PROTECT - COMMERCIAL

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1 PPC2000 (as amended 2003) ACA PROJECT PARTNERING CONTRACT A PARTNERING CONTRACT is made the day of 2011 IN RELATION TO Project Title as identified in the Project Brief (the Project ) At Establishment, Address BETWEEN the parties who have executed this Project Partnering Agreement WHO AGREE working in mutual cooperation to fulfil their agreed roles and responsibilities and apply their agreed expertise in relation to the Project, in accordance with and subject to the Partnering Terms attached to this Project Partnering Agreement and the other Partnering Documents described in or created pursuant to the Partnering Terms, and that subject to amendment in accordance with the Partnering Terms: Reference in Partnering Terms Clause 1.1 Clause 1.3 Clauses 1.3 and 1.5 The Project and the Site are further described in the Project Brief (refer to Annexure B to this Project Partnering Agreement) The roles, expertise and responsibilities of the Client and the Constructor are further described in the Project Brief and the Project Proposals and the Constructor shall be paid in accordance with the Partnering Terms and the Price Framework. The Partnering Team shall include the Consultants whose roles, expertise and responsibilities are further described in the Project Brief and Consultant Services Schedules and who shall be paid in accordance with the Partnering Terms and the Consultant Payment Terms: The Partnering Team is listed in Annexure A, Appendix A to this Project Partnering Agreement Clauses 1.3, 1.6 & The Partnering Team shall include the following Specialists whose roles, expertise and responsibilities are or shall be further described in the Project Brief, the Project Proposals and any Joining Agreement(s) and who shall be paid in accordance with the Specialist Payment Terms: Add where known Constructor Selection Procedure Page 2 of 38

2 Reference in Partnering Terms Clause 2 Clause 3.2 Clause 3.3 Clause 3.9 The Partnering Documents (subject to addition and amendment in accordance with the Partnering Terms) shall comprise this Project Partnering Agreement and the Partnering Terms, the Partnering Timetable, the Consultant Services Schedules, the Consultant Payment Terms, the Project Brief, the Project Proposals, the Price Framework and the KPIs. The addresses for communication for the Partnering Team members are provided in Annexure A, Appendix A to this Project Partnering Agreement. The membership of the Core Group is provided in Annexure A, Appendix B to this Project Partnering Agreement Interested Parties additional to the Partnering Team are as listed in Annexure A, Appendix E to this Project Partnering Agreement Clause 5.2 The authority of the Client Representative shall be subject to the restrictions as set out in Annexure A, Appendix F to this Project Partnering Agreement. Clause 5.6 The Partnering Adviser shall be. Clause 6.1 Clause 8 Clause 8 The Partnering Timetable is provided in Annexure A, Appendix G to this Agreement The Lead Designer shall be the Constructor. The Design Team shall be: Add where known or add after constructor selection Clauses 8.3 and 8.6 Clause 8.4 The design development process described in clause 8 of the Partnering Terms shall be amended as set out in clause 28, Special Term 7 to Special Term 9 inclusive. The following Site surveys and investigations shall be commissioned or undertaken by the following Partnering Team members: As detailed in the Project Brief. Clauses 1.6 and The Client shall appoint the Specialists noted in Annexure A, Appendix N to this Project Partnering Agreement direct. Clause 13.2 The shared savings arrangements and/or added value incentives between Partnering Team members are as follows: to be completed by CR in consultation with NOMS Constructor Selection Procedure Page 3 of 38

3 Reference in Partnering Terms Clause 14.1 Clauses 19.3 and 19.4 The Pre-Conditions to Start on Site are those contained in Clause 14.1 and, in addition, the Pre-Conditions set out in clause 28, Special Term 2. The amounts of third party liability insurance and professional indemnity insurance/product liability insurance of each Partnering Team Member shall be: Refer to the Schedule of Insurance set out in Annexure A, Appendix C to this Project Partnering Agreement Clause 20.9 The rate of interest on late payment shall be: Two percent (2%) over the rate charged in the relevant period by the Bank of England for lending money to the Clearing Banks. Clause The Client is a Contractor for the purposes of the ICTA. Clause Retention shall be % all as detailed with the Price Framework. Clause 21.4 The Defects Liability Period shall be: Twelve months and shall apply from the day after that on which the Project is certified as completed by the Client Representative. Clause 21.4 The time limits for rectification of defects shall be: For items which represent a breach of security or a health and safety risk or where the continuing safe and comfortable occupancy of any part of the establishment affected by the works is seriously prejudiced: respond and rectify or make safe within two hours and rectify as soon as possible and in any event no later than forty eight (48) hours of notification by the Client Representative For items which result in discomfort or could, if ignored, represent a breach of security or a health & safety risk: rectify as soon as possible and in any event no later than five (5) working days of notification by the Client Representative For any other item, which cannot in the reasonable opinion of the Client Representative be left until the end of Defects Liability Period: rectify as soon as possible and in any event no later than twenty-eight (28) working days of notification by the Client Representative. Constructor Selection Procedure Page 4 of 38

4 Reference in Partnering Terms Clause 22.1 The duty of care and warranties of the Partnering Team members described in clause 22 of the Partnering Terms shall be amended by the addition of the following paragraphs. - The Constructor accepts full responsibility to the Client for the design, supply, construction and completion of the Project in accordance with the Partnering Documents including the selection and standards of all materials, goods, equipment and workmanship forming part of the Project and including any design and other work undertaken in relation to the Project before or after the date of the Commencement Agreement by any other Partnering Team member, but without prejudice to the duty of care of each Partnering Team member (other than the Client) to the Constructor in respect of its contribution to the design, supply, construction and completion of the Project. - The responsibility of each of the Partnering Team members for loss or damage suffered by any other Partnering Team member shall be limited to that proportion of the other Partnering Team member s loss or damage as it would be just and equitable to require that Partnering Team member to pay having regard to the extent of that Partnering Team member s responsibility for such loss or damage and on the basis that each other Partnering Team member shall be deemed to have paid such proportion as it would be just and equitable for them to pay having regard to the extent of their responsibility. Clauses 22.1 and 22.4 The following amended duties of care, warranties and third party rights shall apply: None Clauses 22.2 The following collateral warranties shall be provided: In favour of the Client by any Specialist providing substantial design who does not become a Partnering Team member (to be obtained by the Constructor within ten (10) Working Days of a request by the Client in the form set out at Annexure A, Appendix J of the Project Partnering Agreement, or such other form as the parties may agree) In favour of the Client by any third party undertaking design work on behalf of any such Specialist. Clause 23.1 Clause 25.2 The KPIs are attached as Annexure A, Appendix K to this Project Partnering Agreement. These will be developed by the Partnering Team and any developed version attached as an Appendix to the Commencement Agreement. The following rights of assignment shall apply: Constructor Selection Procedure Page 5 of 38

5 Reference in Partnering Terms The Client shall be entitled to assign, charge or transfer all or any of its rights under the Contract to any other Government Department or Government Agency on a maximum of two occasions (any further occasion shall required the consent of all the other members of the Partnering Team). Clauses 25.4, 27.6 and 27.7 Clause 27.4 and Appendix 5 Part 1 Clause 27.5 and Appendix 5 Part 2 Clause 27.6 and Appendix 5 Part 3 Clause 27.8 The applicable law and the courts with jurisdiction shall be those of: England and Wales The Conciliator shall be: No individual named Appointment to be in accordance with Appendix 5 Part 1. The Adjudicator shall be: No individual named Appointment to be in accordance with Appendix 5 Part 2. In default of agreement the arbitrator shall be appointed by the President of the Royal Institution of Chartered Surveyors. Any arbitration shall be under the JCT Edition of the Construction Industry Model Arbitration Rules (CIMAR) current at the date of referral. The limitation period shall be: Twelve years from the date of Project Completion. Clause 28 The following Special Terms apply: Special Term 1 Clause 9.2 Delete clause 9.2 and replace with the following: The Intellectual Property Rights in all designs and other documents prepared by or on behalf of each Partnering Team member in relation to the Project and the work executed from them shall be the property of and vested in the Client who reserves the right to replace such designs and/or documents or to execute or to have executed works in accordance with such designs and/or documents as may be required by the Client. Special Term 2 Clause 14.1 Add as additional pre-conditions to Clause 14 the following; (xiii) Client confirmation that funding for the Project is in place; and Constructor Selection Procedure Page 6 of 38

6 Reference in Partnering Terms (xv) An acceptable Site Waste Management Plan being in place Special Term 3 Clause 3 Add additional Clause 3.12 as follows; The Client shall be entitled to require any of the Partnering Team members employees to be replaced if in the reasonable opinion of the Client that person s performance is unsatisfactory and/or that person has breached the Security Requirements of the Client set out in the Project Brief. Such person shall be replaced with a person of at least the same experience and expertise at the expense of the relevant Partnering Team member and subject to the Client s approval (such approval not to be unreasonably withheld or delayed). Special Term 4 Clause 26.1 Delete existing wording and marginal note Termination for unforeseeable reasons and insert new wording and a marginal note Termination at any time as follows; Notwithstanding any other provision of this Partnering Contract, the Client may terminate this Partnering Contract at any time. In such circumstances the Client shall give the Partnering Team members not less than twenty (20) Working Days prior notice, within which period the Partnering Team members shall cease all activities under the partnering Contract in an orderly manner. Upon expiry of that period the Client Representative shall issue a valuation to the Constructor pursuant to clause 20.3 and the Client shall issue a notice to each Consultant pursuant to clause 20.4 each in respect of the total amount properly due up to the date of termination (including the value of all materials, goods and equipment in respect of which the Constructor has made commitment in accordance with the project Timetable prior to the date of termination and has transferred unencumbered ownership to the Client and the Constructor s reasonable costs under clause 26.8) and the Client shall pay such amount in accordance with clause 20. Clause 26.6 Second line, after the words, by reason of insert the exercise by the Client of emergency powers or by reason of Clause 26.8 Delete existing wording and insert the following; Immediately following termination of this Partnering Contract pursuant to clause 26.1 or termination of the Constructor s appointment pursuant to any of the clauses 26.2, 26.4 or 26.5 or suspension or abandonment pursuant to clause 26.6, the Constructor shall properly protect and secure the Project and Constructor Selection Procedure Page 7 of 38

7 Reference in Partnering Terms (except in the event of suspension, pending operation of clause 26.7) deliver to the Client possession of the Site. Special Term Each Partnering Team member shall not itself or in conjunction with any other person: (i) corruptly solicit, receive or agree to receive for itself or for any other person; or (ii) offer to agree to give any person in the Client s service or any Partnering Team member or other party who has a contract with the Client any gift or consideration of any kind as an inducement or award for doing or not doing anything or for showing favour or disfavour to any person in relation to this Partnering Contract; or (iii) enter into any contract with the Client in connection with which commission has been paid or agreed to be paid by it or on its behalf or to its knowledge unless, before any such contract is made, particulars of any such commission and of the terms and conditions of any agreement for the payment thereof, have been disclosed in writing to the Client. 5.2 The Client may by notice determine the appointment of any Partnering Team member under this Partnering Contract if: (i) the Client is reasonably satisfied that such Partnering Team member or anyone employed by it or on its behalf (with or without knowledge of the relevant Partnering Team member) is in breach of this Special Term 5; or (ii) the Partnering Team member or anyone employed by it or acting on its behalf is convicted of any offence under the Prevention of Corruption Act 1889 to 1916 in relation to this Partnering Contract is convicted of a criminal offence relating to business or preferential conduct, or commits an act of grave misconduct in the course of business or profession; or (iii) the Partnering Team member is guilty of serious misrepresentation in providing any information under this Partnering Contract; or (iv) in accordance with Special Term 5.4, the Client is reasonably satisfied that a conflict of interest exists or may exist and following written notice from the Client, the Partnering Team member has failed to cease such other activity or activities which is causing the conflict within a reasonable time. 5.3 If the Client so determines the appointment of a Partnering Team Constructor Selection Procedure Page 8 of 38

8 Reference in Partnering Terms member under this Partnering Contract in accordance with this Special Term 5, then the Client shall be entitled to recover from such Partnering Team member the amount or value of any such gift, consideration or commission. 5.4 Each Partnering Team member warrants that it is not aware of any actual or potential conflict of interest between this Project and any other activity or activities of that Partnering Team member. Each Partnering Team member must immediately inform the Client when it is aware of any actual or potential conflict of interest and the Client may serve written notice on the relevant Partnering Team member requesting that it cease the other activity or activities causing the actual or potential conflict of interest. Where the Partnering Team member fails to cease such activity or activities within reasonable time, the Client may terminate the appointment of the Partnering Team member in accordance with Special Term All references to Client in this clause 5 shall be deemed to include all Ministers of the Crown, Government Agencies and authorities. Special Term 6 Appendix 1 Definitions delete in definition of Working Day the following; or annual holiday recognised by the Construction Industry Joint Council pursuant to the current Working Day Agreement or equivalent. Special Term 7 Clause 8 The design development process described in clause 8 of the Partnering Terms shall be amended as follows: Sub-clause 8.3(i) delete the margin heading Outline designs and alternative solutions and insert: Option Appraisal in lieu. Sub-clause 8.3(i) delete the words outline designs for the Project including such alternative solutions for the integrated design, supply and construction of the Project and insert: an Option Appraisal for the Project in lieu. Constructor Selection Procedure Page 9 of 38

9 Reference in Partnering Terms Special Term 8 Clause 8 Sub-clause 8.3(iii) delete the margin heading Development of designs and insert: Feasibility Study in lieu. Special Term 9 Clause 8 Sub-clause 8.3(iii) delete the such outline designs and in the fourth line and insert: Option Appraisal in lieu. Special Term 10 Notwithstanding Clauses 15.3(v), 18.1(iii), 18.1(iv) and 19.1 the risk of loss or damage to all the existing structures on the Site (with their contents) shall remain with the Client unless it is due to the negligence of the Constructor. Special Term 11 Notwithstanding Clauses 15.3(v), 18.1(iii), 18.1(iv) and 19.1 the risk of loss or damage to the Project and the Site occasioned by ionising radiations or contamination by radioactivity from any nuclear fuel of from any nuclear waste from the combustion of nuclear fuel, radioactive toxic explosive or other hazardous properties of any explosive nuclear assembly or nuclear component thereof, pressure waves caused by aircraft or other aerial devices travelling at sonic or supersonic speeds, war, terrorism, riot and civil commotion shall remain with the Client. Special Term 12 Appendix 4, Part 4 Delete (see clause 19.7 of Partnering Terms) from the heading and insert (see clause 19.8 of Partnering Terms) in lieu. Delete in the first paragraph In relation to..partnering Terms:- and insert In relation to all insurances described in 19.8 of the Partnering Terms:- in lieu. Constructor Selection Procedure Page 10 of 38

10 Reference in Partnering Terms Delete item 1 and insert 1. the insurer shall be a reputable company trading either in he country in which the Site is located or in the European Economic Union in lieu Insert a new paragraph after item 4. and before item 5. to read In relation to the insurance described in clause 19.7 of the Partnering Terms:- and renumber item 5. as item 1. and renumber item 6. as item 2. Special Term 13 Delete Pre-Possession Agreement throughout the Partnering Contract and the Partnering Documents and insert Pre-Commencement Agreement in lieu. Special Term 14 Delete Pre-Possession Activities throughout the Partnering Contract and the Partnering Documents and insert Pre-Commencement Activities in lieu. Special Term 15 All parts of the Site will be in the exclusive possession of the Constructor until the period immediately prior to the Completion Date when the Client may need access to agreed areas of the Site in order to commence installation of agreed fixtures and fittings. The arrangements for this period of non-exclusive possession will be set out in the Commencement Agreement. Special Term 16 Notwithstanding Clauses 15.3(v), 18.1(iii), 18.1(iv) and 19.1 the risk of loss or damage to the Project and the Site occasioned by asbestos shall remain with the Client provided always that, in the event that the Constructor discovers any asbestos the Constructor shall take all steps that would be expected of a reasonable Constructor and, if the asbestos is to be removed, shall appoint and adequately supervise any Specialist involved in the removal of the same. Special Term 17 Constructor Selection Procedure Page 11 of 38

11 Reference in Partnering Terms Clause 27.2 Delete in the Commencement Agreement and insert in Appendix O to the Project Partnering Agreement in lieu. Special Term 18 Definitions Delete the definition of Problem-Solving Hierarchy and replace with the following; Problem-Solving Hierarchy the arrangements for any difference or dispute to be referred with strict time limits to increasingly senior individuals representing each Partnering Team member involved in that difference or dispute, as further described in Appendix O to this Project Partnering Agreement. Special Term 19 The reference to "Planning Supervisor" in the note to clauses 1.3 and 1.5 in the Project Partnering Agreement shall be deleted and replaced with "CDM Co-ordinator" Clause 7.1 of the Partnering Terms shall be deleted and replaced with: "For the purposes of the CDM Regulations the term "CDM Co-ordinator" shall mean the CDM Co-ordinator and the term "principal contractor" shall mean the Constructor. All Partnering Team members shall fulfil their respective responsibilities under the CDM Regulations, including without limitation the preparation, collation and circulation of the Pre-Construction Information by the Client or the CDM Co-ordinator as appropriate and the preparation of the Construction Phase Plan by the Constructor in compliance with the CDM Regulations as preconditions to implementation of the Project on Site." Clause 8.9 of the Partnering Terms shall be amended as follows: Delete reference to the "Planning Supervisor" in the heading and lines 2 and 3 and insert "CDM Co-ordinator". In line 3 after the words "pursuant to this clause 8" insert "together with related information in accordance with regulation 11(6) of the CDM Regulations" Constructor Selection Procedure Page 12 of 38

12 At the end of the clause insert "and related information" Clause 14.1(ii) shall be deleted and replaced with: "completion and distribution of the Pre-Construction Information and the Construction Phase Plan in accordance with clause 7 and confirmation from the Client that it is satisfied with the requirements of regulation 22(1)(c) of the CDM Regulations;" In Appendix 1 the definitions of CDM Regulations, Health and Safety Plan and Planning Supervisor shall be deleted and the following definitions shall be inserted: CDM Co-ordinator - the party named in the Project Partnering Agreement to fulfil the role of CDM Co-ordinator, as defined in the CDM Regulations, subject only to replacement in accordance with the Partnering Terms; CDM Regulations the Construction (Design and Management) Regulations 2007 and any re-enactments and amendments; Construction Phase Plan - the construction phase plan in accordance with Regulation 23 of the CDM Regulations; Pre-Construction Information - the information to be provided in accordance with Regulation 10(2) of the CDM Regulations; The definition of Consultant in Appendix 1 shall be amended by deleting "Planning Supervisor" in line 1 and inserting "CDM Co-ordinator" Special Term If the Constructor fails to complete the construction of Project by the Date of Completion or such other date as might be set in accordance with clause 18.3 of the Partnering Terms the Client Representative shall issue a notice in writing to the Constructor to that effect. In the event of the Date for Completion being revised after the issue of such a notice then such revision shall cancel that notice and the Client Representative shall issue such further notice in writing under this Special Term 20.1 as may be necessary Provided that the Client Representative has issued a notice under Special Term 20.1 and the Client, before the issue of the Final Account by the Client Representative under clause of the Partnering Terms has informed the Constructor in writing that it may require payment of, or may withhold or deduct liquidated and ascertained damages, then the Client may, not later than 5 working days before the final date for any payment under clause 20.3, either:.1 require in writing the Constructor to pay to the Client liquidated and ascertained damages as calculated in accordance with Special Term Constructor Selection Procedure Page 13 of 38

13 20.3 (or at such lesser rate as may be specified by the Client) for the period between Date for Completion and the date of Project Completion and the Client may recover the same as a debt; or.2 give notice to the Constructor that it will deduct from any monies due to Constructor liquidated and ascertained damages as calculated in accordance with Special Term 20.3 (or at such lesser rate as may be specified by the Client) for the period between Date for Completion and the date of Project Completion 20.3 The amount of liquidated and ascertained damages that shall become due from the Constructor or be paid to the Client shall be calculated as the total of: the amount of for each week or part thereof for the period between the Date for Completion (or as may be amended in accordance with clause 18.3) and the date of Project Completion. Special Term The following definitions shall be added to the definitions in Appendix 1 of the contract terms: "Affiliate" "Client Confidential Information" in relation to a body corporate, any other entity which directly or indirectly Controls, is Controlled by, or is under direct or indirect common Control with, that body corporate from time to time; all Personal Data and any information, however it is conveyed, that relates to the business, affairs, developments, trade secrets, know-how, personnel, and suppliers of the Client, including all Intellectual Property Rights, together with all information derived from any of the above, and any other information clearly designated as being confidential (whether or not it is marked "confidential") or which ought reasonably be considered to be confidential; Client Data (a) the data, text, drawings, diagrams, images or sounds (together with any database made up of any of these) which are embodied in any electronic, magnetic, optical or tangible media, and which are: (i) supplied to Partnering Constructor Selection Procedure Page 14 of 38

14 (b) Team by or on behalf of the Client; or (ii) which the Partnering Team member is required to generate, process, store or transmit pursuant to this Agreement; or any Personal Data for which the Client is the Data Controller; "Confidential Information" "Contracting Authority" "Partnering Team member s Confidential Information" Personnel" the Client's Confidential Information and/or the Partnering Team member's Confidential Information; any contracting authority as defined in Regulation 5(2) of the Public Contracts (Works, Services and Supply) (Amendment) Regulations 2000 other than the Client; any information, however it is conveyed, that relates to the business, affairs, developments, trade secrets, know-how, personnel and suppliers of the Constructor and the other members of the Partnering Team (other than the Client), including Intellectual Property Rights, together with all information derived from the above, and any other information clearly designated as being confidential (whether or not it is marked as "confidential") or which ought reasonably to be considered to be confidential, including the Commercially Sensitive Information; all employees, agents, consultants and contractors of the Partnering Team members other than the Client; "Control" means that a person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of the other person (whether through the ownership of voting shares, by contract or otherwise) and "Controls" Constructor Selection Procedure Page 15 of 38

15 and "Controlled" shall be interpreted accordingly; "Crown Body" "Data Controller" "Data Processor" "Data Protection Legislation" "Data Subject" "Default" any department, office or agency of the Crown; shall have the same meaning as set out in the Data Protection Act 1998; shall have the same meaning as set out in the Data Protection Act 1998; the Data Protection Act 1998, the EU Data Protection Directive 95/46/EC, the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699), the Electronic Communications Data Protection Directive 2002/58/EC, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and all applicable laws and regulations relating to processing of personal data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner; shall have the same meaning as set out in the Data Protection Act 1998; any breach of the obligations of the relevant party (including but not limited to fundamental breach or breach of a fundamental term) or any other default, act, omission, negligence or statement of the relevant party, its employees, servants, agents or Specialists in connection with or in relation to the subject-matter of this Agreement and in respect of which such party is liable to the other; "Environmental Information Regulations" Constructor Selection Procedure Page 16 of 38 the Environmental Information Regulations 2004 together with any guidance and/or codes of practice issues by the Information Commissioner or relevant Government

16 Department in relation to such regulations; "Know-How" "Law" "Personal Data" "Process" "Regulatory Bodies" all ideas, concepts, schemes, information, knowledge, techniques, methodology, and anything else in the nature of know how relating to the Services but excluding know how already in the possession of the Client or any other Partnering Team member before this Agreement; any applicable law, statute, bye-law, regulation, order, regulatory policy, guidance or industry code, rule of court or directives or requirements of any Regulatory Body, delegated or subordinate legislation or notice of any Regulatory Body; shall have the same meaning as set out in the Data Protection Act 1998; has the meaning given to it under the Data Protection Legislation but, for the purposes of this Agreement, it shall include both manual and automatic processing; those government departments and regulatory, statutory and other entities, committees and bodies which, whether under statute, rules, regulations, codes of practice or otherwise, are entitled to regulate, investigate, or influence the matters dealt with in this Agreement or any other affairs of the Client and "Regulatory Body" shall be construed accordingly; The definition of Intellectual Property Rights shall be deleted and replaced with the following: "Intellectual Property Rights" (a) copyright, rights related to or affording protection similar to copyright, rights in databases, patents and rights in inventions, semi-conductor Constructor Selection Procedure Page 17 of 38

17 (b) (c) topography rights, trade marks, rights in Internet domain names and website addresses and other rights in trade names, designs, [Know-How, trade secrets and other rights in Confidential Information]; applications for registration, and the right to apply for registration, for any of the rights listed at (a) that are capable of being registered in any country or jurisdiction; and all other rights having equivalent or similar effect in any country or jurisdiction The Constructor shall not delete or remove any proprietary notices contained within or relating to the Client Data The Partnering Team members other than the Client shall not store, copy, disclose, or use the Client Data except as necessary for the performance by the Partnering Team member of its obligations under this Agreement or as otherwise expressly authorised in writing by the Client To the extent that Client Data is held and/or processed by the Partnering Team members other than the Client, the Partnering Team members shall supply that Client Data to the Client as requested by the Client in the format specified The Partnering Team members shall take responsibility for preserving the integrity of Client Data and preventing the corruption or loss of Client Data The Partnering Team members other then the Client shall perform secure back-ups of all Client Data and shall ensure that up-to-date backups are stored off-site. The Partnering Team members shall ensure that such back-ups are available to the Client at all times upon request and are delivered to the Client at no less than three monthly intervals The Partnering Team members other than the Client shall ensure that any system, on which Client Data is held, including back-up data, is a secure system If the Client Data is corrupted, lost or sufficiently degraded as a result of the default of a Partnering Team member so as to be unusable, the Client may: (a) require such Partnering Team member (at their expense Constructor Selection Procedure Page 18 of 38

18 to restore or procure the restoration of Client Data, and the Partnering Team member shall do so as soon as practicable; and/or (b) itself restore or procure the restoration of Client Data, and shall be repaid by the relevant Partnering Team member any reasonable expenses incurred in doing so If at any time any Partnering Team member suspects or has reason to believe that Client Data has or may become corrupted, lost or sufficiently degraded in any way for any reason, then the Partnering Team member shall notify the Client immediately and inform the Client of the remedial action the Partnering Team member proposes to take Personal Data With respect to the parties' rights and obligations under this Agreement, the parties agree that the Client is the Data Controller and that the Partnering Team member (other than the Client) is the Data Processor Each of the Partnering Team members other than the Client shall: (a) Process the Personal Data only in accordance with instructions from the Client (which may be specific instructions or instructions of a general nature as set out in this Agreement or as otherwise notified by the Client); (b) Process the Personal Data only to the extent, and in such manner, as is necessary for the provision of the Services or as is required by Law or any Regulatory Body; (c) implement appropriate technical and organisational measures to protect the Personal Data against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure. These measures shall be appropriate to the harm which might result from any unauthorised or unlawful Processing, accidental loss, destruction or damage to the Personal Data and having regard to the nature of the Personal Data which is to be protected; (d) take reasonable steps to ensure the reliability of any Personnel who have access to the Personal Data; (e) obtain prior written consent from the Client in order to transfer the Personal Data to any Sub-contractors or Affiliates for the provision of the Services; (f) ensure that all Personnel required to access the Personal Data are informed of the confidential nature of the Personal Data and comply with the obligations Constructor Selection Procedure Page 19 of 38

19 set out in this clause; (g) ensure that none of Personnel publish, disclose or divulge any of the Personal Data to any third party unless directed in writing to do so by the Client; (h) notify the Client (within [five] Working Days) if any Partnering Team member receives: a request from a Data Subject to have access to that person's Personal Data; or a complaint or request relating to the Client's obligations under the Data Protection Legislation; (i) provide the Client with full co-operation and assistance in relation to any complaint or request made, including by: providing the Client with full details of the complaint or request; complying with a data access request within the relevant timescales set out in the Data Protection Legislation and in accordance with the Client's instructions; providing the Client with any Personal Data it holds in relation to a Data Subject (within the timescales required by the Client); and providing the Client with any information requested by the Client; (j) permit the Client or the Client Representative (subject to reasonable and appropriate confidentiality undertakings), to inspect and audit, the relevant Partnering Team members data Processing activities (and/or those of its agents, subsidiaries and Sub-contractors) and comply with all reasonable requests or directions by the Client to enable the Client to verify and/or procure that the Constructor is in full compliance with its obligations under this Agreement; (k) provide a written description of the technical and organisational methods employed by the Constructor for processing Personal Data (within the timescales required by the Client); and Constructor Selection Procedure Page 20 of 38

20 not Process Personal Data outside the European Economic Area without the prior written consent of the Client and, where the Client consents to a transfer, to comply with: the obligations of a Data Controller under the Eighth Data Protection Principle set out in Schedule 1 of the Data Protection Act 1998 by providing an adequate level of protection to any Personal Data that is transferred; and any reasonable instructions notified to it by the Client The Partnering Team members shall comply at all times with the Data Protection Legislation and shall not perform their obligations under this Agreement in such a way as to cause the Client to breach any of its applicable obligations under the Data Protection Legislation Freedom of Information The Partnering Team members acknowledge that the Client is subject to the requirements of the Code of Practice on Government Information, FOIA and the Environmental Information Regulations and shall assist and co-operate with the Client to enable the Client to comply with its Information disclosure obligations The Constructor shall and shall procure that its Specialists shall: transfer to the Client all Requests for Information that it receives as soon as practicable and in any event within [two] Working Days of receiving a Request for Information; provide the Client with a copy of all Information in its possession, or power in the form that the Client requires within [five] Working Days (or such other period as the Client may specify) of the Client's request; and provide all necessary assistance as reasonably requested by the Client to enable the Client to respond to the Request for Information within the time for compliance set out in section 10 of the FOIA or regulation 5 of the Environmental Information Regulations The Client shall be responsible for determining in its absolute discretion and notwithstanding any other provision in this Agreement or any other agreement whether any Information Constructor Selection Procedure Page 21 of 38

21 is exempt from disclosure in accordance with the provisions of the Code of Practice on Government Information, FOIA or the Environmental Information Regulations In no event shall any Partnering Team member other than the Client respond directly to a Request for Information unless expressly authorised to do so by the Client The Constructor acknowledges that (notwithstanding the provisions of this Clause 21) the Client may, acting in accordance with the Department of Constitutional Affairs Code of Practice on the Discharge of the Functions of Public Authorities under Part 1 of the Freedom of Information Act 2000 ( the Code ), be obliged under the FOIA, or the Environmental Information Regulations to disclose information concerning any Partnering Team member or the Services: in certain circumstances without consulting the Partnering Team member concerned; or following consultation with the Partnering Team member and having taken their views into account; provided always that where applies the Client shall, in accordance with any recommendations of the Code, take reasonable steps, where appropriate, to give the relevant Partnering Team member r advanced notice, or failing that, to draw the disclosure to the Constructor s attention after any such disclosure The Partnering Team members shall ensure that all Information is retained for disclosure and shall permit the Client to inspect such records as requested from time to time Confidentiality The Parties acknowledge that, except for any information which is exempt from disclosure in accordance with the provisions of the FOIA, the content of this Project Partnering Agreement is not Confidential Information. The Client shall be responsible for determining in its absolute discretion whether any of the content of the Project Partnering Agreement is exempt from disclosure in accordance with the provisions of the FOIA. Notwithstanding any other term of this Project Partnering Agreement, the Partnering Team members (other than the Client) hereby gives consent for the Client to publish the Project Partnering Agreement in its entirety (but with any information which is exempt from disclosure in accordance with the provisions of the FOIA redacted), including from time to time agreed changes to the Constructor Selection Procedure Page 22 of 38

22 Project Partnering Agreement, to the general public. The Partnering Team members (other than the Client) shall assist and cooperate with the Client to enable the Client to publish this Project Partnering Agreement. Prior to publication the Client may, at its sole discretion, in whole or in part, redact information for one or more of the following grounds: (a) national security; (b) personal data; (c) information protected by intellectual property law; (d) information which it is not in the public interest to disclose (under a Freedom of Information Act analysis) (e) third party confidential information; (f) IT security; or (g) prevention of fraud Except to the extent set out in this clause or where disclosure is expressly permitted elsewhere in the Project Partnering Agreement, each Party shall: treat the other Party's Confidential Information as confidential and safeguard it accordingly; and not disclose the other Party's Confidential Information to any other person without the owner's prior written consent Clause shall not apply to the extent that: such disclosure is a requirement of Law placed upon the Party making the disclosure, including any requirements for disclosure under the FOIA, Code of Practice on Access to Government Information or the Environmental Information Regulations; such information was in the possession of the Party making the disclosure without obligation of confidentiality prior to its disclosure by the information owner; such information was obtained from a third party without obligation of confidentiality; such information was already in the public domain at the time of disclosure otherwise than by a breach of the Project Partnering Agreement; or it is independently developed without access to the other Party's Confidential Information The Partnering Team members (other than the Client) may only disclose the Client's Confidential Information to the Partnering Team members (other than the Client) s Personnel who are directly involved in the provision of the Goods or Services and need to know any of the Client s Confidential Information, and shall ensure that the Constructor Selection Procedure Page 23 of 38

23 Partnering Team members (other than the Client) s Personnel are aware of and shall comply with this clause The Partnering Team members (other than the Client) shall not, and shall procure that the Partnering Team members (other than the Client) s Personnel do not, use any of the Client's Confidential Information received otherwise than for the purposes of the Project Partnering Agreement At the written request of the Client, the Partnering Team members (other than the Client) shall procure that those members of the Partnering Team members (other than the Client) s Personnel identified in the Client's notice sign a confidentiality undertaking on similar terms to the Project Partnering Agreement prior to commencing any work in accordance with the Project Partnering Agreement Nothing in the Project Partnering Agreement shall prevent the Client from disclosing the Partnering Team members (other than the Client)'s Confidential Information (including the Management Information obtained under the Project Partnering Agreement ): to any Crown Body or any other Contracting Client on the understanding that they shall be entitled to further disclose the Confidential Information to other Crown Bodies or other Contracting Authorities on the basis that the information is confidential and is not to be disclosed to a third party which is not part of any Crown Body or any Contracting Client; to any consultant, contractor or other person engaged by the Client or any person conducting an Office of Government Commerce gateway review; for the purpose of the examination and Certification of the Client's accounts; or for any examination pursuant to Section 6(1) of the National Audit Act 1983 of the economy, efficiency and effectiveness with which the Client has used its resources The Client shall use all reasonable endeavours to ensure that any government department, Contracting Client, employee, third party or sub-contractor to whom the Partnering Team members (other than the Client)'s Confidential Information is disclosed pursuant to clause is made aware of the Client's obligations of confidentiality Nothing in this clause 21.6 shall prevent either Party from using any techniques, ideas or know-how gained during the Constructor Selection Procedure Page 24 of 38

24 performance of the Project Partnering Agreement in the course of its normal business to the extent that this use does not result in a disclosure of the other Party's Confidential Information or an infringement of IPR. Special Term 22 Clause 18 Sub-Clause 18.3(xii) in line 1 inesrt any or all of before its obligations. Special Term 23 Clause 20 Delete Clause 20 in its entirety and insert the following: Payment obligations Payment applications and due dates for payment Interim payments to Constructor payment notices and final date for payment 20 Payment 20.1 The Client shall be responsible for payment to the Consultants of all agreed amounts stated in the Consultant Payment Terms and for payment to the Constructor of all agreed amounts in respect of Constructor s Services, in respect of Pre- Commencement Activities and comprising the Agreed Maximum Price, plus in each case VAT (if applicable), and in each case subject to and adjusted in accordance with these Partnering Terms Subject to any agreed payment milestones, activity schedules or cashflows and any other payment arrangements set out in the Price Framework and the Consultant Payment Terms and any Pre-Commencement Agreement, applications for payment of amounts due to the Consultants and the Constructor shall be submitted respectively by each Consultant and the Constructor to the Client and the Client Representative at the intervals stated in the Price Framework, the Consultant Payments Terms and any Pre-Commencement Agreement or (if no intervals are stated) at the end of each calendar month. Each application for payment shall state the sum the relevant Consultant or the Constructor considers to be due to it on the due date for payment and the basis on which that sum is calculated and shall be accompanied by such details as are stated in the Project Brief and such further information as the Client Representative may reasonably require. The due date for payment in respect of each application for payment shall be the date of receipt by the Client of the relevant application, submitted in accordance with this clause Within ten (10) Calendar Days from receipt of each application for payment made by the Constructor in accordance with clause 20.2, clause or when otherwise required by these Partnering Terms, the Client Representative shall issue to the Constructor and the Client a payment notice, calculated in accordance with clause 20.5, specifying the sum the Client Constructor Selection Procedure Page 25 of 38

25 Payment to Consultants payment notices and final date for payment Content of Constructor valuations Default notice Representative considers to have been due on the due date for payment and the basis on which that sum is calculated. Subject to any notice issued in accordance with clause 20.7, the Client shall pay to the Constructor the sum stated as due in the payment notice by the final date for payment. Subject to any revised periods stated in the Price Framework, the final date for payment shall be thirty (30) Calendar Days from the due date for payment accompanied by a valid VAT invoice in the same sum as the payment notice Within (10) Calendar Days from receipt of each application for payment made by the Consultant in accordance with clause 20.2 the Client Representative shall issue a payment notice to each Consultant and the Client (excepting in the case of the Client Representative whereby such notice shall be issued by the Client to the Client Representative) calculated according to the relevant Consultant Payment Terms on the basis of the Consultant Services provided and taking into account sums due pursuant to clauses and 20.17, specifying the sum the Client Representative (or in the case of the Client Representative, the Client) considers to have been due on the due date for payment and the basis on which that sum is calculated. Subject to any notice issued in accordance with clause 20.7, the Client shall pay to the relevant Consultant the amount stated as due in the relevant payment notice by the final date for payment. Subject to any revised periods stated in the Consultant Payment Terms, the final date for payment shall be thirty (30) Calendar Days from the due date for payment as accompanied by a valid VAT invoice in the same sum as the payment notice The amount payable under each application for payment by the Constructor shall be calculated in accordance with the Price Framework to establish the value of the Constructor s Services properly performed, or the value of any Pre-Commencement Activities properly performed or the value of that part of the Project properly progressed, including the value of any unfixed materials, goods and equipment on and off site intended for the Project (subject to clause 15.4 and if and to the extent provided in the Price Framework), less the total of all amounts previously paid, and adjusted to reflect shared savings, shared added value and pain/gain Incentives pursuant to clause 13.2, any Incentives that link payment to achievement of the Date for Completion or any KPI Targets pursuant to clause 13.3 and any sums due pursuant to clauses 17.3, 17.4, 18.5 or 18.6 and taking into account sums due pursuant to clauses and If the Client Representative or the Client does not issue a Constructor Selection Procedure Page 26 of 38