CLSA Schedule 23

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Schedule 3 Agreed Collateral WarrantiesPart I - Contractors Collateral Warranty

D TED 0

I) [INSERT NAME OF BUILDING CONTRACTOR]

2) THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF HAMMERSMITH ANDFULH M

CONTRACTOR WARRANTY IN RESPECT OF WORKSAT[

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Schedule 3

THIS AGREEMENT is made the ay of 01

(1 ) [INSERT NAME OF BUILDING CONTRACTOR] (Company No. [Insert]) whose registeredoffice is at [Insert address of registered office] (the Contractor ); and

(2) THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF HAMMERSMITHAND FULHAM of Town Hall, King Street, Hammersmith, London, W6 9JU (the

Beneficiary which term shall include all permitted assignees under this Agreement).WHEREAS:A) The Beneficiary has entered into a conditional land sale agreement dated [Insert date] in

respect of land at the West Kensington and Gibbs Green Estates, London W14 (theCLSA ) with EC Properties LP (Company No. LP14695) whose registered office is at 15Grosvenor Street, London, Wi K 4QZ acting by its general partner EC Properties GP Limited

(Company No. 0796161) whose registered office is at 15 Grosvenor Street, London, W14QZ (the Employer )

B) By a contract dated [Insert date] (the Building Contract , which term shall include anyenforceable agreements reached between the Employer and the Contractor and which ariseout of and relate to the same) the Employer has appointed the Contractor carry out andcomplete [Insert description of the Works] (the Works ).

C) Under the Building Contract the Contractor has agreed to give to the Beneficiary thewarranties set out in this Agreement.

NOW IN CONSIDERATION OF THE PAYMENT OF ONE POUND (1) BY THE BENEFICIARY TOTHE CONTRACTOR (RECEIPT OF WHICH THE CONTRACTOR ACKNOWLEDGES) IT ISHEREBY AGREED as follows:

ATEi I i1 il

1.1 The Contractor warrants that:a) the Contractor has performed and will continue to perform diligently its obligations

under the Building Contract;b) save in respect of the carrying out and completing of any design of the Works in

respect of which the provisions of clause 1.1(c) below shall apply in carrying out andcompleting the Works, the Contractor has exercised and will continue to exercise allthe reasonable skill, care and diligence to be expected of a competent andexperienced contractor experienced in carrying out and completing works of a similarnature, value, complexity and timescale to the Works; and

c) notwithstanding the provisions of clause 1.1(b) above in carrying out and completingany design of the Works, the Contractor has exercised and will continue to exerciseall the reasonable skill, care and diligence to be expected of a competent andqualified architect or, as the case may be, other appropriate competent and qualifiedprofessional designer experienced in carrying out and completing the design forworks of a similar nature, value, complexity and timescale to the Works.

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Schedule 23

1 2 nsofar as the Contractor has performed a part of its obligations under the Building Contractbefore the date of the Building Contract, the obligations and liabilities of the Contractor underthis agreement shall take effect in all respects as if the Building Contract had been dated priorto the performance of that part of its obligations by the Contractor.The Contractor shall have no greater liability (in either extent or duration) to the Beneficiaryunder this Agreement than the Contractor would have under the Building Contract had theBeneficiary been appointed as joint client thereunder.

1 3 he Contractor shall be entitled in any action or proceedings brought by the Beneficiary torely upon any limitation in the Building Contract and to raise the equivalent rights in defenceof liability (save for rights of set-off and counterclaim) as it would have under the BuildingContract had the Beneficiary been appointed as joint client thereunder.The Contractor shall have no liability to the Beneficiary in respect of any delay to completionof the Works

1 4 he obligations of the Contractor under or pursuant to this clause 1 shall not be released ordiminished by the appointment of any person by the Beneficiary to carry out any independentenquiry into any relevant matter.

urther Warranty2 1 he Contractor further warrants that he has not used and will not use materials in the Works

other than in accordance with the guidelines contained in the edition of Good Practice in theSelection of Construction Materials (Hoare Lea Partners) current at the date of the BuildingContract. In the event of any breach of this warranty this provisions of clause 1 shall apply.

2 2 he Beneficiary has no authority to issue any direction or instruction to the Contractor inrelation to the Building Contract.

3 1 he copyright in all drawings, reports, models, specifications, plans, schedules, bills ofquantities, calculations and other documents and information prepared by or on behalf of theContractor in connection with the Works (together referred to as the Documents ) shallremain vested in the Contractor.

3 2 he Contractor hereby grants to the Beneficiary an irrevocable, royalty-free, non-exclusivelicence to copy and use the Documents and to reproduce the designs and content of them forany purpose related to the Works including, but without limitation, the construction,completion, modification, extension, sale, use, letting, promotion, advertisement,reinstatement, refurbishment and repair of the Works. Such licence shall be capable of sub-licence and assignment by the Beneficiary.

3 3 he Contractor shall not be liable for any such use by the Beneficiary of any of theDocuments for any purpose other than that for which they were prepared.nsurance

The Contractor warrants that he has and shall maintain professional indemnity insurance inan amount of not less than [ million pounds ([ ],000,000) in respect of each and everyclaim for a period of 12 years from the date of the last practical completion certificate issued

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Schedule 23

in respect of the Works, provided always that such insurance is generally available in themarket at commercially reasonable rates. The Contractor shall immediately inform theBeneficiary if such insurance ceases to be available as aforesaid in order that the Contractorand the Beneficiary can discuss the best means of protecting their respective positions in theabsence of such insurance. As and when it is reasonably requested to do so by theBeneficiary, the Contractor shall produce for inspection documentary evidence that itsprofessional indemnity insurance is being maintained.ssignment

This Agreement may be assigned by the Beneficiary on a maximum of 2 occasions to anotherperson acquiring the Beneficiary s interest in the Works without the consent of the Contractorbeing required and such assignment shall be effective upon written notice thereof being givento the Contractor

6 iscellaneous6 1 ny notice to be given by a party hereunder shall be deemed to be duly given if it is delivered

by hand at or sent by special delivery post to the other party at the address of such partyshown in this Agreement or such other address as such party may by notice in writingnominate for the purpose of service and, if sent by special delivery post, such notice shall bedeemed to have been received not later than 48 hours after the same shall have been posted.

6 2 o action or proceedings for any breach of this Agreement shall be commenced against theContractor after the expiry of 12 years from the date of the last practical completion certificateissued in respect of the Works.

6 3 or the avoidance of doubt, the Contractor shall have no liability to the Beneficiary under thisAgreement for any delay in completion of the Works.

6 4 othing in this Agreement is intended to confer on any third party any benefit or right toenforce any terms of this Agreement pursuant to the Contracts (Rights of Third Parties) Act1999

6 5 he construction, validity and performance of this Agreement shall be governed by Englishlaw and the parties hereto submit to the exclusive jurisdiction of the English Courts for theresolution of any dispute between them.

IN WITNESS WHEREOF this Agreement has been executed as a Deed and delivered on the datefirst above written

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Schedule 23

The C O M M O N S E L of M Y O R N DURGESSES OF THE LONDON OROUGH OF

H M M E R S M I T H N D F U L H M was hereuntoaffixed u nder the authentication of:

Authorised by the Counc il to sign in that behalf

EXECUTED AS A D E E Dby [ INSERT N ME OF BUILDINGC O N T R C T O R ]acting by two director or a director and itssecretary

Director

Director Secretary

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Schedule 3

Part 2 Consultant s Collateral Warranty

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DATED

1) [INSERT NAME OF CONSULTANT]

2) THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF HAMMERSMITH ANDFULHAM

CONSULTANT WARRANTY IN RESPECT OF WORKSATE

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THIS AGREEMENT is made the ay of 0[

BETWEEN:1) [INSERT NAME OF CONSULTANT] (Company No. [Insert]) whose registered office is at

[Insert address of registered office] (the Consultant ); and2) THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF HAMMERSMITH

AND FULHAM of Town Hall, King Street, Hammersmith, London, W6 9JU (theBeneficiary which term shall include all permitted assignees under this Agreement).

WHEREAS:A) The Beneficiary has entered into a conditional land sale agreement dated [Insert date] in

respect of land at the West Kensington and Gibbs Green Estates, London Wi 4 with ECProperties LP (Company No. LP14695) whose registered office is at 15 Grosvenor Street,London, W1K 40Z acting by its general partner EC Properties GP Limited (Company No.0796161)whose registered office is at 15 Grosvenor Street, London, W1 4QZ (theEmployer )

B) The project shall mean the design management and construction of [Insert] (the Project )C) The Employer has entered into an appointment dated [Insert date] (the Appointment ,

which term shall include any enforceable agreements reached between the Employer andthe Consultant and which arise out of and relate to the same) for the supply of professionalservices (the Services ) as more particularly described therein in respect of the Project.

D) Under the Appointment the Consultant has agreed to give to the Beneficiary the warrantiesset out in this Agreement.

NOW IN CONSIDERATION OF THE PAYMENT OF ONE POUND (1) BY THE BENEFICIARY TOTHE CONSULTANT (RECEIPT OF WHICH THE CONSULTANT ACKNOWLEDGES) IT IS HEREBYAGREED as follows:

arranty1.1 he Consultant warrants that:

a) it has performed and will continue to perform diligently its obligations under theAppointment; and

b) in performing the Services, the Consultant has exercised and will continue to exerciseall the reasonable skill, care and diligence to be expected of a competent andexperienced [consultant] experienced in performing similar services for projects of asimilar nature, value, complexity and timescale to the Project.

1.2 nsofar as the Consultant has performed a part of the Services before the date of theAppointment, the obligations and liabilities of the Consultant under this Agreement shall takeeffect in all respects as if the Appointment had been dated prior to the commencement of thatpart of the Services by the Consultant.

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1 3 he Consultant shall have no greater liability (in either extent or duration) to the Beneficiaryunder this Agreement than the Consultant would have under the Appointment had theBeneficiary been appointed as joint client thereunder.

1 4 he Consultant shall be entitled in any action or proceedings brought by the Beneficiary torely upon any limitation in the Appointment and to raise the equivalent rights in defence ofliability (save for rights of set-off and counterclaim) as it would have under the Appointmenthad the Beneficiary been appointed as joint client thereunder.

1 5 he Consultant shall have no liability to the Beneficiary in respect of any delay to completionof the Project

1 6 he obligations of the Consultant under or pursuant to this Clause 1 shall not be released ordiminished by the appointment of any person by the Beneficiary to carry out any independentenquiry into any relevant matter.

urther Warranty2 1 he Consultant further warrants that he has not specified or authorised for use and will not

specify or authorise for use materials in the Project other than in accordance with theguidelines contained in the edition of Good Practice in the Selection of ConstructionMaterials (British Council for Offices) current at the date of the Appointment. In the event ofany breach of this warranty this provisions of Clause 1 shall apply.

2 2 he Beneficiary has no authority to issue any direction or instruction to the Consultant inrelation to the Appointment.

opyright3 1 he copyright in all drawings, reports, models, specifications, plans, schedules, bills of

quantities, calculations and other documents and information prepared by or on behalf of theConsultant in connection with the Project (together referred to as the Documents ) shallremain vested in the Consultant.

3 2 he Consultant hereby grants to the Beneficiary an irrevocable, royalty-free, non-exclusivelicence to copy and use the Documents and to reproduce the designs and content of them forany purpose related to the Project including, but without limitation, the construction,completion, modification, extension, sale, use, letting, promotion, advertisement,reinstatement, refurbishment and repair of the Project. Such licence shall be capable of sub-licence and assignment by the Beneficiary.

3 3 he Consultant shall not be liable for any such use by the Beneficiary of any of theDocuments for any purpose other than that for which they were prepared.

4 nsuranceThe Consultant warrants that he has and shall maintain professional indemnity insurance inan amount of not less than [ million pounds ([ ],000,000) in respect of each and everyclaim for a period of 12 years from the date of the last practical completion certificate issuedin respect of the Project, provided always that such insurance is generally available in themarket at commercially reasonable rates. The Consultant shall immediately inform theBeneficiary if such insurance ceases to be available as aforesaid in order that the Consultantand the Beneficiary can discuss the best means of protecting their respective positions in the

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absence of such insurance. As and when it is reasonably requested to do so by theBeneficiary, the Consultant shall produce for inspection documentary evidence that itsprofessional indemnity insurance is being maintained.

ssignmentThis Agreement may be assigned by the Beneficiary on a maximum of two occasions toanother person acquiring the Beneficiary s interest in the Project without the consent of theConsultant being required and such assignment shall be effective upon written notice thereofbeing given to the Consultant.

iscellaneous6 1 ny notice to be given by a party hereunder shall be deemed to be duly given if it is delivered

by hand at or sent by special delivery post to the other party at the address of such partyshown in this Agreement or such other address as such party may by notice in writingnominate for the purpose of service and, if sent by special delivery post, such notice shall bedeemed to have been received not later than forty eight hours after the same shall have beenposted.

6.2 o action or proceedings for any breach of this Agreement shall be commenced against theConsultant after the expiry of 12 years from the date of the last practical completion certificateissued in respect of the Project.

6.3 othing in this Agreement is intended to confer on any third party any benefit or right toenforce any terms of this Agreement pursuant to the Contracts (Rights of Third Parties) Act1999.

6 he construction, validity and performance of this Agreement shall be governed by Englishlaw and the parties hereto submit to the exclusive jurisdiction of the English Courts for theresolution of any dispute between them.

IN WITN SS WH R OF this Agreement has been executed as a Deed and delivered on the datefirst above written

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The COMMON SE L of M YOR NDBURGESSES OF THE LONDON BOROUGH OFH MMERSMITH ND FULH M was hereuntoaffixed under the authentication of:

Authorised by the Council to sign in that behalf

EXECUTED AS A DEEDy [INSERT N ME CONSULT NT]

acting by two director or a director and itssecretary

irector

Director/Secretary

Draft: 28 November 2012

CLSA Schedule 23

Documents

Transcript of CLSA Schedule 23