schedule20 commercially sensitive information waste... · sj/ adb/73626/120029/ukm/3341 0506.23 427...

Schedule 20 - Commercially Sensitive Information

SCHEDULE20

Commercially Sensitive Information

I.

1.1

1.1.1

1.1.2

1.1.3

1.1.4

1.2

1.2.1

1.2.2

1.2.2.1

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1.2.2.2

1.2.2.3

1.2.2.4

1.2.2.5

1.2.2.6

1.2.2. 7

1.2.3

1.3

1.3 .I

1.3.2

1.3 .3

1.3.4

1.3 .5

1.3 .6

1.3. 7

1.3.8

1.3.9

1.3 .I 0

1.3.11

1.3.12

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Schedule 20 -Commercially Sensitive Information

1.3 .13

1.3.14

1.3.15

1.3.16

1.3.17

1.3.18

1.4

1.5

1.6

1.6.1

1.6.2

1.6.3

1.6.4

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1.6.5

1.6.6

1.6.7

1.6.8

1.6.9

1.6.10

1.6.11

1.6.12

1.6.13

1.6.14

1.6.15

1.6.16

1.6.17

1.6.18

1.6.19

1.6.20

1.6.20 1

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Schedule 20- Commercially Sensitive Information

1.6.20.2"

1.6.20.3 "

1.6.20.4"

1.6.20.5

1.6.20.7"

1.6.20.8"

1.6.20.9"

1.6.20.10

1.6.20.11

1.6.20.12

1.6.20.13

1.6.20.14

1.6.20.15

1.6.20.16

1.6.21

1.6.22

SJ/ADB/73626/120029/UKM/33410506.23 413


1. 7

1.8

1.8.1

1.8.2

1.8.3

1.8.4

1.8.5

1.8.6

1.9

1.1 0

1.11

1.12

1.13

SJ/ADB/73626/120029/UKM/33410506.23 414


1.13.1

J.l3.2

J.l3.3

1.13.4

J.l3.5

1.13.6

1.13.7

SJ/ADB/73626/120029/UKM/33410506.23 415

Schedule 20 - Commercially Sensitive Infonnation

APPENDIX

I.

1.1

1.1.1

1.1.1.1

1.1.1.2

1.1.1.3

1.1.2

1.1.2.1

1.1.2.2

1.1.2.3

1.1.2.4

1.1.2.5

1.1.2.6

1.1.2.7

1.1.2.8

SJ/ADB/73626/120029/UKM/33410506.23 416


1.1.2.9

1.1.2.10

1.1.2.11

1.1.2.12

1.1.2.13

1.1.2.14

1.1.3

1.1.3.1

(a)

(b)

(c)

(d)

(e)

(f)

(g)

(h)

(i)

G)

(k)

(I)

(m)

SJ/ADB/73626/120029/UKM/33410506.23 417


(n)

(o)

(p)

1.1.3.2

1.1.3.3

1.1.3.4

1.1.3 .5

1.1.3.6

1.1.3.7

1.1.3.8

1.1.3.9

1.1.3.10

1.1.3.11

1.1.3.12

1.1.3.13

1.1.3.14

1.1.3.15

1.1.4

SJ/ AD B/73 626/120029/UKM/3341 05 06.23 418

Schedule 20- Commercially Sensitive Information

1.1.5

1.1.6

1.1. 7

2.

SJ/ ADB/73 626/120029/UKM/3341 0506.23 419


SJ/ AD B/73626/120029/UKM/3 341 0506.23 420


SJ/ ADB/73626/12002 9/UKM/3 3 41 05 06.23 421


SJ/ ADB/73 626/120029/UKM/3341 0 5 06. 23 422


SJ I AD B/73626/120029/UKM/3341 05 06.23 423

Schedule 21- Collateral Warranties

SCHEDULE21

Collateral Warranties

SJ/ ADB/73626/120029/UKM/3341 0506.23 424


DATED

(1) [CONSTRUCTION CONTRACTOR]

-and-

(2) [LEEDS CITY COUNCIL]

-and-

(3) [CONTRACTOR]

DUTY OF CARE DEED relating to

the design and construction of residual waste treatment facilities in the City of Leeds

SJ I ADB/73626/120029/UKM/3 341 0506 .23

2012

425

Schedule 21 -Collateral Warranties

TIDS DEED is made on 2012

BETWEEN

(I) [CONSTRUCTION CONTRACTOR] (company number+ ) whose registered

office is at + ("Construction Contractor");

(2) LEEDS CITY COUNCIL of Civic Hall, Leeds LSI IUR ("City Council"), which

expression includes its permitted successors in title and assigns; and

(3) CONTRACTOR (company number +

+ ("Contractor").

) whose registered office IS at

BACKGROUND

A By a project agreement dated [ + ] ("Project Agreement") the City

Council has appointed the Contractor to carry out, in relation to the waste treatment facilities

therein described as the Facilities ("Facilities"), the provision of services relating to tl1e

design, installation, operation and maintenance of residual waste treatment facilities for the

City of Leeds including the carrying out of the Works and the provision of the Services.

B The Construction Contractor has been appointed by the Contractor under a contract dated

[ + ] ("Construction Contract") to carry out, in relation to the Sites, the design

and construction of the Works.

C The Construction Contractor is obliged under the Construction Contract to give a warranty in

this form in favour of the City Council.

I. DEFINITIONS AND INTERPRETATIONS

Unless expressly defined otherwise in this Deed, any defined term in this Deed shall have the

same meaning given to such term in the Construction Contract.

2. OPERATIVE PROVISIONS

In consideration of the payment of one pound (£1.00) by the City Council to the Construction

Contractor, receipt of which the Construction Contractor acknowledges:

SJ/ ADB/73626/120029/UKM/3341 0506.23 426


3. CONSTRUCTION CONTRACTOR'S WARRANTY AND LIABILITY

3 .I The Construction Contractor warrants to the City Council that it has carried out and will

continue to carry out its duties under the Construction Contract in accordance with the

Construction Contract and that it has exercised and will continue to exercise, in carrying out

the design of the Works, the level of skill and care reasonably to be expected from an

appropriately qualified and competent professional designer providing those services in

relation to a project of a similar size and scope to the Works. In particular and without

limiting the generality of the foregoing the Construction Contractor covenants with the City

Council that it has carried out and will carry out and complete the Works in accordance with

the Construction Contract and duly observe and perform all its duties and obligations

thereunder.

3.2 The Construction Contractor shall be entitled in any action or proceedings by the City

Council to raise equivalent rights in defence of liability (except for set off or counterclaim) as

it would have against the Contractor under the Construction Contract, and shall have no

liability under this Deed that is of greater or of longer duration than it would have had if the

City Council had been a party to the Construction Contract as joint employer. Upon the

expiry of twelve (12) years from the date of completion of the Works in accordance with the

Construction Contract, the liability of the Construction Contractor under this Deed shall cease

and determine, save in relation to any claims made by the City Council against the

Construction Contractor and notified by the City Council to the Construction Contractor in

writing prior thereto.

3.3 The Construction Contractor shall have no liability to the City Council in respect of any delay

in the completion of the Works howsoever caused save to the extent that the liability arises

under the Construction Contract and the City Council shall have exercised its right to step in

under clause 9.

4. PROJECT DATA

4.1 The Construction Contractor hereby grants (or, if such grant cannot legally take place until a

later date, agrees to grant) to the City Council with effect from the date of this Deed or in the

case of Project Data not yet in existence with effect from the creation thereof, a royalty-free

non-exclusive licence (such licence to remain in full force and effect notwithstanding

completion of the Construction Contractor's obligations under the Construction Contract or

the termination of the Construction Contract or the determination of the Construction

SJ/ ADB/73626/120029/UKM/3341 0506.23 427


Contractor's engagement under it or any dispute thereunder or hereunder) to use and to

reproduce all Project Data for any purpose whatsoever connected with the Works and such

other purposes as are reasonably foreseeable including, but without limitation, the execution,

completion, maintenance, letting, advertisement, modification, extension, reinstatement and

repair of the Works. Such licence will carry the right to grant sub-licences and will be

transferable to third parties.

4.2 The City Council will not hold the Construction Contractor liable for any use it may make of

the Project Data for any purpose other than that for which they were originally provided by it

and other than for such other uses as are reasonably foreseeable unless the Construction

Contractor authorises such use and confinns the Project Data are suitable for it.

4.3 The Construction Contractor will not grant to any third party the right to use any of the

Project Data save under any warranty it is obliged to give under the Construction Contract or

hereunder or as otherwise required to enable it to fulfil its obligations under the Construction

Contract.

4.4 The Construction Contractor agrees on reasonable request at any time and following

reasonable written prior notice to give the City Council or those authorised by it access to the

Project Data and to provide copies (including copy negatives and CAD disks) thereof at the

City Cotmcil's expense.

4.5 The Construction Contractor warrants to the City Council that he has used the standard of

skill, care and diligence as set out in clause 3.1 see that the Project Data (save to the extent

duly appointed sub-contractors have been used to prepare the same) are its own original work

and that in any event their use in connection with the Works will not infringe the rights of any

third party

5. INSURANCE

5 .I The Construction Contractor hereby covenants with the City Council to:

5 .1.1 take out and maintain Professional Indemnity insurance cover with a limit of

indemnity that shall be a minimum often million pounds (£10,000,000) for each and

every loss and that it will maintain such insurance with reputable insurers carrying on

business in the European Union from the date hereof until twelve (12) years after

practical completion of the Works, provided that such insurance is generally available

in the market to members of the Construction Contractor's profession at commercially

SJ I AD B/73626/ 120029/U KM/3341 0506.23 428


reasonable rates and provided further that payment of any increased or additional

premiums required by insurers by reason of the Construction Contractor's own claims

record or other acts, omissions, matters or things peculiar to the Construction

Contractor will be deemed to be within the reasonable rates;

5.1.2 provide evidence (as and when reasonably required by the City Council) satisfactory

to the City Council of the Professional Indemnity insurance referred to in clause 5.1.1

being in full force and effect from the date of the Construction Contract (such

evidence to include details of the cover);

5 .1.3 provide the City Council with notice of:

5 .1.3 .I any cancellation of the Professional Indemnity insurance referred to in

clause 5.1.1 not less than thirty (30) days prior to the relevant cancellation

date; and

5 .1.3 .2 any adverse material changes to or suspension of cover relevant to the Works

not less than thirty (30) days prior to the relevant change or suspension;

5 .1.4 inform the City Council as soon as reasonably practicable of any claim under the

Professional Indemnity insurance referred to in clause 5 .1.1 in respect of the Works in

excess of five hundred thousand pounds (£500,000) and provide such information to

the City Council as the City Council may reasonably require in relation to such claim

and provide notice of any potential breach of the limit of the policy; and

5.1.5 indemnify the City Council in respect of any subrogation claim by the insurers

brought in connection with any claim made under the Professional Indemnity

insurance referred to in clause 5 .I. I.

6. CITY COUNCIL'S REMEDIES

The rights and benefits conferred upon the City Council by this Deed are in addition to any

other rights and remedies it may have against the Construction Contractor including without

prejudice to the generality of the foregoing any remedies in negligence.

7. ASSIGNMENT

The benefit of and the rights of the City Council under this Deed may be assigned without the

consent of the Construction Contractor and the City Council will notify the Construction

Contractor in writing following any such assignment specifying the name and address of the

SJ/ADB/73626/120029/UKM/33410506.23 429

Schedule 21 - Collateral Warranties

assignee and the date of the assignment. The Construction Contractor will not contend that

any such assignee is precluded from recovering any loss resulting from any breach of this

Deed (whatever the date of such breach) by reason only that that person is an assignee and not

the original beneficiary hereunder or by reason that the original beneficiary or any

intermediate beneficiary escaped any loss resulting from such breach by reason of the

disposal of any interest in the Site or that the original beneficiary or any intermediate

beneficiary has not suffered any, or as much, loss.

8. INSPECTION OF PROJECT DATA

The Construction Contractor's liabilities under this Deed will not be in any way reduced or

extinguished by reason of any inspection or approval of the Project Data or attendance at site

meetings or other enquiry or inspection which the City Council may make or procure to be

made for its benefit or on its behalf.

9. STEP-IN RIGHTS IN FAVOUR OF THE CITY COUNCIL

9 .I The Construction Contractor will not exercise or seek to exercise any right which may be or

become available to it to terminate or treat as terminated or repudiated the Construction

Contract or its engagement under it or discontinue or suspend the performance of any duties

or obligations thereunder without first giving to the City Council not less than thirty (30) days'

prior written notice specifYing the Construction Contractor's ground for terminating or

treating as terminated or repudiated the Construction Contract or its engagement under it or

discontinuing or suspending its performance thereof and stating the amount (if any) of monies

outstanding under the Construction Contract. Within such period of notice:

9.1.1 the City Council may give written notice to the Construction Contractor that the City

Council will thenceforth become the Contractor under the Construction Contract to

the exclusion of the Contractor and thereupon the Constmction Contractor will admit

that the City Council is the Contractor under the Construction Contract and the

Construction Contract will be and remain in full force and effect notwithstanding any

of the said grounds;

9.1.2 if the City Council has given such notice as aforesaid or under clause 9.3, the City

Council shall accept liability for the Contractor's obligations under the Construction

Contract and will as soon as practicable thereafter remedy any outstanding breach by

the Contractor which properly has been included in the Construction Contractor's

specified grounds and which is capable of remedy by the City Council; and

SJ/ADB/73626/120029/UKM/33410506.23 430



Council shall from the service of such notice become responsible for all sums

properly payable to the Construction Contractor under the Construction Contract

accruing due after the service of such notice but the City Council shall in paying such

sums be entitled to the same rights of set-off and deduction as wonld have applied to

the Contractor nnder the Construction Contract.

9.2 Notwithstanding anything contained in this Deed and notwithstanding any payments which

may be made by the City Council to the Construction Contractor, the City Council will not be

under any obligation to the Construction Contractor nor will the Construction Contractor have

any claim or cause of action against the City Council unless and until the City Council has

given written notice to the Construction Contractor pursuant to clause 9.1.1 or clause 9.3.

9.3 The Construction Contractor further covenants with the City Council that if the Project

Agreement is terminated by the City Council the Construction Contractor, if requested by the

City Council by notice in writing and subject to clause 9.1.2 and clause 9.1.3, will accept the

instructions of the City Council to the exclusion of the Contractor in respect of its duties

under the Construction Contract upon the terms and conditions of the Construction Contract

and will if so requested in writing enter into a novation agreement whereby the City Council

is substituted for the Contractor under the Construction Contract.

9.4 The Contractor acknowledges that the Construction Contractor will be entitled to rely on a

notice given to the Construction Contractor by the City Council under clause 9.3 as

conclusive evidence that the Project Agreement has been terminated by the City Council.

9.5 The City Council may by notice in writing to the Construction Contractor appoint another

person to exercise its rights under this clause 9 subject to the City Council remaining liable to

the Construction Contractor as guarantor for its appointee in respect of its obligations under

this Deed.

9.6 Upon request by the City Council the Construction Contractor agrees to co-operate with the

City Council in determining the duties perfonned or to be performed by the Construction

Contractor and to provide a copy of the Construction Contract and any variations thereto and

details of all monies paid and due under the Construction Contract.

SJ/ADB/73626/120029/UKM/33410506.23 431


10. INTERRELATIONSHIP BETWEEN STEP IN AND COMPENSATION ON

TERMINATION

In the event that the City Council has made any payments to the Construction Contractor

pursuant to clause 9 above and the Project Agreement terminates for a Contractor Default,

then the City Council shall be entitled to be reimbursed by the Contractor for any payments so

made. For the avoidance of doubt, the City Council shall be entitled to set-off any sums

owing to it by the Contractor under this paragraph against any payments to be made by the

Authority to the Contractor under Part 2 (Compensation on Termination for Contractor

Default) of schedule 16 (Compensation on Termination) of the Project Agreement.

II. LIMITATION

Without prejudice to the provisions of clause 9.1, the City Council shall not be entitled to take

any action or proceedings against the Construction Contractor pursuant to this Deed unless

and until the Project Agreement has been terminated or has expired.

12. THE CONTRACTOR'S INCLUSION AS PARTY

The Contractor has agreed to be a party to this Deed for the purpose of clause 16 and for

acknowledging that the Construction Contractor shall not be in breach of the Construction

Contract by complying with the obligations imposed on it by this Deed.

13. COUNTERPARTS

This Deed may be executed in one or more counterparts. Any single counterpart or a set of

counterparts executed, in either case, by all the parties shall constitute a full and original

instrument for all purposes.

14. SUB-CONTRACTORS

Following a written request from the City Council the Construction Contractor will (unless it

has already done so) and/ or procure that its sub-contractors execute a deed of collateral

warranty in the relevant form specified in the Construction Contract in favour of any person

in whose favour the Construction Contract obliges the Construction Contractor to give or

procure the giving of such a warranty.

15. APPLICABLE LAW AND JURISDICTION

This Deed will be construed in accordance with English law and be in all respects subject to

the exclusive jurisdiction of the English courts.

SJ I ADB/73626/120029 /UKM/3 341 0 5 06.23 432


16. THIRD PARTY RIGHTS

This Deed is enforceable by the original parties to it and by their successors in title and

permitted assignees. Any rights of any person to enforce the terms of this Deed pursuant to

the Contracts (Rights of Third Parties) Act 1999 are excluded.

17. NOTICES

Any notice to be given by any party will be sufficiently served if sent by hand, by facsimile

transmission or by post to the registered office or if there is none the last known address of

the party to be served. Any notice sent by hand will be deemed to be served on the date of

delivery and any notice sent by facsimile transmission will be deemed to be served in full at

the time recorded on the facsimile report sheet, provided that if any notice sent by hand or

facsimile is sent after 4.45pm on any day it will be deemed to be served on the next Business

Day. Any notice sent by post will be deemed to have been duly served at the expiration of

forty-eight (48) hours after the time of posting if the end of that period falls before 4.45pm on

a Business Day and otherwise on the next Business Day.

IN WITNESS of which this document is executed as a Deed and is delivered on the date first before

written

Executed as a deed by the CONSTRUCTION ) CONTRACTOR acting by a director and its ) secretary/two directors: ) Signature ________________________________ _

Name (block capitals) . ______________________________ _

Director

Signature . _______________________________ _

Name (block capitals) --------------------------------Secretaryillirector

SJ/ AD B/73626/120029/UKM/3341 0 506.23 433

Executed as a deed by the CONTRACTOR acting by a director and its secretary /two directors:

The Common Seal of LEEDS CITY COUNCIL was affixed in the presence of:

SJ/ AD B/73626/120029/UKM/3341 05 06.23

) ) )

) )


Signature . _______________________________ _

Name (block capitals) --------------------------------Director

Signature . _______________________________ _

Name (block capitals) --------------------------------Secretary/Director

Signature ______________________________ _

Name (block capitals) ______________________________ _ _ _ All_t_l!().':i_s_e£1_ ~!g!'.!l!()_ry ___ _

434


DATED

(1) [CONSULTANT]

-and-

(2) LEEDS CITY COUNCIL

-and-

(3) [CONSTRUCTION CONTRACTOR]



SJ/ADB/73626/120029/UKM/33410506.23

2012

435


THIS DEED is made on 2012

BETWEEN

(1) [THE PARTNERS IN [insert name of partnership]J (being the persons listed in the

schedule hereto) whose principal place of business is at [ + ] OR

[[ + LIMITED/PLC] (registered in England and Wales under company

number)[+ ] whose registered office is at [ + ] ("Consultant");

(2) LEEDS CITY COUNCIL of Civic Hall, Leeds, LSI IUR ("City Council"), (which

expression includes its permitted successors in title and assigns); and

(3) [CONSTRUCTION CONTRACTOR] (Compauy No. + ) whose registered

office is at + ("Construction Contractor")

BACKGROUND

A By a project agreement dated [ + 1 ("Project Agreement") the City Council has

appointed [ + 1 (Company No.+ ) ("Contractor") to carry out, in

relation to the waste treatment facilities therein described as the facilities ("Facilities"), the

provision of services relating to the design, installation, operation, and maintenance of

residual waste treatment facilities for the City of Leeds including the carrying out of the

Works aud the provision of the Services.

B The Construction Contractor has been appointed by the Contractor under a contract dated

] ("Construction Contract") to carry out, in relation to the Sites, the design

and construction of the Works.

C The Consultant has been appointed by the Construction Contractor under a [letter/deed] of

appointment dated [ +

Works.

] ("Appointment") to provide services in relation to the

D The Consultant is obliged under the Appointment to give a warranty in this form in favour of

the City Council.

I. DEFINITIONS AND INTERPRETATIONS

Unless expressly defmed otherwise in this Deed, auy defined term in this Deed shall have the

same meaning given to such term in the [Construction Contract/Appointment].

SJ/ ADB/73626/120029/UKM/3341 0506.23 436



In consideration of the payment of one pound (£1.00) by the City Council to the Consultant,

receipt of which the Consultant acknowledges:

3. CONSULTANT'S WARRANTY AND LIABILITY

3 .I The Consultant warrants to the City Council that it has carried out and will continue to carry

out all its obligations and duties under the Appointment in accordance with and to the

standard required by the Appointment, and that it has exercised and will continue to exercise

in the perfonnance of those duties the reasonable skill care and diligence to be expected of a

properly qualified member of its profession experienced in carrying out duties such as its

duties under the Appointment in relation to works of similar scope, nature and complexity to

the Works.

3.2 The Consultant shall be entitled in any action or proceedings by the City Council to raise

equivalent rights in defence of liability (except for set off or counterclaim) as it would have

against the Construction Contractor under the Appointment and shall have no liability under

this Deed that is of greater or of longer duration than it would have had if the City Council

had been a party to the Appointment as joint employer. Upon the expiry of twelve (12) years

from the date of completion of the Works in accordance with the Construction Contract, the

liability of the Consultant under this Deed shall cease and determine, save in relation to any

claims made by the City Council against the Consultant and notified by the City Council to

the Consultant in writing prior thereto.

4. PROJECT DATA

4.1 The Consultant hereby grants (or, if such grant cannot legally take place until a later date,

agrees to grant) to the City Council with effect from the date of this Deed or in the case of

Project Data not yet in existence with effect from the creation thereof, an irrevocable royalty

free non-exclusive licence (such licence to remain in full force and effect notwithstanding

completion of the Consultant's obligations under the Appointment or the tennination of the

Appointment or the determination of the Consultant's engagement under it or any dispute

thereunder or hereunder) to use and to reproduce all Project Data for any purpose whatsoever

connected with the Works and such other purposes as are reasonably foreseeable including,

but without limitation, the execution, completion, maintenance, letting, advertisement,

modification, extension, reinstatement and repair of the Works. Such licence will carry the

right to grant sub-licences and will be transferable to third parties.

SJ/ AD B/7 3626/120029/UKM/3 341 0 5 06.23 437


4.2 The City Council will not hold the Consultant liable for any use it may make of the Project

Data for any purpose other than that for which they were originally provided by it unless the

Consultant authorises such use and confirms that the Project Data are suitable for it.

4.3 The Consultant will not grant to any third party the right to use any of the Project Data save

under any warranty it is obliged to give under the Appointment or hereunder or as otherwise

required to enable it to fulfil its obligations under the Appointment.

4.4 The Consultant agrees on reasonable request at any time following reasonable written prior

notice to give the City Council or those authorised by it access to the Project Data and to

provide copies (including copy negatives and CAD disks) thereof at the City Council's

expense.

4.5 The Consultant warrants to the City Council that he has used the standard of skill, care and

diligence as set out in clause 3.1 to see that the Project Data (save to the extent duly appointed

sub- contractors have been used to prepare the same) are its own original work and that in any

event their use in connection with the Works will not infringe the rights of any third party.

5. INSURANCE

5 .I The Consultant hereby covenants with the City Council to:






in the market to members of the Consultant's profession at commercially reasonable

rates and provided further that payment of any increased or additional premiums

required by insurers by reason of the Consultant's own claims record or other acts,

omissions, matters or things peculiar to the Consultant will be deemed to be within

the reasonable rates;

5 .1.2 provide evidence (as and when reasonably required by the City Council) satisfactory

to the City Council of the Professional Indenmity insurance referred to in clause 5 .1.1

being in full force and effect from the date of the Appointment (such evidence to

include details of the cover);

SJ/ ADB/73626/120029/UKM/3341 0506.23 438


5 .1.3 provide the City Council with notice of:

5 .1.3 .1 any cancellation of the Professional Indemnity insurance referred to in


date; and



5 .1.4 inform the City Council as soon as reasonably practicable of any claim under the

Professional Indenmity insurance referred to in clause 5 .1.1 in respect of the Works in




5. 1.5 indemnity the City Council in respect of any subrogation claim by the msurers

brought in connection with any claim made under the Professional h1demnity

insurance referred to in clause 5 .1.1.

6. LIABILITY OF PARTNERS

Where the Consultant is a partnership, references in this Deed to the "Consultant" will be

deemed to include reference to each and every present and future partner of such partnership

and the liability of each and every such partner under this Deed will be deemed to be joint and

several.

7. ASSIGNMENT


consent of the Consultant and the City Council will notifY the Consultant in writing following

any such assignment specifYing the name and address of the assignee and the date of the

assignment. The Consultant will not contend that any such assignee is precluded from

recovering any loss resulting from any breach of this Deed (whatever the date of such breach)

by reason only that that person is an assignee and not the original beneficiary hereunder or by

reason that the original beneficiary or any intermediate beneficiary escaped any loss resulting

from such breach by reason of the disposal of any interest in the Site or that the original

beneficiary or any intermediate beneficiary has not suffered any, or as much, loss

SJ/ AD B/73 626/ 120029/UKM/3 3 41 0 5 06.23 439




other rights and remedies it may have against the Consultant including without prejudice to

the generality of the foregoing any remedies in negligence.

9. INSPECTION OF [PROJECT DATA]

The Consultant's liabilities under this Deed will not be in any way reduced or extinguished by

reason of any inspection or approval of the [Project Data] or attendance at site meetings or

other enquiry or inspection which the City Council may make or procure to be made for its

benefit or on its behalf.

10. STANDARDS OF PRODUCTS AND MATERIALS

10.1 The Consultant warrants that it has exercised and will exercise reasonable skill, care and

diligence in accordance with this Deed to see that it has not specified for use and it will not

specifY for use and (as appropriate) it has not authorised or approved and it will not authorise

or approve the specification or use by others, of any products or materials not in conformity

with relevant British or European Union Standards or Codes of Practice or which at the time

of specification are widely known to members of the Consultant's profession within the

European Union to be deleterious to health and safety or to the durability of buildings and/or

other structures and/or finishes and/or plant and machinery in the particular circumstances in

which they are used.

I 0.2 If in the performance of its duties under the Appointment the Consultant becomes aware that

it or any other person has specified or used, or authorised or approved the specification or use

by others of any such products or materials the Consultant will notifY the City Council in

writing forthwith. This clause does not create any additional duty for the Consultant to inspect

or check the work of others which is not required by the Appointment.

II. STEP-IN RIGHTS IN FAVOUR OF THE CITY COUNCIL

11.1 The Consultant will not exercise or seek to exercise any right which may be or becomes

available to it to terminate or treat as terminated or repudiated the Appointment or its

engagement under it or discontinue or suspend the performance of any duties or obligations

thereunder without first giving to the City Council not less than thirty (30) Business Days

prior written notice specifying the Consultant's ground for terminating or treating as

terminated or repudiated the Appointment or its employment under it or discontinuing or

SJ/ ADB/73626/120029/UK.M/3341 0506.23 440


suspending its performance thereof and stating the amount (if any) of monies outstanding

under the Appointment. Within such period of notice:

11.1.1 the City Council may give written notice to the Consultant that the City Council will

thenceforth become the Construction Contractor under the Appointment to the

exclusion of the Construction Contractor and thereupon the Consultant will admit that

the City Council is the Construction Contractor under the Appointment and the

Appointment will be and remain in fi1ll force and effect notwithstanding any of the

said grounds;


Council shall accept liability for the Construction Contractor's obligations under the

Appointment and will as soon as practicable thereafter remedy any outstanding

breach by the Construction Contractor which properly has been included in the

Consultant's specified grounds and which is capable of remedy by the City Council;

and


Council shall from the service of such notice become responsible for all sums

properly payable to the Consultant under the Appointment accruing due after the

service of the Consultant's notice but the City Council shall in paying such sums be

entitled to the same rights of set-off and deduction as would have applied to the

Construction Contractor under the Appointment.


may be made by the City Council to the Consultant, the City Council will not be under any

obligation to the Consultant nor will the Consultant have any claim or cause of action against

the City Council unless and until the City Council has given written notice to the Consultant

pursuant to clause 11.1.1 or clause 11.3 of this Deed.

11.3 The Consultant further covenants with the City Council that if the Project Agreement is

terminated by the City Council the Consultant, if requested by the City Council by notice in

writing and subject to clause 11.1.2 and clause 11.1.3, will accept the instructions of the City

Council to the exclusion of the Construction Contractor in respect of its duties under the

Appointment upon the terms and conditions of the Appointment and will if so requested in

writing enter into a novation agreement whereby tl1e City Council is substituted for the

Construction Contractor under the Appointment.

SJ/ AD B/73 626/120029/UKM/3341 05 06.23 441


11.4 The Contractor acknowledges that the Consultant will be entitled to rely on a notice given to

the Consultant by the City Council under clause 11.3 as conclusive evidence that the Project

Agreement has been terminated by the City Council.

11.5 The City Council may by notice in writing to the Consultant appoint another person to

exercise its rights under this clause 11 subject to the City Council remaining liable to the

Consultant as guarantor for its appointee in respect of its obligations under this Deed.

12. LIMITATION

Without prejudice to the provisions of clause 11.1, the City Council shall not be entitled to

take any action or proceedings against the Consultant pursuant to this Deed unless and until

the Project Agreement has been terminated or has expired.

13. THE CONSTRUCTION CONTRACTOR'S INCLUSION AS PARTY

The Construction Contractor has agreed to be a party to this Deed for the purpose of clause 11

and for acknowledging that the Consultant shall not be in breach of the Appointment by

complying with the obligations imposed on it by this Deed.

14. COUNTERPARTS




15. SUB-CONSULTANTS

Fallowing a written request from the City Council the Consultant will (unless it has already

done so) and/or procure that its sub-consultants execute a deed of collateral warranty in the

relevant fonn specified in the Appointment in favour of any person in whose favour the

Appointment obliges the Consultant to give or procure the giving of such a warranty.




SJ/ AD B/73626/120029/UKM/3341 0 506.23 442


17. THIRDPARTYRIGHTS



the Contracts (Right of Third Parties) Act 1999 are excluded.

18. NOTICES

Any notice to be given by either party will be sufficiently served if sent by hand, by facsimile

transmission or by post to the registered office or ifthere is none the last known address of




facsimile is sent after 4.45 pm on any day it will be deemed to be served on the next Business


forty-eight ( 48) hours after the time of posting if the end of that period falls before 4.45pm on

a Business Day and otherwise on the next Business Day.

IN WITNESS whereof this document is executed by the parties as a Deed and delivered on the date

stated at the beginning of this Deed

SJ/ ADB/7362 6/120029/UKM/3341 0 5 06.23 443


EXECUTED as a Deed by the [CONSULTANT] acting by a Director and its Secretary/two Directors:

) ) ) )

Director

Director/Secretary

EXECUTED as a Deed by the ) [CONSTRUCTION CONTRACTOR] ) acting by a Director ) and its Secretary/two Directors: )

Director

Director/Secretary

SJ/ADB/73626/120029/UKM/33410506.23 444

The Conunon Seal of LEEDS CITY COUNCIL was affixed in the presence of:

SJ I ADB/7362 6/120029/UKM/3 341 05 06.23


) ) )

Authorised Signatory

Authorised Signatory

445


DATED

(1) [SUB-CONTRACTOR]

-and-

(2) [LEEDS CITY COUNCIL]

-and-

(3) [CONSTRUCTiON CONTRACTOR]



SJ/ AD B/73626/120029 /UKM/3341 0506.23

2012

446


THIS DEED is made on

BETWEEN

2012

(I) [SUB-CONTRACTOR] (company number + ) whose registered office 1s at

+ ("Sub-Contractor");

(2) LEEDS CITY COUNCIL of Civic Hall, Leeds LSI I UR ("City Council"), (which

expression includes its permitted successors in title and assigns); and

(3) CONSTRUCTION CONTRACTOR (company number+ ) whose registered

office is at + ("Construction Contractor").

BACKGROUND

A By a project agreement dated [+ ] ("Project Agreement") the City

Council has appointed Veolia ES Leeds Limited ("Contractor") to carry out, in relation to

the waste treatment facilities therein described as the Facilities ("Facilities"), the provision of

services relating to the design, installation, operation and maintenance of residual waste

treatment facilities for the City of Leeds including the carrying out of the Works and the

provision of the Services.

B The Construction Contractor has been appointed been appointed by the Contractor under a

contract dated [ + ] ("Construction Contract") to carry out the design,

construction, commissioning and testing of the Works.

C The Sub-Contractor has been appointed by the Construction Contractor under a contract dated

] ("Sub-Contract") to perform certain of the Construction Contractor's

obligations under the Construction Contract, as more particularly defined in the Sub-Contract.

D The Sub-Contractor is obliged under the Sub-Contract to give a warranty in this form in favour

of the City Council.

1. DEFINITIONS AND INTERPRETATIONS

1.1 In this Deed unless the context otherwise requires, the following expressions shall

have the following meanings:

"Project Data" means all drawings, reports, documents, plans, software, formulae,

calculations and other data relating to the design, construction, testing or operation of

the Works in each case tl1at is used by or on behalf of the Sub-Contractor and/or its

SJ/ADB/73626/120029/UKM/33410506.23 447


sub-contractors in connection with the provision of the Works or the performance of

the Sub-Contractor's obligations under the Sub-Contract;

1.2 Unless expressly defined otherwise in this Deed, any defined term in this Deed shall

have the same meaning given to such term in the Sub-Contract.


In consideration of the payment of one pound (£ 1.00) by the City Council to the Sub

Contractor, receipt of which the Sub-Contractor acknowledges:

3. SUB-CONTRACTOR'S WARRANTY AND LIABILITY

3.1 The Sub-Contractor warrants to the City Council that it has carried out and will continue to

carry out its duties under the Sub-Contract in accordance with the Sub-Contract and that it

has exercised and will continue to exercise, in carrying out the design of the Works, the level

of skill and care reasonably to be expected from an appropriately qualified and competent

professional designer providing those services in relation to a project of a similar size and

scope to the Works. In particular and without limiting the generality of the foregoing the

Sub-Contractor covenants with the City Council that it has carried out and will carry out and

complete the Works in accordance with the Sub-Contract and duly observe and perform all its

duties and obligations thereunder.

3 .2 The Sub-Contractor shall be entitled in any action or proceedings by the City Council to raise

equivalent rights in defence of liability (except for set off or counterclaim) as it would have

against the Construction Contractor under the Sub-Contract, and shall have no liability under

this Deed that is of greater or of longer duration than it would have had if the City Council

had been a party to the Sub-Contract as joint employer. Upon the expiry of twelve (12) years

from the date of completion of the Works in accordance with the Sub-Contract, the liability of

the Sub-Contractor under this Deed shall cease and determine, save in relation to any claims

made by the City Council against the Sub-Contractor and notified by the City Council to the

Sub-Contractor in writing prior thereto.

3.3 The Sub-Contractor shall have no liability to the City Council in respect of any delay in the

completion of the Works howsoever caused save to the extent that the liability arises under

the Sub-Contract and the City Council shall have exercised its right to step in under clause 9.

SJ/ ADB/7 362 6/120029/UKM/3341 0 5 06.23 448


4. PROJECT DATA

4.1 The Sub-Contractor hereby grants (or, if such grant cannot legally take place until a later date,

agrees to grant) to the City Council with effect from the date of this Deed or in the case of

Project Data not yet in existence with effect from the creation thereof, a royalty-free non

exclusive licence (such licence to remain in full force and effect notwithstanding completion

of the Sub-Contractor's obligations under the Sub-Contract or the termination of the Sub

Contract or the determination of the Sub-Contractor's engagement under it or any dispute

thereunder or hereunder) to use and to reproduce all Project Data for any purpose whatsoever

connected with the Works and such other purposes as are reasonably foreseeable including,

but without limitation, the execution, completion, maintenance, letting, advertisement,

modification, extension, reinstatement and repair of the Works. Such licence will carry the

right to grant sub-licences and will be transferable to third parties.

4.2 The City Council will not hold the Sub-Contractor liable for any use it may make of the

Project Data for m1y purpose other than that for which they were originally provided by it and

other thm1 for such other uses as are reasonably foreseeable unless the Sub-Contractor

authorises such use and confirms the Project Data are suitable for it.

4.3 The Sub-Contractor will not grant to any third party the right to use any of the Project Data

save under any warranty it is obliged to give under the Sub-Contract or hereunder or as

otherwise required to enable it to fulfil its obligations under the Sub-Contract.

4.4 The Sub-Contractor agrees on reasonable request at any time and following reasonable

written prior notice to give the City Council or those authorised by it access to the Project

Data and to provide copies (including copy negatives and CAD disks) thereof at the City

Council's expense.

4.5 The Sub-Contractor warrants to the City Council that he has used the standard of skill, care

and diligence as set out in clause 3.1 to see that the Project Data (save to the extent duly

appointed sub-contractors have been used to prepare the smne) are its own original work and

that in any event their use in connection with the Works will not infringe the rights of any

third party

SJ/ ADB/73 626/120029/UKM/3 341 0506.23 449


5. INSURANCE

5 .I The Sub-Contractor hereby covenants with the City Council to:






in the market to members of the Sub-Contractor's profession at commercially

reasonable rates and provided further that payment of any increased or additional

premiums required by insurers by reason of the Sub-Contractor's own claims record

or other acts, omissions, matters or things peculiar to the Sub-Contractor will be

deemed to be within the reasonable rates;

5.1.2 provide evidence (as and when reasonably required by the City Council) satisfactory

to the City Council of the Professional Indemnity insurance referred to in clause 5 .1.1

being in full force and effect from the date of the Sub-Contract (such evidence to

include details of the cover);

5.1.3 provide the City Council with notice of:

5 .1.3 .I any cancellation of the Professional Indemnity insurance referred to in


date; and



5.1.4 inform the City Council as soon as reasonably practicable of any claim under the

Professional Indemnity insurance referred to in clause 5 .1.1 in respect of the Works in




5.1.5 indemnify the City Council in respect of any subrogation claim by the insurers

brought in connection with any claim made under the Professional Indemnity

insurance referred to in clause 5 .1.1.

SJ I ADB/73 626/120029/UKM/3341 05 06.23 450




other rights and remedies it may have against the Sub-Contractor including without prejudice

to the generality of the foregoing any remedies in negligence.

7. ASSIGNMENT


consent of the Sub-Contractor and the City Council will notifY the Sub-Contractor in writing

following any such assignment specifYing the name and address of the assignee and the date

of the assignment. The Sub-Contractor will not contend that any such assignee is precluded

from recovering any loss resulting from any breach of this Deed (whatever the date of such

breach) by reason only that that person is an assignee and not the original beneficiary

hereunder or by reason that the original beneficiary or any intermediate beneficiary escaped

any loss resulting from such breach by reason of the disposal of any interest in the Site or that

the original beneficiary or any intermediate beneficiary has not suffered any, or as much, loss.

8. INSPECTION OF PROJECT DATA

The Sub-Contractor's liabilities under this Deed will not be in any way reduced or

extinguished by reason of any inspection or approval of the Project Data or attendance at site

meetings or other enquiry or inspection which the City Council may make or procure to be


9. STEP-IN RIGHTS IN FAVOUR OF THE CITY COUNCIL

9.1 The Sub-Contractor will not exercise or seek to exercise any right which may be or

become available to it to tenninate or treat as terminated or repudiated the Sub

Contract or its engagement under it or discontinue or suspend the performance of any

duties or obligations thereunder without first giving to the City Council not Jess than

thirty (30) days' prior written notice specifYing the Sub-Contractor's ground for

terminating or treating as terminated or repudiated the Sub-Contract or its

engagement under it or discontinuing or suspending its performance thereof and

stating the amount (if any) of monies outstanding under the Sub-Contract. Within

such period of notice:

9.1.1 the City Council may give written notice to the Sub-Contractor that the City

Council will thenceforth become the Construction Contractor under the Sub

Contract to the exclusion of the Construction Contractor and thereupon the

SJ/ ADB/73 626/12002 9 /UKM/3341 0506.23 451


Sub-Contractor will admit that the City Council is the Construction

Contractor under the Sub-Contract and the Sub-Contract will be and remain

in full force and effect notwithstanding any of the said grounds;

9 .1.2 if the City Council has given such notice as aforesaid or under clause 9 .3, the

City Council shall accept liability for the Construction Contractor's

obligations under the Sub-Contract and will as soon as practicable thereafter

remedy any outstanding breach by the Construction Contractor which

properly has been included in the Sub-Contractor's specified grounds and

which is capable of remedy by the City Council; and

9.1.3 if the City Council has given such notice as aforesaid or under clause 9.3, the

City Council shall from the service of such notice become responsible for all

sums properly payable to the Sub-Contractor under the Sub-Contract

accruing due after the service of such notice but the City Council shall in

paying such sums be entitled to the same rights of set-off and deduction as

would have applied to the Construction Contractor under the Sub-Contract.


may be made by the City Council to the Sub-Contractor, the City Council will not be under

any obligation to the Sub-Contractor nor will the Sub-Contractor have any claim or cause of

action against the City Council unless and until the City Council has given written notice to

the Sub-Contractor pursuant to clause 9 .1.1 or clause 9.3.

9.3 The Sub-Contractor further covenants with the City Council that if the Project Agreement is

terminated by the City Council the Sub-Contractor, if requested by the City Council by notice

in writing and subject to clause 9.1.2 and clause 9.1.3, will accept the instructions of the City

Council to the exclusion of the Construction Contractor in respect of its duties under the Sub

Contract upon the tenns and conditions of the Sub-Contract and will if so requested in writing

enter into a novation agreement whereby the City Council is substituted for the Construction

Contractor under the Sub-Contract.

9.4 The Construction Contractor acknowledges that the Sub-Contractor will be entitled to rely on

a notice given to the Sub-Contractor by the City Council under clause 9.3 as conclusive

evidence that the Project Agreement has been terminated by the City Council.

SJ/ ADB/73626/120029/UKM/3341 0506.23 452


9.5 The City Couucil may by notice in writing to the Sub-Contractor appoint another person to

exercise its rights under this clause 9 subject to the City Council remaining liable to the Sub

Contractor as guarantor for its appointee in respect of its obligations under this Deed.

9.6 Upon request by the City Council the Sub-Contractor agrees to co-operate with the City

Council in determining the duties performed or to be performed by the Sub-Contractor and to

provide a copy of the Sub-Contract and any variations thereto and details of all monies paid

and due under the Sub-Contract.

10. LIMITATION

Without prejudice to the provisions of clause 9 .I, the City Council shall not be entitled to take

any action or proceedings against the Sub-Contractor pursuant to this Deed unless and until

the Project Agreement has been terminated or has expired.

II. THE CONSTRUCTION CONTRACTOR'S INCLUSION AS PARTY

The Construction Contractor has agreed to be a party to this Deed for the purpose of clause 16

and for acknowledging that the Sub-Contractor shall not be in breach of the Sub-Contract by

complying with the obligations imposed on it by this Deed.

12. COUNTERPARTS




13. SUB-CONTRACTORS

Following a written request from the City Council the Sub-Contractor will (uuless it has

already done so) and/ or procure that its sub-contractors execute a deed of collateral warranty

in tl1e relevant form specified in the Sub-Contract in favour of any person in whose favour tl1e

Sub-Contract obliges the Sub-Contractor to give or procure the giving of such a warranty.




SJ/ADB/73626/120029/UKM/33410506.23 453





the Contracts (Rights of Third Parties) Act 1999 are excluded.

16. NOTICES

Any notice to be given by any party will be sufficiently served if sent by hand, by facsimile

transmission or by post to the registered office or if there is none the last known address of




facsimile is sent after 4.45pm on any day it will be deemed to be served on the next Business


forty-eight (48) hours after the time of posting if the end of that period falls before 4.45pm on

a Business Day and othervvise on the next Business Day.

IN WITNESS of which this docUillent is executed as a Deed and is delivered on the date first before

written

Executed as a deed by the SUB- ) CONTRACTOR acting by a director and its ) secretary /two directors: ) Signature

Name (block capitals)

Signature


SJ/ADB/73626/120029/UKM/33410506.23

Director

Secretaryillirector

454


Executed as a deed by the CONSTRUCTION ) CONTRACTOR acting by a director and its ) secretary/two directors: ) Signature


Signature


SJ I AD B/736261120029/U KM/3341 0506.23

Director

Secretary/Director

455


SJ/ ADB/73 626/120029 /UKM/3 341 0506.23

) )


Signature . _______________________ _

Name (block capitals) ·------------------------------

456


DATED 2012

(1) [PROCESS SUB-CONTRACTOR]

-and-


-and-

(3) VEOLIA ES LEEDS LIMITED

-and-

(4) CONSTRUCTIONS INDUSTRIELLES DE LA MEDITERRANEE S.A.

AGREEMENT relating to

the design and construction of residual waste treatment facilities in the Ci1y of Leeds

SJ/ADB/73626/120029/UKM/33410506.23 457


TIDS DEED is made on 2012

BETWEEN

(1) [PROCESS SUB-CONTRACTOR] (Company No.[ ]) whose registered office is at

[ ] ("the Sub-Contractor");

(2) LEEDS CITY COUNCIL of Civic Hall, Leeds LS 1 IUR, (which expression includes its

permitted successors in title and assigns) (the "BENEFICIARY COUNCIL");

(3) VEOLIA ES LEEDS LIMITED (company number 07876913) whose registered office is at

8th Floor, 210 Pentonville Road, London, United Kingdom, Nl 9JY (the "BENEFICIARY

PURCHASER"); and

(4) CONSTRUCTIONS INDUSTRIELLES DE LA MEDITERRANEE S.A. a societe

anonyme incorporated under the laws of France whose principal office is at 35 Rue de

Bassano, 75008, Paris, France ("CNIM") (the "Process Contractor").

BACKGROUND

A In accordance with the Government's Private Finance Initiative and pursuant to a notice

published in the Official Journal of the European Union on [ + ] the

Beneficiary Council invited expressions of interest from appropriately qualified consortia for

waste management services (the "Project") including the design, installation, operation, and

maintenance of residual waste management facilities (comprising a treatment and energy

from waste facility and all supporting infrastructure including associated plant and amenities)

("the Facility") (as more particularly defined in the Construction Contract as hereafter

B

defined) at the [ + ] (the "Site").

By an agreement dated [ + ] (the "Project Agreement") the Beneficiary

Council has appointed the Beneficiary Purchaser for the carrying out of the Project in relation

to the Site including the design, construction, installation, testing, commissioning and

completion and management, operation and maintenance of the Facility . The Project

Agreement is entered into under the Government's Private Finance Initiative.

C By an agreement dated [ + ] (the "Construction Contract") the

Beneficiary Purchaser has appointed CNIM Clugston (Leeds) Limited (the "Construction

Contractor") to carry out the design, construction, installation, testing, commissioning and

SJ/ADB/73626/120029/UKM/33410506.23 458


completion of the Facility including all related works and as all more particularly described

and defined in the Construction Contract (the "Construction Works").

D By an agreement of even date ("the Process Contract") the Construction Contractor has

appointed the Process Contractor to carry out that part of the Construction Works which

relates to process plant works ("the Process Works") all as more particularly described in the

Process Contract.

E The Process Contractor has entered into an agreement with the Sub-Contractor dated [

+ ] (the "Sub-Contract") whereby the Sub-Contractor agrees to design

[and install] the [turbine ]/[boiler ]/[grate] and obligations and duties all as more particularly

described under the Sub-Contract (the "Sub-Contract Works"). Under the Sub-Contract the

Sub-Contractor is required to execute and deliver a warranty in this form in favour of the

Beneficiary Council and Beneficiary Purchaser in respect of the Sub-Contract Works (and all

obligations of the Sub-Contractor under the Sub-Contract).

OPERATIVE PROVISIONS

I. CONSIDERATION AND INTERPRETATION

1.1 This Agreement is made in consideration of the payment of one pound (£1.00) by the

each of the Beneficiary Council and Beneficiary Purchaser to the Sub-Contractor

receipt of which the Sub-Contractor acknowledges.

1.2 h1 this agreement the terms "Beneficiary" shall mean either the Beneficiary Council

or the Beneficiary Purchaser and "Beneficiaries" shall mean both of them.

2. SUB-CONTRACTOR'S WARRANTIES

The Sub-Contractor warrants to the Beneficiaries that it has carried out and will continue to

carry out and complete the Sub-Contract Works and all its obligations under the Sub-Contract

in accordance with the Sub-Contract.

3. INTELLECTUAL PROPERTY RIGHTS

3.1 Subject to the following provisions of this Agreement, all Intellectual Property in the

drawings, designs, charts, specifications, plans, software and any other documents or

materials in any medium which have been created and/or developed by the Sub

Contractor in the course of performing any of its Services or obligations under the

SJ/ADB/73626/120029/UKM/33410506.23 459


Sub-Contract (the "Documents") will remain vested in the Sub-Contractor. For the

purposes of this clause 3, "Intellectual Property" shall mean all copyright and all

database rights and moral rights, registered designs, registered and unregistered

design rights, or any rights or property similar to the foregoing in any part of the

world whether registered or unregistered, together with the right to apply for the

registration of such rights in any part of the world and the rights to current

applications for registration of any such intellectual property referred to above.

3.2 The Sub-Contractor grants (or, if such a grant cannot legally take place until a later

date, agrees to grant) to the Beneficiary Council and Beneficiary Purchaser, with

effect from the date of this Agreement or in the case of any of the Intellectual

Property not yet in existence with effect from the creation of such Intellectual

Property, an irrevocable, royalty-free, non-exclusive licence (such licence to remain

in full force and effect notwithstanding the completion of the Sub-Contractor's

obligations under the Sub-Contract or the termination of the Sub-Contract or this

Agreement or the determination of the Sub-Contractor's employment under the Sub

Contract or any dispute under the Sub-Contract or this Agreement) to use and to

reproduce all Documents for the operation and maintenance of the Project. Such

licence will enable the Beneficiary Council and Beneficiary Purchaser to use and

reproduce the Documents for any extension of the Project, but shall not include a

licence to replicate any design in the Documents. Such licence shall be transferable

to any third party subject to prior approval by the Sub-Contractor (not to be

unreasonably withheld or delayed) to whom the rights under this clause are

transferred.

3.3 The Sub-Contractor will not grant to any third party the right to use any of the

Documents save under any warranty it is obliged to give under the Sub-Contract or

under this Agreement or as otherwise required to enable it to fulfil its obligations

under the Sub-Contract and then only provided that the Documents are used strictly

for the purpose for which they were prepared.

3.4 The Sub-Contractor will not be liable for any use the Beneficiaries may make of the

Documents for any purpose other than the purposes set out in clause 3 .2.

3.5 The Sub-Contractor warrants that the Documents (except to the extent that duly

authorised sub-contractors or sub-consultants have been used to prepare the same) are

SJ/ ADB/73 626/120029/UKM/3341 0 5 06.23 460


the Sub-Contractor's own work and that in any event their use in connection with the

Construction Works will not infringe the rights of any third party.

3 .6 The Sub-Contractor shall include provision in any contracts with its sub-contractors

and/or sub-consultants so as to give full effect to and ensure compliance with the Sub

Contractor's obligations under clause 3 .2.

3.7 Not used.

4. INSURANCE

4.1 The Sub-Contractor by this Agreement covenants with the Beneficiaries that it has

European Union product liability insurance with reputable insurers carrying on

business in the European Union with a limit of indemnity of not less than GBP

5,000,000 (Five Million pounds) for any one occurrence or series of occurrences

arising out of any one event and in the aggregate in relation to the Sub-Contract

Works and otherwise performance of the Sub-Contract provided always that:

4.1 .1 such insurance shall be in place from the commencement of the Sub-Contract

Works until no less than end of the Sub-Contractor's liability under the Sub

Contract between the Process Sub-Contractor and the Sub-contractor

4.1.2 the insurance premiums in respect of the insurance shall at all times be the

responsibility of the Sub-Contractor;

4.1.3 if such insurance is not available to the Sub-Contractor (and/or design and

engineering consultants engaged in projects of a similar scope, size, nature

and complexity as the Sub-Contractor in respect of the Project) at

commercially reasonable rates and terms (excluding any mcrease m

premiums attributable to the actions, omissions, errors or defaults of the Sub

Contractor), the Sub-Contractor and the Beneficiary Council and Beneficiary

Purchaser will meet and the Sub-Contractor will outline the steps he intends

to take to manage such risks. lfthe steps proposed by the Sub-Contractor are

not reasonably acceptable to the Beneficiary Council and Beneficiary

Purchaser, the parties shall agree an alternative method of managing such

risk.

4.2 The Sub-Contractor will provide each of the Beneficiary Council and Beneficiary

Purchaser within fourteen (14) days of either the Beneficiary Council or Beneficiary

SJ/ ADB/73626/120029/UKM/3341 0506.23 461


Purchaser's written request with certificates of insurance or written confirmation from

an independent company of insurance brokers (including a full list of the material

limits and exclusions) by way of evidence that the policies referred to in this

clause 4.2 (Insurance) are in full force and effect.

5. NOTICES

Any notice to be given by either party under this Agreement will be sufficiently served if sent

by hand, by facsimile transmission or by post to the registered office or if there is none the

last known address of the party to be served with copy to each of the Beneficiaries. Any

notice sent by hand will be deemed to be served on the date of delivery and any notice sent by

facsimile transmission will be deemed to be served in full at the time recorded on the

facsimile report sheet provided that if any notice sent by hand or facsimile is sent after

4.45p.m. on any day it will be deemed to be served on the next working day. Any notice sent

by post will be deemed to have been duly served at the expiration of forty-eight ( 48) hours

after the time of posting if the end oftl1at period falls before 4.45p.m. on a working day and

otherwise on the next working day.

6. ASSIGNMENT

The benefit of and the rights on the part of either the Beneficiary Council or the Beneficiary

Purchaser under this Agreement may be assigned without the consent of the Sub-Contractor

on two occasions only. The relevant Beneficiary will give the Sub-Contractor written notice

following any such assignment specifying the name and address of the assignee and the date

of the assignment. Further assignments shall require the Sub-Contractor's consent. The Sub

Contractor will not contend that any such assignee is precluded from recovering any loss

resulting from any breach of this Agreement (whatever the date of such breach) by reason

only that that person is an assignee and not the original beneficiary under this Agreement or

by reason that the original beneficiary or any intermediate beneficiary escaped any loss

resulting from such breach by reason of the disposal of any interest in the Site or that the

original beneficiary or any intermediate beneficiary has not suffered any or as mnch loss. The

Sub-Contractor shall not unreasonably withhold or delay consent to any assigmnent requested

by a Beneficiary. The Sub-Contractor will not assign the benefits of this Agreement without

the consent of both Beneficiaries.

SJ I AD B/73626/120029/UKM/3341 05 06.23 462


7. NOAPPROVAL

The Sub-Contractor's liabilities under this Agreement will not be in any way reduced or

extinguished by reason of any inspection or approval of the Documents or attendance at site

meetings or other enquiry or inspection which the either of the Beneficiaries may make or

procure to be made for the Beneficiaries' benefit or on their behalf.

8. PROHIBITED MATERIALS

8.1 The Sub-Contractor warrants that, to the extent it either is obliged under the Sub

Contract to specifY or approve products or materials for use in the Construction

Works or does so specifY or approve, it has exercised and will exercise reasonable

skill and care in accordance with this Agreement not to specifY, approve or use any

products or materials which are generally known within the construction industry to

be deleterious in the particular circumstances in which they are used, or those

identified as potentially hazardous in or not in conformity with:

8.1.1 the report entitled "Good Practice in the Selection of Construction Materials"

(1997, by Tony Sheehan, Ove Arup & Partners, published by the British

Council for Offices and the British Property Federation) other than the

recommendations for good practice contained in Section 2 of that report;

8.1.2 relevant British or European Standards or Codes of Practice.

8.2 If in the performance of any of its duties under the Sub-Contract, the Sub-Contractor

becomes aware that it or any other person has specified or used, or authorised or

approved the specification or use by others, of any such products or materials the

Sub-Contractor will immediately give both Beneficiaries written notice of the same.

This clause 8.2 does not create any additional duty for the Sub-Contractor (under this

Agreement) to inspect or check the work of others which is not required by the Sub

Contract.

9. STEP-IN RIGHTS

9.1 The Sub-Contractor will not exercise or seek to exercise any right which may be or

become available to it to terminate or treat as terminated or repudiated the Sub

Contract or its employment under it or discontinue or suspend the performance of any

duties or obligations under the Sub-Contract without first giving to the each of the

Beneficiaries not less than twenty-one (21) days' prior written notice (provided that

SJ/ ADB/73626/120029/UKM/3341 0506.23 463


when there has been a suspension under the Sub-Contract pursuant to Part II of the

Housing Grants Construction & Regeneration Act 1996 or equivalent Legislation

such period shall be seven (7) days prior written notice) specifYing the Sub

Contractor's grounds for terminating or treating as terminated or repudiated the Sub

Contract or its employment under it or discontinuing or suspending its performance of

the Sub-Contract and stating the amount (if any) of monies outstanding under the

Sub-Contract. Within such period of notice:

9 .I. I either Beneficiary may give written notice to the Sub-Contractor that the

relevant Beneficiary shall become the client under the Sub-Contract to the

exclusion of the Process Contractor and, upon giving such notice, that will be

the case and the Sub-Contract will be and remain in full force and effect

notwithstanding any of the grounds in the Sub-Contractor's notice under

clause 9 .I; and

9 .1.2 if either Beneficiary has g1ven such notice under clause 9 .I. I or under

clause 9.3, the will then as soon as practicable remedy any outstanding breach

by the Process Contractor (provided that where the notice is given under

clause 9 .I. I rather than under clause 9.3 such breach has properly been

included in the Sub-Contractor's specified grounds under clause 9.1); and

9.1.3 if:

9 .1.3 .I either Beneficiary has given such notice under clause 9 .1.1 then from

the date of the Sub-Contractor's notice; or

9 .1.3 .2 either Beneficiary has given notice under clause 9.3 then from the

date of the Beneficiary Council or Beneficiary Purchaser (as

appropriate) notice ,

that Beneficiary will, by clause 9 .1.1, become responsible for all sums

properly payable to the Sub-Contractor under the Sub-Contract and for the

observance and performance of all of the other duties and obligations on the

part of the Process Contractor to be observed and performed under the Sub

Contract accruing due after the service of such Sub-Contractor's notice or the

relevant Beneficiary's notice (as applicable) but the relevant Beneficiary will

in paying such sums be entitled to the same rights as would have applied to

the Process Contractor under the Sub-Contract.

SJ/ADB/73626/120029/UKM/33410506.23 464


9.2 Notwithstanding anything contained in this Agreement and notwithstanding any

payments which may be made by the Beneficiaries to the Sub-Contractor, neither

Beneficiary will be under any obligation to the Sub-Contractor nor will the Sub

Contractor have any claim or cause of action against either Beneficiary unless and

until that Beneficiary has given written notice to the Sub-Contractor under either

clause 9 .1.1 or clause 9.3.

9.3 Provided that the Sub-Contract has not previously been terminated the Sub

Contractor further covenants with tbe Beneficiaries that, if the employment of the

Construction Contractor under the Construction Contract is determined or if the

Construction Contract is tenninated, the Sub-Contractor, if requested by a Beneficiary

by written notice and subject to clause 9.1.2 and clause 9.1.3, will accept the

instructions of that Beneficiary to the exclusion of the Process Contractor in respect

of the Sub-Contract Works upon the terms and conditions of tbe Sub-Contract. The

relevant Beneficiary shall then become the client under the Sub-Contract to the

exclusion of the Process Contractor and the Sub-Contractor will, if so requested, enter

into a novation agreement in order to substitute the relevant Beneficiary for the

Process Contractor under the Sub-Contract.

9.4 Where the Sub-Contractor has given rights in relation to the Sub-Contract similar to

those contained in this clause 9 (Step-In Rights) to any other person then if the

Construction Contractor or either Beneficiary serve notice under clause 9 .I. I or

clause 9.3 or its equivalent the notice served by the relevant Beneficiary shall prevail,

and as between notices served by the Beneficiaries, the notice by the Beneficiary

Council shall prevail.

9.5 The Process Contractor acknowledges that the Sub-Contractor will be entitled to rely

on a notice given to the Sub-Contractor by the Construction Contractor under

clause 9.3 as conclusive evidence that the Construction Contractor is entitled to serve

such notice.

9.6 Either Beneficiary may by written notice to the Sub-Contractor appoint another

person to exercise its rights under this clause 9 (Step-In Rights) subject to tl1e relevant

Beneficiary remaining liable to the Sub-Contractor as guarantor for its appointee in

respect of its obligations under this Agreement.

SJ/ ADB/73626/J 20029/UKM/334 l 0506.23 465


10. GOVERNING LAW AND JURISDICTION

This Agreement and any non-contractual obligations arising out of or in connection with it

will be construed and governed in accordance with English law and be in all respects subject

to the exclusive jurisdiction of the English courts.


The parties to this Agreement do not intend that any of its terms will be enforceable by virtue

of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.

\2. EFFECT AND LIMITATION OF LIABILITY

12.1 The Sub-Contractor has no liability under this Agreement which is greater or of

longer duration than the Sub-Contractor would have had if the Beneficiaries had been

a party to the Sub-Contract as joint employers with the Process Contractor.

12.2 The Sub-Contractor shall be entitled in any action or proceedings brought by the

either Beneficiary under this Agreement to rely on any limitation in the Sub-Contract

and to raise equivalent rights in defence of liability as it would have against the

Process Contractor under the Sub-Contract (and vice versa).

12.3 Subject to Clause 9 (Step-In Rights) the Beneficiaries shall only be entitled to make

claims against the Sub-Contractor under this Agreement if:

12.3.1 the Sub-Contract has been terminated and:

12.3 .1.1 in respect of the Beneficiary Council the Construction Contract and

the Project Agreement have terminated; or

12.3.1.2in respect of the Beneficiary Purchaser the Construction Contract has

terminated; or

12.3.2 the Process Contractor became insolvent except where business continues to

operate under administration or otherwise and:

12.3.2.lin respect of the Beneficiary Council the Construction Contract and

the Project Agreement have terminated; or

SJ/ ADB/73 62 6/120029 /UKM/3341 05 06.23 466


12.3.2.2in respect of the Beneficiary Purchaser the Construction Contract has

terminated.

12.4 No action or proceedings for any breach of this Agreement shall be commenced

against the Sub-Contractor after the expiry of six ( 6) years from Acceptance under the

Sub-Contract.

THIS DOCUMENT is executed on the date stated at the beginning.


) ) Signature ·- ____________________________ _

Name (block capitals) ______________________________ _

Executed as a deed by CONSTRUCTIONS ) INDUSTRIELLES DE LA ) MEDITERRANEE S.A acting by a director ) and its secretary/two directors: Signature

Executed as a deed by VEOLIA ES LEEDS ) LIMITED acting by a director and its )


Signature


secretary/two directors: ) Signature


Signature


SJ/ADB/73626/120029/UK.M/33410506.23

_ _ ~u_t_hl)_ri~-~~- ~!g!'.~!f)_ry ___ _

Director

Secretaryillirector

Director

Secretaryillirector

467

Schedule 21 -Collateral Warrauties

Executed as a deed by [PROCESS ) SUBCONTRACTOR] acting by a director ) audits secretary/two directors: ) Signature


Signature


SJ/ ADB/73626/120029/UKM/3341 0506.23

Director

Secretaryillirector

468

Schedule 22 - Planning

SCHEDULE22

1.

1.1

1.1.1

1.1.1.1

1.1.1.2

1.1.2

1.1.3

1.1.3 .I

1.1.3 .2

1.1.4

SJ/ ADB/73626/120029/UKM/3341 0506.23 469


1.1.5

1.1.5 .1

1.1.5.2

SJ/ ADB/73626/120029/UKM/3341 0506.23 470


1.1.6

1.2

1.2.1

1.2.1.1

1.2.1.2

1.2.1.3

1.2.2

1.2.3

SJ/ADB/73626/120029/UKM/33410506.23 471


1.2.4

1.3

1.3.1

1.3 .2

1.4

1.4.1

1.4.1.1

1.4.1.2

SJ/ADB/73626/120029/UKM/33410506.23 472


1.4.1.3

1.4.2

I .4.3

1.4.4

1.4 .4.1

1.4.4.2

SJ/ADB/73626/120029/UKM/33410506.23 473

Schedule 22 -Planning

1.4.5

1.4.5.1

1.4.5.2 ,

.

1.4.6

1.5

1.5.1

1.5.2

1.5.3

SJ/ ADB/73626/120029/UKM/3341 0506.23 474


1.5.3.1

1.5.3.2

(a)

(b)

1.5.4

SJ/ ADB/7 3626/120029/UKM/3341 0506.23 475


1.6

1.6.1

1.6.2

1. 7

1.7.1

SJ/ ADB/73626/120029/U KM/3341 0506.23 476


1.7.1.1

I. 7 .1.2

I. 7 .1.3

1. 7 .1.4

I. 7.2

1.8

1.9

SJ/ADB/73626/120029/UKM/33410506.23 477


2.

2.1

2.1.1

2.1.1.1

2.1.1.2

(a)

(b)

(c)

2.1.2

SJ I AD B/73 6261120029/UKM/3341 0506. 23 478


2.1.3

2.1.3.1

2.1.3.2

(a)

(b)

2.1.4

2.1.5

2.1.6

SJ/ADB/73626/120029/UKM/33410506.23 479


2.1.7

2.1.8

2.1.8.1

SJ/ADB/73626/120029/UKM/33410506.23 480

Schedule 22 - Pla1ming

2.1.8.2

2.1.9

2.1.9.1

2.1.9 .2

2.1.1 0

2.2

2.2.1

SJ/ADB/73626/120029/UKM/33410506.23 481


2.2.2

2.2.3

2.2.4

2.2.5

2.2.6

2.2.7

2.3

2.3.1

2.3.2

SJ I AD B/73626/ 120029/UKM/33 41 0506.23 482

Schedule 22 - Plauning

2.3.3

2.3 .3 .I

2.3.3.2

2.3 .3 .3

2.3 .3 .4

2.3.3.5

2.3.3.6

2.3 .3. 7

2.3.3.8

2.3 .3 .9

2.3 .3. I 0

SJ/ADB/73626/120029/UKM/33410506.23 483


2.3.3.11

2.3.3.12

2.3.3.13

2.3.3.14

2.3.3.15

2.3.3.16

2.3.3.17

2.3.3.18

2.3.3.19

2.3 .4

2.3.4.1

2.3.4.2

SJ/ADB/73626/120029/UKM/33410506.23 484


2.3 .4.3

2.3.5

2.3.5.1

2.3.5.2

2.3.6

2.3.7

2.3.7.1

SJ/ADB/73626/120029/UKM/33410506.23 485


2.3.7.2

2.4

2.5

2.5.1

2.5.2

(a)

SJ/ AD B/73 626/120029/UKM/3 341 0506.23 486

Schedule 22- Planning

(i)

(ii)

(b)

f

2.6

2.6.1

2.6.1.1

2.6.1.2

SJ/ ADB/73626/120029/UKM/3341 0506.23 487


2.6.2

2.6.3

2.6.3.1

2.6.3 .2

(a)

(b)

(c)

2.6.4

2.6.4.1

SJ/ADB/73626/120029/UKM/33410506.23 488


2.6.4.2

2.6.5

2.6.6

2.6.7

2.6.8

2.6.8.1

SJ/ ADB/7 3 626/120029 /UKM/3341 0 5 06. 23 489


2.6.8.2

2.6.8.3

2.6.9

2.6.1 0

.

SJ/ AD B/73626/120029/UKM/3341 0 5 06 .23 490


2.6.11

2.7

2.7.1

2.7.2

2.8

SJ/ ADB/73626/1 20029/UKM/3341 0506.23 491


2.9

2.9.1

2.9.1.1

(a)

(b)

(c)

2.9.1.2

SJ/ ADB/73626/120029/UKM/3 3 41 0506.23 492


2.9.2

2.9.3

2.9.4

2.9 .4.1

2.9.4.2

SJ/ADB/73626/120029/UKM/33410506.23 493


2.9.4.3

2.9.4.4

2.9.4.5

2.9.5

2.9.5.1

2.9.5.2

(a)

SJ/ADB/73626/120029/UKM/33410506.23 494


(b)

2.9.5.3

(a)

(b)

(c)

(d)

2.9.5.4

2.9.6

SJ/ ADB/73626/120029/UKM/3341 0506.23 495


2.9.6.1

2.9.6.2

2.9.6.3

2.9. 7

2.9. 7 .I

2.9.7.2

SJ/ ADB/73626/120029/UKM/3341 0506.23 496


2.9.7.3

2.9.7.4

2.9.8

2.10

2.1 0.1

SJ/ ADB/73626/120029/UKM/3341 0506.23 497


2.10.2

2.10.3

2.10.3.1

2.10.3.2

2.10.3.3

2.10.4

2.10.4.1

2.1 0.4.2

SJ/ADB/73626/120029/UKM/33410506.23 498


2.10.4.3

(a)

(b)

2.1 0.5

2.10.6

3.

3.1

3.2

3.2.1

SJ/ ADB/73626/120029/UKM/3341 0506.23 499

Schedule 22- Planning

3 .2.2

3 .2.3

3.2.4

3.2.4.1

3.2.4.2

3.2.5

SJ/ADB/73626/120029/UKM/33410506.23 500


3.3

3.3.1

3.3.!.1

3.3.!.2

3.3 .2

3.3 .2.1

3.3 .2.2

SJ/ADB/73626/120029/UKM/33410506.23 501


3.4

3 .4.1

3 .4.1.1

3.4.1.2

3 .4.1.3

3.4.1.4

3 .4.2

3.5

3.6

3.6.1

SJ/ADB/73626/120029/UKM/33410506.23 502


3.6.2

SJ/ ADB/73626/J 20029/UKM/334 J 0506.23 503

Schedule 23 -Design Proposals

SCHEDULE23

Basic Design Proposals

The design proposals identified in schedule 3 (Contractors Proposals) under each of the

following headings and sub-headings, including all attachments referenced therein:

Technical Design

CP2.1 Technology Capacity and Flexibility

CP2.2 Facility Process Information

CP2.2.1 Waste Reception

CP2.2.2 Mechanical Pre-Treatment

CP2.2.3 Thermal Treatment Technology Process

CP2.2.4 Energy Export Connections

CP2.2.5 Statutory Undertakers

CP2.3 BREEAM and CEEQUAL

CP2.5.1 Design Drawings including the Planning Drawings and process plant drawings

CP.2.5.2 Materials and Specifications

CP 2. 7 City Council Accommodation

SJ/ADB/73626/120029/UKM/33410506.23 504

Schedule 24 - Waste Delivery Protocol

SCHEDULE24

Waste Delivery Protocol

1.

2.

2.1

2.1.1

SJ/ADB/73626/120029/UKM/33410506.23 505

Schedule 24- Waste Delivery Protocol

S.l/ A OR/i~ ri26i120029/l JKM/3341 0506.23 506


2.1.2

2.1.3

2.1.3.1

2.1.3.2

2.1.3 .3

2.1.3 .4

2.1.3 .5

2.1.3 .6

2.1.3.7

2.1.3.8

2.1.3.9

2.1.3.10

2.1.3.11

2.1.4

SJ/ AD B/73 626/12002 9/UKM/3 341 05 06.23 507


2.1.5

2.1.6

2.1. 7

2.1.8

2.1.9

2.1.9.1

SJ/ AD 8/73 626/120029/UKM/3341 05 06.23 508


2.1.9.2

2.1.9.3

2.1.10

2.1.11

2.1.12

2.1.13

2.1.14

SJ/ADB/73626/120029/UKM/33410506.23 509


2.2

2.2.1

2.2.2

2.2.2.1

2.2.2.2

2.2.2.3

.

2.2.3

SJ/ ADB/73626/120029/UKM/3341 0506.23 510


2.2.4

2.2.5

2.3

2.3.1

2.3.2

2.3.3

2.4

2.4.1

2.4.2

SJ/ADB/73626/120029/UKM/33410506.23 511


2.4.3

2.4.4

3.

3.1

3.1.1

3.1.2

3.2

SJ I AD B/73626/120029 /UKM/3 341 05 06.23 512


3.3

3.4

3.5

3.6

SJ/ADB/73626/120029/UKM/33410506.23 513


3. 7

3.7.1

3.7.2

3.7.2.1

3.7.2.2

3.8

SJ/ AD 8/73626/120029/U KM/3 341 0506.23

514


3.9

4.

4.1

4.2

4.3

SJ/ ADB/7 3 626/120029/UKM/3 341 0506.23

515


.

5.

5 .I

5.2

5.2.1

5.2.2

5.3

5.3 .I

5.3.2

5.3.3

5.4

SJ/ADB/73626/120029/UKM/33410506.23 516


5.5

5.6

5.6.1

5.6.2

5.7

5.8

5.9

5.9.1

5.9.1.1

5.9 .1.2

5.9 .1.3

SJ I ADB/73626/120029/UKM/3 341 05 06.23 517


5.9.2

5.9.3

5.9.3.1

5.9.3.2

5.9.4

5.9.5

5.9.5.1

SJ/ ADB/73626/120029/UKM/3341 0506.23 518


(a)

(b)

5.9.6

5.10

5.10.1

SJ/ AD B/73 626/120029/UKM/3341 0506.23 519


5.10.2

5.10.2.1

5.10.2.2

5.10.3

5.10.4

5 .II

5.11.1

5.11.1.1

5.11.1.2

5 .11.1.3

5 .11.1.4

5.11.1.5

SJ I ADB/736261 120029/UKM/3341 05 06 .23 520


5.11.1.6

5.11.1.7

5.11.2

6.

6.1

6.2

6.3

7.

7 .I

SJ/ADB/73626/120029/UKM/33410506.23 521

Schedule 24 -Waste Delivery Protocol

7.2

7.2.1

7.2.2

7.3

7.4

7.5

8.

8.1

8.1.1

8.1.2

SJ/ ADB/73 62 6/120029/UKM/3 3 41 0 506.23 522


--------------

8.1.3

SJ/ AD B/73 626/120029/UKM/3341 05 06.23 523


8.2

8.2.1

8.2.2

8.2.3

8.2.4

9.

SJ/ADB/73626/120029/UKM/33410506.23 524


9.1

9.2

9.3

10.

I 0.1

SJ/AD Bi7362 6/12()029/U KJ\.1/3341 0506.23 525

Scht::dulu 24- Wasle Ddivcry Protocol

10.2

f

10.3

.

10.4

10.5

10.6 .

11.

SJ/li.JJB/73626/120029tlJKM/33410506.23 526


1.

SJ I AD B/736261120029/UKM/33 41 05 06.23 527


SJ/ADB/73626/120029/UKM/33410506.23 528


2.

2.1

2.2

2.3

2.4

2.5

2.6

2.7

3.

3.1

3.2

3.3

3.4

3.5

SJ/ ADB/73626/120029/UKM/3341 0506.23 529


3.6

3.7

3.8

3.9

4.

4.1

4 .1.1

4.1.2

4.1.3

S.J! A!JR/73626/120029/t:KM/3341 0506.23 530


4.1.4

4.1.5

4.1.6

4.1.7

4.2

4.3

4.4

4.5

4.6

4.7

4.8

4.9

4.10

4.11

SJ/ADB/73626/120029/UKM/33410506.23 531


4.12

5.

5.1

5.2

5.2.1

5.3

5.4

5.5

5.6

5.7

5.8

5.9

5.9.1

5.10

5.11

SJ/ ADB/73626/1 20029/UKM/334 10506.23 532


5.12

5.13

5.13 .I

5.13 .2

5.13 .3

5.14

5.15

5.16

5.17

5.18

5.19

5.20

5.21

5.22

5.23

5.24

SJ/ AD B/7 3626/ 120029/UKM/3341 05 06.23 533


6.

6.1

6.2

6.3

6.4

6.5

6.6

6. 7

6.8

6.9

7.

7 .I

7.2

7.3

7.3.1

SJ/ADB/73626/120029/UKM/33410506.23 534


7.4

7.5

7.6

7 .6.1

8.

8.1

SJ/ ADB/7362 6/120029 /UKM/3341 05 06.23

•

535


9.

10.

I 0.1

SJ/ A DB/73 626/120029/UKM/3341 0506.23 536


I 0.2

10.2.1

I 0.2.2

I 0.3

10.3.1

I 0.4

I 0.5

10.6

SJ I ADB/73 626/120029/UKM/3341 0 5 06.23 537


SJ/ ADB/73626/120029/UKM/3341 0506.23 538

Schedule 25 -Relevant Discharge Terms

SCHEDULE25

Relevant Discharge Terms

I. The sums referred to in paragraph 2.1 below and the adjustment between the parties of the

rights and liabilities relating to the Assets referred to in paragraph 2.2 below shall be relevant

discharge terms in relation to this Contract for the purposes of Section 6 of the Local

Government (Contracts) Act 1997.

2. In the event of the making of a determination or order by a court of final jurisdiction on an

application for judicial review or audit review (within the meaning of the Local Government

(Contracts) Act 1997), the result of which is that this Contract does not or ceases to have

effect or is otherwise unenforceable, then:

2.1 the City Council shall pay to the Contractor the sum equivalent to:

2.1.1 the City Council Default Termination Sum where the City Council has

initiated proceedings that resulted in the determination or court order referred

to above; or

2.1.2 the Force Majeure Termination Sum in all other cases,

in each case calculated as at the date of such determination or order; and

2.2 the City Council shall have the option to require the Contractor to transfer its right,

title and interest in and to the Assets to the City Cotmcil or as directed by the City

Council.

3. The City Council shall pay to the Contractor the sums referred to in paragraph 2.1 within

forty (40) Business Days of the determination or order of the court referred to in paragraph 2

and the provisions of paragraphs I and 2 of Part 6 (General) of schedule 16 (Compensation on

Termination) shall apply.

4. Any payment of compensation in accordance with this schedule 25 shall be in full satisfaction

of any claim of the Contractor in relation to the termination of this Contract and shall be the

sole remedy of the Contractor against the City Council in respect of the circumstances

contemplated by paragraph I above.

SJ/ADB/73626/120029/UKM/33410506.23 539

Schedule 26 )Ton Leeds Waste Information

SCHEDULE26

.Part 1

City Conndl Administrative Boundary

l'f«<Lie!Oj~ .tastii.Digamnl~ 111111

l~i !-,-u:;<:l::l .=:-~·

SJ/ AJ)B/736261120029/U Kl'vl/3341 0506.23 540

Schedule 26 Non Leeds Waste Information

Part2

Transfer and Treatment Stations in Leeds

Name Address Post Code Primary Activity (Note 1)

1 Associated Waste Carr Crofts, LS12 3HB Transfer & Management Ltd Armley, Leeds Treatment

2 B W Skip Hire Ltd Ashfield Way, Whitehall Road LS12 5JB Transfer Industrial Estate, Leeds

3 B W Skip Hire Ltd Far Royds Industrial Estate, LS12 6ER Transfer Whitehall Road, Wortley, Leeds

4 B iff a Waste Services Ltd Pontefract Lane, LS15 9AD Transfer Newsam Green, Leeds

5 Biffa Waste Services Ltd Geldered Road, LS12 6DG Transfer Leeds

6 Bill Dyson Skip Hire Whitehall Industrial Estate, LS12 5JB Transfer Whitehall Road, Leeds

7 H W Martin Waste Ltd Parkside Lane, LSI! 5TD Transfer & Parkside h1dustrial Estate, Leeds Treatment

8 Jeff Skinner Skip Hire Ltd The Sidings, Copley Hill, LS121HY Transfer Leeds

9 LSS Waste Management Ltd Cross Green Industrial Estate, LS9 OPF Transfer & Knowsthorpe Way, Leeds Treatment

10 Leeds Paper Recycling Ltd Valley Farm Road, LSIO lSD Treatment Stourton, Leeds

11 Skelton Ltd Knowsthorpe Road, Cross Green LS9 OSW Treatment Industrial Estate, Leeds

12 Tom Shea & Sons Knowsthorpe Road, Cross Green LS90BW Transfer & Industrial Estate, Leeds Treatment

13 TradpakLtd Brancepeth Place, LS122EH Treatment Armley Road, Leeds

14 Waddington Mark Aireborough Miniskips, Milner LS197JE Transfer Road, Yeadon, Leeds

15 Wetherby Skip Services Ltd Champagne Whin, Spring Lane, LS23 7DN Transfer & Walton, Wetherby Treatment

NOTE 1: Primary Activity provided as a guide for information only- typically all facilities will carry out some degree of both transfer and treatment

SJ I ADB/73626/120029/UKM/3 341 0 5 06.23 541

Schedule 27- Parent Company Guarantee

SCHEDULE27

Parent Company Guarantee

SJ/ADB/73626/120029/UKM/33410506.23 542

Schedule 27 -Parent Company Guarantee

DATED 2012

(1) VEOLIA ENVIRONMENTAL SERVICES UKPLC

-and-

(2) LEEDS C1TY COUNCIL

GUARANTEE relating to

Residual Waste Treatment Contract

SJ/ADB/73626/120029/UKM/33410506.23 543

Schedule 27 - Parent Company Guarantee

THIS GUARANTEE is made on 2011

BETWEEN:

(I) VEOLIA ENVIRONMENTAL SERVICES (UK) PLC, a public limited company

incorporated in England with company number 02215767 and with its registered office at

Veolia House, 154a Pentonville Road, London, Nl 9PE (the "Guarantor"); and

(2) LEEDS CITY COUNCIL of Civic Hall, Leeds LSI IUR (the "Authority").

BACKGROUND

Under the terms of a Residual Waste Treatment Contract entered into on the date hereof (the

"Contract") and made between the Authority and Veolia ES Leeds Limited (the "Contractor"), the

Authority has selected the Contractor to design, install, finance, operate and maintain an energy from

waste facility.

Under the terms of this Guarantee the Guarantor guarantees to the Authority the performance by the

Contractor of each and every one of its obligations under the Contract.


I. DEFINITIONS

In this Deed the following expressions have the following meanings unless inconsistent with

the context:

"Adjusted FairValne of the Contract" has the meaning given in the Contract;

"Adjusted Highest Compliant Tender Price" has the meaning given in the Contract;

"Guaranteed Obligations" has the meaning given in clause 3.1; and

"Indexed" has the meaning given to it in the Contract.

2. INTERPRETATION

Clause 1.2 of the Contract shall apply to this Guarantee.

SJ/ ADB/73 626/120029/UKM/3341 0 5 06.23 544


3. GUARANTEE

3.1 In consideration of the Authority entering into the Contract with the Contractor and in

consideration of the payment of one pound (£1) by the Authority to the Guarantor, receipt of

which the Guarantor acknowledges, subject to paragraphs 3.4 and 3.6, the Guarantor as

principal obligor and not merely as surety:

3.1.1 guarantees unconditionally and irrevocably to the Authority the due and punctual

observance and performance by the Contractor of its obligations under the Contract as

may be modified, amended or supplemented or diminished by partial termination

("Guaranteed Obligations"); and

3.1.2 in the event that the Contractor fails to perfonn and/or observe and/or breaches the

Contract, agrees to promptly procure that the Contractor makes good the failure to

perform and/or breach or otherwise cause it to be made good and to indemnity and

hold harmless the Authority against any loss, damage, demands, charges, payments,

liability, proceedings, claims, costs and expenses suffered or incurred by the

Authority arising from or in connection with the failure to perform or the breach

(including all reasonable costs and expenses which the Authority may incur in

enforcing this Guarantee) as if the Guarantor instead of the Contractor was expressed

to be the Contractor under the Contract.

3.2 The Guarantor irrevocably and unconditionally agrees to indemnity the Authority on demand

against:

3 .2.1 any cost, loss or liability suffered by the Authority if any of the Guarantor's

obligations and/or commitments under this Guarantee become unenforceable, invalid

or illegal (the amount of the cost, loss or liability being equal to the amount which the

Authority would otherwise have been entitled to recover had the relevant obligations

and/or commitments not been unenforceable, invalid or illegal); and

3.2.2 all costs and expenses (including without limitation legal costs) charged or incurred

by the Authority in enforcing this Guarantee and/or in the recovery or attempted

recovery of money due to the Authority under this Guarantee.

3.3 The Guarantor shall pay interest on all sums demanded under this Guarantee from the date of

demand until actual payment (as well after as before any judgement) at tl1e Prescribed Rate as

defined under the Contract.

SJ/ ADB/73626/120029/UKM/3341 0506.23 545

Schedule 27- Parent Company Guarantee

3.4 The following provisions shall apply in respect of the Guarantor's obligations and liabilities

hereunder:

3.4.1 Subject to any amounts properly claimed under clause 3.2.2, the Guarantor shall have

no greater obligation or liability under this Guarantee in relation to all or any of the

Guaranteed Obligations than that of the Contractor arising out of the same matter

pursuant to the terms of the Contract and any addendum or variation thereto.

3.4.2 In any action by the Authority under this Guarantee, the Guarantor shall have

available to it all defences, counter-claims contractual rights and set-offs as may have

been available to the Contractor under the terms of the Contract.

3.4.3 The same periods of! imitation which apply between the Contractor and the Authority

under the Contract shall apply to any claim under this Guarantee.

3.5 The Authority shall not be obliged to exhaust all remedies against the Contractor before

enforcing the terms of this Guarantee.

3.6

4. PRESERVATION OF RIGHTS

4.1 The obligations of the Guarantor herein contained shall be in addition to and independent of

every other security which the Authority may now or hereafter hold in relation to the

Guaranteed Obligations or any of them.

4.2 Neither the obligations of the Guarantor herein contained nor the rights, powers and remedies

conferred upon the Authority by law in respect of the Guarantor shall be discharged, impaired

or otherwise affected by:

4.2.1 the winding-up, dissolution, administration or reorganisation of the Contractor or any

change in its status, function, control or ownership;

4.2.2 any incapacity or lack of power or authority and any change in the members or status

of the Guarantor or any other person;

SJ/ADB/73626/120029/UKM/33410506.23 546


4.2.3 any of the Guaranteed Obligations or any of the obligations of the Contractor under

any other security relating to the Guaranteed Obligations being or becoming illegal,

invalid, unenforceable or ineffective in any respects;

4.2.4 time, conduct, concession, compromise, forbearance or other indulgence being

granted or agreed to be granted to the Contractor in respect of the Guaranteed

Obligations or any of them or under any such other security in which circumstances

the obligations of the Guarantee shall be varied by the extent of the time or other

indulgence;

4.2.5 any amendment to, or any variation, waiver or release of, any of the Guaranteed

Obligations or any such other security and the Contract may be modified, amended or

supplemented in any manner whatsoever without the consent of the Guarantor;

4.2.6 any delay or failure in full or in part to exercise any right under this Guarantee; or

4.2.7 any other matter or circumstance whereby but for this provision the Guarantor would

or might be discharged from liability.

4.3 Any settlement or discharge given by the Authority to the Guarantor in respect of the

Guarantor's obligations hereunder or any other agreement reached between the Authority and

the Guarantor in relation thereto shall be, and be deemed always to have been, void if any act

on the faith of which the Authority gave the Guarantor that settlement or discharge or entered

into that agreement is subsequently avoided by or in pursuant of any provisions of law.

5. REPRESENTATIONSANDWARRANTIES

5 .I The Guarantor represents and warrants that:

5.1.1 it is duly incorporated and has the power to enter into and perform the Guarantee and

has taken all necessary corporate action to authorise the execution, delivery and

perfonnance of this Guarantee;

5.1.2 the execution, delivery and performance of this Guarantee will not contravene any

law or regulation to which the Guarantor is subject or any provision of the

Guarantor's memorandum and articles of association and all governmental or other

consents requisite for such execution, delivery and performance are in full force and

effect;

SJ/ADB/73626/120029/UKM/33410506.23 547


5 .1.3 the obligations expressed to be assumed by it under this Guarantee are legal, valid,

binding and enforceable obligations; and

5.1.4 the execution, delivery and performance of this Guarantee will not cause the

Guarantor to be in breach or default under any agreement binding on it or any of its

assets and no material litigation or administrative proceeding before, by or of any

court or governmental authority is pending or (so far as the Guarantor knows)

threatened against it or any of its assets.

6. PAYMENTS

All payments to be made by the Guarantor to the Authority hereunder shall be made in full

without set-off or counterclaim and without any deduction or withholding whatsoever. If the

Guarantor is obliged by law to make any deduction or withholding from any such payment,

the amount due from the Guarantor in respect of such payment shall be increased to the extent

necessary to ensure that, after the making of such deduction or withholding, the Authority

shall receive a net amount equal to the amount which the Authority would have received had

no deduction or withholding been required to be made.

7. CONTINUING SECURITY

The obligations of the Guarantor herein contained shall constitute and be continuing

obligations notwithstanding any settlement of account or other matter or thing whatsoever,

and in particular but without limitation, shall not be considered satisfied by any intermediate

payment or satisfaction of all or any of the obligations of the Contractor in relation to any of

the Guaranteed Obligations, save to the extent of such payment or satisfaction, and, save as

aforesaid, shall continue in full force and effect until final payment in full of all amounts

owing by the Contractor under the Contract and total satisfaction of all the Contractor's actual

and contingent obligations under the Contract.

8. PRIORITY OF THE AUTHORITY

8.1 So long as any liability incurred by the Contractor to the Authority under or in connection

with the Contract (and which forms part of the Guaranteed Obligations) remains unsatisfied,

the Guarantor shall not:

8.1.1 seek to enforce payment by receipt of money, set-off, counterclaim, enforcement of

security, proof of debt, subrogation or otherwise against the Contractor of the

amounts paid by the Guarantor under this Guarantee;

SJ/ADB/73626/120029/UKM/33410506.23 548


8.1.2 in the event of insolvency, winding up, liquidation or dissolution of the Contractor

prove in competition with the Authority in respect of any money owing to the

Guarantor by the Contractor; or

8.1.3 have the benefit of, or share m any payment from or composition with, the

Contractor.

8.2 lf, notwithstanding the provisions of clause 8.1 above, at a time when any liability incurred by

the Contractor to the Authority under or in connection with the Contract (and which forms

part of the Guaranteed Obi igations) remains unsatisfied, the Guarantor receives from the

Contractor any monies or property in respect of amounts paid by the Guarantor under this

Guarantee or owing to the Guarantor by the Contractor, the Guarantor shall hold such monies

or property on trust for the Authority and shall pay or transfer the same to the Authority

immediately on request to the extent of the unsatisfied liability at that time.

9. EVIDENCE OF LIABILITY OF THE CONTRACTOR

Any money judgement of the court or decision of an adjudicator against the Contractor in

favour of the Authority under the Contract shall be conclusive evidence for the purposes of

this Guarantee as to any liability of the Contractor to which such judgement or award or

decision relates (unless or until the same is set aside by any competent court or tribunal).

10. NOTICES

I 0.1 Any demand, notice or other communication given in connection with or required by this

Guarantee shall:

10.1.1 be made in writing (entirely in the English language);

I 0.1.2 set out the reasons for any such demand or notice m relation to the relevant

Guaranteed Obligations; and

I 0.1.3 be delivered to, or sent by pre-paid first class post to, or sent by facsimile

transmission to:

10.1.3.1in the case of the Authority, the Director of Environments and

Neighbourhoods, 4th Floor Merrion House, II 0 Merrion Street, Leeds LS2

8DT (facsimile number 0113 224 3543) (or such other address or number as

may be notified in writing from time to time); or

SJ/ ADB/73626/120029/UKM/3341 0506.23 549


I 0.1.3.2in the case of the Guarantor, to its registered office or its address stated in this

Guarantee (or such other address as may be notified in writing from time to

time) or for the attention of Ben Lambert (General Counsel) to facsimile

number 020 7812 5001 (or such other number may be notified in writing

from time to time).

10.2 Any such demand, notice or communication shall be deemed to have been duly served:

10.2.1 if delivered by hand, when left at the proper address for service; or

10.2.2 if given or made by pre-paid first class post, two Business Days after being posted; or

10.2.3 if sent by facsimile, on the day of transmission provided that a confirmatory copy is

on the same day that the facsimile is transmitted, sent by pre-paid first class post in

the manner provided for in this clause 1 0.2;

Provided, in each case, that if the time of such deemed service is either after 4:00 pm on a

Business Day or on a day other than a Business Day service shall be deemed to occur instead

at 10:00 am on the next following Business Day.

11. GOVERNINGLAW

This Guarantee shall be governed by and construed in accordance with English law and the

Guarantor hereby irrevocably submits to the jurisdiction of the English Courts.

12. ASSIGNMENT

12.1 The Authority may without the consent of the Guarantor assign or charge the benefit of this

Guarantee to any person to whom the Authority lawfully assigns or charges the whole of the

benefit ofthe Contract in accordance with clause 75 (Assignment and Sub-Contracting) of the

Contract.

12.2 The Guarantor may not assign or transfer any of its rights and/or obligations under this

Guarantee.

12.3 This Guarantee shall be binding on the Guarantor's successors in title.

IN WITNESS of which the parties have duly executed and delivered this document as a deed the day

and year first herein before mentioned.

SJ/ ADB/73626/120029/UKM/3341 0506.23 550

EXECUTED as a deed by VEOLIA ) ENVIRONMENTAL SERVICES ) (UK) PLC acting by two directors or a director and the company secretary:

) )

Director

Director/Secretary

The Common Seal of LEEDS CITY ) COUNCIL was hereunto affixed ) byorder: )

Name

SJ/ADB/73626/120029/UKM/33410506.23


551

Schedule 28- Title Documents

SCHEDULE28

Title Documents

Site at Pontefract Lane, Cross Green Indnstrial Estate, Leeds

I. Official copies and title plan for title number WYK865414.

2. A copy conveyance dated II January 1993 and made between (1) Leeds City Council and

(2) Francis Quinlan.

3. A copy conveyance dated 25 March 1903 and made between (1) Thomas Briggs, James

Sutcliffe and John Charles Thackray and (2) James Sutcliffe.


Sutcliffe and John Charles Thackray and (2) Harry Midgley.


Sutcliffe and John Charles Thackray and (2) Hemy Thompson.

6. A copy conveyance dated 10 January 1996 and made between (1) Leeds City Council and (2)

Francis Quinlan.

7. A copy conveyance dated 20 September 1909 and made between (1) The Honourable Edward

Frederick Lindley Wood and The Honourable Charles Lindley Viscount Halifax Colonel and

The Honourable Henry William Lowry Corry and George Herbert Peake and (2) The Lord

Mayor Aldermen and Citizens of the City of Leeds.

8. A copy deed dated 9 May 1913 and made between the same parties as the conveyance dated

20 September 1909 referred to above.

9. A copy agreement dated 20 February 1959 made between (1) Sir Arthur Horace Penn and

Stanley Albinus Spofforth and Arthur Rimmington Glazebrook and (2) The British Transport

Commission.

10. A copy conveyance dated 8 August 1963 made between (1) the City of Leeds and S.A.

Spofforth Esq and another and (2) The Lord Mayor Aldermen and Citizens of the City of

Leeds.

11. Official copies of title plan for title number WYK647494.

SJ/ ADB/73626/ 120029/UKM/3341 05 06.23 552

Schedule 28 - Title Documents

12. A copy lease dated 31 March 1999 and made between (I) Leeds City Council and

(2) AR Timmermans and Pearson Jones and Company (Trustees) Limited and MN Chapman.

13. Official copies and title plans for title number WYK423854.

14. A copy lease dated I September 1988 and made between (I) Leeds City Council and

(2) Yorkshire Electricity Board.

15. A copy licence re: 10" gas main dated I December 1959 and made between (I) The Trustees

of the Temple Newsam Est and (2) North Eastern Gas Board.

16. A copy licence re: 12" gas main dated 25 April 1933 and made between (I) The Right Han

Baron Irwin and (2) The Lord Mayor Aldermen and Citizens of the City of Leeds.

17. Commercial drainage and water search dated 20 January 2009.

18. Coal Authority search dated 6 January 2009.

19. Local search dated 10 December 2008.

20. Commercial Property Standard Enquiries (CPSE I and CPSE 3) dated 17 September 2009

relating to land at Pontefract Lane, Cross Green Industrial Estate, Leeds.

21. Conveyance dated 18 September 1962 between F L Wood, Viscount Halifax, H W L Corry and G H Peake (I) and Leeds Corporation (2).

22. A copy lease dated 21 June 1967 and made between (I) Leeds City Council and (2) Yorkshire Electricity Board.

SJ/ AD B/73626/12002 9/UKM/3 341 0506.23 553

Schedule 29-

SCHEDULE29

SJI ADB/73626/120029/UKM/3341 0506.23 554

Schedule 29-

Part 1

Base Case

Attached separately as a disk, initialled by the parties for the purposes of identification only.

SJ/ AD B/73 626/120029/UKM/3 341 0 506.23 555

Schedule 29-

Part2

SJ/ ADB/73 62 6/120029/UKM/3341 05 06.23 556

Schedule 30- Independent Certifier's Deed of Appointment

SCHEDULE30

Independent Certifier's Deed of Appointment

DATED


-and-

(2) VEOLIA ES LEEDS LIMITED

-and-

(3) [INDEPENDENT CERTIFIER]

DEED OF APPOINTMENT OF INDEPENDENT CERTIFIER

relating to the design and construction of residual waste treatment facilities in the City

of Leeds

SJ/ AD B/7 3 6261120029 /UKM/3 341 0506.23

20I2

557


TillS DEED OF APPOINTMENT is made on 2012

BETWEEN

(I) LEEDS CITY COUNCIL of Civic Hall, Leeds, LSI lUR ("City Council") which

expression shall include its successors and assigns;

(2) VEOLIA ES LEEDS LIMITED a company registered in England and Wales with number

07876913 whose registered office is at 8th Floor, 210 Pentonville Road, London Nl 9JY or

any substitute or its permitted successors in title or assigns ("Contractor");

(3) [INDEPENDENT CERTIFIER] a company registered in England and Wales with number

+ whose registered office is at + or such other Person

duly appointed pursuant to the terms of this Deed ("Independent Certifier").

BACKGROUND

A The City Council and the Contractor have entered into the Project Agreement for Services

relating to the design, installation, operation and maintenance of residual waste treatment

facilities.

B The Contractor has sublet the design and construction of a part of the residual waste treatment

facilities to the Construction Contractor under a construction contract (the "Construction

Contract") upon like terms to its obligations under the Project Agreement.

C The terms of the Project Agreement require the City Council and Contractor jointly to appoint

the Independent Certifier.

D The Contractor wishes the administration of the Construction Contract to be consistent with

decisions to he taken under the Project Agreement.

E The City Council, the Contractor and the Independent Certifier have agreed to enter into this

Deed for the purposes of setting out the terms upon which the Independent Certifier is

appointed.

SJI ADB/73626/120029/UKM/3341 0506.23 558



I. DEFINITIONS AND INTERPRETATION

"City Council Additional Fee" means the amounts payable to the Independent Certifier in

consideration of the performance of any City Council Additional Services;

"City Council Additional Services" means any services other than the Joint Services and

the Contractor Additional Services which the Independent Certifier performs on behalf of the

City Council pursuant to clause 7;

"Constructioo Contractor" means CNIM Clugston (Leeds) Limited;

"Contractor Additional Fee" means the amounts payable to the Independent Certifier in

consideration of the performance of any Contractor Additional Services;

"Contractor Additiooal Services" means any services other than the Joint Services and the

City Council Additional Services which the Independent Certifier performs on behalf of

Contractor pursuant to clause 7, which shall include the services set out in Schedule 4 of this

Deed to be carried out in relation to the Construction Contract;

"Construction Programme" means the programme set out in the Construction Contract as

updated from time to time in accordance with the Construction Contract;

"Couoterparties" means each of the parties numbered (I) and (2) above and "Counterparty"

shall mean any one or more of them as the context of any particular provision of this Deed so

reqmres;

"Director" means the person named in schedule I Part I or such replacement person

appointed in accordance with clause 4.2;

"EPC Acceptance Tests" has the meaning given to Acceptance Tests under the Construction

Contract;

"EPC Acceptaoce Test Certificate" has the meaning given to Acceptance Test Certificate

under the Construction Contract;

"EPC Readiness Tests" has the meaning given to Readiness Tests under the Construction

Contract;

SJI ADB/73 626/120029/UKM/3341 05 06.23 559

Schedule 30 -Independent Certifier's Deed of Appointment

"EPC Readiness Test Certificate" has the meaning given to Readiness Test Certificate

under the Construction Contract;

"EPC Works" has the meaning given to Works under the Construction Contract;

"Fee" means the amounts stated in schedule 2 payable to the Independent Certifier m

consideration of the performance of the services set out in schedule 3 and the body of this

Deed (excluding any Contractor Additional Services and/or any City Council Additional

Services);

"IC Services" means all the serviCes to be performed by the Independent Certifier in

connection with the Project as set out in schedule 3 and the body of this Deed including any

Contractor Additional Services and/or any City Council Additional Services;

"Joint Services" means the services set out in schedule 3 to this Deed to be carried out in

relation to the Project Agreement;

"Parties" means each of the parties numbered ( 1) to (3) above and "Party" shall mean any

one or more of them as the context of any particular provision of this Deed so requires;

"Payer" means:

(a) in the case of any City Council Additional Fee, the City Council; and

(b) in the case of the Fee and any Contractor Additional Fee, the Contractor;

"Project Agreement" means the agreement dated + (including any variation or

replacement of such agreement from time to time) entered into between the City Council and

Contractor for the provision of the Project; and

"Project Data" means all teclmical information (whether or not stored in computer systems),

drawings, models, bills of quantities, specifications, schedules, details, plans, programmes,

budgets, reports, calculations or other documents whatsoever provided or to be provided by

the h1dependent Certifier in connection with the Project.

1.1 The clause headings in this Deed are for the convenience of the Parties only and do not affect

its interpretation.

1.2 Words importing the singular meaning include the plural meaning and vice versa.

SJ/ AD B/73 626/120029/UKM/3 341 0 506.23 560


1.3 Words denoting the masculine gender include the feminine and neuter genders and words

denoting natural persons include corporations and firms and all such words shall be construed

interchangeably in that manner.

1.4 Reference in this Deed to a clause or schedule or Appendix are to a clause or schedule or

Appendix of this Deed unless otherwise specified.

1.5 Reference in this Deed to any statute or statutory instrument includes and refers to any

statutory amendment or re-enactment thereof from time to time and for the time being in

force.

1.6 Any reference to this Deed or any other document shall include any permitted variation,

amendment or supplement to this Deed or such document.

1.7 The words and phrases "other", "including" and "in particular" shall not limit the generality of

any preceding words or be construed as being limited to the same class as any preceding

words where a wider construction is possible.

1.8 Terms used in this Deed that are defined in the Project Agreement shall have the meanings

given to them in the Project Agreement save where otherwise expressly defined herein.

2. APPOINTMENT OF INDEPENDENT CERTIFIER

2.1 The City Council and the Contractor hereby appoint the Independent Certifier and the

Independent Certifier hereby agrees to perform the JC Services. The Independent Contractor

acknowledges that, notwithstanding any provisions herein, it is jointly instructed by the

Counterparties and that it owes a joint and several duty of care to those Counterparties.

2.2 All Parties shall act in good faith towards each other at all times.

3. INDEPENDENT CERTIFIER'S DUTIES

3.1 The Independent Certifier shall perform the IC Services fully and faithfully upon and subject

to the provisions of this Deed and the Independent Certifier acknowledges and agrees that

each of the Counterparties is relying and will continue to rely on the professional skill and

care of the Independent Certifier required pursuant to clause 3 .4 of this Deed in the

performance of the IC Services and that it owes a duty of care to each of the Counterparties in

relation to all aspects thereof notwithstanding that this Deed differentiates between Joint

Services, City Council Additional Services and Contractor Additional Services. For the

avoidance of doubt, the Counterparties agree that nothing in this clause shall affect their

SJ/ADB/73626/120029/UKM/33410506.23 561

Schedule 3 0 - Independent Certifier's Deed of Appointment

respective rights, remedies, responsibilities and obligations under the Project Agreement and

that for the purposes of the Project Agreement and the Construction Contract (but without

prejudice to the Independent Certifier's duty of care to each of the Counterparties in respect of

the IC Services as a whole) when performing:

3.1.1 the Joint Services the Independent Certifier is acting for and on behalf of the City

Council and the Contractor;

3 .1.2 the City Council Additional Services the Independent Certifier is acting for and on

behalf of the City Council and not for the Contractor; and

3 .1.3 when performing the Contractor Additional Services the Independent Certifier is

acting for and on behalf of the Contractor and not for the City Council.

3 .2 Where, in the performm1ce of the IC Services, the Independent Certifier is required or entitled

to exercise a discretion as between the Counterparties or between the Counterparties and any

third party, the Independent Certifier shall at all times act objectively m1d impartially and

shall in no circumstances place the interests of any one party above those of any other party

including any third party.

3.3 Where, in the performance of the IC Services, the Independent Certifier seeks or is obliged to

seek the approval or agreement of the Counterparties to any matter or issue, the giving or

confirming of the same shall not in any way derogate from the Independent Certifier's

obligations under this Deed nor diminish any liability on its part for breach of such

obligations and no enquiry, inspection, comment, consent, decision or instruction at any time

made or given by or on behalf of the Counterparties shall operate to exclude or limit the

obligations of the Independent Certifier to exercise all the skill care and diligence required by

clause 3.4 or to comply with the obligations contained in this Deed.

3 .4 The Independent Certifier warrants to each of the Counterparties that it has exercised and will

continue to exercise, in the performance of the IC Services and all its duties hereunder, all the

reasonable skill, care and diligence as may reasonably be expected of a suitably qualified and

competent professional rendering the IC Services and experienced in projects of a similar

type, size, scope and complexity as the Project. For the avoidance of doubt such warranty

may be relied upon by either party independently or by both parties together.

SJ/ AD B/73626/120029/UKM/3341 0506.23 562


3.5 The h1dependent Certifier warrants that it will act promptly and with due regard to deadlines

established wiiliin the Programme and Construction Programme and that it will maintain

adequate resources to ensure that it can satisfY its obligations under iliis Agreement.

3.6 The mdependent Certifier warrants that it will act independently at all times.

3. 7 The mdependent Certifier further warrants to each of the Counterparties severally iliat in the

provision ofilie IC Services it will comply with all law and, without limiting the generality of

the foregoing, have due and proper regard to:

3. 7 .I ilie CDM Regulations; and

3. 7.2 ilie Approved Code of Practice "Managing Construction for Health & Safety"

produced by ilie Health & Safety Executive as amended from time to time; and

3.7.3 relevant Consents; and

shall comply with all lawful and reasonable directions, instructions or requests relating to or

in pursuance of the same given or made by and/or on behalf of Contractor, tile Construction

Contractor and/or ilie City Council whilst ilie mdependent Certifier is present on the Site,

and/or the Adjoining Property.

3.8 The Counterparties shall procure that ilie mdependent Certifier has all such access to tile Site

as it may reasonably require for the purposes of carrying out ilie IC Services and all purposes

ancillary or related to this Deed.

3.9 ill ilie performance of the IC Services the Independent Certifier shall have full regard to any

relevant requirements and/or obligations ofilie Project Agreement, the Construction Contract

and any relevant third party agreements of which it has knowledge and shall perform the IC

Services in such manner and at such times iliat no act, omission or default of the Independent

Certifier in relation iliereto shall constitute or cause any breach by ilie City Council and/or the

Contractor of any such requirements and/or obligations contained in the Project Agreement

and/or the Construction Contract provided always that this shall not extend tile obligations of

ilie Independent Certifier under iliis Deed beyond ilie standard of skill, care and diligence set

out in clause 3.4 hereof.

SJ/ADB/73626/120029/UKM/33410506.23 563


3.10 Without prejudice to clause 3.7:

3.10.1 the Independent Certifier shall liaise and co operate with the Counterparties and the

Construction Contractor and provide each of them with all such information in

relation to the Project and the IC Services as they together may from time to time

reasonably require promptly and in good time so as not to delay or disrupt the

progress of the Project or cause the Counterparties or the Construction Contractor to

be in breach of or delay in achieving any of their respective obligations under the

Project Agreement and/or the Constmction Contract;

3.10.2 the Independent Certifier shall in respect of the Facility, where the requirements of

clause 23 of the Project Agreement have been met, forthwith issue a Readiness Test

Certificate and Acceptance Test Certificate;

3.10.3 the Independent Certifier shall in respect of the Facility (as defined in the

Construction Contract) and for the purposes of the Construction Contract only, where

the requirements of clause 21 of the Construction Contract have been met, forthwith

issue an EPC Readiness Test Certificate and EPC Acceptance Test Certificate;

3 .I 0.4 the Independent Certifier shall have due regard to any written representations made to

it by either the City Council and/or Contractor and/or the Construction Contractor,

(the party making the representation having at the same time sent the others parties a

copy), in respect of any matter connected with the IC Services and, in particular, the

achievement of completion of the Facility;

3.10.5 nothing in clause 3.10.1, 3.10.2, or clause 3.10.4 shall in any way fetter the decision

of the Independent Certifier as to its obligations under clause 3.10.3;

3 .I 0.6 the Independent Certifier shall provide copies of all certificates issued under clause

23 of the Project Agreement to each of the Counterparties forthwith upon their issue;

3.10.7 the Independent Certifier shall, for the purposes of the Constmction Contract only,

provide copies of the EPC Readiness Certificate and EPC Acceptance Certificate

issued under clause 21 of the Construction Contract to each of the Contractor and the

Construction Contractor forthwith upon their issue;

3.10.8 At the joint request of the City Council and the Contractor having regard to any

written representations made by the Counterparties pursuant to clause 3.10.4 the

Independent Certifier shall provide a professional view to both Counterparties on any

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Schedule 30 - Independent Certifier's Deed of Appointment

matters within the Independent Certifier's professional expertise regarding the cause

of and mitigation of Compensation Events in an effort to facilitate an agreement

between the Counterparties as to the effect of Compensation Events. (For the

avoidance of doubt, any such view expressed shall have no effect under the Project

Agreement or the Construction Contract.)

3.10.9 At the joint request of the City Council and the Contractor having regard to any

written representations made by the Counterparties pursuant to clause 3.10.4 the

Independent Certifier shall provide a professional view to both Counterparties on any

matters within the Independent Certifier's professional expertise regarding the cause

of and mitigation of Relief Events or Force Majeure Events in an effort to facilitate an

agreement between the Counterparties as to the effect of Relief Events or Force

Majeure Events. (For the avoidance of doubt, any such view expressed shall have no

effect under the Project Agreement or the Construction Contract).

3 .II The Parties agree that, notwithstanding the terms and effect of any provision of the Limitation

Act 1980 (including any amendment or re-enactment of the same) to the contrary, subject to

clause 3.12 the Independent Certifier acknowledges that nothing contained in this Deed shall

prejudice or affect its liability in tort to any of the Counterparties.

3.12 The Independent Certifier shall only be liable under this Deed in respect of claims whether for

any breach of this Agreement or in tort, negligence, for breach of statutory duty or otherwise

which are notified to the Independent Certifier before the expiration of the period of 12 years

from the date of completion of all of the IC Services under the terms of this Deed.

3.13 The Independent Certifier shall not have any authority to and shall not make or purport to

make any alteration or addition to or omission from the design of the Project (including,

without limitation, the setting of performance standards) or (save to the extent expressly

provided in this Deed) issue any instruction or direction to Contractor, the Construction

Contractor, any Sub-Contractors, any member of the Professional Team or any other

contractor, sub contractor or professional consultant employed or engaged in connection with

the Project and shall not have any authority to and shall not consent or agree to any waiver or

release of any obligation, right, remedy, recourse or responsibility of any party under the

Project Agreement, the Construction Contract, the Operating Contract or of any contract

pursuant to which any contractor, sub contractor or professional consultant is employed or

engaged by any party to the Project Agreement, in connection with the Project.

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3.14 The City Council and the Contractor may, by joint notice in writing to the Independent

Certifier suspend all or part of the IC Services for a period previously agreed or determined

by the City Council and the Contractor.

3.15 The City Council may, by notice in writing to the Independent Certifier copied to Contractor,

suspend all or part of the City Council Additional Services for a period previously agreed or

determined by the City Council.

3.16 Not used.

3 .I 7 The Independent Certifier shall within 5 days of the date of execution of this deed execute a

deed of warranty in favour of the Construction Contractor in the form set out in Appendix I

or in such similar or varied terms thereto as the Contractor and Construction Contractor may

agree (acting reasonably) and deliver the same duly executed to the Construction Contractor.

4. INDEPENDENT CERTIFIER'S PERSONNEL

4.1 The Independent Certifier shall forthwith appoint the Director to direct and control the overall

performance by the Independent Certifier of the IC Services and act as the primary contact

and liaison with the Counterparties and the Construction Contractor. Such person or any

replacement approved by the Counterparties pursuant to clause 4.2 from time to time shall

have full authority to act on behalf of the Independent Certifier for all purposes in connection

with this Deed.

4.2 The Independent Certifier shall not replace the Director nor any person approved by the

Counterparties pursuant to this clause 4.2 without the prior approval of the Counterparties

(which approval shall not be unreasonably withheld or delayed) as to the fact, identity,

experience and expertise of such replacement and if such approval is given the identity of the

replacement must be previously approved in writing by the Counterparties.

4.3 Either Counterparty, acting on behalf of the other Counterparty and with its prior written

approval, may request the removal of the Director or any such replacement if it believes in its

reasonable discretion the conduct and/or performance of the Director or any such replacement

to be unsatisfactory, whereupon the Independent Certifier shall replace that person in

accordance with the procedure described in clause 4.2 above.

5. OBLIGATIONS OF THE CITY COUNCIL AND THE CONTRACTOR

5 .I Each Counterparty shall supply to the Independent Certifier on request, in such time so as not

to delay or disrupt the performance by the Independent Certifier of the IC Services, any and

SJ/ADB/73626/120029/UKM/33410506.23 566


all necessary and relevant data and information in the possession of that Counterparty and its

servants or agents.

5.2 Each Counterparty shall give such assistance as shall reasonably be required by the

Independent Certifier in the performance ofthe IC Services and shall give a timely response

to enable the Independent Certifier to comply with its obligations and duties under the

Appointment.

6. REMUNERATION

6.1 In full consideration of the performance of the JC Services in accordance with this Deed, the

Independent Certifier shall be entitled to be paid:

6.1.1 the Fee;

6.1.2 the City Council Additional Fee (if any); and

6.1.3 the Contractor Additional Fee (if any),

in accordance with this clause 6. For the avoidance of doubt, the Fee and any City Council

Additional Fee and any Contractor Additional Fee are inclusive of all disbursements

including travel, photocopying, printing and accommodation, save as expressly provided in

schedule 2 but exclusive of any applicable Value Added Tax and payment thereof shall (for

the avoidance of doubt subject to clause 7) constitute full reimbursement to the Independent

Certifier of all costs, losses, expenses, overheads or profits suffered, incurred or earned, as the

case may be, by the Independent Certifier in respect of the performance of its obligations

under this Deed whenever they may be performed.

6.2 The Independent Certifier may submit invoices to the Contractor no more frequently than

once a month and at the address set out in and marked for the attention of the person

identified in schedule I Part 2:

6.2.1 for the Fee in the instalments and at the times provided for in schedule 2 on or after

the occurrence of the event allocated to that instahnent (with a copy to the City

Council);

6.2.2 for the amount of any Contractor Additional Fee valued in the manner agreed

between Contractor and the h1dependent Certifier at the time that the Contractor

Additional Service is instructed and agreed between them and provided that the

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Independent Certifier shall specifY in the invoice the Contractor Additional Services

to which the Contractor Additional Fee relates.

6.3 The Independent Certifier may submit an invoice to the City Council at the address set out in

and marked for the attention of the person identified in schedule I Part 3 for any City Council

Additional Fee in such amounts and at such times as shall be agreed between the City Council

and the Independent Certifier at the time that the City Council Additional Service is instructed

and agreed between them provided that the Independent Certifier shall specifY in the invoice

the City Council Additional Services to which the City Council Additional Fee relates.

6.4 Any sum properly included in an invoice submitted under and in accordance with this clause

6 shall become due on the date 28 days before the end of the month following the month in

which the invoice is received by the Payer.

6.5 The frnal date for the making of any payment of any sum due pursuant to this Deed shall be

28 days after the sum becomes due under the terms of this Deed ("the Final Date For

Payment"). Subject to clause 6.6, the Payer may (without prejudice to any other right or

remedy which the Payer may have under or arising from or pursuant to this Deed, any other

agreement or statute, at common law or otherwise) deduct or withhold from any money

otherwise due to the Independent Certifier 1mder or pursuant to this Deed any sum or sums for

which the Independent Certifier is liable to the Payer under, arising from or pursuant to this

Deed, any other agreement or statute, at common law or otherwise.

6.6 Not later than five days after the date on which any sum becomes due or would have become

due to the Independent Certifier pursuant to this Deed if:

6.6.1 the Independent Certifier had carried out its obligations under this Deed; and

6.6.2 no set-off or abatement was permitted by reference to any sum claimed;

the Payer shall give notice to the Independent Certifier specifYing the amount (if any) of the

payment made or proposed to be made and the basis on which that amount is calculated.

6. 7 If the Payer intends to withhold payment of any sum due to the Independent Certifier under

this Deed pursuant to clause 6.5, the Payer shall give the Independent Certifier a notice not

later than four days prior to the Final Date For Payment of that sum specifYing:

6.7.1 the amount proposed to be withheld and the ground for withholding payment; or

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6. 7.2 ifthere is more than one ground, each ground and the amount attributable to it.

6.8 The relevant Payer shall be liable to pay to the Independent Certifier any applicable VAT

properly chargeable by the Independent Certifier in respect of the Fee and, if any, the

Contractor Additional Fee and/or the City Council Additional Fee.

6.9 Amounts agreed by a Payer to be paid to the Independent Certifier on a time basis shall

subject to any other agreement be paid at the rates shown in schedule 2. For the avoidance of

doubt any endorsement by a Counterparty of the time and personnel of the Independent

Certifier occupied in the provision of any service shall not constitute an agreement to make a

payment upon a time basis.

7. ADDITIONAL SERVICES

The Independent Certifier shall perform such Contractor Additional Services and such City

Council Additional Services as the Contractor or the City Council (as appropriate) may from

time to time instruct in writing (with copies to the other Counterparty) and which the

Independent Certifier (acting reasonably) may agree to perform provided always that such

City Council Additional Services and/or Contractor Additional Services do not conflict with

and/or prejudice the Joint Services and/or any previously agreed City Council Additional

Services and/or any previously agreed Contractor Additional Services.

8. PROFESSIONAL INDEMNITY INSURANCE

8. I Without prejudice to its other obligations under this Deed or otherwise at law, the

h1dependent Certifier confirms that it has and shall maintain at all times with reputable

insurers or underwriters carrying on business within the European Union from the

commencement of IC Services and for a period expiring no earlier than 12 years after the

completion of all of the IC Services and notwithstanding the termination for any reason of the

Independent Certifier's engagement under this Deed, professional indemnity insurance with a

limit of indemnity of not less than ten million pounds (£10,000,000) in respect of each and

every claim or series of claims consequent upon or attributable to the same cause or original

source (but such limit may apply in aggregate in any year of insurance in relation to claims

arising out of pollution and/or contamination and/or date recognition) in respect of any

negligence on the part of the Independent Certifier which it may incur under this Deed,

provided always that such insurance continues to be available to it in the European Union

insurance market upon reasonable terms and at commercially reasonable premium rates and

(for the avoidance of doubt) provided further that for the purposes of this clause 8.1 and

clause 8.3 payment of any increased or additional premiums and any terms required by

SJ I AD B/7362 6/ 120029/UKM/3341 0506.23 569


insurers by reason of the Independent Certifier's own claims record or other acts omissions

matters or things peculiar to the Independent Certifier will be deemed to be reasonable terms

and/or commercially reasonable premium rates as applicable.

8.2 As and when it is reasonably required to do so, the Independent Certifier shall produce for

inspection by either Counterparty documentary evidence that the insurance required by clause

8. I is being properly maintained subject to the same not constituting a breach of the terms of

such insurance.

8.3 The Independent Certifier shall forthwith notify the Counterparties if the insurance required

by clause 8.1 ceases to be available upon reasonable terms and at commercially reasonable

premium rates and (in this event) shall continue to maintain insurance upon such terms and

with such a limit of indemnity as may then be so available upon reasonable terms and at

commercially reasonable rates.

8.4 The Independent Certifier shall not compromise, settle or waive any claim which it may have

under such insurance in respect of any professional liability which it may incur under this

Deed without the prior written consent of the Counterparties.

9. CONFIDENTIALITY

9.1 The Independent Certifier shall not at any time during the period of its engagement hereunder

(save in the proper course of its duties or as may be required by law or any regulatory

authority) and at any time after its expiry or termination for any reason, disclose to any person

nor otherwise make use of any confidential information (including, but without limitation, the

provisions of the Project Agreement and/or the Construction Contract and/or any Project

Document and/or the Financing Documents, information relating to methods and techniques

of construction for the Project and financial information relating to the Project) of which it

has or may in the course of its engagement hereunder become aware relating to the Project,

any of the Counterparties or otherwise, nor shall it disclose to any person whatsoever (save as

aforesaid or to its insurance or professional advisers) anything contained in this Deed, without

the prior written consent of the Counterparties.

9.2 The Independent Certifier will not without the City Council's and the Contractor's pnor

written approval take or pennit to be taken any photographs of the Project for use in any

publicity or advertising or publish alone or in conjunction with any other person any articles

photographs or other illustrations relating to the Project nor impart to any publication journal

or newspaper or any radio or television programme any information regarding the Project.

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The Independent Certifier shall be entitled to take and keep records and photographs of the

work in progress for its own use subject to the confidentiality requirements in clause 9 .1.

9.3 The Independent Certifier shall comply with its obligations under the Data Protection Act

1998 and other applicable law in respect of such data.

9.4 This clause 9 does not restrict the Independent Certifier's use of information which is in the

public domain (otherwise than due to a breach of this clause 9 by the Independent Certifier) or

which carne to the Independent Certifier otherwise than in relation to its appointment as

Independent Certifier for the Project.

10. ASSIGNMENT AND SUB LETTING

10.1 The Independent Certifier shall not assign any of its interests in this Deed or any part thereof

nor any right arising hereunder to any person without the prior consent of the Counterparties

and only then on terms expressly approved by the Connterparties and subject to the

Independent Certifier's obligations under this Deed remaining in full force and effect.

10.2 The Independent Certifier shall not, without the prior consent of the Counterparties to the

identity and terms of appointment of any sub consultant, sub contract to any person the

performance of any of the IC Services and where the Counterparties give consent to the

Independent Certifier sub contracting any of its duties pursuant to this clause 10.2:

I 0.2.1 the Independent Certifier shall be responsible for the breaches acts omissiOns

negligence or other defanlt of any sub consultant its agents or employees appointed

by the Independent Certifier as fully as if they were the breaches acts omissions

negligence or other defaults of the Independent Certifier its agents or employees and

such sub contracting shall not modifY release diminish or in any way affect the

liabilities and/or obligations of the Independent Certifier under this Deed and/or at

law or otherwise; and

10.2.2 the remuneration payable to the Independent Certifier in accordance with clause 6

shall not be increased by any amount payable by the Independent Certifier to its sub

consultants.

10.3 Each of the Counterparties may at any time assigu, charge or transfer its respective interest in

this Deed and/or any rights arising hereunder (whether or not accrued) to any person to whom

they are permitted to assign under the Project Agreement upon notice to the Independent

SJ/ ADB/73626/J 20029/UKM/3341 0506.23 571


Certifier, plus any other person upon notice to the Independent Certifier provided that not

more than two such assignments shall be permitted by any one Counterparty.

11. TERMINATION OF INDEPENDENT CERTIFIER'S ENGAGEMENT BY COUNTERPARTY

11.1 In the event of a material breach by the Independent Certifier of its obligations under this

Deed which it shall fail to remedy after receiving a 28 day notice in writing from Contractor

or the City Council (on behalf of the other Counterparty and having first obtained the consent

of the other Counterparty such consent not to be unreasonably withheld or delayed)

specifYing the breach and requiring its remedy, the Contractor or the City Council (on behalf

of the other Counterparty and having first obtained the consent of the other Counterparty to

do so such consent not to be unreasonably withheld or delayed) may then by a further 21 days'

notice in writing to the Independent Certifier terminate the Independent Certifier's

engagement under this Deed.

11.2 In the event that the Independent Certifier is subject to an order by the court to be wound up

or a resolution for a voluntary winding up is passed, or any receiver or manager in respect of

the Independent Certifier is appointed or possession is taken by or on behalf of any creditor of

any property that is the subject of a charge, or any voluntary arrangements is made for a

composition of debts or a scheme of arrangement is approved under the Insolvency Act 1986

or the Companies Act 2006 in respect of the Independent Certifier, an administration order is

made or an administrator is appointed in respect of the Independent Certifier, the Contractor

or the City Council ( ou behalf of the other Counterparty and having first obtained the consent

of the other Counterparty to do so such consent not to be unreasonably withheld or delayed)

may then by notice in writing to the Independent Certifier having immediate effect terminate

the Independent Certifier's engagement under this Deed.

11.3 Either the Contractor or the City Council (on behalf of the other Counterparty and having first

obtained the consent of the other Counterparty (such consent not to be unreasonably withheld

or delayed)) may by such notice in writing bring to an end the performance of any divisible

part of the IC Services.

11.4 Either the Contractor or the City Council (on behalf of the other Counterparty and having first

obtained the consent of the other Counterparty (such consent not to be unreasonably withheld

or delayed)) may by notice in writing require the Independent Certifier to suspend

performance of all or any of the IC Services. If the Contractor or the City Council shall not

have required the Independent Certifier to resume performance of the IC Services within a

SJ I ADB/73 626/120029/UKM/3 341 0 506.23 572


period of 12 months from the date of such notice then the City Council, the Contractor or the

Independent Certifier may thereafter forthwith terminate the employment of the Independent

Certifier under this Appointment.

I 1.5 In any case in which a Counterparty has required the Independent Certifier to suspend the

Services under clause 11.4 either the Contractor or the City Council (on behalf of the other

Counterparty and having first obtained the consent of the other Counterparty (such consent

not to be unreasonably withheld or delayed)) may by notice in writing require the Independent

Certifier to resume the performance of the Services. In such event the Independent Certifier

shall as soon as reasonably practicable resume the performance of the IC Services in

accordance with this Deed.

12. TERMINATION OF INDEPENDENT CERTIFIER'S ENGAGEMENT BY iNDEPENDENT CERTIFIER

In the event that any one or more of the Counterparties fails to make a payment of any

undisputed sum due pursuant to this Deed by the Final Date for Payment which breach it or

they, as appropriate, shall fail to remedy after receiving a 28 day notice in writing from the

Independent Certifier (such notice to be copied simultaneously to the other Counterparty)

specifying the breach and requiring its remedy, the Independent Certifier may then by a

further notice in writing to the Counterparties (subject to clause 14) terminate its engagement

under this Deed 21 days from the date of receipt by the Counterparties of such notice unless

the breach referred to in the first notice has been remedied by any one or more of the

Counterparties before the expiry of the 21 days' notice period.

13. CONSEQUENCES OF TERMINATION OF INDEPENDENT CERTIFIER'S ENGAGEMENT

13.1 Upon any notice of termination of the Independent Certifier's engagement being served under

clause II or clause 12, the Independent Certifier shall take such steps as are necessary or

reasonably desirable such that by the end of the 21 days' notice period (or in the

circumstances set out in clause 11.2, with immediate effect) the IC Services have been

brought to an end in an orderly manner but with all reasonable speed and economy and that

there has been delivered to the Counterparties or any person nominated by them copies of all

Project Data, reports, minutes of meetings and other documents prepared or in the course of

preparation by the Independent Certifier in connection with the Project and (in the event that a

replacement firm has been appointed to complete the performance of the IC Services) shall co

operate fully with such replacement to the extent that it is reasonable to do so.

SJ/ ADB/73626/120029/UKM/3341 0506.23 573


13.2 If the Independent Certifier's engagement under this Deed is tenninated (save other than for

any act omission, negligence or other default of the Independent Certifier), the relevant Payer

shall (subject to any withholdings, deductions or set-offs which they are entitled to make and

to clauses 13.3, 13.4 and 13.5) pay to the Independent Certifier such parts of the Fee, any

Contractor Additional Fee and any City Council Additional Fee which shall have accrued due

prior to the date of such termination less the amount of any payments in respect of the same

previously paid to the Independent Certifier under this Deed.

13.3 Upon any termination of the Independent Certifier's engagement howsoever arising, the

Counterparties shall not be liable, save as is exclusively set out in clause 13 .2, to the

Independent Certifier for any further sums whether in respect of loss of profit, loss of

contracts or other costs, losses and/or expenses arising out of or in connection with such

termination.

13.4 Termination of the Independent Certifier's engagement howsoever arising shall, subject to

clause 13.3, be without prejudice to the rights and remedies of any party to this Deed in

relation to any omission, negligence, act or other default of any other party to this Deed prior

to such termination.

13.5 The provisions of this Deed shall continue to bind each party to this Deed insofar as and for

as long as may be necessary to give effect to their respective rights and obligations under this

Deed.

14. "STEP IN" PROVISIONS"

14.1 The Independent Certifier shall not exercise nor seek to exercise any right to terminate its

engagement under this Deed or serve a notice terminating its engagement under clause 12 or

to discontinue the performance of the IC Services for any reason whatsoever, including

breach on the part of any one or both Counterparties, without giving to each Counterparty not

less than 28 days' notice in writing of its intention to do so and specifying the grounds for the

proposed termination or discontinuance together with details of any sums due under this Deed

which have not yet been paid.

14.2 Any period stipulated in this Deed for the exercise by the Independent Certifier of a right of

termination shall be extended as necessary to take account of the period of notice required

under clause 14 .I.

14.3 The Independent Certifier's right to terminate its engagement under this Deed or to

discontinue the performance of the IC Services shall cease if, within the period of 28 days

SJ/ AD B/73626/120029 /UKM/3341 0506.23 574


referred to in clause 14.1, any Counterparty not in breach of this Deed shall give notice to the

Independent Certifier:

14.3.1 requiring it to continue the performance of the 1C Services;

14.3.2 acknowledging that it is assuming all the obligations of the other Counterparty in

breach under this Deed; and

14.3.3 undertaking to the Independent Certifier to discharge all payments which may

subsequently become due to the Independent Certifier under this Deed and paying to

the Independent Certifier any sums which have already become due but which remain

unpaid.

14.4 On compliance by any Counterparty with clause 14.3, this Deed shall continue in full force

and effect as if the right of termination or discontinuance on the part of the Independent

Certifier had not arisen and on the basis that all references in this Deed to either and/or both

Counterparties shall thereafter be read and construed as references to the Counterparty

complying with clause 14.3.

14.5 Where a Counterparty has given notice in compliance with clause 14.3 and has given an

undertaking pursuant to clause 14.3.3 and has assumed responsibility under this Deed in

accordance with clause 14.4 the Counterparty in breach shall reimburse and indemnifY the

other Counterparty against each and every liability which that other Counterparty may have to

the Independent Certifier under this Deed by virtue of such undertaking and assumption of

responsibility and against any claims, demands, proceedings, damages, costs and expenses

directly sustained, incurred or payable by that other Counterparty as a consequence thereof

insofar as and to the extent that the same has arisen by reason of any breach by such

Connterparty of its obligations under this Deed.

15. MISCELLANEOUS

15.1 All additions, amendments and variations to this Deed shall be binding only if in writing and

signed by the duly authorised representative of each party to this Deed.

15.2 No waiver by any party to this Deed of any default or defaults by any other party to this Deed

in the performance of any of the provisions of this Deed shall operate or be construed as a

waiver of any other or further default or defaults whether of a like or different character.

SJ I AD B/73626/12002 9/UKM/3341 0506.23 575


15.3 This Deed supersedes any previous agreement or arrangement made with the Independent

Certifier by either or both of the Counterparties in respect of the IC Services (whether oral or

written) and (but without prejudice to or derogation from the respective rights,

responsibilities, remedies, recourse and obligations of the Counterparties to each other

pursuant to the Project Agreement) represents the entire understanding between the

Counterparties and the Independent Certifier in relation thereto. For the avoidance of doubt

as between the Counterparties, in the event of any ambiguity or discrepancy between the

provisions of this Deed and the provisions of the Project Agreement, the provisions of the

Project Agreement shall prevail.

15.4 Notwithstanding the date of this Deed, it shall have effect as if it had been executed upon the

actual commencement of the IC Services by the Independent Certifier.

15.5 This Deed is for the sole benefit of the Parties. No provision of this agreement is intended to

create or creates any right or benefit enforceable against the Parties to this Deed under the

Contracts (Rights of Third Parties) Act 1999. This clause does not affect any right or remedy

of any person which exists or is available otherwise than pursuant to that Act.

16. CONFLICTS OF INTEREST

The Independent Certifier shall use all reasonable endeavours to avoid any conflict of interest

detrimental to the Project. If such conflict of interest shall arise the Independent Certifier

shall immediately notifY the Counterparties thereof.

17. PROJECTDATA

17.1 Copyright in the Project Data shall remain vested in the Independent Certifier and subject

thereto the Independent Certifier hereby grants to each Counterparty an irrevocable non

exclusive royalty free licence with full title guarantee (for the avoidance of doubt such licence

to remain in full force and effect notwithstanding detennination of the Independent Certifier's

appointment for whatever reason or any dispute under this Deed) to copy and use the Project

Data and to reproduce the works designs and inventions contained in the Project Data for all

purposes related to the Project including but without limitation the construction completion

reconstruction alteration extension maintenance letting promotion advertisement

reinstatement use and repair of the Project or the Counterparties' interests in it (but so that

such licence shall not extend to or include a licence to reproduce the designs contained in

them for any extension of the Facilities) and each Counterparty shall be entitled to grant sub

licences on terms equivalent to the provisions of this clause 17.1 and the Counterparty's

licence and such sub licence shall be transferable to other persons without charge or consent

SJ/ AD B/7 3 62 6/120029/UKM/3341 0506.23 576


provided always that the Independent Certifier shall not be liable for the consequences of any

use of the Project Data by the Counterparties for any purpose other than that for which they

were prepared and provided by the Independent Certifier.

17.2 The Independent Certifier shall provide to the Counterparties at their request in such manner

and fonn as is reasonably requested such additional copies of all or any of the Project Data as

are reasonably required by the Counterparties beyond those required for the construction and

completion of the Project and shall provide such additional information and co-operation as is

reasonably required in connection with the same.

17.3 Where any rights are vested in the Independent Certifier by virtue of Chapter IV (Moral

Rights) of Part 1 of the Copyright Designs and Patents Act 1988 the Independent Certifier

hereby irrevocably waives any such rights in relation to the Project or any part thereof and to

any Project Data and shall obtain a written waiver from its employees from time to time of

any rights that they may have in respect of the same.

18. CUMULATIVE RIGHTS AND ENFORCEMENT

18.1 Any rights and remedies provided for in this Deed whether in favour of the Counterparties or

the Independent Certifier are cumulative and in addition to any further rights or remedies

which may otherwise be available to those parties.

18.2 The duties and obligations of the Independent Certifier arising under or in connection with

this Deed arise to the Counterparties jointly and severally and the Counterparties may

accordingly enforce the provisions of this Deed and pursue the prospective rights under this

Deed in their own name, whether separately or with each other.

18.3 The Counterparties covenant with each other that they will not waive any rights, remedies or

entitlements or take any other action under this Deed that would or might reasonably be

expected to adversely affect the rights, remedies or entitlements of the other Counterparty

without the other Counterparty's prior written consent, such consent not to be unreasonably

withheld or delayed.

19. SEVERANCE

If any provision of this Deed is declared invalid, unenforceable or illegal, such invalidity,

unenforceability or illegality shall not prejudice or affect the validity, enforceability or

legality of the remaining provisions of this Deed.

SJ/ADB/73626/120029/UKM/33410506.23 577


20. NOTICES

20.1 Any demand, notice or other communication given in connection with or required by this

Deed shall be made in writing (entirely in the English language) and shall be delivered or sent

by pre paid first class post to the other parties to this Deed at their registered office or address

stated in this Deed (or such other address as may be notified to the other parties in writing

from time to time) or sent by facsimile transmission to the recipient, in the case of the City

Council to facsimile number 0113 + , in the case of the Contractor to facsimile

number + and in the case of the Independent Certifier to facsimile number

• (or such other number as may be notified in writing from time to time) and

unless otherwise expressly stated in this Deed marked for the attention of the [Project

Director] in the case of the City Council, + in the case of Contractor and

+ in the case of the Independent Certifier.

20.2 Any such demand, notice or communication shall be deemed to have been duly served:

20 .2.1 if delivered by hand, when left at the proper address for service; or

20.2.2 if given or made by pre-paid first class post, two Business Days after being posted; or

20.2.3 if sent by facsimile, on the day of transmission provided that a confirmatory copy is

on the same day that the facsimile is transmitted, sent by pre-paid first class post in

the manner provided for in this clause 20.2;

20.3 provided in each case that if the time of such deemed service is either after 4.00 pm on a

Business Day or on a day other than a Business Day service shall be deemed to occur instead

at 10.00 am on the next following Business Day.

21. COUNTERPARTS


counterparts executed, in either case, by all the parties shall constitttte a full and original





SJ/ AD B/73 626/120029/UKM/3 341 05 06.23 578


23. ADJUDICATION

Where Part II of the Housing Grants, Construction and Regeneration Act 1996 applies, any

party may refer any dispute or difference arising under this Deed to adjudication. The

adjudication procedures and the agreement for the appointment of an adjudicator will be as set

out in the Model Adjudication Procedures published by the Construction Industry Council

current at the date of reference. The nominating body will be the Royal Institution of

Chartered Surveyors or any successor organisation.

IN WITNESS whereof the Independent Certifier, the City Council and the Contractor have executed

this document as a deed.

SJ/ A DB/73 626/120029/UKM/3 341 0 506.23 579


SCHEDULE 1

Part 1

Director:

Tel:

Fax:

Email:

Mobile:

Part2

Invoices for the Contractor:

Name:

Address:

Fax:

Part3

Invoices for the City Council:

Name:

Address:

Fax:

SJ/ ADB/73 626/120029/UKM/3341 0506.23 580

A:


SCHEDULE2

Details for submission of invoices: Invoices for Joint Services shall be submitted no

more frequently than monthly and shall include a breakdown of the instalments by reference

to the events set out in this schedule 2. The invoices must also be valid for the recovery of

VAT.

B: Facilities available to the Independent Certifier free of charge:

C: Fixed Fee (excluding VAT) payable to the Independent Certifier in consideration of the

performance of the services set out in schedule 3:

D: INSTALMENTS IN RESPECT OF THE FEE

The Independent Certifier may apply for nom m/ qtr £ per month Amount£ instalments in respect of the Fee no earlier or quarter than and in no greater amounts than as detailed below:

E: Contractor Additional Services fees

To be invoiced to the Contractor within 5 days after issue of the relevant Certificate

SJ/ADB/736261120029/UKM/33410506.23 581


SCHEDULE3

Joint Services

The Independent Certifier shall;

I. fulfil the role of the Independent Certifier as described in the Project Agreement in respect of

the IC Services and in accordance with all the provisions of this Deed;

2. familiarise itself with and acquire a good understanding of:

2.1 the Project Agreement (including the Works Delivery and Service Delivery Plans in schedule

3 (Contractor's Proposals) and any changes/derogations implemented from time to time under

schedule 9 (Review Procedure) of the Project Agreement, Services Specification and any

other relevant documentation or infonnation referred to in the Project Agreement) to the

extent necessary to be in a position to carry out the lC Services in accordance with the terms

of the Project Agreement and this Deed;

2.2 the relevant provisions of the Construction Contract (including the Purchaser's Requirements

(as defined in the Construction Contract) and the Basic Design Proposal (as defined in the

Construction Contract) and the relevant aspects of the Construction Contract (both expressed

and implied) to the extent necessary to be in a position to carry out the services in accordance

with this Deed; and

2.3 the relevant variations in relation to the Facility (as defined in the Construction Contract)

implemented pursuant to the Construction Contract including their effect on Purchaser's

Requirements (as defined in the Construction Contract) and the Basic Design Proposal (as

defined in the Construction Contract) to the extent necessary to be in a position to carry out

the services in accordance with this Deed;

3. satisfY itself that the City Council and Contractor have fulfilled their respective duties as

"client" under the CDM Regulations with regard to appointment of competent CDM

coordinators and principal contractors with adequate resources for the Works;

4. satisfY itself that a health and safety plan covering the Works at the Facility has been prepared

by the CDM Coordinator and is in place prior to the commencement of the Works at the

Facility;

5. satisfY itself that the relevant quality management certification and Quality Management Plan

with regard to the Construction Contactor are in place;

SJ/ ADB/73626/120029/UKM/3341 0506.23 582


6. promptly notify the Contractor (copied simultaneously to the Contractor and the City

Council) in writing if the Independent Certifier becomes aware of the Contractor's failure to

comply with its obligations under the Project Agreement which may, in its opinion, prevent

achievement of satisfactory completion of the Readiness Tests and/or Acceptance Tests of the

Facility;

7. monitor a sample number of construction working drawings and specifications which in its

professional judgement is appropriate to be selected by the Independent Certifier to verify

they comply with the approved outline construction specification as described in the Project

Agreement. If in the professional judgment of the Independent Certifier, because of the

results of its sample or other circumstances a different sampling percentage is appropriate, it

shall provide a detailed report in respect of that and, if so agreed (or determined as between

the Contractor and the City Council by the Dispute Resolution Procedure) any change in the

percentage sampling resulting in a change in fees will be borne by the City Council or the

Contractor as they shall agree or as determined by the Dispute Resolution Procedure;

8. conduct Site visits to inspect and monitor the state and progress of the Works to the extent

necessary to be in a position to carry-out the services in accordance with this Deed in order to

familiarise itself with the Works and perform the services. The frequency and timing of the

Independent Certifier's Site visits are dependent on the progress of the construction on Site

but on a minimum of a monthly basis;

9. attend, where appropriate, and participate as necessary m regular monthly Site meetings

relating to the Works;

I 0. provide monthly progress reports and quarterly audit reports for the Contractor and the City

Council to include updated checklists and an outstanding information schedule;

II. agree the methodology and criteria for auditing as are necessary for it to determine whether or

not the;

11.1 Readiness Tests; or

11.2 Acceptance Tests; and

11.3 required standards set out at Appendix 9 (Availability Standards) to the Output Specification;

have been achieved by making appropriate enquiries of the Contractor and the Construction

Contractor. This will include reviewing the Works and notifying the Contractor of any

SJ/ ADB/73626/120029/UKM/3341 o;o6.23 583


outstanding matters to be attended to before the relevant certification can be deemed as

achieving the requirements for schedule 11 (Tests) to the Project Agreement;

1 2. confirm that a completion certificate has been issued to the Contractor by the Construction

Contractor at the end of Hot Commissioning;

13. observe and witness the Readiness and/or Acceptance Tests and review all results and data

resulting from all such Tests. Having reviewed such results and data, the Independent

Certifier shall advise the Contractor of which tests have been passed and which have been

failed;

14. within the period of two (2) Business Days of the Independent Certifier's receipt of a notice

from the Contractor stating that the Contractor considers that the Readiness and/or

Acceptance Tests have been passed, each by reference to the standards required in schedule

1 1 (Tests) to the Project Agreement, the h1dependent Certifier will either:

14.1 issue the Readiness and/or Acceptance Test Certificate (as the case may be); or

14.2 notify the Counterparties that it considers that the Readiness and/or the Acceptance

Tests have not been passed, by reference to the standards required by schedule 11

(Tests) to the Project Agreement, together with a report setting out the respects in

which it considers that the same has not been so passed;

15. m determining whether to issue the Readiness Test Certificate and/or Acceptance Test

Certificate (as the case may be) the Independent Certifier shall only have regard to whether

the Readiness and/or Acceptance Tests (as the case may be) have been passed in accordance

with the Project Agreement and shall not have regard to any other matter including but not

limited to those other matters for which the Independent Certifier is responsible in accordance

with this Deed;

16. provide a copy of such certificate simultaneously upon its issue by the Independent Certifier

to the City Council;

17. provide a test performance report including the programme, guarantees to be met,

methodology and procedures, results against guarantees and analysis of results;

1 8. certify that the City Council Accommodation has achieved the standards set out in Appendix

9 (Availability Standards) to the Output Specification that are necessary at Completion of

Works and the Extended Commissioning Date;

SJ/ ADB/73626/120029/UKM/3341 0506.23 584


19. advise the Counterparties if it believes that the Works have not been carried out in accordance

with the Project Agreement, at any time prior to the issue of the Readiness Test Certificate or

Acceptance Test Certificate (as appropriate) in respect of the Facility;

20. collate, produce and issue a Snagging List in accordance with the Project Agreement and

monitor compliance by the Construction Contractor with the Snagging List and report to the

City Council and the Contractor if any completed works have not, or the Independent

Certifier believes that the completed works have not, been carried out in accordance with the

Project Agreement, and sign off Snagging Items when completed;

21. issue and serve a defects notice on the Contractor specifYing defects where the Works have

not been or are not being carried out in accordance with the Project Agreement at any time;

22. confirm that as-built drawings and relevant operating manuals have been issued to the City

Council; and

23. in addition to the above, the Independent Certifier will ensure that:

23 .I connections to all required utilities have been made and are adequate for safe and

normal operation of the Facility; and

23.2 the requirements of West Yorkshire Constabulary and the Fire Service have been met

and that both organisations have been informed of the programme for the

Commissioning of the Facility.

SJ/ADB/73626/120029/UKM/33410506.23 585


SCHEDULE4

Contractor Additional Services

The Independent Certifier shall, for the purposes of the Construction Contract only:

I. fulfil the role of the Independent Certifier as described in the Construction Contract m

accordance with all the provisions of this Deed;

2. familiarise itself with and acquire a good understanding of:

2.1 the relevant provisions of the Construction Contract (including the Purchaser's Requirements

(as defined in the Construction Contract) and the Basic Design Proposal (as defined in the

Construction Contract) and the relevant aspects of the Construction Contract (both expressed

and implied) to the extent necessary to be in a position to carry out the Contractor Additional

Services in accordance with this Deed; and

2.2 the relevant variations in relation to the Facility (as defmed in the Construction Contract)

implemented pursuant to the Construction Contract including their effect on the Purchaser's

Requirements (as defined in the Construction Contract) and the Basic Design Proposal (as

defined in the Construction Contract) to the extent necessary to be in a position to carry out

the Contractor Additional Services in accordance with this Deed;

3. Not used

4. Not used

5. observe and witness the EPC Readiness Tests and/or EPC Acceptance Tests and review all

results and data resulting from all such tests. Having reviewed such results and data, the

Independent Certifier shall advise [the Contractor and] the Construction Contractor of which

tests have been passed and which have been failed;

6. within the period of two (2) Business Days of the Independent Certifier's receipt of a notice

from the Construction Contractor stating that the Construction Contractor considers that the

EPC Readiness Tests and/or EPC Acceptance Tests have been passed, each by reference to

the standards required in schedule 11 (Tests) to the Construction Contract, the Independent

Certifier will either:

6.1 issue the EPC Readiness Test Certificate and/or EPC Acceptance Test Certificate (as the case

may be); or

SJ/ AD B/73626/120029/UKM/3341 0506.23 586


6.2 notifY the Contractor and the Construction Contractor that it considers that the EPC Readiness

Tests and/or the EPC Acceptance Tests have not been passed, by reference to the standards

required by schedule II (Tests) to the Construction Contract, together with a report setting

out the respects in which it considers that the same has not been so passed;

7. in determining whether to issue the EPC Readiness Test Certificate and/or EPC Acceptance

Test Certificate (as the case may be) the Independent Certifier shall only have regard to

whether the EPC Readiness Tests and/or EPC Acceptance Tests (as the case may be) have

been passed by reference to the standards required in schedule II (Tests) and the Construction

Contract and shall not have regard to any other matter, including but not limited to those other

matters for which the Independent Certifier may be responsible in accordance with this Deed;

and

8. provide a copy of such certificate simultaneously upon its issue by the Independent Certifier

to the Contractor and the Construction Contractor.

9. collate, produce and issue a snagging list in accordance with the Construction Contract for

issue with the Acceptance Certificate and monitor compliance by the Construction Contractor

with the snagging list and report to the Contractor if any completed works have not, or the

Independent Certifier believes that the completed works have not, been carried out m

accordance with the Construction Contract, and sign off snagging items when completed;

SJ/ AD B/73 626/120029/UKM/3341 05 06.23 587


APPENDIX 1- COLLATERAL WARRANTY TO THE CONSTRUCTION CONTRACTOR

SJI ADB/73626/120029/UKM/3341 0506.23 588

Schedule 30 - Independent Certifier's Deed of Appoin1ment

THIS DEED is made on 2012

BETWEEN

(I) [EPC CONTRACTOR] ("EPC Contractor"); and

(2) [INDEPENDENT CERTIFIER] (registered number • ) of

+ ("Independent Certifier").

BACKGROUND

(A) By an agreement dated ("Agreement") Leeds City Council ("Council") has appointed

Veolia ES Leeds Limited ("Contractor") to carry out the design and construction of certain

works in relation to the provision of waste management facilities including the design and

construction and the commissioning and testing of an energy from waste plant, to be

constructed at a site at Pontefract Lane, Leeds ("Project").

(B) By an agreement dated + ("EPC Contract") the Contractor has subcontracted

the part of the Project to the EPC Contractor ("Works").

(C) The Independent Certifier has been appointed by the Contractor and the Council under a deed

of appointment dated + ("Appointment") to provide services in relation to the

Project and in addition, the Contractor has requested that the Independent Certifier undertake

a number of Contractor Additional Services (as defined in the Appoin1ment) in relation to the

Works, these Additional Services for the purpose of this deed shall mean the "Services".

(D) The Independent Certifier is obliged under the Appointment to give a warranty in this form in

favour of the EPC Contractor.

JT IS AGREED:

In consideration of the payment of £10 by the EPC Contractor to the Independent Certifier, receipt of

which the Independent Certifier acknowledges:

1. INDEPENDENT CERTIFIER'S WARRANTY AND LIABILITY

1.1 The h1dependent Certifier warrants to the EPC Contractor that it has carried out and

will continue to carry out the Services in accordance with the Appointment and that it

has exercised and will continue to exercise in the performance of those Services the

SJ/ AD B/73626/120029/UKM/3341 05 06.23 589


reasonable skill care and diligence to be expected of a properly qualified member of

its profession experienced in carrying out services such as the Services in relation to

works of similar scope, nature and complexity to the Works and has and will act

impartially and independently in undertaking the Services.

1.2 Subject to clauses 1.3 and 1.4 the Independent Certifier has no liability hereunder

which is greater or of longer duration than it would have had if the EPC Contractor

had been a party to the Appointment as joint employer provided that the Independent

Certifier shall not be entitled to set-off or deduct from any sums payable to the EPC

Contractor under this Deed any sums due or claimed as due by the Independent

Certifier from the Contractor under the Appointment. Upon the expiration of 12

years from the date of completion of the Services the liability of the Independent

Certifier under this Deed shall cease and detennine, save in relation to any claims

made by the EPC Contractor against the Independent Certifier and notified by the

EPC Contractor to the Independent Certifier in writing prior thereto.

1.3 The Independent Certifier acknowledges it has received a copy of and is familiar with

the tenus of the EPC Contract including the terms and extent of any damages

liquidated or otherwise which may become payable in the event of any delay in the

issue of any certificate required to be issued by the Independent Certifier pursuant to

the Appointment and recognise that such payment of such damages may be a direct

and foreseeable result of any failure of the h1dependent Certifier to issue certificates

in breach of the Appointment.

1.4 The Independent Certifier shall perform its duties under the Appointment in such

manner and at such time so that no act, omission or default by the Independent

Certifier within the exercise of the duty of care in clause 1.1 shall cause the EPC

Contractor to be in material breach of the EPC Contract or to otherwise give rise to a

claim against or reduce any entitlement of the EPC Contractor. The Independent

Certifier agrees that in any claim by the EPC Contractor in reliance on this deed it

will not raise by way of defence or otherwise that the EPC Contractor has not

suffered and could not suffer any loss under the Appointment.

2. INSURANCE AND LIMITATION OF LIABILITY

2.1 The Independent Certifier shall take out and maintain Professional Indemnity

Insurance with a limit of indemnity of not less than £10,000,000 on an each and every

SJ/ ADB/73626/120029/UKM/3341 0506.23 590


claim basis from the date of this Deed and for a period expiring no earlier than 12

years from the date of the completion of the Independent Certifier's duties under the

Appointment.

2.2 The Independent Certifier shall maintain such Professional Indemnity Insurance with

reputable insurers carrying on business in the European Union provided that such

insurance continues to be available in the market upon reasonable terms and at

commercially reasonable rates.

2.3 Any increased or additional premium required by insurers by reason of the

Independent Certifier's own claims record or other acts or omissions particular to the

Independent Certifier shall be deemed to be within commercially reasonable rates.

2.4 As and when it is reasonably required to do so, the h1dependent Certifier must

produce to the EPC Contractor for inspection copies of the insurance policy and any

other relevant documents which are required under the insurance policy, as well as

proof that the relevant premium has been paid, and that the relevant policy remains in

full force and effect.

2.5 The Independent Certifier must forthwith notifY the EPC Contractor if the insurance

required to be maintained by it under clause 2.1 ceases to be available upon

reasonable terms and at commercially reasonable rates or if, for any other reason, the

Independent Certifier is unable to continue to maintain such insurance but, unless the

parties agree an alternative way of protecting their respective interests, must continue

to maintain insurance upon such terms and with such a limit of indemnity as may then

be so available and reasonable for the Independent Certifier to maintain.

2.6 The h1dependent Certifier must not compromise, settle or waive any claim which it

may have under such insurance in respect of any professional liability which it may

incur under this Deed and/or the Appointment without the prior written consent of the

EPC Contractor, provided that nothing in this clause 2.6 precludes the Independent

Certifier's insurers from taking over (in the name of the Independent Certifier) the

defence of any claim made by the EPC Contractor under this Deed and from

conducting and settling the same as they see fit. h1 this event the Independent

Certifier must keep the EPC Contractor informed of the progress of any claim in

excess of£10,000.

SJ/ AD B/73 626/120029/UKM/3341 0506. 23 591


3. LIABILITY OF PARTNERS

Where the Independent Certifier is a partnership, references in this Deed to "the Independent

Certifier" will be deemed to include reference to each and every present and future partner of

such partnership and the liability of each and every such partner under this Deed will be

deemed to be joint and several.

4. NOTICES

4.1 Any notice or other communication given in connection with or required by this Deed

shall be made in writing and sent by hand, by facsimile transmission or by first class

pre-paid post to the relevant address or facsimile number set out below or to such

other address or facsimile number as a party may notifY the others in writing by not

less than + Business Days' (as that term is defined in the Agreement)

prior notice.

EPC Contractor

Address: +

Fax: +

Attention: +

Independent Certifier

Address: +

Fax: +

Attention: +

4.2 Subject to clause 4.3:

4.2.1 any notice sent by hand will be deemed to be received on the date of delivery

when left at the proper address for service;

4.2.2 any notice sent by facsimile transmission will be deemed to be received in

full on the day of transmission provided that a confirmatory copy is, on the

same day that the facsimile is transmitted, sent by first class pre-paid post the

manner provided for in clause 4.1;

SJ/ ADB/73626/120029/UKM/3341 0506.23 592


4.2.3 any notice sent by first class prepaid post will be deemed to have been

received on the second Business Day after the time of posting.

4.3 A notice or other communication received on a day which is not a Business Day or

after 4.00pm on any Business Day is deemed to be received at I O.OOam on the next

following Business Day.

5. ASSIGNMENT

The Independent Certifier shall not assign, transfer or sub-contract the benefits or obligations

of this Deed or any part thereof without the prior written consent of the EPC Contractor, such

consent not to be unreasonably withheld or delayed. The benefit of and the rights on the part

of the EPC Contractor under this Deed may be assigned without the consent of the

Independent Certifier only if the EPC Contract is assigned in accordance with its own terms.

6. EPC CONTRACTOR'S REMEDIES

The rights and benefits conferred upon the EPC Contractor by this Deed are in addition to any

other rights and remedies it may have against the Independent Certifier including without

prejudice to the generality ofthe foregoing any remedies in negligence.

7. INSPECTION OF DOCUMENTS

The Independent Certifier's liabilities under this Deed will not be in any way reduced or

extinguished by reason of any inspection or approval of the Documents or attendance at site

meetings or other enquiry or inspection which the EPC Contractor may make or procure to be



This Deed and all and any obligations contractnal or otherwise arising out of or in connection

with it will be construed in accordance with English law and be in all respects subject to the

exclusive jurisdiction of the English courts.

9. THIRDPARTYRIGHTS


pennitted assignees. Any rights of any person to enforce the terms of this Deed pursuant to

the Agreements (Rigbts of Third Parties) Act 1999 are excluded.

SJ I ADB/73626/120029/UKM/3 341 05 06.23 593

Schedule 3 0 - fudependent Certifier's Deed of Appointment

IN WITNESS whereof the parties have executed this appointment as a deed on the day and year first

before written.

SJ/ADB/73626/120029/UKM/33410506.23 594


The Common Seal of LEEDS CITY ) COUNCIL was hereby affixed in the presence ) of: )

Witness signature

Witness name (block capitals)

Witness address

Executed as a deed by VEOLIA ES LEEDS LIMITED acting by two of its directors or a director and its secretary:

Executed as a deed by [INDEPENDENT CERTIFIER] acting by two of its directors or a director and its secretary:

SJ/ ADB/73626/120029/UKM/3341 0506.23

) ) )

) ) )

Signature


Director

Signature ________________________________ _


Signature ________________________________ _

Name (block capitals) ·--------------------------------[Secretaryi]Director

Signature . _______________________________ _


Signature ________________________________ _

Name (block capitals) ·--------------------------------[Secretaryi]Director

595

Schedule 31 -Site Plans

SCHF.DULF. 31

Site Plans

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Schedule 32 -Currency Hedging Profile

SCHEDULE32

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