5

3.6

3.7

I 3.8

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Advise the Client through the Lead Consultant on the need for arrangements to be made for geotechnical investigations of the site. Arrange as agent for the Client when authorised by him for such investigations to be undertaken, certify the amount of any payments to be made by the Client to the persons or firms carrying out such investigations and advise the Client on the results of such investigations.

Advise the Client through the Lead Consultant on the need for arrangements to be made for and define the extent of topographical and dimensional surveys of the site, surveys to obtain details of construction in existence on or adjacent to the site, special investigations or model tests. Arrange as agent for the Client when authorised by him for such works to be undertaken, certify the amount of any payments to be made by the Client to the persons or firms carrying out such works, and advise the Client on the results of such works.

Consult any local or other authorities about matters of principle in connection with the design of the Works.

Consider alternative outline solutions for the Works.

Develop the Client’s Brief into a full Brief for the Works in consultation with the Client, the Lead Consultant and any Other Consultants. Such Brief shall describe the Client’s requirements in respect of the Services and both the Client and the Consultant shall work to the Brief. Discuss and agree with the Client any changes to the arrangements for payments to be made to the Consultant (as given in the Memorandum of Agreement) which may have become necessary as a result of changes to the Brief. Comment to the Lead Consultant on any restrictions the Brief may impose on any future use of the Works suggested by the Client.

Provide sufficient preliminary information in relation to the Works in the form of advice, sketches, reports or outline specifications to enable the Lead Consultant to prepare his outline proposals and assist any Other Consultant to prepare the outline Cost Plan.

After review, seek through the Lead Consultant the Client’s approval of the outline proposals and the Client’s consent to proceed to the Detailed Proposals Stage.

Detailed Proposals Stage

After receiving the Client’s approval of the outline proposals and the Client’s consent to proceed to the Detailed Proposals Stage:

4.1 Liaise as may be necessary with the Lead Consultant and any Other Consultants to agree a programme for the whole of the design and construction of the Works.

Develop the design of the detailed proposals for the Works in collaboration with the Lead Consultant and any Other Consultants.

4.2

4.3 Prepare such representative sketches, drawings, specifications, and/or calculations in respect of the Works as are necessary to enable the Lead Consultant or any Other Consultant to prepare the Cost Plan.

4.4 Collaborate with the Lead Consultant and any Other Consultants to prepare the detailed proposals for presentation to the Client, drawing attention to any significant differences from the previously agreed requirements for the Works.

4.5 Seek through the Lead Consultant the Client’s approval of the detailed proposals and the Client’s consent to proceed to the Final Proposals Stage.

C5 Final Proposals Stage

After receiving the Client’s approval of the detailed proposals and the Client’s consent to proceed to the Final Proposals Stage:

5.1 Develop the design of the Works in collaboration with the Lead Consultant and Other Consultants and prepare sufficient calculations, drawings, schedules and specifications to enable the

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. . . ACE Agreement B( 1 ) 2002

Consultant, Lead Consultant or any Other Consultant to prepare the final proposals.

5.2 Integrate into the design of the Works any requirements of specialist sub-consultants, Contractors or Sub-Contractors.

5.3 Collaborate with the Lead Consultant and any Other Consultants to prepare the final proposals for ~

presentation to the Client, drawing attention to any significant differences from the previously agreed requirements for the Works.

5.4 Assist the Lead Consultant in coordinating the design of the Works into the overall design.

5.5 Seek through the Lead Consultant the Client’s approval of the final proposals and the Client’s consent to proceed to the Production Information Stage.

C6 Production Information Stage

After receiving the Client’s approval of the final proposals and the Client’s consent to proceed to the Production Information Stage:

6.1

6.2

6.3

6.4

6.5

c7

Develop the design of the Works in collaboration with the Lead Consultant and any Other Consultants and prepare sufficient calculations, drawings, schedules and specifications to enable the Consultant, Lead Consultant or any Other Consultant to prepare Tender Documentation in respect of the Works.

Prepare such calculations and details relating to the Works as may be required for submission to any appropriate statutory authority including the coordination of such information for the Works submitted by specialist suppliers and/or Contractors as is available which may need to be included in such submissions excluding any submissions or applications for planning consents and approvals.

Prepare any further drawings and schedules necessary to enable Contractors to carry out the Works, but excluding Coordination Drawings and drawings and designs for temporary works, formwork and shop fabrication details. In the case of reinforced concrete work, general arrangement drawings and drawings of nonstandard details should be prepared with sufficient information to enable a Contractor to prepare standard details and bar bending schedules for the Works.

Advise the Lead Consultant on the need for any special conditions of contract relevant to the Works and on appropriate forms of contract and invitations to tender for the Works.

Seek through the Lead Consultant the Client’s consent to proceed to the Tender Documentation and Tender Action Stage.

Tender Documentation and Tender Action Stage

After receiving the Client’s consent to proceed to the Tender Documentation and Tender Action Stage:

7.1 Assist the Lead Consultant in advising the Client as to the suitability for carrying out the Works of persons and firms to be invited to tender for any contract involving the construction, supply and/or installation of all or part of the Works.

7.2 Assist the Lead Consultant to assemble the Tender Documentation and to issue it to firms selected to tender.

7.3 Assist the Lead Consultant and any Other Consultant in advising the Client as to the relative merits of tenders, prices and estimates received for execution of all or part of the Works. . .

7.4 Seek through the Lead Consultant the Client’s consent to proceed to the Mobilisation, Construction and Completion Stage. Sp

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C10-C11 ADDITIONAL SERVICES

As Services additional to those specified in C1 to C9, the Consultant shall, if requested or consented to by the Client, perform as Additional Services any of the services listed in C10 and take all reasonable steps to arrange for the performance by others on behalf of the Client of any of the services specified in C11 , provided always that if the Client and the Consultant agree the Consultant may perform any of the services listed in C1 1 which he is competent so to do.

c10

10.1

10.2

10.3

10.4

10.5

10.6

10.7

10.8

10.9

10.1 0

10.1 1

10.12

10.1 3

10.1 4

10.15

10.1 6

10.17

10.18

10.1 9

Additional Services to be performed by the Consultant

Prepare any report or documentation required for consideration of proposals for alternative works.

Work consequent upon a decision by the Client to seek Parliamentary powers.

Work done in connection with any application by the Client for any order, sanction, licence, permit or other consent, approval or authorisation necessary to enable the Works to proceed including planning consents or approvals but other than applications for approvals under C6.2.

Prepare any information necessary for the Client's negotiations with third parties including ground landlords, financing bodies and adjoining site owners.

Work in making initial recommendations to the Client on the economic and financial viability of the Works.

Advise the Client on the need for arrangements to be made for contamination investigations on the site. Arrange as agent for the Client when authorised by him for such investigations to be undertaken, certifying the amount of any payments to be made by the Client to the persons or firm carrying out such investigations and advise the Client on the results of such investigations.

Work in connection with providing a feasibility study.

Recommend to the Client any necessary remediation works required to the site and/or any necessary protection measures required in the building specification as a result of any investigations carried out under C11.2.

Work in considering alternative designs for the Works submitted by Contractors.

Prepare drawings for shop fabrication of structural steelwork or metal, timber or plastics frameworks or other specialist supplied components.

Prepare detailed drawings and bar bending schedules for reinforced concrete work.

Check and/or advise upon any part of the Works not designed by the Consultant.

Examine any designs carried out by a Contractor or Sub-Contractor on the basis of a performance specification for general compliance with the specification.

Make visits to site in addition to those allowed for in C8.6.

Provide information to enable bills of quantities to be prepared for the Works.

Prepare bills of quantities based on Works/Project drawings for the Works.

Price bills of quantities prepared for the Works to provide an estimate comparable with tenders.

Perform work or advise the Client in connection with any claim or matter where such claim or matter arises out of any contract for the execution of the Works and is referred to the Consultant and such claim or matter is based on similar or the same facts or issues which have previously been referred to the Consultant.

Assist the Lead Consultant in advising the Client or perform work in respect of the detailed

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examination of any financial claim or following the taking of any step in or towards the resolution of any dispute or difference or towards any adjudication, arbitration or litigation in connection with the Works.

10.20 Work in support of others employed to provide any of the services specified in C1 1.

C11 Additional Services to be performed by others

1 1.1 Specialist technical advice on any aspect of the Works which is not within the expertise of the Consultant.

1 1.2 Contamination investigations on site.

1 1.3 Legal, financial and professional services other than those offered by the Consultant and within his competence.

1 1.4 Services in connection with the valuation, purchase, sale or leasing of lands and the obtaining of wayleaves.

1 1.5 Topographical, dimensional, condition or analytical survey of sites or existing works.

11.6 Quantity surveying services other than the preparation and pricing of bills of quantities for the Works.

1 1.7 Investigation of the nature and strength of existing structures.

1 1.8 Model tests or special investigations under C3.3.

1 1.9 Independent checking of structural or other designs.

1 1.10 Special inspections or tests advised by the Consultant under C8.3.

11.1 1 Preparation, or assistance in the preparation, of an environmental impact assessment in respect of the Works.

11.1 2 Special studies on durability and longevity issues and the minimisation of environmental impact.

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L

For further information contact

Association of Consulting Engineers Alliance House

12 Caxton Street

London SW1 H OQL

Tel: 020 7222 6557

Fax: 020 7222 0750

Email: [email protected]

Website: www.acenet.co.uk

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ace agreement

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