DATED [] European Bank for Reconstruction and Development as … · 2012-06-19 · SCHEDULE OF AMENDMENTS TO THE JCT STANDARD BUILDING CONTRACT WITHOUT QUANTITIES 2011 EDITION

Legal.23844583.5/DCOR/23630.00061 Version created 15.06.12

DATED [●]

European Bank for Reconstruction and Development as Employer

[●] as Contractor

SCHEDULE OF AMENDMENTS TO THE JCT STANDARD BUILDING CONTRACT

WITHOUT QUANTITIES 2011 EDITION

relating to Chiller Replacement Works at 155 Bishopsgate, London

Legal.23844583.5/DCOR/23630.00061 2 Version created 15.06.12

RECITALS

Fourth Recital Delete and insert “for the purposes of the Construction Industry Scheme

(CIS) provided for by Chapter 3 Part 3 of the Finance Act 2004 and the Income Tax (Construction Industry Scheme) Regulations 2005, the status of

the Employer as at the Base Date is stated in the Contract Particulars;”.

Fifth Recital Delete and insert “Number not used”.

Footnote [5] Delete.

ARTICLES

Article 7 Delete and insert “Number not used” - see Section 9.



After Article 9 Insert new Articles 10 and 11:

Article 10 “The Contractor acknowledges the Employer’s special status as an

international financial institution in the UK, immune from any suit and legal process in accordance with the Statutory Instrument 1991, No. 757, The

European Bank for Reconstruction and Development (Immunities and

Privileges) Order 1991, and agrees that, for any and all disputes, the adjudication procedure under this Contract is replaced with the arbitration

process as set out in the amended Section 9.”

Article 11 “Article 11: Amendments - incorporation

The Agreement and the Conditions shall have effect as modified by the attached Schedule of Amendments.” [N.B. This amendment is to be endorsed in manuscript on the standard form.]

CONTRACT PARTICULARS

Part 1

Entry relating to:

Article 8 Article 8 and clauses 9.3 to 9.8 (Arbitration) do not apply.

CDM Planning Period and associated footnote

Delete.

Insert new entry:


Clause 1.7.3 “Addresses for Service of Notices”

Employer:

European Bank for Reconstruction and Development

One Exchange Square London

EC2A 2JN

Attention: Harry Tsakalotos

Deputy Director, Administrative Services Tel: 44 (0) 20 7338 6784

Fax: 44 (0) 20 7338 7559

With a copy to the Corporate Procurement Unit

Fax: 44 (0) 20 7338 7857

Contractor:

[●] 1

Clause 2.19.3 Clause 2.19.3 does not apply.

Clause 4.21 and Schedule 7

Delete and insert “Number not used”. Clause 4.21 and Schedule 7 do not

apply.

Clause 6.12 Delete this entry and insert “Number not used”.



Part 2 Delete.

Attestation The Agreement will be executed as a deed.

CONDITIONS

Section 1 Definitions and Interpretation

Clause 1.1 Delete the terms “Adjudicator”, “CDM Planning Period”, “Fluctuations

Options A, B and C”, “Funder”, “Funder Rights”, “Funder Rights Particulars”, “Information Release Schedule”, “P&T Rights”, “P&T

Rights Particulars”, “Purchaser” and “Tenant” and their respective definitions.

In the definition of “Agreement” after “Particulars” insert “all as modified by

and including the Schedule of Amendments referred to in Article 10 attached hereto”.

Delete the definition of “Arbitrator” and insert “any person appointed as arbitrator pursuant to clause 9.2.”

1 Contractor to provide details of address for service.


In the definition of “Conditions” after “hereto” insert “, all as amended by and

incorporating the Schedule of Amendments referred to in Article 10 and attached to the Agreement”.

Delete the definition of “Contractor’s Design Documents” and insert “all drawings, details, plans, specifications, schedules, reports, calculations and

other work, whether in written or electronic form (and any designs, ideas and

concepts contained in them) prepared, conceived or developed by or on behalf of the Contractor in connection with the Works”.

In the definition of “Employer” after “Agreement” insert “, including its successors in title and assigns as permitted under these Conditions”.

In the definition of “Interest Rate” delete “5%” and insert “2%”.

Delete the definition of “Scheme” and insert:

“The Scheme for Construction Contracts (England and Wales) Regulations 1998

as amended by the Scheme for Construction Contracts (England and Wales) Regulations 1998 (amendment) (England) Regulations 2011”

In the definition of “Statutory Requirements”:

After “force of law” in line 2, insert: “in England”.

After “under this Contract” in line 3 delete “and” and insert:

“, any code of practice or guideline for the time being in force under the Health and Safety etc at Work Act 1974 or the Control of Pollution Act 1974 or the

Environmental Protection Act 1990,”.

After “connected” in line 6 insert:

“and the terms of any planning permissions, listed building consents, building regulations approvals and other consents and approvals required for the

carrying out and completion of the Works”.

In the definition of “Works” after “including” insert “all works and services carried out or required to be carried out by the Contractor or any sub-

consultant, sub-contractor or supplier of the Contractor prior to the date of execution of this Contract (whether pursuant to a pre-construction agreement

or otherwise) and”.

Insert new definitions:

“Affiliate in relation to the Employer, a second

person which, directly or indirectly, controls the Employer is controlled by the Employer

or is under common control with, the

Employer. The word “controls” in this context means the ability or entitlement to

exercise, directly or indirectly at least fifty percent (50%) of the voting rights

attributable to the shares or other interests of the controlled person, and the words

“control” and “controlled” shall be


construed accordingly.”

“Anti-Corruption Laws all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-

corruption including but not limited to the Bribery Act 2010.”

“Background Checks the Employer’s procedures for the vetting

of personnel working in its premises as advised to the Contractor by the Employer

from time to time.”

“Confidential Information any non-public, proprietary information

concerning the business, administration, operation, assets, finances, systems,

internal processes and/or know-how of the

Employer contained in:

(a) written documents delivered or

made available to the Contractor marked confidential or containing

similar confidentiality wording on the

cover; or

(b) electronic data delivered or made

available to the Contractor which indicates that the data is

confidential; or

(c) written documents or electronic data

delivered or made available to the

Contractor the contents of which the Employer has advised the Contractor

are confidential.”

“Construction Act Housing Grants, Construction and

Regeneration Act 1996 as amended by the

Local Democracy, Economic Development and Construction Act 2009.”

“EBRD Policies the document entitled “EBRD Contractor Code of Conduct and Health and Safety

Policy.”

“EPC Regulations the Energy Performance of Buildings (Certificates and Inspections) (England and

Wales) Regulations 2007 as amended by the Energy Performance of Buildings

(Certificates and Inspections) (England and Wales) (Amendment) Regulations 2011 (SI

2011/2452).”

“Funder any person, firm, company or bank (acting for himself and, where he leads for a

syndicate of persons, as agent and trustee for them) who agrees to provide finance in

connection with the Works or any part of


them.”

“House Rules and Regulations

the Employer’s rules and regulations governing contractor access to the Site, a

copy of which has been provided to the Contractor.”

“Key Sub-Contractor any of the sub-contractors or sub-

consultants listed as such in the Contract Documents, including those sub-contractors

carrying out the following packages of works:

(a) Building Management System and software; and

(b) Chilled & condenser water pumps.”

“Landlord PNBJ I Limited of 26 New Street, ST Helier, Jersey, JE2 3RA.”

“Lease the lease between the Landlord and the Employer.” 2

“Programme the Contractor’s programme (as updated by

the Contractor from time to time by agreement with the Employer to reflect the

progress of the Works) showing (inter alia):

(a) how the Contractor intends to carry

out and complete the construction of each Section by the respective

Completion Date;

(b) any milestone dates by which the Employer requires specified

elements of any Section to be completed prior to the respective

Completion Date; and

(c) the periods during which any Employer’s Persons are to carry out

work not forming part of this Contract as specified in the

Contract Documents or otherwise

agreed between the Parties pursuant to clause 2.6.”

“Prohibited Practices coercive practices, collusive practices, corrupt practices and/or fraudulent

practices defined in the Employer’s Enforcement Policy and Procedures

2 Copy of relevant parts of lease (or licence for works) to be provided only if it contains any relevant construction obligations.


currently published at

http://www.ebrd.com/downloads/integrity/epp.pdf”

“Purchaser any person who agrees to purchase a freehold or long leasehold interest in the

site of the Works or any part of it.”

“Sub-Contractor Third Party Rights”

the rights in favour of the Employer or a

Third Party set out in Part 2 of Schedule 5 or in the appropriate form of collateral

warranty.”

“SWM Plan a Site Waste Management Plan which

complies in all respects with the SWMP

Regulations.”

“Tenant any person who intends to enter or has

entered into a lease or an agreement for lease for the grant of a leasehold interest in

the premises standing or to be constructed

on the site of the Works or any part of them.”

“Third Party

means:

(a) any Tenant;

(b) any Purchaser;

(c) any Funder;

(d) the Landlord;

(e) any Affiliate.”

“Third Party Agreement any agreement between the Employer and an interested third party relating to or

affecting the carrying out and completion of

the Works, including the Lease and the House Rules and Regulations.”

“Third Party Rights

the rights in favour of a Third Party set out

in Part 1 of Schedule 5 or in the

appropriate form of collateral warranty.”

Clause 1.3 Renumber existing clause as 1.3.1.

Insert new clause 1.3.2:

“1.3.2 This Contract contains the entire agreement between the parties

relating to the Works and supersedes any previous agreement, understandings or arrangements between the parties in relation to

the Works (including but not limited to any letter of intent or letter

of instruction). The Contractor warrants to the Employer that it does not enter into the Contract in reliance upon any antecedent or

collateral representations, undertakings or promises of any nature


whatsoever made by or on behalf of the Employer. The parties

agree that any statements, representations or warranties made or given by either party during the course of negotiations which do

not form part of the Contract are withdrawn, overridden and of no legal effect and that the parties shall not be entitled to rely upon

nor make any claim in law in relation to them.”


“1.3.3 Any works or services performed by the Contractor prior to the

date of this Contract in relation to the Works pursuant to any previous agreement, understanding or arrangement are deemed to

have been performed pursuant to and subject to the terms of this Contract and any amounts paid pursuant to any such agreement,

understanding or arrangement are to be treated as having been

paid on account of the Contract Sum.”

Clause 1.6 Delete and insert “Number not used”.

Clause 1.7.2 Delete “by the means” and replace with “by pre-paid first class mail or by facsimile or by any other means”.

At the end of the clause insert “Any notice, communication or submission sent

by facsimile shall be immediately confirmed by the sending of a copy of the notice, communication or submission by pre-paid first class mail.”

Clause 1.7.3 In lines 2 and 3, delete “if delivered by hand or sent by pre-paid post to” and replace with “if sent by pre-paid first class mail or by facsimile to”.

In sub-clauses 1.7.3.1 and 1.7.3.2, after the references to “address” insert “or facsimile number”.

At the end of clause 1.7.3 insert:

“Each notice, communication or submission shall be marked for the attention of the person identified in the Contract Particulars or such other person as the

recipient may notify to the sender from time to time and all notices, communications and/or submissions given to or served upon the Employer shall

at the same time be copied to the Employer’s Corporate Procurement Unit.

Notices, communications and/or submissions sent by pre-paid first class mail shall be deemed to have been received on the second Business Day after the

date of posting and notices, communications and/or submissions sent by facsimile shall be deemed to have been received on the date of transmittal.”

Clause 1.9.1.1 Delete and insert:

“1.9.1.1 conclusive evidence that necessary effect has been given to all the terms of this Contract which require an amount to be added to or

deducted from the Contract Sum or an adjustment made of the Contract Sum;”.

After clause 1.10

Insert new clause:

1.10A Audit Rights

“1.10A.1 The Employer shall have the right to perform audits in connection


with this Contract.

1.10A.2 The Contractor shall, without charge to the Employer, fully co-operate with and provide information and assistance to the

Employer and/or its auditors, experts and insurers in carrying out such audits and subject to clause 1.10A.5 shall allow the Employer

and such persons unfettered access to:

1.10A.2.1 any premises from which the Works are being managed or performed together with the Contractor’s records

relating to the procurement and execution of the Works; and

1.10A.2.2 any Contractor’s Persons engaged in the execution of the Works,

sufficient to enable the Employer and/or its auditors, experts and

insurers, to carry out the checks and examinations they are required to carry out in connection with the operations of the

Contractor and the Contractor’s Persons in relation to the performance of the Contract and the procurement and execution of

the Works.

1.10A.3 The purpose of the audits will be to check and verify:

1.10A.3.1 the accuracy of the Contractor’s applications for payment

and invoices in respect of the Works;

1.10A.3.2 that where and to the extent the Contractor is required

to provide quotations for Variation and/or to manage and/or mitigate expenditure, that reasonable procedures

are in place and are being followed to ensure that the

Employer is getting good value for money and expenditure is being properly managed and controlled;

1.10A.3.3 that the Works are being carried out in accordance with the Contract and that the Contractor is complying with its

obligations under the Contract;

1.10A.3.4 compliance with the requirement to conduct Background Checks in accordance with clause 3.21.1; and

1.10A.3.5 any matter relating to the execution of the Works which the Employer’s insurers may require to check or verify

for the purposes of the Employer maintaining or

obtaining insurance cover.

1.10A.4 The Employer shall provide reasonable written notice to the

Contractor prior to exercising its right to carry out audits. Audits shall be carried out during the Contractor’s normal working hours.

1.10A.5 During the conduct of any audit, the Contractor shall permit access to all records and information relating to the Works in their

possession, except that the Contractor may refuse to provide

access to:

1.10A.5.1 any information which is proprietary or which relates to


the Contractor’s other customers or its third party

licensors; and

1.10A.5.2 any other confidential information unconnected with the

procurement and/or execution of the Works other than Confidential Information as defined in the Contract.


Section 2 Carrying out the Works

Clause 2.1 In line 2, after “Construction Phase Plan” insert “, the House Rules and Regulations, the EBRD Policies”

In line 3 after “required by the Statutory Requirements” insert:

“and the Contractor shall forthwith supply to the Architect/Contract

Administrator copies of all notices given under this clause 2.1”.

Clause 2.3.2 In line 4 after “Contractor’s Proposals” insert “or the documents referred to in clause 2.9.4.1”.

After clause 2.3.5


“2.3.6 In the event that the standards of materials, goods and

workmanship are not fully described in the Priced Document and/or Specification (as applicable) and/or the Employer’s Requirements,

they shall as a minimum be suitable for the purposes of the Works (as stated in or reasonably to be inferred from the Contract

Documents) and the Contractor shall use materials and goods which are of sound and satisfactory quality and reasonably fit for

their intended purpose.”

Clause 2.4 In line 4 after “relevant Completion Date” insert:

“provided that the Employer shall not be obliged to give possession of the site

to the Contractor (and, if such possession is given, the Contractor shall not begin the construction of the Works) until the Employer is reasonably satisfied

that the construction phase plan prepared by the Contractor pursuant to clause

3.23.2 complies with regulations 23(1)(a) and 23(2) of the CDM Regulations and is otherwise appropriate to the Works. The Contractor shall not be entitled

to an extension of time under clause 2.28 nor to recover direct loss and/or expense under clauses 4.24 and clause 8.9 shall not have effect where and to

the extent that the cause of the Works having been delayed, affected or

suspended is the Contractor’s failure to satisfy the Employer as referred to in this clause.”

Clause 2.4.1 After “Practical Completion Certificate” insert:

“or up to and including the date of determination of the Contractor’s

employment under section 8 (whether or not the validity of that determination is contested), whichever is the earlier”.

Clause 2.4.2 After “Practical Completion Certificate” insert:


“or (in each case) up to and including the date of determination of the

Contractor’s employment under section 8 (whether or not the validity of that determination is contested), whichever is the earlier”.

After clause 2.7.2

Insert new clauses 2.7.3 to 2.7.5:

“2.7.3 The Contractor shall liaise as necessary with, and take all

reasonable steps to co-ordinate the Works with the work of the Employer’s Persons referred to in this clause 2.7 and to co-ordinate

their activities so as to minimise (as far as reasonably practicable) any disruption or interference to such work caused by the carrying

out of the Works (and vice versa).

2.7.4 The Contractor shall afford all reasonable facilities for the

Employer’s Persons in the execution of work referred to in this

clause 2.7 to enable them to execute such work. In particular (but without limitation) the Contractor shall:

2.7.4.1 provide and maintain at all times a suitable and safe means of vehicular and pedestrian access to and egress

from the relevant part of the site for the Employer’s

Persons as described in the Contract Documents or otherwise agreed between the parties;

2.7.4.2 allow the Employer’s Persons to deliver plant, goods and materials to the relevant part of the site (including

deliveries by articulated lorry) at all times during which such deliveries are permitted as specified in the Contract;

2.7.4.3 make available to the Employer’s Persons such storage

and welfare facilities as may be specified in the Contract Documents; and

2.7.4.4 provide adequate lighting and security to prevent break-ins.

2.7.5 The Contractor shall not be entitled to an extension of time nor to

any adjustment of the Contract Sum (whether pursuant to clause 4.23 or otherwise) and clause 8.9 shall not have effect in respect of

any delay or disruption to the regular progress of the Works caused by:

2.7.5.1 the execution by the Employer’s Persons of work referred

to in this clause 2.7 in accordance with the Programme; or

2.7.5.2 the provision by the Contractor and use by the Employer’s Persons of the facilities referred to in clause

2.7.4.”

Clause 2.8.4 Delete and insert:

“2.8.4.1 The Contractor will keep all Confidential Information confidential

and will not disclose Confidential Information to any third party or make any use of Confidential Information for any purpose other


than fulfilling its obligations under this Contract. The Contractor

will, on request from the Employer, promptly return or destroy any Confidential Information belonging to the Employer.

2.8.4.2 Notwithstanding the foregoing, the Contractor may disclose Confidential Information to Contractor’s Persons involved in

providing or supervising the performance of the obligations of the

Contractor under this Contract on a need-to-know basis, provided that, if any such information is disclosed to Contractor’s Persons,

the Contractor undertakes to ensure that the relevant Contractor’s Persons are bound by an obligation of confidentiality on terms

materially similar to this clause 2.8.4.

2.8.4.3 For the purposes of this clause 2.8.4 Confidential Information shall

not include information which:

.1 is in the public domain otherwise than as a result of breach by the Contractor of its obligations under this

Contract or breach of any Contractor’s Persons undertakings given pursuant to clause 2.8.4.2;

.2 is already in the possession of the Contractor at the time

of disclosure to it and which was not provided by the Employer or by a third party in breach of a confidentiality

undertaking;

.3 is received after disclosure to the Contractor from a third

party without an accompanying obligation of confidentiality;

.4 is independently developed by the Contractor without

reference to the Confidential Information of the Employer;

.5 subject to the Employer’s privileges and immunities, is required to be disclosed by law or order of a court of a

governmental agency, provided that the Contractor shall

forthwith provide the Employer with notice of the disclosure requirement prior to making any such

disclosure.

2.8.4.4 Upon completion or earlier termination of this Contract for

whatever reason, the Contractor shall as soon as reasonably

practicable, but in any event within thirty (30) days of being requested by the Employer so to do, return to the Employer all

Confidential Information and all copies thereof held by the Contractor in connection with this Contract.”

After clause 2.8

Insert new clause 2.9A:

“Restrictions on Announcements and Use of the Employer’s Name and

Logo

“2.9A.1 The Contractor shall obtain written approval from the Employer prior to making any publicity releases, advertisements or

announcements or other publicity relating to its appointment under this Contract.


2.9A.2 The Contractor undertakes that it shall not use the Employer’s

name in any public announcements, promotional, marketing or sales materials without the prior written consent of the Employer.

2.9A.3 The Employer’s logo is a registered service mark and as such may not be reproduced without the express written permission of the

Employer.”

Clause 2.9.4.1 In line 3 after “Proposals” insert “or to enable the Contractor to carry out and complete the Contractor’s Designed Portion”.3

Clause 2.10 After the first sentence insert:

“Immediately on receipt of such information the Contractor shall check the

accuracy of all dimensions and levels shown on such drawings and shall report any discrepancies to the Architect/Contract Administrator in writing.”


Clause 2.12.1 In line 1 delete “Where not included in the Information Release Schedule, the” and insert “The”.

Clause 2.14.2 In line 3 after “Contract Sum” insert “nor any extension of time under clause 2.28”.

Clause 2.16.1 In line 2 delete “other than the Employer’s Requirements”.

In line 7 after “Contract Sum” insert “nor any extension of time under clause 2.28”.

Clause 2.16.2 In line 3 after “Contract Sum” insert “nor any extension of time under clause 2.28”.

Clause 2.17.2.1

In line 2 after “Employer” insert “and without any extension of time”.

In line 4 after “Contractor’s Designed Portion” insert “of which the Contractor

was not aware and which could not reasonably have been foreseen by a competent and experienced contractor at the Base Date”.

Clause 2.19 Delete and insert:

“Insofar as the design of the Contractor’s Designed Portion is comprised in the

Contractor’s Proposals and in what the Contractor is to complete under clause

2.2 and in accordance with the Employer’s Requirements and this Contract (including any further design which the Contractor has to carry out as a result

of a Variation) the Contractor warrants and undertakes to the Employer (without prejudice to any other express or implied warranties) that:

3 The Contractor’s Design Portion will be as follows:

- brackets/supports

- Building Management System (BMS), Motor Control Centres (MCCs) and associated software

- installations design to comply with manufacturers recommendations, relevant standards and in accordance with good practice.


2.19.1 he has exercised and will continue to exercise in such design all the

reasonable skill, care and diligence to be expected of a qualified and competent designer of the relevant discipline experienced in

carrying out the design of works of a similar size, scope, nature, value and complexity to the Works;

2.19.2 the CDP Works will, when completed, comply with any

performance specification or requirement included or referred to in the Employer’s Requirements;

2.19.3 the various elements of the CDP Works shall be properly co-ordinated and integrated with each other and with the

remainder of the Works;

2.19.4 the CDP Works comprise, or will comprise, only materials and

goods which are new and of sound and merchantable quality and

all workmanship, manufacture and fabrication will be to the highest standards available at the date of execution of the same and

consistent with the intended use of the Contractor’s Designed Portion; and

2.19.5 the CDP Works will, when completed, in all respects comply with

the Statutory Requirements.”

After clause 2.20

Insert new clause 2.20A:

“2.20A Any references in this Contract to the design which the Contractor

has prepared or issued, or shall prepare or issue, for the Contractor’s Designed Portion shall include a reference to any

design which the Contractor has caused, or shall cause, to be

prepared or issued by others.”

After clause 2.20A

Insert new clause 2.20B:

“Deleterious materials

2.20B The Contractor warrants to the Employer that, unless otherwise

instructed or authorised by the Employer, none of the following materials has been or will be used in the construction of any part

of the Works:

2.20B.1 any of the materials identified as potentially hazardous in

the British Council for Offices publication Good practice in the selection of construction materials (current edition), other than in accordance with the recommendations as

to good practice contained in section 2 of that report; and

2.20B.2 tany other material which (or the use of which) does not comply with current relevant British Standard

specifications and codes of practice and good building

practice current at the time of use or is otherwise generally known within the contracting industry at the

time of use to be deleterious or harmful to health or to


the durability of the Works in the particular

circumstances in which it is proposed to be used.

The Contractor shall notify the Employer promptly if he becomes aware of any

proposed or actual use in the Works of any materials which (or the use of which) are prohibited by virtue of clause 2.20B.

Clause 2.26.2 In line 3 after “Quotation” insert “or otherwise by agreement of the Parties in

respect of a Variation or other work referred to in clause 5.2”.

Clause 2.28.6.4

In line 2 after “Variation Quotation” insert “or other work referred to in clause

5.2”

In line 2 after “relevant Variation” insert “or other work”.

After clause 2.28.6.4

Insert new sub-clauses as follows:

“2.28.6.5 the Contractor shall not in any event be entitled to an extension of

time to the extent that any delay in the progress of the Works is caused or contributed to by any negligence, breach of statutory

duty, omission or default of the Contractor or any of the Contractor’s Persons.

Clause 2.29.2.1

After “clauses 2.15” insert “(unless clause 2.14.2 applies)”.

Clause 2.29.2.2

In line 3 after “Contract” insert “or unless clause 3.18.3 applies”.

Clause 2.29.6 In line 2 after “Employer’s Persons,” insert “unless clause 2.7.5.1 applies and”.

Clause 2.29.7 Delete and insert “Number not used”.


Clause 2.29.11 In line 4 after “Contractor’s Designed Portion” insert “, other than any such

action which is directed specifically at the Contractor or any sub-contractor or at the site of the Works”.

Clause 2.30 In line 2 after “clauses 2.40 and 3.23.4” insert “and (where applicable) any pre-conditions to practical completion set out in the Contract Documents have been

satisfied”.4

Clause 2.30 At the end insert:

“Provided that the Architect/Contract Administrator may in his absolute

discretion issue the Practical Completion Certificate or Section Completion Certificate (as appropriate) accompanied by a list of minor defects and

outstanding works if:

2.30.1 the existence and/or making good of the listed items will not

4 Any other pre-conditions to PC (eg. requirement to provide warrantees and guarantees) will be set out in the Contract Documents.


materially disrupt or prejudice the beneficial use and occupation of

the premises or, in relation to Sectional Completion, any premises comprised in the Section; and

2.30.2 the Contractor gives to the Architect/Contract Administrator a written undertaking to complete and/or make good such items with

all due diligence as soon as reasonably practicable (and in any

event within 28 days following the issue of the relevant certificate) and in such a manner as to minimise noise and disruption to the

beneficial use and occupation of any premises and to make good with all reasonable speed any damage caused to the Works or the

site.”

Clause 2.31 “Such notice shall (unless cancelled as hereinafter provided) be conclusive and

binding on the Contractor until the parties agree otherwise or unless and until

the matters to which it relates are revised in adjudication or legal proceedings.”

Clause 2.33 At the end insert “Following the taking into possession of any part or parts of

the Works by the Employer, the Contractor shall at his own cost make all necessary provision for access to such part or parts by the Employer or any of

the Employer’s Persons.”

Clause 2.38.2 In lines 3 to 4 delete “after delivery of a schedule of defects or more than 14 days after” and insert “later than 14 days after”.

Clause 2.38 (final paragraph)

In line 1 delete “Within a reasonable time” and insert “As soon as reasonably practicable”.

In line 2 after “other faults” insert “and any such consequential damage”.

In line 2 after “by the Contractor” insert “(who shall carry out such works so as

to cause as little disturbance as possible to any occupier of premises comprised within the Works)”.

In line 5 after “other faults” insert “and any such consequential damage”.

At the end insert:

“The Contractor shall be responsible for liaising as necessary with any

Employer’s Persons working on the site to secure such access as he may require to enable him to comply with his obligations under this clause 2.35.”

Clause 2.39 In line 1 after “Architect/Contract Administrator’s opinion” insert:

“any items contained in any schedule referred to in clause 3.18 have been

completed and/or made good and”.

Clause 2.40 In line 1 delete “Where there is a Contractor’s Designed Portion,”.

In line 3 after “use of the Employer” insert a colon.

In lines 2 to 6 delete “such Contractor’s … part of it” and insert:

“2.40.1 where there is a Contractor’s Designed Portion, such Contractor’s

Design Documents and related information as may be specified in the Contract Documents or as the Employer may reasonably


require, showing or describing the Works as built and, without

affecting the Contractor’s obligations under clause 3.16 (the health and safety file), concerning the maintenance and operation of the

Works, including any installations forming part of it; and

2.40.2 an Energy Performance Certificate and recommendation report in

accordance with the EPC Regulations for each "building" (as

defined in the EPC Regulations, taking into account Regulations 11(7) and (8)) comprised in the Works (and the Contractor shall

notify the building control officer when these have been provided).”

Clause 2.41.2 In lines 1 and 2 delete “Subject to all monies due and payable under this

Contract to the Contractor having been paid, the Employer shall have” and insert “The Contractor hereby grants to the Employer”.

In line 5 after “advertisement,” insert “alteration, extension,”.

Delete the final sentence.

After clause 2.41.3

Insert new sub-clauses 2.41.4 to 2.41.6:

2.41.4 The licence referred to in clause 2.41.2 carries the right to grant

sub-licences and shall be transferable to third parties and shall

subsist notwithstanding the determination (for any reason) of the Contractor’s employment under this Contract.

2.41.5 Insofar as the Contractor is the author (as referred to in the Copyright, Designs and Patents Act 1988) of the Contractor’s

Design Documents and/or of the Works, the Contractor waives any moral rights which he might otherwise be deemed to possess

under Chapter IV of that Act in respect of them.

2.41.6 The Contractor shall procure for the Employer a waiver corresponding to that in clause 2.41.3 from any sub-contractor or

supplier engaged by the Contractor or any sub-contractor who is an author (as referred to in such Act) of any part of the

Contractor’s Design Documents and/or the Works in respect of

them.”

After clause 2.41

Insert new clauses 2.42 to 2.44:

“Third party agreements

2.42 The Contractor shall:

2.42.1 duly observe and perform any obligations imposed upon the Employer by any Third Party Agreement;

2.42.2 carry out and complete the Works in such a manner as not to constitute, cause or contribute to a breach by the

Employer of any Third Party Agreement; and

2.42.3 indemnify the Employer against any damages, costs,

fees, expenses or other like losses arising from any

breach of any Third Party Agreement;


provided that copies or relevant extracts of such Third Party

Agreements have previously been provided by the Employer to the Contractor. If copies or relevant extracts of any Third Party

Agreements are provided to the Contractor after the date of this Contract and necessitate or result in an amendment to the Contract

Documents, such amendment shall be treated as an instruction of

the Employer under clause 3.14 requiring a Variation.

Performance bond and/or parent company guarantee

2.43 If so required by the Employer, the Contractor shall as a condition precedent to the performance by the Employer of his obligations

under this Contract deliver to the Employer:

2.43.1 a parent company guarantee duly executed by the

ultimate parent company of the Contractor in the form

set out in Appendix 1; and/or

2.43.2 a performance bond for 10% of the Contract Sum duly

executed by the Contractor and a bank or other financial institution acceptable to the Employer in the form set out

in Appendix 2.

Physical and other conditions

2.44 The Contractor acknowledges that he has had an opportunity to

inspect and carry out tests of the physical and other conditions (including the sub-surface conditions) of or affecting the site on

which the Works are to be carried out and shall be deemed to have obtained all necessary information and to have fully satisfied

himself as to such conditions and as to any risks, contingencies and

other circumstances in relation thereto which may influence or affect the carrying out of the Works. No failure on the part of the

Contractor to discover or foresee any such condition, risk, contingency or circumstance, whether or not the same ought

reasonably to have been discovered or foreseen by a competent

and careful contractor, shall entitle the Contractor to an adjustment of the Contract Sum nor to any extension of time. The Contractor

shall not and shall not be entitled to rely on any drawing, survey, report or other document prepared or provided by or on behalf of

the Employer regarding any matter referred to in this clause 2.44

and the Employer makes no representation or warranty as to the accuracy or completeness of any such drawing, survey, report or

document.”

Section 3 Control of the Works

Clause 3.1 In line 1 after “any person authorised by him” insert:

“and the Employer and any other persons authorised by the

Employer (including without limitation the Landlord, any Affiliate, Funder, Purchaser or Tenant and their respective representatives)”.

In line 6 delete “by him” and insert “as aforesaid”.


Delete the final sentence.


“3.2.1 The Contractor shall at all times keep upon the Works

and deploy full time in relation to the Works a person in charge (the identity of whom shall be notified to the

Employer), who shall be appropriately competent and

experienced to undertake this role. Such person shall act as the Contractor’s representative in charge of the

Works and any instructions given to him by the Architect/Contract Administrator shall be deemed to have

been issued to the Contractor.

3.2.2 The Contractor shall procure that the services of any key

person notified to the Employer shall be available at such

times and that each key person shall devote such time and attention as may be necessary to ensure the proper

carrying out by the Contractor of the Works.

3.2.3 The Contractor shall not remove the person-in-charge

referred to in clause 3.2.1 or any key person referred to

in clause 3.2.2, nor select their replacement, without the prior approval of the Employer (such approval not to be

unreasonably withheld or delayed).

3.2.4 The Employer may request the removal of the person-in-

charge referred to in clause 3.2.1, any key person referred to in clause 3.2.2 or other persons engaged on

the Works if in the Employer’s opinion (not to be

exercised unreasonably or vexatiously) his performance or conduct is or has been unsatisfactory. The Contractor

shall promptly remove such person and replace him with such other person as the Employer shall have first

approved.”

Clause 3.7.2 At the end insert:

“The Contractor shall satisfy himself prior to sub-contracting all or

any part of the Works or the design for the Contractor’s Designed Portion that the proposed sub-contractor:

3.7.2.1 is competent and experienced in undertaking design and

work of the nature of that it is to undertake pursuant to the relevant sub-contract;

3.7.2.2 is a sub-contractor of repute which has the benefit of professional indemnity insurance and/or product liability

insurance in a reasonable sum having regard to the nature and extent of the design and work that it is to

undertake; and

3.7.2.3 has allocated or (as the case may be) will allocate adequate resources to enable him to comply with all his

obligations under the CDM Regulations.”


Clause 3.8.3.1 In line 1 delete “shall” and insert “may”.




Clause 3.17 In line 6 after “Contract” insert “or unless clause 3.18.3 applies”.

Clause 3.18.1 In line 1 after “site” insert “and/or rectification”.

Clause 3.18.4 In lines 6 to 8 delete “but clauses 2.28 and 2.29.2.2 ... with this Contract” and insert “and notwithstanding clauses 2.28 and

2.29.2.2 no extension of time shall be given in respect of compliance by the Contractor with such instruction”.


“3.21.1 The Employer may require the Contractor to carry out

Background Checks in respect of any Contractor’s

Persons working on site and shall have the right, at any time, to refuse admittance to, or order the removal from,

the site of any Contractor’s Persons who in the opinion of the Employer or the Architect/Contract Administrator is

not a fit and proper person to be on the site. Any steps

taken under this clause 3.21.1 shall be confirmed to the Contractor by the Employer or the Architect/Contract

Administrator in writing and shall not relieve the Contractor of any of its obligations under the Contract or

entitle the Contractor to claim any extension of time or additional monies as a consequence of such action.

3.21.2 Contractor’s Persons who have, or are likely to have

access to the site and/or to documents and information relating to the Employer’s policies or operations, may at

the discretion of the Employer be required to sign an undertaking to comply with one or more of the EBRD

Policies and an undertaking of confidentiality.

After clause 3.21 Insert new clause 3.21A:

3.21A “Any additional costs, losses and/or expenses (including

professional fees) incurred by the Employer as a result of any work, materials or goods not being in accordance

with the Contract (including, without limitation, any

additional costs, losses and/or expenses arising out of the issue of instructions by the Architect/Contract

Administrator under clauses 3.17, 3.18 and/or 3.19) may (subject to clause 4.12.5 or 4.15.4) be deducted by

the Employer from any monies due or to become due to the Contractor under this Contract or may be recovered

from the Contractor as a debt.”

After clause 3.23.4 Insert new clause 3.23.5:


“3.23.5 The Contractor warrants to the Employer that he has

the competence and has allocated or (as the case may be) will allocate adequate resources to enable him to

comply with all his obligations under the CDM Regulations, including (where the Contractor is and

while he remains the Principal Contractor) his

obligations as a principal contractor.”

After clause 3.24 Insert new clause 3.25: “SWMP Regulations

“SWMP Regulations 3.25 The Contractor shall ensure that SWM Plan is prepared and a copy submitted to the Employer before the

Contractor commences work on the Site. The Contractor shall update the SWM Plan in accordance

with the SWMP Regulations and perform his other

duties under the SWMP Regulations”.

Section 4 Payment

Clause 4.10.2 In lines 3 and 4, delete “, except where Fluctuations Option

C…….issue of each Interim Certificate”.

Clause 4.12.1 In line 1 delete “14” and insert “30”.

Clause 4.13.3 In line 1 delete “his fiduciary interest in the Retention as stated in”.

Clause 4.14.1 At the end insert a new sentence:

"The Contractor shall in his notice identify the particular obligations

performance of which he intends to suspend."

Clause 4.16.1.2 In line 2 after “casualties” insert:

“and upon the Contractor providing the Architect/Contract

Administrator with reasonable proof that the property in such materials or goods is in him and that no sub-contractor or supplier

(of any tier) has validly retained title to the same”.


“4.18.1 The Employer’s interest in the Retention shall not be

fiduciary, either as trustee for the Contractor or any other person or in any other capacity, the relationship

of the Employer and the Contractor with regard to the Retention shall solely be that of debtor and unsecured

creditor, subject to the Conditions, and the Employer

shall have no obligation to invest the Retention or any part of it.

4.18.2 The Employer shall have no obligation to segregate the Retention or any part of it in a separate banking

account or in any other manner and shall be entitled to the full beneficial interest in the Retention and every

part of it (including, without limitation, interest and


income arising on it) unless and until the Retention is

paid to the Contractor pursuant to this Contract.”


“No Fluctuations

The Contract Sum shall not be subject to fluctuations in the event

of changes in the types or rates of contribution, tax or levy payable

by the Contractor, increases or decreases in the cost of materials, goods, fuel or electricity used in the Works, increases or decreases

in the rates of wages and expenses payable to workpeople employed or engaged by the Contractor or otherwise howsoever,

except as expressly provided in the Conditions. All references in the Contract Particulars and the Conditions to Schedule 7 or any

operative clauses within it shall be deemed to have been deleted.”


Clause 4.23.3 At the end delete the full stop and insert “; and”.

After clause 4.23.3 Insert new sub-clauses 4.23.4 and 4.23.5:

“4.23.4 the Contractor shall use constantly his best endeavours

to prevent or minimise any disruption to the regular

progress of the Works as aforesaid and to mitigate any direct loss and/or expense incurred by him and shall not

in any event be entitled to reimbursement of direct loss and/or expense to the extent that the same has been

incurred through any negligence, breach of statutory duty, omission or default of the Contractor or any of the

Contractor’s Persons; and

4.23.5 the Contractor shall not be entitled to reimbursement of direct loss and/or expense in respect of any Relevant

Matter which is concurrent with another matter for which the Contractor is responsible.”


The provisions of clause 4.25 shall be deemed to be full compensation for the Contractor in respect of the Relevant Matter

concerned and the Employer shall have no further liability to the Contractor in respect of such Relevant Matter whether under this

Contract or otherwise at law.”

Section 6 Injury, Damage and Insurance

Clause 6.1 In line 3 after “Works” insert “or of any obligation pursuant to clause 2.38”.

Clause 6.2 In line 4 after “Works” insert “or of any obligation pursuant to clause 2.38”.

In lines 7 to 9 delete the words “and, where Insurance Option C …


Specified Peril”.

Clause 6.4.1 In line 2 after “maintain” insert “until the date of issue of the Certificate of Making Good”.

Clause 6.5.1 In line 2 after “take out” insert “and maintain until the date of issue of the Certificate of Making Good”.

Clause 6.8 In the definition of “Joint Names Policy” after “Contractor” insert

“and any Fund and/or any Purchaser”.

Clause 6.11.5.2 In lines 3 to 5 delete “and with no reduction … loss or damage”.

Clause 6.12 Delete the existing clause 6.12 and insert the following:

“6.12.1 Without limiting its other obligations under this Contract

or otherwise at law, the Contractor shall maintain professional indemnity insurance to cover its professional

liability under this Contract, with a limit of indemnity of

not less than £[●]5 for each and every claim, provided that such insurance continues to be available in the

United Kingdom market on reasonable terms and at commercially reasonable premium rates to contractors

undertaking works substantially similar to the Works.

6.12.2 The insurance referred to in clause 6.12.1 will:

.1 be subject only to such conditions and excesses

as may be usual in the United Kingdom market at the time; and

.2 be provided by insurers licensed to carry out insurance business in the United Kingdom; and

.3 be maintained from the date of this Contract and

for a period expiring not less than 12 years after the date of issue of the Practical Completion

Certificate and notwithstanding the expiry or termination (for any reason) of the Contractor’s

employment under this Contract.

6.12.3 As and when reasonably required to do so by the Employer, the Contractor shall produce documentary

evidence that the insurance required by this clause 6.12 is being properly maintained.

6.12.4 The Contractor shall not compromise, settle or waive any

insurance claim which it may have in respect of any professional liability under this deed without the prior

consent of the Employer, provided that nothing in this clause precludes the Contractor’s insurers from taking

over (in the name of the Contractor) the defence of any claim made by the Employer under this Contract and (in

5 Contractor to confirm level of PI it maintains.


that capacity) from conducting and settling it as they see

fit.”

Clause 6.13 Delete the existing clause 6.12 and insert the following:

“The Contractor shall promptly notify the Employer if at any time it is unable to obtain insurance as required by clause 6.12 on

reasonable terms and at commercially reasonable premium rates or

at all or if there is any material reduction in the scope or level of cover offered by such insurance and in that event shall continue to

maintain insurance on such terms and with such a limit of indemnity as may then be available to the Contractor.”

After clause 6.17 Insert new clause 6.18:

“Nuisance and trespass

6.18.1 The Contractor shall at all times prevent any public or

private nuisance (including, without limitation, any such nuisance caused by noxious fumes, noisy working

operations or the deposit of any material or debris on the public highway) or other interference with the rights

of the Landlord, any adjoining or neighbouring

landowner, tenant or occupier or any Statutory Undertaker or other third party arising out of the

carrying out of the Works or of any obligation pursuant to clause 2.38 and shall assist the Employer in

defending any action or proceedings which may be instituted in relation thereto. The Employer shall, if so

requested by the Contractor, supply to the Contractor in

such time as may be reasonable, having regard to the time and nature of any such request, any relevant

information in the possession of the Employer relating to the rights of such third parties.

6.18.2 Without prejudice to clause 6.18.1, the Contractor shall

ensure that there is no trespass on or over any adjoining or neighbouring property arising out of or in

the course of or caused by the carrying out of the Works or of any obligation pursuant to clause 2.38. If

the carrying out of the Works or of any obligation

pursuant to clause 2.38 is likely to necessitate any interference (including, without limitation, the

oversailing of tower crane jibs) with the rights of adjoining or neighbouring owners or occupiers, then the

Contractor shall, at no cost to the Employer, obtain the prior written agreement of such owners and/or

occupiers thereto, and any such agreement shall be

subject to the approval of the Employer before execution. The Contractor shall comply in every respect

with any conditions contained in any such agreement.

6.18.3 The Contractor shall be responsible for and shall

indemnify the Employer from and against any and all

expenses, liabilities, losses, claims and proceedings whatsoever resulting from any nuisance, interference or

trespass referred to in clauses 6.18.1 and 6.18.2, save


only to the extent that such nuisance, interference or

trespass is an unavoidable consequence of compliance with an instruction of the Architect/Contract

Administrator under this Contract which is not itself necessitated by any negligence, breach of statutory

duty, omission or default of the Contractor or the

Contractor’s Persons.”

Section 7 Assignment, Third Party Rights and Collateral Warranties

Clauses 7.1 and 7.2 Delete and insert:

“7.1 “The Contractor shall not, without the prior written consent of the Employer, assign his interest in or any

rights arising under this Contract.”

7.2 The Employer may at any time assign or charge the benefit of this Contract and any rights arising under it

on written notice to the Contractor without the consent of the Contractor being required:

7.2.1 on an unlimited number of occasions to any

Funder or any Affiliate of the Employer and/or to any limited partnership or similar vehicle

set up by the Employer (or by an Affiliate of the Employer) which acquires an interest in

the site of the Works; and

7.2.2 to any other person on a maximum of two

occasions, any further assignment to be

subject to the consent of the Contractor (such consent not to be unreasonably

withheld or delayed).”.”

After clause 7.4 Insert new clause 7.5:

“Third Party Rights”

7.5 Subject to clauses 7A and 7D, it is not intended that a third party should have the right to enforce a provision

of this Contract pursuant to the Contracts (Rights of Third Parties) Act 1999.”

Clause 7A

Delete the existing heading and replace with:

“Rights for Third Parties - Contractor”

Clause 7A.1

Delete and insert:

“Subject to clause 7C, Third Party Rights shall vest in that Third

Party on the date of receipt by the Contractor of the Employer’s notice to that effect, stating the name of the Third Party and the

nature of his interest in the Works.” Clause 7A.2

In the final line, delete “Purchaser or Tenant” and insert “Third


Party”.

Clause 7A.3

Delete and insert:

“Where Third Party Rights have vested in any Third Party, then,

notwithstanding the provisions of clause 7A.2, the Employer and

the Contractor shall not be entitled without the consent of such Third Party to amend or vary the express provisions of this clause

7A or of Part 1 of Schedule 5 (Third Party Rights).”

Clause 7B

Delete and insert “Number not used.”

Clause 7C Delete and insert:

“Collateral Warranties” “7C Where a Third Party requires the Contractor to execute a collateral warranty in its favour in place of the provisions

of clause 7A, the Employer shall notify the Contractor accordingly. The Contractor shall, within 14 days of such

notice and receipt of engrossments from the Employer,

execute and deliver to the Employer a deed or deeds of collateral warranty in favour of that particular Third Party

on terms substantially the same as those set out in Part 1 of Schedule 5. In the event that notice is given by the

Employer under this clause 7C, the provisions of clause 7A and Part 1 of Schedule 5 will not apply in respect of

that Third Party.”.

clause 7D Delete and insert:

““Rights for Third Parties - Key Sub-Contractors”

7D.1 The Contractor shall ensure that any contract entered into with any Key Sub-Contractor shall provide for Sub-

Contractor Third Party Rights in favour of the Employer

and any Third Party in the form set out in Part 2 of Schedule 5 of this Contract. Where the contract in

question is a sub-consultant’s appointment, the references in this clause 7D and Part 2 of Schedule 5 to

“sub-contractor/Sub-Contractor” and “Sub-Contract” shall

be to “sub-consultant/Sub-Consultant” and “Appointment” in the contract in question.

7D.2 The Contractor shall ensure that any contract entered into with any Key Sub-Contractor as referred to in clause

7D.1 shall include the following express provisions which shall not be amended by the Contractor and the sub-

contractor without the Employer’s written consent:

.1 that the Sub-Contractor Third Party Rights set out in Part 2 of Schedule 5 shall vest in the

Employer (as the case may be) on the date of this Contract (if the Key Sub-Contractor is

appointed by that date) or from the day of

appointment of each Key Sub-Contractor;

.2 that where Sub-Contractor Third Party Rights


have vested in the Employer neither the

Contractor nor the Key Sub-contractor shall agree to rescind the contract and the rights of

the Key Sub-Contractor to terminate its employment thereunder or to treat the sub-

contract as repudiated shall in all respects be

subject to the provisions of paragraph 3 of Part 2 of Schedule 5;

.3 that the Sub-Contractor Third Party Rights set out in Part 2 of Schedule 5 shall vest in the

relevant Third Party not later than fourteen (14) days after the date on which the Employer

serves on the Key-Subcontractor a written notice

identifying such person and the nature of its interest in the Works; and

.4 that no right of the Contractor and/or the Key Sub-Contractor to agree any amendment,

variation or waiver to the terms of the sub-

contract or to terminate the Key Sub-Contractor’s employment under the sub-contract

or to settle any dispute or other matter arising out of or in connection with the sub-contract

shall be subject to the consent of the Third Party except that, where rights have vested in the

Third Party, the Contractor and the Key Sub-

Contractor shall not be entitled to amend or vary the express terms of clauses 7D.2.3 to 7D.2.4 or

Part 2 of Schedule 5 without the consent of that Third Party.

7D.3 References to clauses and paragraphs in clauses 7D.2.1

to 7D.2.4 are to the clauses and paragraphs as they are contained and numbered in the relevant contract

between Contractor and Key Sub-Contractor.

7D.4 The Contractor shall be liable for and shall indemnify the

Employer from and against any and all expense, liability,

loss, claim or proceedings (including the cost of defending any such claim or proceedings) to the extent

that the same arises out of or in connection with any failure by the Contractor to procure that any Third Party

is permitted to enforce the Sub-Contractor Third Party Rights against the relevant Third Party pursuant to

clauses 7D.1 and 7D.2.

7D.5 Upon the appointment of each Key Sub-Contractor, the Contractor shall deliver to the Employer a certified copy

of the appointment or sub-contract entered into with the Key Sub-Contractor.”

clause 7E Delete and insert:

“Where the Employer or a Third Party requires a Key Sub-Contractor to execute a collateral warranty in its favour in place of

the provisions of clause 7D, the Employer shall notify the


Contractor accordingly. The Contractor shall, within 14 days of

such notice, procure the execution by the Key Sub-Contractor and delivery to the Employer of a deed or deeds of collateral warranty

in favour of the Employer or that particular Third Party on terms substantially the same as those set out in Part 2 of Schedule 5. In

the event that notice is given by the Employer under this clause 7E,

the provisions of clause 7D and Part 2 of Schedule 5 will not apply in respect of that Third Party.”.

After clause 7E Insert new clause 7F:

“Failure to deliver collateral

warranty” “7F If the Contractor fails to deliver to the Employer any deed

of collateral warranty validly requested by the Employer under clause 7C or clause 7E within the respective

timescale specified in those clauses, the Employer shall

be entitled to withhold any payment or further payment which would otherwise be due to the Contractor under

this Contract until such deed of warranty has been so delivered to the Employer.”

Section 8 Termination


Clause 8.4.1.3 In line 2 after “remove” insert “or rectify”.

Clause 8.5.3.1 In line 1, delete “clauses 8.7.3 to 8.7.5 and (if relevant) clause 8.8”

and insert:

“clause 8.7.3”

Clause 8.5.3.2 Delete and insert “Number not used”.


“8.6.1 The Contractor shall, and shall ensure that its

employees, agents, subsidiaries, sub-contractors and sub-consultants who perform services in relation to the

Works (the “Associated Persons”) shall not through

their acts or omissions commit Prohibited Practices or otherwise breach the Employer's Enforcement Policy

and Procedures any Anti-Corruption Laws.

8.6.2 The Contractor shall at all times comply with the

Employer’s Enforcement Policy and Procedures. The

Contractor shall notify the Employer immediately in writing if any violation or any suspicion of Prohibited

Practices or any breach of Anti-Corruption Laws.

8.6.3 The Contractor shall notify the Associated Persons of

the relevant policy and use all reasonable endeavours to ensure the Associated Persons comply with its

provisions.

8.6.4 The Employer shall be entitled by notice to the


Contractor to terminate the Contractor's employment,

under this or any other contract with the Employer if, in relation to this or any other such contract, the

Contractor or any person employed by him or acting on his behalf shall have committed any Prohibited Practices

or if the Contractor is in breach of any Anti-Corruption

Laws or any of the provisions of clauses 8.6.1, 8.6.2 or 8.6.3."

Clause 8.7.1 Re-number as clause 8.7.1.1 and insert new clause 8.7.1.2:

“8.7.1.2 unless the Contractor is in liquidation the Employer may

pay any supplier or sub-contractor for any materials or goods delivered or works executed for the purposes of

this Contract before the date of termination insofar as

the price thereof has not already been paid by the Contractor, and the amount of any such payment may

be deducted from any sum due to the Contractor or may be recoverable from the Contractor by the

Employer as a debt;”

Clause 8.9.1.3 Delete and insert “Number not used”.


Section 9 Settlement of Disputes

Delete clauses 9.1-9.8 and insert the following:

9.1 This Contract shall be construed in accordance with

English law. Any non-contractual obligations arising out

of or in connection with this Contract shall be governed by and construed in accordance with English law.

9.2 Any dispute, controversy or claim arising out of, or relating to this Contract or the breach, termination or

invalidity hereof or any non-contractual obligations

arising out of or in connection with this Contract which cannot be amicably settled, shall be settled by

arbitration in accordance with the UNCITRAL Arbitration Rules as in force and effect on the date of this Contract.

There shall be one (1) arbitrator, and the appointing

authority for the purposes of the UNCITRAL Rules shall be the LCIA (London Court of International Arbitration).

The seat and place of arbitration shall be London, England and the English language shall be used

throughout the arbitral proceedings. The Parties hereby waive any rights under the Arbitration Act 1996 or

otherwise to appeal any arbitration award to, or to seek

determination of a preliminary point of law by, the court of England or elsewhere. The arbitrator shall not be

authorised to grant, and the Contractor agrees that it shall not seek from any judicial authority, any interim

measures or pre-award relief against the Employer, any

provisions of the UNCITRAL Arbitration Rules


notwithstanding.

9.3 Unless the Employer directs otherwise, the Employer and the Contractor shall continue performing their

respective obligations under this Contract while the dispute is being resolved unless and until such

obligations are terminated or expire in accordance with

the provisions of this Contract.

9.4 Nothing in this Contract shall be construed as a waiver,

renunciation or modification by the Employer of any immunities, privileges and/or exemptions of the

Employer accorded under the Agreement Establishing the European Bank for Reconstruction and

Development, international convention or any applicable

law. Notwithstanding the foregoing, the Employer has made an express submission to arbitration under Clause

9.2 of this Contract and accordingly, and without prejudice to its other privileges and immunities

(including, without limitation, the inviolability of its

archives), it acknowledges that it does not have immunity from suit and legal process under Article 5(2)

of Statutory Instrument 1991, No. 757 (The European Bank for Reconstruction and Development (Immunities

and Privileges) Order 1991), or any similar provision under English law, in respect of the enforcement of an

arbitration award duly made against it as a result of its

express submission to arbitration pursuant to Clause 9.2 of this Contract.”


SCHEDULES

Schedule 2 Variation and Acceleration Quotation Procedure

Paragraph 1.2 In line 1 after “shall” insert “be based on the Valuation Rules and”.

After paragraph 1.2.3 Insert new paragraph 1.2.3A:

“1.2.3A the amount of any additional payment required by the

Contractor in order to enable the programme and the Completion Date to be maintained or (if in the

reasonable opinion of the Contractor the same is unachievable) any required revision to the programme

and/or adjustment of the Completion Date, together with the Contractor’s proposals for minimising the

same;”

Paragraph 2.1 In line 2 after “Completion Date” insert “or (as the case may be) any later date which would otherwise be fixed as the Completion

Date under clause 2.28”.

Paragraph 2.3 Delete and inset “Number not used”.

Paragraph 5.2 Delete and inset “Number not used”.

Paragraph 5.3 At the end (before the full stop) insert “(other than a purpose in connection with this Contract)”.

After paragraph 5.3 Insert new paragraphs 6.1 and 6.2:

“6.1 The Employer may at any time instruct the Contractor

to accelerate, notwithstanding that the Contractor has, whether or not in breach of paragraph 3.1, not provided

an Acceleration Quotation in respect of such

acceleration or has not received a Confirmed Acceptance of the relevant Acceleration Quotation. The

Contractor shall comply with such instruction unless he is able to explain to the Employer within 3 days of

receiving it why it would be impracticable to comply.

6.2 If the Employer instructs the Contractor to accelerate under paragraph 6.1, or take any steps for that

purpose, and a Confirmed Acceptance is not given in respect of that instruction under paragraph 4, the

instruction shall be valued in accordance with clause 5.2

and the Completion Date shall be adjusted in accordance with the requirements of the Employer as

stated in the instruction.”


Schedule 3 Insurance Options

Insurance Option A will apply.


Schedule 5 Third Party Rights

Part 1: Third Party Rights for Purchasers and Tenants

Delete and insert a new Part 1:

Part 1: Third Party Rights Schedule - Contractor in favour of Third Party

1 Definitions and Interpretation

(a) In this Schedule, unless the contrary intention appears, the following definitions apply:

“Beneficiary” means any “Purchaser”, “Tenant”, “Funder”, “Affiliate” or “Landlord” as defined under the Contract and includes any person to whom the benefit of this

Schedule and/or any rights arising under it have been validly assigned in

accordance with paragraph 5 (Assignment).

“Client” means European Bank for Reconstruction and Development, an

international financial institution established pursuant to the Agreement Establishing the European Bank for Reconstruction and Development, a multilateral

treaty signed in Paris on the 29th May 1990, having its headquarters at One

Exchange Square, London EC2A 2JN, United Kingdom and includes any person to whom the benefit of the Contract has been validly assigned.

“Contract” means the contract under which the Client has engaged the Contractor to carry out and complete the Works.

“Contractor” means [ ] whose registered office is at [ ].

“Practical Completion” means practical completion of the Works as certified or

otherwise evidenced pursuant to the Contract.

“Property” means 155 Bishopsgate, London and a reference to the Property is to the whole or any part of it as the circumstances may require.

“Proprietary Material” means all information and documentation (including without limitation, drawings, details, plans, specifications, schedules, reports and

calculations (in printed, electronic or other format) and any designs contained

therein prepared by or on behalf of the Contractor in the course of or as a result of carrying out the Works.

“Statutory Requirements” means any requirements imposed by:

(a) any Act of Parliament;

(b) any instrument, rule or order made under any Act of Parliament;

(c) any regulation or byelaw of any local authority, statutory undertaker or other body which has jurisdiction with regard to the Works or to whose

systems the Works are or will be connected; or

(d) any planning permission, building regulation approval or other consent or

approval required for the execution of the Works.


“Works” means the design and construction works carried out or to be carried out

by the Contractor pursuant to the Contract.

(b) Any obligation on the Contractor to do an act includes an obligation to procure that

it is done.

(c) If a party is placed under a restriction in this Schedule, the restriction includes an

obligation on the party not to permit the infringement of the restriction by any

person.

(d) References to liability include, where the context allows, claims, demands,

proceedings, damages, losses, costs and expenses.

(e) Words in this Schedule denoting the singular include the plural meaning and vice

versa.

(f) Words denoting the masculine gender shall include the feminine and neuter

genders and words denoting natural persons shall include corporations and firms

and all such words shall be constructed interchangeably in that manner.

(g) The paragraph headings in this Schedule are for ease of reference only and are not

to be taken into account in the construction or interpretation of any provision to which they refer.

(h) Unless the contrary intention appears, references to numbered paragraphs are

references to the relevant paragraphs in this Schedule.

(i) References in this Schedule to any statutes or statutory instruments include any

statute or statutory instrument amending, consolidating or replacing them respectively from time to time in force, and references to a statute include

statutory instruments and regulations made pursuant to it.

2 Contractor’s Warranties

(a) The Contractor warrants to the Beneficiary that it has observed and performed and

will continue to observe and perform all its obligations under or arising out of the Contract in accordance with the terms of the Contract, provided always that:

(i) the Contractor shall owe no greater obligations to the Beneficiary under this Schedule than it owes to the Client under the Contract;

(ii) the Contractor shall be entitled in any proceedings under this Schedule to

rely on any limitation in the Contract and to raise the equivalent rights in defence of liability (but excluding set-offs or counterclaims) as if the

Beneficiary had been named as a joint employer with the Client under the Contract; and

(iii) the Contractor shall not be liable to the Beneficiary in respect of any delay

to the completion of the Works.

(b) Without limiting paragraph 2(a), the Contractor warrants that:

(i) it has exercised and will continue to exercise, in the performance of its obligations under the Contract, all the skill, care and diligence which may

reasonably be expected of a qualified and competent contractor experienced in carrying out work of a similar size, scope, nature and

complexity to the Works;


(ii) the Works as completed will comply with any performance specification or

requirement included in the Contract;

(iii) the Works have been and will be carried out and completed in a good and

workmanlike manner using good quality materials and in all respects in accordance with the Contract;

(iv) unless otherwise instructed or authorised by the Client or the

Architect/Contract Administrator on his behalf under the Contract in writing, it has not specified or authorised for use, will not specify or

authorise for use and that it will not use or knowingly permit the use and will immediately notify the Beneficiary of any proposed or actual use or

specification in the Works of any materials and substances for the time being not in accordance with the British Council for Offices publication

Good practice in the selection of construction materials (current edition); and

(v) the Works as completed will in all respects comply with the Statutory

Requirements.

(c) The Contractor extends to the Beneficiary the benefit of all warranties on the part

of the Contractor contained in the Contract.

(d) The Contractor acknowledges that the Beneficiary shall be deemed to have relied and to continue to rely upon the warranties given by the Contractor under this

paragraph 2.

3 Use of Proprietary Material

(a) The copyright in the Proprietary Material shall remain vested in the Contractor, but the Contractor grants to the Beneficiary an irrevocable royalty-free and

non-exclusive licence to use and to reproduce any or all of the Proprietary Material

for any purpose connected with the Works and/or the Property, including (without limitation) the execution and completion of the Works and the subsequent fitting

out, maintenance, occupation, management, sale, advertisement, extension, refurbishment, alteration, reinstatement and repair of the Property.

(b) The licence referred to in paragraph paragraph 3(a) carries the right to grant sub-

licences and shall be transferable to third parties and shall subsist notwithstanding the determination (for any reason) of the Contractor’s engagement under the

Contract.

(c) The Contractor confirms to the Beneficiary that it has not infringed and shall not

knowingly infringe any copyright or other intellectual property or design rights of

any third party in relation to the Works including, without limitation, by copying wholly or substantially the work of any third party.

(d) Insofar as the Contractor is the author (as defined in the Copyright, Designs and Patents Act 1988) of the Proprietary Material, the Contractor waives any moral

rights which it might otherwise be deemed to have under Chapter IV of that Act in respect of the Proprietary Material and the Property and shall (so far as it is within

its power to do so) procure a similar waiver from its servants, agents and

employees.

(e) The Contractor shall procure for the Beneficiary a waiver corresponding to that in

paragraph 3(d) from any sub-contractor employed by the Contractor who is an


author (as referred to in the Copyright, Designs and Patents Act 1988) of any part

of the Proprietary Material and/or of the Works.

(f) The Contractor shall not be liable for the consequences of any use of the

Proprietary Material for any purpose which is inconsistent with that for which it was prepared by the Contractor.

4 Insurance

(a) Without limiting its other obligations under this Schedule or otherwise at law, the Contractor shall maintain professional indemnity insurance to cover its professional

liability under this Schedule, with a limit of indemnity of not less than £[ ]6 each and every claim, provided that such insurance continues to be available in the

United Kingdom market on reasonable terms and at commercially reasonable premium rates to contractors undertaking works substantially similar to the Works.

(b) The insurance referred to in paragraph 4(a) will:

(i) be subject only to such conditions and excesses as may be usual in the United Kingdom market at the time; and

(ii) be provided by insurers licensed to carry out insurance business in the United Kingdom; and

(iii) be maintained from the date of the Contract and for a period expiring not

less than 12 years after Practical Completion and notwithstanding the expiry or termination (for any reason) of the Contractor’s employment

under the Contract.

(c) As and when reasonably required to do so by the Beneficiary, the Contractor shall

produce documentary evidence that the insurance required by this paragraph 4 is being properly maintained.

(d) The Contractor shall promptly notify the Beneficiary if at any time it is unable to

obtain insurance as required by this paragraph 4 on reasonable terms and at commercially reasonable premium rates or at all or if there is any material

reduction in the scope or level of cover offered by such insurance and in that event shall continue to maintain insurance on such terms and with such a limit of

indemnity as may then be available to the Contractor.

(e) The Contractor shall not compromise, settle or waive any insurance claim which it may have in respect of any professional liability under this deed without the prior

consent of the Beneficiary, provided that nothing in this clause precludes the Contractor’s insurers from taking over (in the name of the Contractor) the defence

of any claim made by the Beneficiary under this deed and (in that capacity) from

conducting and settling it as they see fit.

5 Assignment

(a) The Beneficiary may at any time, without the consent of the Contractor, assign the benefit of this Schedule and/or any rights arising under it to any person acquiring

an interest in the Property [(subject to a maximum of two such assignments)] and in addition may at any time assign the benefit of this Schedule by way of security

6 PI to match that in the main contract.


without the consent of the Contractor being required. Assignments to an Affiliate

(as defined in the Contract) of the Beneficiary shall not require the prior consent of the Contractor and shall not count towards such two occasions.

6 Limitation

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

against the Contractor after the expiry of 12 years following Practical Completion.

7 Other Remedies

(a) Nothing in this Schedule shall in any way limit or affect any other rights or

remedies (whether under any contract, at law, in equity or otherwise) which the Beneficiary would have against the Contractor in the absence of this Schedule.

(b) The liability of the Contractor pursuant to this Schedule this deed shall not be released, diminished or in any other way affected by:

(i) the appointment by the Beneficiary of any person to survey the Property or

to monitor the carrying out of the Works or to inspect any documents relating to them on behalf of the Beneficiary or the failure to appoint such

a person;

(ii) any approval or consent given or withheld or purported to be given or

withheld by or on behalf of the Beneficiary; or

(iii) any other independent inquiry into any relevant matter which the Beneficiary may make or fail to make.

8 Notices

(a) Any notice or other communication required pursuant to this Schedule shall be in

English in writing and delivered by hand or sent by recorded delivery to the relevant party at its address or number [and for the attention of the individual]7 set

out below (or as notified in accordance with paragraph 8(b)):

(i) [Contractor]

Address: [●]

[Attention: [●]]

(ii) [Beneficiary]

Address: [●]

[Attention: [●]]

(b) [A party may notify the other party of a change to its details specified in paragraph

8(a). The new address shall take effect as against the other party [five] business days after receipt of that notice or such later date as may be specified in the

notice.]

7 If a party is not an individual, it is advisable to specify an individual for whose attention the communication should be marked (either by name or by office - eg the Project Director).


(c) Without evidence of earlier receipt, communications complying with paragraph 8(a)

are deemed received:

(i) if delivered by hand, at the time of delivery, unless deemed receipt would

occur after 5.00pm on a business day, or on a day which is not a business day, in which case deemed receipt will be at 9.00am on the next business

day; or

(ii) if sent by recorded delivery, at 9.00am on the second business day after posting.

(d) If a person for whose attention communications must be marked or copied has been specified pursuant to paragraph 8(a), a communication will be effective only if

it is marked for that person’s attention or copied to that person (as the case may be).8

(e) This paragraph 8 does not apply to the service of any document required to be

served in relation to legal proceedings.

9 General

If any provision of this Schedule shall be found to be ineffective, inoperable or unenforceable for any reason it shall be deemed to be deleted and the remaining

provisions of this Schedule shall continue to have full force and effect.

10 Governing law and disputes

The application and interpretation of this Schedule shall in all respects be governed

by English law. Any dispute or difference arising under this Schedule shall be subject to the exclusive jurisdiction of the English courts save that any decision,

judgment or award of such courts may be enforced in the courts of any jurisdiction.

8 This Clause can be deleted if no persons are specified.


Schedule 5 Third Party Rights

Part 2: Third Party Rights for Funder

Delete and insert “Number not used”

Part 2: Third Party Rights Schedule - Sub-Contractor in favour of Employer or

Third Party

1 Definitions and interpretation

(a) In this Schedule, unless the contrary intention appears, the following definitions

apply:

“Beneficiary” means the Employer, any “Purchaser”, “Tenant”, “Funder”,

“Affiliate” or “Landlord” as defined under the Contract and includes any person to

whom the benefit of this Schedule and/or any rights arising under it have been validly assigned in accordance with paragraph 5 (Assignment).

“Contract” means the contract dated [●] between the Employer (1) and the Contractor (2) (and any further agreement varying or supplementing it) under

which the Contractor has undertaken to carry out and complete the Works.

“Contractor” means [●] (company no [●]) whose registered office is at [●].

[“Employer” means EUROPEAN BANK FOR RECONSTRUCTION AND

DEVELOPMENT, an international financial institution established pursuant to the Agreement Establishing the European Bank for Reconstruction and Development, a

multilateral treaty signed in Paris on the 29th May 1990, having its headquarters at One Exchange Square, London EC2A 2JN, United Kingdom.]9

“Practical Completion” means practical completion of the Works as certified or

otherwise evidenced pursuant to the Contract.

“Property” means 155 Bishopsgate, London and a reference to the Property is to

the whole or any part of it as the circumstances may require.

“Proprietary Material” means all information and documentation (including,

without limitation, drawings, details, plans, specifications, schedules, reports and

calculations (in printed, electronic or other format) and any designs, ideas and concepts contained in them prepared or developed by or on behalf of the Sub-

Contractor in the course of or as a result of carrying out the Works.

“Statutory Requirements” means any requirements imposed by:

(a) any Act of Parliament;

(b) any instrument, rule or order made under any Act of Parliament;

9 Omit from Employer schedule


(c) any regulation or byelaw of any local authority, statutory undertaker or

other body which has jurisdiction with regard to the Works or to whose systems the Works are or will be connected; or

(d) any planning permission, building regulation approval or other consent or approval required for the execution of the Works.

“Sub-Contract” means the sub-contract dated [●] between the Contractor (1)

and the Sub-Contractor (2) (and any further agreement varying or supplementing it) whereby the Sub-Contractor has undertaken to carry out and complete the Sub-

Contract Works.

“Sub-Contract Works” means those parts of the Works to be carried out by the

Sub-Contractor as more particularly defined and described in the Sub-Contract.

“Works” means the design and construction works carried out or to be carried out

by the Contractor for the development of the Property as more particularly defined

and described in the Contract.

(b) Any obligation on a party to do an act includes an obligation to procure that it is

done.

(c) If a party is placed under a restriction in this Schedule, the restriction includes an

obligation on the party not to permit the infringement of the restriction by any

person.

(d) References to liability include, where the context allows, claims, demands,

proceedings, damages, losses, costs and expenses.

(e) Words importing the singular meaning shall include, where the context so admits,

the plural meaning and vice versa.

(f) Words denoting the masculine gender shall include the feminine and neuter

genders and words denoting natural persons shall include corporations and firms

and all such words shall be construed interchangeably in that manner.

(g) The paragraph headings in this Schedule are for ease of reference only and are not

to be taken into account in the construction or interpretation of any provision to which they refer.

(h) Unless the contrary intention appears, references in this Schedule to numbered

paragraphs are references to the relevant paragraph in this Schedule.

2 Sub-Contractor’s warranties

(a) The Sub-Contractor warrants to the [Employer/Beneficiary] that it has observed and performed and will continue to observe and perform all its obligations under or

arising out of the Sub-Contract in accordance with the terms of the Sub-Contract,

provided always that:

(i) the Sub-Contractor shall owe no greater obligations to the

[Employer/Beneficiary] under this Schedule than it owes to the Contractor under the Sub-Contract;

(ii) the Sub-Contractor shall be entitled in any proceedings under this Schedule to rely on any limitation in the Sub-Contract and to raise the equivalent

rights in defence of liability (but excluding set-offs or counterclaims) as if


the [Employer/Beneficiary] had been named as a joint employer with the

Contractor under the Sub-Contract;

(b) Without limiting paragraph 2.1 the Sub-Contractor warrants to the

[Employer/Beneficiary] that:

(i) it has exercised and will continue to exercise all reasonable skill, care and

diligence:

(A) in the performance of its duties and responsibilities pursuant to and within the scope of its employment under the Sub-Contract;

(B) in relation to the design of the Sub-Contract Works insofar as the Sub-Contractor is responsible therefor pursuant to the terms of the

Sub-Contract;

(C) in the selection of materials and goods insofar as the same have

been or will be selected by the Sub-Contractor, its sub-contractors

or suppliers in accordance with the Sub-Contract; and

(D) in the satisfaction of any performance specification or requirement

included or referred to in the documents comprising the Sub-Contract;

(ii) the Sub-Contract Works have been and will be carried out and completed

in a good, sound, substantial and workmanlike manner using good quality and appropriate materials and in all respects in accordance with the Sub-

Contract;

(iii) the Sub-Contract Works will in all respects comply with all Statutory

Requirements; and

(iv) none of the following materials has been or will be used in the construction

of any part of the Sub-Contract Works:

(A) any material which does not comply with, or the use of which in the circumstances of the Sub-Contract Works is not recommended

by, any current relevant British Standard specifications, codes of practice and good building practice current at the time of use; or

(B) any of the materials identified as potentially hazardous in the

British Council for Offices publication Good practice in the selection of construction materials (current edition), other than in

accordance with the recommendations as to good practice contained in section 2 of that report.

(c) The Sub-Contractor acknowledges that the [Employer/Beneficiary] shall be deemed

to have relied and shall continue to rely upon the warranties given by the Sub-Contractor under this paragraph 2 (Sub-Contractor’s warranties ).

3 [Determination and Novation of the Sub-Contract

(a) The Sub-Contractor shall not exercise nor seek to exercise any right to determine

its employment under the Sub-Contract for any reason, including any breach on the part of the Contractor, without giving to the Employer not less than [21] days’

notice of its intention to do so and specifying the grounds for the proposed

determination.


(b) In the event that the employment of the Contractor under the Contract is

determined for any reason whatsoever, the Employer shall notify the Sub-Contractor and (unless otherwise instructed by the Employer) the Sub-Contractor

will continue to carry out and complete his obligations under the Sub-Contract for a period not less than [21] days from the date of such notice.

(c) At any time within the [21] day period referred to in paragraph 3(a) or paragraph

3(b), whichever is applicable, the Employer may notify the Sub-Contractor that it is required to enter into a deed of novation in such form as the Employer may

reasonably require transferring the rights and obligations of the Contractor under the Sub-Contract to the Employer (in which event the Sub-Contractor shall not

thereafter unreasonably withhold his consent to a further novation of the Sub-Contract by the Employer) or to any person nominated by the Employer. The

Sub-Contractor shall execute the deed of novation within 7 days of such notice.

(d) If the Employer does not notify the Sub-Contractor under paragraph 3(c) within the [21] day period referred to in paragraph 3(a) or paragraph 3(b), as applicable:

(i) the Sub-Contractor may at any time thereafter determine its employment under the Sub-Contract; and

(ii) the Sub-Contractor shall have no claim whatsoever against the Employer

for:

(A) any amounts which have become properly due and payable to the

Sub-Contractor under the Sub-Contract and which remain unpaid; and

(B) and amounts which may become due to the Sub-Contractor under the Sub-Contract during the [21] day period referred to in

paragraph 3(a) or paragraph 3(b); and

(C) any costs, losses or expenses howsoever arising out of or in connection with the determination of the Sub-Contractor’s

employment under the Sub-Contract.]10

4 Use of Proprietary Material

(a) The copyright in the Proprietary Material shall remain vested in the Sub-Contractor,

but the Sub-Contractor grants to the [Employer/Beneficiary] an irrevocable royalty-free non-exclusive licence to use and to reproduce any or all of the Proprietary

Material for any purpose whatsoever connected with the Works and/or the Property, including (without limitation) the execution and completion of the Works

and the subsequent maintenance, letting, occupation, management, sale,

advertisement, extension, alteration, reinstatement and repair of the Property.

(b) The licence referred to in paragraph 4(a) carries the right to grant sub-licences and

shall be transferable to third parties and shall subsist notwithstanding the determination (for any reason) of the Sub-Contractor’s employment under the

Sub-Contract.

10 Include in Employer Schedule only.


(c) The Sub-Contractor shall provide copies of any or all of the Proprietary Material to

the [Employer/Beneficiary] upon request and upon payment by the [Employer/Beneficiary] of the Sub-Contractor’s reasonable copying charges.

(d) The Sub-Contractor shall not be liable for the consequences of any use of the Proprietary Material for any purpose other than that for which it was prepared.

5 Insurance

(a) Without limiting its other obligations under this Schedule or otherwise at law, the Sub-Contractor undertakes to the [Employer/Beneficiary] to maintain with an

insurance company licensed to carry on insurance business in the United Kingdom, from the date of the Sub-Contract and for a period expiring no earlier than 12

years after Practical Completion and notwithstanding the determination for any reason of the Sub-Contractor’s employment under the Sub-Contract, [professional

indemnity/product liability] insurance without unusual or onerous conditions or

excesses to cover its liabilities under this Schedule, with a limit of indemnity of not less than £[●] [in respect of each and every claim/in the aggregate in any year of

insurance], provided always that such insurance continues to be generally available in the European Union market upon reasonable terms and at commercially

reasonable premium rates to contractors specialising in works substantially similar

to the Sub-Contract Works.

(b) As and when he is reasonably required to do so by the [Employer/Beneficiary], the

Sub-Contractor shall produce for inspection by the [Employer/Beneficiary] documentary evidence that such insurance is being properly maintained.

(c) The Sub-Contractor shall forthwith notify the [Employer/Beneficiary] if such insurance ceases to be available upon reasonable terms and at commercially

reasonable premium rates or if for any other reason the Sub-Contractor is unable

to continue to maintain such insurance.

6 Assignment

The [Employer/Beneficiary] may at any time assign the benefit of this Schedule and/or any rights arising under it by way of absolute legal assignment [to any

further person providing finance or re-finance in connection with the Works]11 [to

any subsequent purchaser of the [Employer/Beneficiary]’s interest in the Property (subject to a maximum of two such assignments) and/or by way of charge to any

mortgagee of the Property]12 on notice to the Sub-Contractor, without the consent of the Sub-Contractor being required.

7 Third parties

(a) Any Affiliate (as defined in the Contract) of the [Employer/Beneficiary] may in its own right enforce any term of this Schedule.

(b) Except as provided in paragraph 7(a), it is not intended that any third party (other than the [Employer/Beneficiary]) should have the right to enforce a provision of

this Schedule pursuant to the Contracts (Rights of Third Parties) Act 1999 (or any statute amending, consolidating or replacing it from time to time in force).

11 Use where Beneficiary is a Funder.

12 Delete if Beneficiary is a Funder.


(c) The parties may rescind or vary this Schedule without the consent of a third party

to whom an express right to enforce any of its terms has been provided.

8 Other remedies

(a) Nothing in this Schedule shall in any way prejudice or affect any other rights or remedies (whether under any contract, at law, in equity or otherwise) which the

[Employer/Beneficiary] would have against the Sub-Contractor in the absence of

this Schedule.

(b) The liability of the Sub-Contractor under this Schedule shall not be released,

diminished or in any other way affected by:

(i) the appointment by the [Employer/Beneficiary] of any person to survey the

Property or to monitor the carrying out of the Works or to inspect any documents relating to them on behalf of the [Employer/Beneficiary] or the

failure to appoint such a person;

(ii) any approval or consent given or withheld or purported to be given or withheld by or on behalf of the [Employer/Beneficiary]; or

(iii) any other independent inquiry into any relevant matter which the [Employer/Beneficiary] may make or fail to make.

9 Limitation

No action or proceedings for any breach of this Schedule shall be commenced against the Sub-Contractor after the expiry of 12 years following Practical

Completion.

10 Notices

(a) Any notice or other communication required under this Schedule shall be in English in writing and delivered by hand or sent by recorded delivery to the relevant party

at its address or number [and for the attention of the individual]13 set out below

(or as notified in accordance with paragraph 10(b)):

(i) [Sub-Contractor]

Address: [●]

[Attention: [●]]

(ii) [Employer/Beneficiary]

Address: [●]

[Attention: [●]]

(b) [A party may notify the other party of a change to its details specified in paragraph 10(a). The new address shall take effect as against the other party



[five] business days after receipt of that notice or such later date as may be

specified in the notice.]

(c) Without evidence of earlier receipt, communications complying with

paragraph 10(a) are deemed received:

(i) if delivered by hand, at the time of delivery, unless deemed receipt would

occur after 5.00pm on a business day, or on a day which is not a business

day, in which case deemed receipt will be at 9.00am on the next business day; or

(ii) if sent by recorded delivery, at 9.00am on the second business day after posting.

(d) [If a person for whose attention communications must be marked or copied has been specified pursuant to paragraph 10(a), a communication will be effective only

if it is marked for that person’s attention or copied to that person (as the case may

be).]14

(e) This paragraph does not apply to the service of any document required to be

served in relation to legal proceedings.

11 Governing law and disputes

[The application and interpretation of this Schedule shall in all respects be

governed by English law. Any dispute or difference arising under this Schedule shall be subject to the exclusive jurisdiction of the English courts save that any decision,

judgment or award of such courts may be enforced in the courts of any jurisdiction.]15

[(a) This Schedule shall be construed in accordance English law. Any non-contractual obligations arising out of or in connection with this Schedule shall be governed by

and construed in accordance with English law.

(b) Any dispute, controversy or claim arising out of, or relating to this Schedule which cannot be amicably settled, shall be settled by arbitration in accordance with the

UNCITRAL Arbitration Rules. There shall be one (1) arbitrator, and the appointing authority for the purposes of the UNCITRAL Rules shall be the LCIA (London Court

of International Arbitration). The seat and place of arbitration shall be London,

England and the English language shall be used throughout the arbitral proceedings. The Beneficiary and Sub-Contractor hereby waive any rights under

the Arbitration Act 1996 or otherwise to appeal any arbitration award to, or to seek determination of a preliminary point of law by, the court of England or elsewhere.

The arbitrator shall not be authorised to grant, and the Sub-Contractor agrees that

it shall not seek from any judicial authority, any interim measures or pre-award relief against the Beneficiary, any provisions of the UNCITRAL Arbitration Rules

notwithstanding.

(c) Nothing in this Schedule shall be construed as a waiver, renunciation or

modification by the Beneficiary of any immunities, privileges and exemptions of the Beneficiary accorded under the Agreement Establishing the European Bank for

Reconstruction and Development, international convention or any applicable law.

14 This Clause can be deleted if no such person or persons are specified.

15 Delete this wording if the Beneficiary is the Employer.


Notwithstanding the foregoing, the Beneficiary has made an express submission to

arbitration under paragraph 11(b) of this Schedule and accordingly, and without prejudice to its other privileges and immunities (including, without limitation, the

inviolability of its archives), it acknowledges that it does not have immunity from suit and legal process under Article 5(2) of Statutory Instrument 1991, No. 757

(The European Bank for Reconstruction and Development (Immunities and

Privileges) Order 1991), or any similar provision under English law, in respect of the enforcement of an arbitration award duly made against it as a result of its

express submission to arbitration pursuant to paragraph 11(b) of this Schedule.]16

16 Include this clause only if the Beneficiary is the Employer.


Schedule 6 Forms of Bonds

Part 1 Advance Payment Bond

paragraph 3 In line 2, delete “due” and insert ”to be made”.

paragraph 4 In line 1, delete “due”.

paragraph 5 Delete and insert “Number not used”.


Schedule to Advance Payment Bond

In line 8, delete ”reimbursement for which the Contractor is in default”

and insert “stated in paragraph 6 of the Advance Payment Bond or any such reduced amount (as advised by us under paragraph 6)

Part 2 Bond in respect of payment for off-site materials and/or goods

paragraph 6 In line 1, delete “due”.



Part 3 Retention Bond

paragraph 4.3 In line 2, delete from “, and identify for which one or more of the following such amount is demanded……..and that a copy of this notice

has at the same time been sent to the Surety at its office at _________” (at the end of paragraph 4.4)


Schedule 7 Fluctuations Options

Delete


APPENDIX 1

Form of Parent Company Guarantee

(referred to in clause 2.43.1)

Annexed hereto.


DATED 201[ ]

EUROPEAN BANK FOR RECONSTRUCTION AND DEVELOPMENT

[GUARANTOR]

PARENT COMPANY GUARANTEE



DATED [●]

PARTIES

(1) EUROPEAN BANK FOR RECONSTRUCTION AND DEVELOPMENT, an

international financial institution established pursuant to the Agreement Establishing the European Bank for Reconstruction and Development, a multilateral

treaty signed in Paris on the 29th May 1990, having its headquarters at One

Exchange Square, London EC2A 2JN, United Kingdom (the “Employer”)

(2) [●] (company no [●]) whose registered office is at [●] (the “Guarantor”)

BACKGROUND

(A) By the Contract, the Employer has employed the Contractor to carry out and

complete the Works.

(B) The Guarantor is the ultimate parent company of the Contractor.

(C) The Guarantor has agreed to guarantee the due performance by the Contractor of

his obligations under the Contract in the manner set out in this deed.

OPERATIVE PROVISIONS

DEFINITIONS AND INTERPRETATION

1.1 Unless the contrary intention appears, the following definitions apply:

“Contract” means the contract dated [●] between the Employer (1) and the

Contractor (2) whereby the Contractor has undertaken to carry out and complete the Works.

“Contractor” means [●] (company no [●]) whose registered office is at [●].

“Employer” includes any person to whom the benefit of the Contract has been validly assigned, charged or transferred pursuant to clause [●] of the Contract.

“Insolvency Event” means the occurrence of one or more of the following events:

(a) the Contractor is unable to pay its debts as defined by section 123 [or

section 268(1)] of the Insolvency Act 1986 (as amended);

(b) the Contractor ceases or threatens to cease to carry on the whole or a

substantial part of its business;

(c) any distress or execution is levied upon the Contractor’s property or

assets;

(d) [any bankruptcy petition is presented or bankruptcy order is made against

the Contractor;]

(e) an application for the appointment of a provisional liquidator is issued or an order for the appointment of a provisional liquidator is made in respect

of the Contractor;


(f) any resolution to wind up the Contractor (other than for the purpose of a

bona fide solvent reconstruction or amalgamation) is passed, any petition to wind up the Contractor is presented [and not withdrawn or dismissed

within 7 days] or an order is made for the winding up of the Contractor;

(g) the Contractor is the subject of a notice of intention to appoint an

administrator, a notice of appointment of an administrator or an

administration application, the Contractor is subject to an administration order, or has an administrator appointed over it;

(h) a receiver, administrative receiver or manager is appointed over all or any of the Contractor’s undertaking, property or assets;

(i) the Contractor or its board of directors proposes or enters into any composition or arrangement (including a voluntary arrangement pursuant

to the Insolvency Act 1986) with or for the benefit of its creditors;

(j) the Contractor is dissolved or otherwise ceases to exist; or

(k) if the equivalent of any of the events described in (a) to (j) above occur in

relation to the Contractor under the laws of any jurisdiction.

“Works” means the design and construction works as more particularly described

in the Contract.

1.2 The clause headings in this deed are for the convenience of the parties only and do not affect its interpretation.

1.3 Words importing the singular meaning shall include, where the context so admits, the plural meaning and vice versa.

1.4 Words denoting the masculine gender shall include the feminine and neuter genders and words denoting natural persons shall include corporations and firms

and all such words shall be construed interchangeably in that manner.

1.5 Where the context so admits, references in this deed to a clause are to a clause of this deed.

1.6 References in this deed to any statute or statutory instrument shall include and refer to any statutory amendment or re-enactment thereof from time to time and

for the time being in force.

2 GUARANTEE

1.2 In consideration of the Employer agreeing to enter into the Contract with the

Contractor, the Guarantor irrevocably and unconditionally guarantees and undertakes to the Employer that:

(a) the Contractor will perform and observe all its obligations under the

Contract on the days and at the times and in the manner provided in the Contract; and

(b) in the event of any breach of such obligations by the Contractor, the Guarantor shall procure that the Contractor makes good the breach or

shall otherwise cause it to be made good and shall indemnify and hold harmless the Employer against any loss, damage, demands,

charges, payments, liability, proceedings, claims, costs and expenses


suffered or incurred by the Employer arising from or in connection

with it.

1.3 The Guarantor shall also indemnify and hold harmless the Employer against:

(a) any and all costs, losses and expenses (including legal expenses) which may be suffered or incurred by the Employer in seeking to

enforce and enforcing (i) this Guarantee and/or (ii) any judgment or

order obtained in respect of this Guarantee; and

(b) any loss or liability suffered or incurred by the Employer if any of the

obligations of the Contractor under the Contract is or becomes illegal, invalid or unenforceable for whatsoever reason as if such obligations

were not illegal, invalid or unenforceable.

1.4 Except in the case of an action under clauses 2.2, 5 or 9, any limitation or defence

which would have been available to the Contractor in an action under the Contract

shall likewise be available to the Guarantor in a corresponding action under this deed.

1.5 Any decision of any adjudicator, expert, arbitral tribunal and/or any court in respect of or in connection with the Contract or any settlement or arrangement made

between the Employer and the Contractor shall, for the purposes of this Guarantee,

be conclusive evidence:

(a) that the Contractor is in breach of the Contract; and

(b) of the liability of the Contractor in consequence of such breach.

1.6 In the event that any payment is made by the Guarantor on the basis of a decision

reached in adjudication proceedings and such decision is subsequently amended (whether by award of an arbitrator, judgment of a court or agreement between the

Employer and the Contractor), then the difference between the amount paid by the

Guarantor and the amount determined by the arbitrator or determined by the Court or agreed between the Employer and the Contractor, as the case may be, shall be

repaid to the Guarantor by the Employer or paid by the Guarantor to the Employer, as the case may be, within 14 days of such award, judgment or agreement.

3 GUARANTOR’S LIABILITY

3.1 The obligations of the Guarantor under this deed shall be in addition to and shall be independent of any other security which the Employer may at any time hold in

respect of the Contractor’s obligations under the Contract and may be enforced against the Guarantor without first having recourse to any such security.The

obligations of the Guarantor under this deed shall be in addition to and shall not be

in substitution for any rights or remedies that the Employer may have against the Contractor under the Contract or at law.

3.2 The liability of the Guarantor under this deed shall in no way be discharged, lessened or affected by:

(a) an Insolvency Event;

(b) any change in the constitution, status, function, control or ownership of

the Contractor or any legal limitation, disability or incapacity relating to the

Contractor or any other person;


(c) the Contract or any of the provisions of the Contract being or becoming

illegal, invalid, void, voidable or unenforceable;

(d) any time given, waiver, forbearance, compromise or other indulgence

shown by the Employer to the Contractor;

(e) the assertion or failure to assert or delay in asserting any rights or

remedies of the Employer or the pursuit of any right or remedy of the

Employer;

(f) the giving by the Contractor of any security or the release, modification or

exchange of any such security or the liability of any person; or

(g) any other act, event, omission or circumstance which but for this provision

might operate to discharge, lessen or otherwise affect the liability of the Guarantor,

in each case with or without notice to, or the consent of, the Guarantor and the

Guarantor unconditionally and irrevocably waives any requirement for notice of, or consent to such matters.

4 VARIATIONS TO THE CONTRACT

4.1 The Guarantor authorises the Contractor and the Employer to make any addition or

variation to the Contract, the due and punctual performance of which shall likewise

be guaranteed by the Guarantor in accordance with the terms of this deed. The liability of the Guarantor under this deed shall in no way be discharged or lessened

by any such addition or variation.

5 LIQUIDATION OF CONTRACTOR/TERMINATION OF CONTRACT

5.1 The Guarantor covenants with the Employer that:

5.1.1 upon the occurrence of an Insolvency Event, if a liquidator is

appointed and the liquidator disclaims the Contract; or

5.1.2 if the Contractor’s employment under the Contract is determined for any reason,

the liability of the Guarantor under this deed shall remain in full force and effect.

6 WAIVER

The Guarantor waives any right to require the Employer to pursue any remedy

(whether under the Contract or otherwise) which it may have against the Contractor before proceeding against the Guarantor under this deed.

7 RIGHTS OF GUARANTOR AGAINST CONTRACTOR

The Guarantor shall not by any means or on any ground seek to recover from the

Contractor (whether by instituting or threatening proceedings or by way of set-off

or counterclaim or otherwise) or otherwise to prove in competition with the Employer in respect of any payment made by the Guarantor under this deed nor be

entitled in competition with the Employer to claim or have the benefit of any security which the Employer holds for any money or liability owed by the

Contractor to the Employer. If the Guarantor shall receive any monies from the Contractor in respect of any payment made by the Guarantor under this deed, the


Guarantor shall hold such monies in trust for the Employer for so long as the

Guarantor shall remain liable or contingently liable under this deed.

8 CONTINUING GUARANTEE

8.1 The terms of this deed shall be a continuing guarantee and shall remain in full force and effect until each and every part of every obligation of the Contractor under the

Contract shall have been performed and observed and until each and every liability

of the Contractor under the Contract shall have been satisfied in full. Provided that the liability of the Guarantor under this deed shall cease on the expiry of 12 years

following the date of practical completion as certified (or otherwise evidenced) under the Contract save to the extent of any claims notified by the Employer to the

Guarantor in writing prior to the expiry of such period.

9 INTEREST

The Guarantor will pay interest on any amount due under this Guarantee from the

date of demand until the date of payment in full calculated on a daily basis at [insert contractual interest rate].

10 THIRD PARTY RIGHTS

Unless the right of enforcement is expressly granted, it is not intended that any third party should have the right to enforce any provision of this deed pursuant to

the Contracts (Rights of Third Parties) Act 1999.

11 NOTICES

11.1 Any notice or other communication required under this Agreement shall be in

English in writing and delivered by hand or sent by recorded delivery to the relevant party at its address or number [and for the attention of the individual]17 set out

below [(or as notified in accordance with Clause 11.2)]:

(a) [Guarantor]

Address: [●]

[Attention: [●]]

(b) [Employer]

Address: [●]

[Attention: [●]]

11.2 [A party may notify the other party of a change to its details specified in Clause 11.1. The new address shall take effect as against the other party [five]

business days after receipt of that notice or such later date as may be specified in

the notice.]

11.3 Without evidence of earlier receipt, communications complying with Clause 11.1 are

deemed received:



(a) if delivered by hand, at the time of delivery, unless deemed receipt would

occur after 5.00pm on a business day, or on a day which is not a business day, in which case deemed receipt will be at 9.00am on the next business

day; or

(b) if sent by recorded delivery, at 9.00am on the second business day after

posting.

11.4 If a person for whose attention communications must be marked or copied has been specified pursuant to Clause 11.1, a communication will be effective only if it

is marked for that person’s attention or copied to that person (as the case may be).18

11.5 This Clause does not apply to the service of any document required to be served in relation to legal proceedings.

12 GOVERNING LAW

(a) This Deed shall be construed in accordance English law. Any non-contractual obligations arising out of or in connection with this Schedule shall be governed by

and construed in accordance with English law.

(b) Any dispute, controversy or claim arising out of, or relating to this Deed which

cannot be amicably settled, shall be settled by arbitration in accordance with the

UNCITRAL Arbitration Rules. There shall be one (1) arbitrator, and the appointing authority for the purposes of the UNCITRAL Rules shall be the LCIA (London Court

of International Arbitration). The seat and place of arbitration shall be London, England and the English language shall be used throughout the arbitral

proceedings. The Employer and the Guarantor hereby waive any rights under the Arbitration Act 1996 or otherwise to appeal any arbitration award to, or to seek

determination of a preliminary point of law by, the court of England or elsewhere.

The arbitrator shall not be authorised to grant, and the Guarantor agrees that it shall not seek from any judicial authority, any interim measures or pre-award relief

against the Employer, any provisions of the UNCITRAL Arbitration Rules notwithstanding.

(c) Nothing in this Deed shall be construed as a waiver, renunciation or modification by

the Employer of any immunities, privileges and exemptions of the Employer accorded under the Agreement Establishing the European Bank for Reconstruction

and Development, international convention or any applicable law. Notwithstanding the foregoing, the Employer has made an express submission to arbitration under

clause 12(b) of this Deed and accordingly, and without prejudice to its other

privileges and immunities (including, without limitation, the inviolability of its archives), it acknowledges that it does not have immunity from suit and legal

process under Article 5(2) of Statutory Instrument 1991, No. 757 (The European Bank for Reconstruction and Development (Immunities and Privileges) Order

1991), or any similar provision under English law, in respect of the enforcement of an arbitration award duly made against it as a result of its express submission to

arbitration pursuant to clause 12(b) of this Deed.

This Deed has been executed as a deed and delivered on the date stated at the beginning of this Deed.

18 This Clause can be deleted if no persons are specified.


Executed as a deed by [GUARANTOR] in the presence of:

) )

Director

Director/Secretary

OR

Executed as a deed by [GUARANTOR]

acting by [name of director] in the presence of [name of witness]:

Name of witness:

Signature of witness:

Address:

Occupation:

)

) )

Director


APPENDIX 2

Form of Performance Bond

(referred to in clause 2.43.2)

Annexed hereto.


DATED 20[ ]

[CONTRACTOR]

[GUARANTOR]

EUROPEAN BANK FOR RECONSTRUCTION AND DEVELOPMENT

PERFORMANCE BOND



THIS GUARANTEE BOND is made as a deed BETWEEN the following parties whose names

and registered office addresses are set out in the schedule to this Guarantee Bond (the "Schedule"):-

(1) The "Contractor" as principal,

(2) The "Guarantor" as guarantor and

(3) The "Employer"

WHEREAS

(1) By a contract (the "Contract") entered into or to be entered into between the

Employer and the Contractor (particulars of which are set out in the Schedule) the Contractor has agreed with the Employer to execute works (the "Works") upon

and subject to the terms and conditions therein set out.

(2) The Guarantor has agreed with the Employer at the request of the Contractor to

guarantee the performance of the obligations of the Contractor under the Contract

upon the terms and conditions of this Guarantee Bond subject to the limitation set out in clause 2.

NOW THIS DEED WITNESSES as follows:

1 The Guarantor guarantees to the Employer that, in the event of a breach of the

Contract by the Contractor or in the event that the employment of the Contractor

under the Contract is determined pursuant to clause 8.4, 8.5 or 8.6 of the Contract, the Guarantor shall subject to the provisions of this Guarantee Bond satisfy and

discharge the damages sustained by the Employer as established and ascertained pursuant to and in accordance with the provisions of or by reference to the

Contract (including by way of a decision of an Adjudicator (as defined in the Contract)) and taking into account all sums due or to become due to the

Contractor.

2 The maximum aggregate liability of the Guarantor under this Guarantee Bond shall not exceed the sum set out in the Schedule (the "Bond Amount") but subject to

such limitation and to clause 4 the liability of the Guarantor shall be co-extensive with the liability of the Contractor under the Contract.

3 The Guarantor shall not be discharged or released by any alteration of any of the

terms conditions and provisions of the Contract or in the extent or nature of the Works, nor by the liquidation, administration or dissolution of the Contractor, nor by

any disclaimer of the Contract by a liquidator of the Contractor and no allowance of time or other forbearance or indulgence by the Employer under or in respect of the

Contract or the Works shall in any way release, reduce or affect the liability of the

Guarantor under this Guarantee Bond.

4 Whether or not this Guarantee Bond shall be returned to the Guarantor the

obligations of the Guarantor under this Guarantee Bond shall be released and discharged absolutely upon Expiry (as defined in the Schedule) save in respect of

any breach of the Contract which has occurred and in respect of which a claim in writing containing particulars of such breach has been made upon the Guarantor

before Expiry.

5 The satisfaction and discharge by the Guarantor of any damages sustained by the Employer pursuant to a decision of the Adjudicator under clause 9.2 of the Contract


shall not prejudice the rights of the Employer or the Contractor to refer the subject-

matter of such decision for final determination by legal proceedings in accordance with the Contract. If the judgment of the Court in such proceedings is that the

decision of the Adjudicator should be amended, the difference between the amount paid by the Guarantor under clause 1 above and the amount determined by the

Court shall be paid by the Guarantor to the Employer or repaid by the Employer to

the Guarantor (as the case may be) within 14 days after the judgment of the Court is published.

6 The Contractor having requested the execution of this Guarantee Bond by the Guarantor undertakes to the Guarantor (without limitation of any other rights and

remedies of the Employer or the Guarantor against the Contractor) to perform and discharge the obligations on its part set out in the Contract.

7 This Guarantee Bond and the benefit thereof may be assigned without the prior

written consent of the Guarantor and the Contractor in parallel with an assignment of the benefit of the Contract and may further be assigned by way of security to

any bank or other institution providing finance in connection with the Works, but not otherwise.

8 The parties to this Guarantee Bond do not intend that any of its terms will be

enforceable, by virtue of the Contracts (Rights of Third Parties) Act 1999 or otherwise, by any person not a party to it.

9 This Guarantee Bond shall be construed in accordance English law. Any non-contractual obligations arising out of or in connection with this Schedule shall be

governed by and construed in accordance with English law.

10 Any dispute, controversy or claim arising out of, or relating to this Guarantee Bond

which cannot be amicably settled, shall be settled by arbitration in accordance with

the UNCITRAL Arbitration Rules. There shall be one (1) arbitrator, and the appointing authority for the purposes of the UNCITRAL Rules shall be the LCIA

(London Court of International Arbitration). The seat and place of arbitration shall be London, England and the English language shall be used throughout the arbitral

proceedings. The Employer, the Contractor and the Guarantor hereby waive any

rights under the Arbitration Act 1996 or otherwise to appeal any arbitration award to, or to seek determination of a preliminary point of law by, the court of England

or elsewhere. The arbitrator shall not be authorised to grant, and the Contractor and the Guarantor agree that they shall not seek from any judicial authority, any

interim measures or pre-award relief against the Employer, any provisions of the

UNCITRAL Arbitration Rules notwithstanding.

11 Nothing in this Guarantee Bond shall be construed as a waiver, renunciation or

modification by the Employer of any immunities, privileges and exemptions of the Employer accorded under the Agreement Establishing the European Bank for

Reconstruction and Development, international convention or any applicable law. Notwithstanding the foregoing, the Employer has made an express submission to

arbitration under clause 10 of this Deed and accordingly, and without prejudice to

its other privileges and immunities (including, without limitation, the inviolability of its archives), it acknowledges that it does not have immunity from suit and legal

process under Article 5(2) of Statutory Instrument 1991, No. 757 (The European Bank for Reconstruction and Development (Immunities and Privileges) Order 1991),

or any similar provision under English law, in respect of the enforcement of an

arbitration award duly made against it as a result of its express submission to arbitration pursuant to clause 10 of this Deed.


THE SCHEDULE

Contractor: [ ] whose registered office address is at [ ].

Guarantor: [ ] whose registered office address is at [ ].

Employer: EUROPEAN BANK FOR RECONSTRUCTION AND DEVELOPMENT, an

international financial institution established pursuant to the Agreement Establishing the European Bank for Reconstruction and Development, a

multilateral treaty signed in Paris on the 29th May 1990, having its headquarters at One Exchange Square, London EC2A 2JN, United Kingdom.

Contract: A contract dated [ ] between the Employer and the Contractor for the construction of [ ] as more

particularly described in the Contract for the original contract sum of

[ ] pounds (£[ ]).

Bond Amount: The sum of [ ], being 10% of the initial Contract Sum (as

defined in the Contract).

Expiry: The date of issue of a Certificate of Making Good under clause 2.39 of the

Contract in respect of the last Section of the Works to be completed, which

shall be conclusive for the purposes of this Guarantee Bond.

IN WITNESS whereof the Contractor and the Guarantor have executed and delivered this

Guarantee Bond as a Deed this day of 20[ ]

EXECUTED AND DELIVERED as a Deed ) by [CONTRACTOR] in the presence of: )

Director

Director/Secretary

EXECUTED AND DELIVERED as a Deed ) by [GUARANTOR] in the presence of: )

Director

Director/Secretary