GROUNDS OF OBJECTION. 3.1 The expression “raise comments” in this paragraph shall be construed to mean “raise comments or make objections” unless the contrary appears from the context. The Authority’s Representative may raise comments in relation to any Submitted Item on the grounds set out in paragraph [ ] above or on the grounds that the Submitted Item would (on the balance of probabilities) breach any Law or not be in accordance with any necessary consent but otherwise may raise comments in relation to a Submitted Item only as follows: 3.1.1 in relation to any Submitted Item: (A) the Contractor’s ability to perform its obligations under this Agreement would (on the balance of probabilities) be adversely affected by the implementation of the Submitted Item; or (B) the implementation of the Submitted Item would (on the balance of probabilities) be adversely affect any right of the Authority under this Agreement or its ability to enforce any such right; 3.1.2 in relation to any Submitted Item submitted pursuant to Clause 7.1: (A) the Authority's ability to perform its obligations under the Agreement would be adversely affected by the proposed course of action; (B) the Authority's ability to provide the Educational Services or to carry out any of its statutory functions would (on the balance of probabilities) be adversely affected by the proposed course of action; (C) the proposed course of action would likely to result in an increase to the Authority's liabilities or potential or contingent liabilities under this Agreement; (D) the proposed course of action would adversely affect any right of the Authority under this Agreement or its ability to enforce any such right; (E) the Contractor's ability to perform its obligations under the Agreement would be materially adversely affected by the proposed course of action; or (F) in the case of a proposed Refinancing, satisfactory arrangements for the Trust to receive the Refinancing Share are not in place. 3.1.3 in relation to Reviewable Design Data submitted pursuant to Clause 9: (A) the Submitted Item is not in accordance with the Facilities Requirements; or (B) the Submitted Item is not in accordance with the Contractor's Proposals; 3.1.4 in relation to any proposed variation to the Contractor's Proposals relating to the Works: (A) the Submitted Item would increase the likelihood of Unavailability or Performance Point Deductions following the relevant Service Availability Date; or (B) would result in a decrease or worsening of the quality of the Schools following the relevant Service Availability Date. 3.1.5 in relation to the submission of any revised Construction Programme on the ground that the revised Construction Programme: (A) would not (on the balance of probabilities) enable any part of the Works to be completed by the relevant Target Service Availability Date; or (B) would materially increase the cost or disruption to the Authority of any decanting from or within an Existing School; or (C) would materially increase the disruption to the provision of Educational Services by the Authority; or (D) would render the Authority unable to carry out any Joint Commissioning without material additional expense or disruption. 3.1.6 in relation to the submission of any proposed revision or substitution for the Contractor’s Service Delivery Proposals on the grounds that: (A) the proposed revision or substitution is not in accordance with Good Industry Practice; (B) the performance of the relevant Service in accordance with the proposed revision or substitution would (on the balance of probabilities): (1) be less likely to achieve compliance with relevant parts of the Authority's Requirements; or (2) have an adverse effect on the provision by the Authority of the Educational Services or on the safety of any users of the Schools; or (3) would cause the Authority to incur material additional expense. (C) the proposed revision or substitution would (on the balance of probabilities) result in an inferior standard of performance of the relevant Service to the standard of performance in accordance with the Service Delivery Proposals prior to such proposed revision or substitution; 3.1.7 in relation to the submission of any Maintenance Programme, any revision to any Maintenance Programme on the grounds that: (A) carrying out the programmed maintenance in the period or at the times suggested would (on the balance of probabilities) interfere with the operations of the Authority or a School and such interference could be avoided or mitigated by the Contractor rescheduling the programmed maintenance; or (B) the safety of pupils or staff or other users of the Schools would (on the balance of probabilities) be adversely affected; or (C) the period for carrying out the programmed maintenance or the would (on the balance of probabilities) exceed the period reasonable required for the relevant works. 3.1.8 in relation to any proposal for Third Party Use, on the grounds that: (A) Third Party Use would not be compatible with the use of the Schools as schools; or (B) that Third Party Use would impair the ability of the Authority to provide Educational Services; or (C) that Third Party Use would impair Community Use. 3.1.9 in relation to the submission of the Contractor's proposals for the Handback Works, the Handback Programme and the Handback Amount, on the grounds that: (A) in the case of the Handback Works the Contractor's proposals will not (on the balance of probabilities) ensure that the Handback Requirements are achieved by the Expiry Date; (B) in the case of the Handback Programme, performance of the Handback Works in accordance with the programme is not (on the balance of probabilities) capable of achieving satisfaction of the Handback Requirements by the Expiry Date; and (C) in the case of the Handback Amount, it does not represent the cost of carrying out the Handback Works as agreed or determined.
Appears in 1 contract
Samples: Project Agreement
GROUNDS OF OBJECTION. 3.1 The expression “"raise comments” " in this paragraph shall be construed to mean “"raise comments or make objections” " unless the contrary appears from the context. The Authority’s 's Representative may raise comments in relation to any Submitted Item on the grounds set out in paragraph [ ] 2 (Further Information) above or on the grounds ground that the Submitted Item would (on the balance of probabilities) breach any Law or not be in accordance with any necessary consent but otherwise may raise comments in relation to a Submitted Item only as follows:
3.1.1 : in relation to any Submitted Item:
(A) the Contractor’s Item if: Sub-hubco's ability to perform its obligations under this Agreement would (on the balance of probabilities) be adversely affected by the implementation of the Submitted Item; or
(B) or the implementation of the Submitted Item would (on the balance of probabilities) be adversely affect any right of the Authority under this Agreement or its ability to enforce any such right;
3.1.2 ; in relation to any Submitted Item submitted pursuant to Clause 7.1:
4.1 (AAncillary Documents) if: the Authority's ability to perform its obligations under the this Agreement would be adversely affected by the proposed course of action;
(B) ; the Authority's or a Community Services Provider’s ability to provide the Educational relevant Community Services or to carry out any of its statutory functions would (on the balance of probabilities) be adversely affected by the proposed course of action;
(C) ; the proposed course of action would be likely to result in an increase to the Authority's liabilities or potential or contingent liabilities under this Agreement;
(D) ; the proposed course of action would adversely affect any right of the Authority under this Agreement or its ability to enforce any such right;
(E) the Contractor; or Sub-hubco's ability to perform its obligations under the this Agreement would be materially adversely affected by the proposed course of action; or
(F) in the case of a proposed Refinancing, satisfactory arrangements for the Trust to receive the Refinancing Share are not in place.
3.1.3 in relation to Reviewable Design Data submitted pursuant to Clause 9:
12.6: which does not comprise 1:50 scale Room Layout Drawings the Authority's Representative may raise comments, subject to and in accordance with paragraph 4 (AEffect of Review) on the ground that the Submitted Item is not in accordance with with: the Facilities Authority's Construction Requirements; or
and/or Sub-hubco's Proposals; which comprises a 1:50 scale Room Layout Drawing in respect of which there is a corresponding generic 1:50 scale Room Layout Drawing for the relevant room type (B) which has previously been reviewed and commented upon by the Authority's Representative in accordance with this Schedule Part 8 (Review Procedure)), the Authority's Representative may raise comments, subject to and in accordance with paragraph 4 (Effect of Review), on the ground that the Submitted Item does not conform to the generic 1:50 scale Room Layout Drawing; and which comprises a 1:50 scale Room Layout Drawing in respect of which there is no corresponding generic 1:50 scale Room Layout Drawing for the relevant room type (which has previously been reviewed and commented upon by the Authority's Representative in accordance with this Schedule Part 8 (Review Procedure)), the Authority's Representative may raise comments, subject to and in accordance with paragraph 4 (Effect of Review), on the grounds that the Submitted Item: is not in accordance with the ContractorAuthority's Construction Requirements and/or Sub-hubco's Proposals; [or is inconsistent with the guidance contained in any current NHS Requirement which is applicable to a room of that function provided that such guidance has not been superseded by and is not inconsistent with any other provisions of the Authority’s Construction Requirements (including any existing Approved RDD Item);
3.1.4 ] in relation to a proposal to amend Sub-hubco’s Proposals and rectify (part of) the Works submitted pursuant to Clause 12.8, on the grounds that, following the amendment and rectification proposed: Sub-hubco’s Proposals would not satisfy the Authority’s Construction Requirements; and/or the structural, mechanical and/or electrical performance of the Facilities would not be of an equivalent standard of performance to that set out in Sub-hubco’s Proposals prior to their amendment or rectification (for the purpose of this comparison disregarding the fault which required the amendment or rectification to be made); in relation to Finishes: which have the effect of making a selection from the Range of Finishes (or any proposed variation alternative range or selection of Finishes submitted by Sub-hubco to the ContractorAuthority's Proposals relating Representative) pursuant to the Works:
(A) Clause 12.6.1; or where the Submitted Item would increase the likelihood of Unavailability or Performance Point Deductions following does not comply with the relevant Service Availability Date; or
(B) would result in a decrease or worsening provisions of the quality of the Schools following the relevant Service Availability Date.
3.1.5 Authority's Construction Requirements and/or Sub-hubco's Proposals; in relation to the submission of any revised Construction Programme pursuant to Clause 14 (Programme and Dates for Completion) on the ground that the revised Construction Programme:
(A) Programme would not (on the balance of probabilities) enable any part of the Works to be completed by the relevant Target Service Availability Completion Date; or
(B) would materially increase the cost or disruption in relation to the Authority submission of any decanting from Quality Plan or within an Existing Schoolpart of a Quality Plan or any changes to any Quality Plan pursuant to Clause 20.4 or Clause 20.7 or any quality manual or procedure in accordance with Clause 20.9 (Quality Manuals and Procedures), on the grounds that such Quality Plans, or parts of or changes to such Quality Plans, quality manuals or procedures, or the quality management systems which they reflect, would not comply with: in the case of the Design Quality Plan and the Construction Quality Plan referred to in Clause 20.8, the requirements referred to in Section 8 (Quality Plans (Design and Construction)) of Schedule Part 6 (Construction Matters); or
and in the case of the Services Quality Plan referred to in Clause 20 (CQuality Assurance), the requirements referred to in Section 3 (Services Quality Plan) would materially increase the disruption to the provision of Educational Services by the AuthoritySchedule Part 12 (Service Requirements); or
(D) would render the Authority unable to carry out any Joint Commissioning without material additional expense or disruption.
3.1.6 in relation to the submission of any proposed revision or substitution for the Contractor’s Service Delivery Proposals Method Statements or any part of any Method Statement (as the case may be) pursuant to Clause 22.4, on the grounds that:
(A) : the proposed revision or substitution is not in accordance with Good Industry Practice;
(B) ; the performance of the relevant Service Services in accordance with the proposed revision or substitution would (on the balance of probabilities):
(1) ): be materially different from the performance of the Services in accordance with the Method Statement prior to such proposed revision or substitution; or be less likely to achieve compliance with relevant parts of the Authority's RequirementsService Level Specification; or
(2) or have an adverse effect on the provision by the Authority or aby Community Services Provider of the Educational relevant Community Services at, or on the safety of any users of of, the SchoolsFacilities; or
(3) would cause the Authority to incur material additional expense.
(C) or the proposed revision or substitution would (on the balance of probabilities) result in an inferior standard of performance of the relevant Service Services to the standard of performance in accordance with the Service Delivery Proposals Method Statement prior to such proposed revision or substitution;
3.1.7 ; and in relation to the submission of any Schedule of Programmed Maintenance Programmepursuant to Clause 23.1, any revision to any Schedule of Programmed Maintenance Programme pursuant to Clause 23.4 or any submission of Unprogrammed Maintenance Works pursuant to Clause 23.8, on the grounds that:
(A) : carrying out the programmed maintenance Programmed Maintenance or the Unprogrammed Maintenance Works in the period or at the times suggested would (on the balance of probabilities) interfere with the operations of the Authority or a School [and/or any Community Services Provider] and such interference could be avoided or mitigated by the Contractor Sub-hubco rescheduling the programmed maintenanceProgrammed Maintenance or the Unprogrammed Maintenance Works; or
or in relation to the Schedule of Programmed Maintenance the proposed hours for carrying out the Programmed Maintenance are not consistent with the principles set out in Appendix 2, Table B to this Schedule Part 8 (B) Review Procedure); or the proposed method of performance of the Programmed Maintenance or the Unprogrammed Maintenance Works would not be in accordance with the Service Level Specification; or the safety of pupils or staff or other users of the Schools Facilities would (on the balance of probabilities) be adversely affected; or
(C) or the period for carrying out the programmed maintenance Programmed Maintenance or the Unprogrammed Maintenance Works would (on the balance of probabilities) exceed the period reasonable reasonably required for the relevant works.
3.1.8 in relation to any proposal for Third Party Use, on the grounds that:
(A) Third Party Use would not be compatible with the use of the Schools as schools; or
(B) that Third Party Use would impair the ability of the Authority to provide Educational Services; or
(C) that Third Party Use would impair Community Use.
3.1.9 in . In relation to the submission of the ContractorSub-hubco's proposals for the Handback Works, the Handback Programme and the Handback AmountAmount pursuant to Schedule Part 18 (Handback Procedure), on the grounds that:
(A) : in the case of the Handback Works the ContractorWorks, Sub-hubco's proposals will not (on the balance of probabilities) ensure that the Handback Requirements are achieved by the Expiry Date;
(B) ; in the case of the Handback Programme, performance of the Handback Works in accordance with the programme is not (on the balance of probabilities) capable of achieving satisfaction of the Handback Requirements by the Expiry Date; and
(C) and in the case of the Handback Amount, it does not represent the cost of carrying out the Handback Works according to the Handback Programme and the provisions of Schedule Part 18 (Handback Procedure). Any Submitted Item which is returned or deemed to have been returned by the Authority's Representative endorsed "no comment" (and in the case of Reviewable Design Data, endorsed "Level A - no comment") shall be complied with or implemented (as agreed the case may be) by Sub-hubco. In the case of any Submitted Item other than Reviewable Design Data, if the Authority's Representative returns the Submitted Item to Sub-hubco endorsed "comments", Sub-hubco shall comply with such Submitted Item after amendment in accordance with the comments unless Sub-hubco disputes that any such comment is on grounds permitted by this Agreement, in which case Sub-hubco or determined.the Authority's Representative may refer the matter for determination in accordance with Schedule Part 20 (Dispute Resolution Procedure) and Sub-hubco shall not act on the Submitted Item until such matter is so determined or otherwise agreed. In the case of a Submitted Item comprising Reviewable Design Data, if the Authority's Representative returns the Submitted Item endorsed other than "Level A - no comment", Sub-hubco shall: where the Authority's Representative has endorsed the Submitted Item "Level B - proceed subject to amendment as noted", either proceed to construct or proceed to the next level of design of the part of the Works to which the Submitted Item relates but take into account any amendments required by the Authority's Representative in his comments; where the Authority's Representative has endorsed the Submitted Item "Level C - subject to amendment as noted" not act upon the Submitted Item, amend the Submitted Item in accordance with the Authority's Representative's comments and re-submit the same to the Authority's Representative in accordance with paragraph 4.4; and where the Authority's Representative has endorsed the Submitted Item "Level D - rejected" not act upon the Submitted Item, amend the Submitted Item and re-submit the Submitted Item to the Authority's Representative in accordance with paragraph 4.4,
Appears in 1 contract
Samples: Project Agreement
GROUNDS OF OBJECTION. 3.1 The expression “"raise comments” " in this paragraph shall be construed to mean “"raise comments or make objections” " unless the contrary appears from the context. The Authority’s 's Representative may raise comments in relation to any Submitted Item on the grounds set out in paragraph [ ] 2 (Further Information) above or on the grounds ground that the Submitted Item would (on the balance of probabilities) breach any Law or not be in accordance with any necessary consent but otherwise may raise comments in relation to a Submitted Item only as follows:
3.1.1 : in relation to any Submitted Item:
(A) the Contractor’s Item if: DBFM Co's ability to perform its obligations under this Agreement would (on the balance of probabilities) be adversely affected by the implementation of the Submitted Item; or
(B) or the implementation of the Submitted Item would (on the balance of probabilities) be adversely affect any right of the Authority under this Agreement or its ability to enforce any such right;
3.1.2 ; in relation to any Submitted Item submitted pursuant to Clause 7.1:
4.1 (AAncillary Documents) if: the Authority's ability to perform its obligations under the this Agreement would be adversely affected by the proposed course of action;
(B) ; the Authority's or a Community Services Provider’s ability to provide the Educational relevant Community Services or to carry out any of its statutory functions would (on the balance of probabilities) be adversely affected by the proposed course of action;
(C) ; the proposed course of action would be likely to result in an increase to the Authority's liabilities or potential or contingent liabilities under this Agreement;
(D) ; the proposed course of action would adversely affect any right of the Authority under this Agreement or its ability to enforce any such right;
(E) the Contractor; or DBFM Co's ability to perform its obligations under the this Agreement would be materially adversely affected by the proposed course of action; or
(F) in the case of a proposed Refinancing, satisfactory arrangements for the Trust to receive the Refinancing Share are not in place.
3.1.3 in relation to Reviewable Design Data submitted pursuant to Clause 9:
12.6: which does not comprise 1:50 scale Room Layout Drawings the Authority's Representative may raise comments, subject to and in accordance with paragraph 4 (AEffect of Review) on the ground that the Submitted Item is not in accordance with with: the Facilities Authority's Construction Requirements; or
and/or DBFM Co's Proposals; which comprises a 1:50 scale Room Layout Drawing in respect of which there is a corresponding generic 1:50 scale Room Layout Drawing for the relevant room type (B) which has previously been reviewed and commented upon by the Authority's Representative in accordance with this Schedule Part 8 (Review Procedure)), the Authority's Representative may raise comments, subject to and in accordance with paragraph 4 (Effect of Review), on the ground that the Submitted Item does not conform to the generic 1:50 scale Room Layout Drawing; and which comprises a 1:50 scale Room Layout Drawing in respect of which there is no corresponding generic 1:50 scale Room Layout Drawing for the relevant room type (which has previously been reviewed and commented upon by the Authority's Representative in accordance with this Schedule Part 8 (Review Procedure)), the Authority's Representative may raise comments, subject to and in accordance with paragraph 4 (Effect of Review), on the grounds that the Submitted Item: is not in accordance with the ContractorAuthority's Construction Requirements and/or DBFM Co's Proposals; [or is inconsistent with the guidance contained in any current NHS Requirement which is applicable to a room of that function provided that such guidance has not been superseded by and is not inconsistent with any other provisions of the Authority’s Construction Requirements (including any existing Approved RDD Item);
3.1.4 ] in relation to a proposal to amend DBFM Co’s Proposals and rectify (part of) the Works submitted pursuant to Clause 12.8, on the grounds that, following the amendment and rectification proposed: DBFM Co’s Proposals would not satisfy the Authority’s Construction Requirements; and/or the structural, mechanical and/or electrical performance of the Facilities would not be of an equivalent standard of performance to that set out in DBFM Co’s Proposals prior to their amendment or rectification (for the purpose of this comparison disregarding the fault which required the amendment or rectification to be made); in relation to Finishes: which have the effect of making a selection from the Range of Finishes (or any proposed variation alternative range or selection of Finishes submitted by DBFM Co to the ContractorAuthority's Proposals relating Representative) pursuant to the Works:
(A) Clause 12.6.1; or where the Submitted Item would increase the likelihood of Unavailability or Performance Point Deductions following does not comply with the relevant Service Availability Date; or
(B) would result in a decrease or worsening provisions of the quality of the Schools following the relevant Service Availability Date.
3.1.5 Authority's Construction Requirements and/or DBFM Co's Proposals; in relation to the submission of any revised Construction Programme pursuant to Clause 14 (Programme and Dates for Completion) on the ground that the revised Construction Programme:
(A) Programme would not (on the balance of probabilities) enable any part of the Works to be completed by the relevant Target Service Availability Completion Date; or
(B) would materially increase the cost or disruption in relation to the Authority submission of any decanting from Quality Plan or within an Existing Schoolpart of a Quality Plan or any changes to any Quality Plan pursuant to Clause 20.4 or Clause 20.7 or any quality manual or procedure in accordance with Clause 20.9 (Quality Manuals and Procedures), on the grounds that such Quality Plans, or parts of or changes to such Quality Plans, quality manuals or procedures, or the quality management systems which they reflect, would not comply with: in the case of the Design Quality Plan and the Construction Quality Plan referred to in Clause 20.8, the requirements referred to in Section 8 (Quality Plans (Design and Construction)) of Schedule Part 6 (Construction Matters); or
and in the case of the Services Quality Plan referred to in Clause 20 (CQuality Assurance), the requirements referred to in Section 3 (Services Quality Plan) would materially increase the disruption to the provision of Educational Services by the AuthoritySchedule Part 12 (Service Requirements); or
(D) would render the Authority unable to carry out any Joint Commissioning without material additional expense or disruption.
3.1.6 in relation to the submission of any proposed revision or substitution for the Contractor’s Service Delivery Proposals Method Statements or any part of any Method Statement (as the case may be) pursuant to Clause 22.4, on the grounds that:
(A) : the proposed revision or substitution is not in accordance with Good Industry Practice;
(B) ; the performance of the relevant Service Services in accordance with the proposed revision or substitution would (on the balance of probabilities):
(1) ): be materially different from the performance of the Services in accordance with the Method Statement prior to such proposed revision or substitution; or be less likely to achieve compliance with relevant parts of the Authority's RequirementsService Level Specification; or
(2) or have an adverse effect on the provision by the Authority or by a Community Services Provider of the Educational relevant Community Services at, or on the safety of any users of of, the SchoolsFacilities; or
(3) would cause the Authority to incur material additional expense.
(C) or the proposed revision or substitution would (on the balance of probabilities) result in an inferior standard of performance of the relevant Service Services to the standard of performance in accordance with the Service Delivery Proposals Method Statement prior to such proposed revision or substitution;
3.1.7 ; in relation to the submission of any Schedule of Programmed Maintenance Programmepursuant to Clause 23.1, any revision to any Schedule of Programmed Maintenance Programme pursuant to Clause 23.4 or any submission of Unprogrammed Maintenance Works pursuant to Clause 23.8, on the grounds that:
(A) : carrying out the programmed maintenance Programmed Maintenance or the Unprogrammed Maintenance Works in the period or at the times suggested would (on the balance of probabilities) interfere with the operations of the Authority or a School [and/or any Community Services Provider] and such interference could be avoided or mitigated by the Contractor DBFM Co rescheduling the programmed maintenanceProgrammed Maintenance or the Unprogrammed Maintenance Works; or
or in relation to the Schedule of Programmed Maintenance the proposed hours for carrying out the Programmed Maintenance are not consistent with the principles set out in Appendix 2, Table B to this Schedule Part 8 (B) Review Procedure); or the proposed method of performance of the Programmed Maintenance or the Unprogrammed Maintenance Works would not be in accordance with the Service Level Specification; or the safety of pupils or staff or other users of the Schools Facilities would (on the balance of probabilities) be adversely affected; or
(C) or the period for carrying out the programmed maintenance Programmed Maintenance or the Unprogrammed Maintenance Works would (on the balance of probabilities) exceed the period reasonable reasonably required for the relevant works.
3.1.8 in relation to any proposal for Third Party Use, on the grounds that:
(A) Third Party Use would not be compatible with the use of the Schools as schools; or
(B) that Third Party Use would impair the ability of the Authority to provide Educational Services; or
(C) that Third Party Use would impair Community Use.
3.1.9 or in relation to the submission of the ContractorDBFM Co's proposals for the Handback Works, the Handback Programme and the Handback AmountAmount pursuant to Schedule Part 18 (Handback Procedure), on the grounds that:
(A) : in the case of the Handback Works the ContractorWorks, DBFM Co's proposals will not (on the balance of probabilities) ensure that the Handback Requirements are achieved by the Expiry Date;
(B) ; in the case of the Handback Programme, performance of the Handback Works in accordance with the programme is not (on the balance of probabilities) capable of achieving satisfaction of the Handback Requirements by the Expiry Date; and
(C) and in the case of the Handback Amount, it does not represent the cost of carrying out the Handback Works according to the Handback Programme and the provisions of Schedule Part 18 (Handback Procedure). Any Submitted Item which is returned or deemed to have been returned by the Authority's Representative endorsed "no comment" (and in the case of Reviewable Design Data, endorsed "Level A - no comment") shall be complied with or implemented (as agreed the case may be) by DBFM Co. In the case of any Submitted Item other than Reviewable Design Data, if the Authority's Representative returns the Submitted Item to DBFM Co endorsed "comments", DBFM Co shall comply with such Submitted Item after amendment in accordance with the comments unless DBFM Co disputes that any such comment is on grounds permitted by this Agreement, in which case DBFM Co or determined.the Authority's Representative may refer the matter for determination in accordance with Schedule Part 20 (Dispute Resolution Procedure) and DBFM Co shall not act on the Submitted Item until such matter is so determined or otherwise agreed. In the case of a Submitted Item comprising Reviewable Design Data, if the Authority's Representative returns the Submitted Item endorsed other than "Level A - no comment", DBFM Co shall: where the Authority's Representative has endorsed the Submitted Item "Level B - proceed subject to amendment as noted", either proceed to construct or proceed to the next level of design of the part of the Works to which the Submitted Item relates but take into account any amendments required by the Authority's Representative in his comments; where the Authority's Representative has endorsed the Submitted Item "Level C - subject to amendment as noted" not act upon the Submitted Item, amend the Submitted Item in accordance with the Authority's Representative's comments and re-submit the same to the Authority's Representative in accordance with paragraph 4.4; and where the Authority's Representative has endorsed the Submitted Item "Level D - rejected" not act upon the Submitted Item, amend the Submitted Item and re-submit the Submitted Item to the Authority's Representative in accordance with paragraph 4.4,
Appears in 1 contract
Samples: Project Agreement
GROUNDS OF OBJECTION. 3.1 The expression “"raise comments” " in this paragraph shall be construed to mean “"raise comments or make objections” " unless the contrary appears from the context. The Authority’s 's Representative may raise comments in relation to any Submitted Item on the grounds set out in paragraph [ ] 2 (Further Information) above or on the grounds ground that the Submitted Item would (on the balance of probabilities) breach any Law or not be in accordance with any necessary consent but otherwise may raise comments in relation to a Submitted Item only as follows:
3.1.1 : in relation to any Submitted Item:
(A) the Contractor’s Item if: Project Co's ability to perform its obligations under this Agreement would (on the balance of probabilities) be adversely affected by the implementation of the Submitted Item; or
(B) or the implementation of the Submitted Item would (on the balance of probabilities) be adversely affect any right of the Authority under this Agreement or its ability to enforce any such right;
3.1.2 ; in relation to any Submitted Item submitted pursuant to Clause 7.1:
4.1 (AAncillary Documents) if: the Authority's ability to perform its obligations under the this Agreement would be adversely affected by the proposed course of action;
(B) ; the Authority's ability to provide the Educational relevant Authority Services or to carry out any of its statutory functions would (on the balance of probabilities) be adversely affected by the proposed course of action;
(C) ; the proposed course of action would be likely to result in an increase to the Authority's liabilities or potential or contingent liabilities under this Agreement;
(D) ; the proposed course of action would adversely affect any right of the Authority under this Agreement or its ability to enforce any such right;
(E) the Contractor; or Project Co's ability to perform its obligations under the this Agreement would be materially adversely affected by the proposed course of action; or
(F) in the case of a proposed Refinancing, satisfactory arrangements for the Trust to receive the Refinancing Share are not in place.
3.1.3 in relation to Reviewable Design Data submitted pursuant to Clause 9:
12.6: which does not comprise 1:50 scale Room Layout Drawings the Authority's Representative may raise comments, subject to and in accordance with paragraph 4 (AEffect of Review) on the ground that the Submitted Item is not in accordance with with: the Facilities Authority's Construction Requirements; or
and/or Project Co's Proposals; which comprises a 1:50 scale Room Layout Drawing in respect of which there is a corresponding generic 1:50 scale Room Layout Drawing for the relevant room type (B) which has previously been reviewed and commented upon by the Authority's Representative in accordance with this Schedule Part 8 (Review Procedure)), the Authority's Representative may raise comments, subject to and in accordance with paragraph 4 (Effect of Review), on the ground that the Submitted Item does not conform to the generic 1:50 scale Room Layout Drawing; and which comprises a 1:50 scale Room Layout Drawing in respect of which there is no corresponding generic 1:50 scale Room Layout Drawing for the relevant room type (which has previously been reviewed and commented upon by the Authority's Representative in accordance with this Schedule Part 8 (Review Procedure)), the Authority's Representative may raise comments, subject to and in accordance with paragraph 4 (Effect of Review), on the grounds that the Submitted Item: is not in accordance with the ContractorAuthority's Construction Requirements and/or Project Co's Proposals;
3.1.4 ; or is inconsistent with the guidance contained in any current NHS Requirement which is applicable to a room of that function provided that such guidance has not been superseded by and is not inconsistent with any other provisions of the Authority's Construction Requirements (including any existing Approved RDD Item); in relation to a proposal to amend Project Co’s Proposals and rectify (part of) the Works submitted pursuant to Clause 12.8, on the grounds that, following the amendment and rectification proposed: Project Co’s Proposals would not satisfy the Authority’s Construction Requirements; and/or the structural, mechanical and/or electrical performance of the Facilities would not be of an equivalent standard of performance to that set out in Project Co’s Proposals prior to their amendment or rectification (for the purpose of this comparison disregarding the fault which required the amendment or rectification to be made); in relation to Finishes: which have the effect of making a selection from the Range of Finishes (or any proposed variation alternative range or selection of Finishes submitted by Project Co to the ContractorAuthority's Proposals relating Representative) pursuant to the Works:
(A) Clause 12.6.1; or where the Submitted Item would increase the likelihood of Unavailability or Performance Point Deductions following does not comply with the relevant Service Availability Date; or
(B) would result in a decrease or worsening provisions of the quality of the Schools following the relevant Service Availability Date.
3.1.5 Authority's Construction Requirements and/or Project Co's Proposals; in relation to the submission of any revised Construction Programme pursuant to Clause 14 (Programme and Dates for Completion) on the ground that the revised Construction Programme:
(A) Programme would not (on the balance of probabilities) enable any part of the Works to be completed by the relevant Target Service Availability Completion Date; or
(B) would materially increase the cost or disruption in relation to the Authority submission of any decanting from Quality Plan or within an Existing Schoolpart of a Quality Plan or any changes to any Quality Plan pursuant to Clause 20.4 or Clause 20.7 or any quality manual or procedure in accordance with Clause 20.9 (Quality Manuals and Procedures), on the grounds that such Quality Plans, or parts of or changes to such Quality Plans, quality manuals or procedures, or the quality management systems which they reflect, would not comply with: in the case of the Design Quality Plan and the Construction Quality Plan referred to in Clause 20.8, the requirements referred to in Section 8 (Quality Plans (Design and Construction)) of Schedule Part 6 (Construction Matters); or
and in the case of the Services Quality Plan referred to in Clause 20 (CQuality Assurance), the requirements referred to in Section 3 (Services Quality Plan) would materially increase the disruption to the provision of Educational Services by the AuthoritySchedule Part 12 (Service Requirements); or
(D) would render the Authority unable to carry out any Joint Commissioning without material additional expense or disruption.
3.1.6 in relation to the submission of any proposed revision or substitution for the Contractor’s Service Delivery Proposals Method Statements or any part of any Method Statement (as the case may be) pursuant to Clause 22.4, on the grounds that:
(A) : the proposed revision or substitution is not in accordance with Good Industry Practice;
(B) ; the performance of the relevant Service in accordance with the proposed revision or substitution would (on the balance of probabilities):
(1) ): be materially different from the performance of the Service in accordance with the Method Statement prior to such proposed revision or substitution; or be less likely to achieve compliance with relevant parts of the Authority's RequirementsService Level Specification; or
(2) or have an adverse effect on the provision by the Authority of the Educational relevant Authority Services at, or on the safety of any users of of, the SchoolsFacilities; or
(3) would cause the Authority to incur material additional expense.
(C) or the proposed revision or substitution would (on the balance of probabilities) result in an inferior standard of performance of the relevant Service to the standard of performance in accordance with the Service Delivery Proposals Method Statement prior to such proposed revision or substitution;
3.1.7 ; and in relation to the submission of any Schedule of Programmed Maintenance Programmepursuant to Clause 23.1, any revision to any Schedule of Programmed Maintenance Programme pursuant to 23.4 or any submission of Unprogrammed Maintenance Works pursuant to Clause 23.8, on the grounds that:
(A) : carrying out the programmed maintenance Programmed Maintenance or the Unprogrammed Maintenance Works in the period or at the times suggested would (on the balance of probabilities) interfere with the operations of the Authority or a School and such interference could be avoided or mitigated by the Contractor Project Co rescheduling the programmed maintenanceProgrammed Maintenance or the Unprogrammed Maintenance Works; or
or in relation to the Schedule of Programmed Maintenance, the proposed hours for carrying out the Programmed Maintenance are not consistent with the principles set out in Appendix 2, Table B to this Schedule Part 8 (B) Review Procedure); or the proposed method of performance of the Programmed Maintenance or the Unprogrammed Maintenance Works would not be in accordance with the Service Level Specification for that Service; or the safety of pupils or staff or other users of the Schools Facilities would (on the balance of probabilities) be adversely affected; or
(C) or the period for carrying out the programmed maintenance Programmed Maintenance or the Unprogrammed Maintenance Works would (on the balance of probabilities) exceed the period reasonable reasonably required for the relevant works.
3.1.8 in relation to any proposal for Third Party Use, on the grounds that:
(A) Third Party Use would not be compatible with the use of the Schools as schools; or
(B) that Third Party Use would impair the ability of the Authority to provide Educational Services; or
(C) that Third Party Use would impair Community Use.
3.1.9 in . In relation to the submission of the ContractorProject Co's proposals for the Handback Works, the Handback Programme and the Handback AmountAmount pursuant to Schedule Part 18 (Handback Procedure), on the grounds that:
(A) : in the case of the Handback Works the ContractorWorks, Project Co's proposals will not (on the balance of probabilities) ensure that the Handback Requirements are achieved by the Expiry Date;
(B) ; in the case of the Handback Programme, performance of the Handback Works in accordance with the programme is not (on the balance of probabilities) capable of achieving satisfaction of the Handback Requirements by the Expiry Date; and
(C) and in the case of the Handback Amount, it does not represent the cost of carrying out the Handback Works according to the Handback Programme and the provisions of Schedule Part 18 (Handback Procedure). Any Submitted Item which is returned or deemed to have been returned by the Authority's Representative endorsed "no comment" (and in the case of Reviewable Design Data, endorsed "Level A - no comment") shall be complied with or implemented (as agreed the case may be) by Project Co. In the case of any Submitted Item other than Reviewable Design Data, if the Authority's Representative returns the Submitted Item to Project Co endorsed "comments", Project Co shall comply with such Submitted Item after amendment in accordance with the comments unless Project Co disputes that any such comment is on grounds permitted by this Agreement, in which case Project Co or determined.the Authority's Representative may refer the matter for determination in accordance with Schedule Part 20 (Dispute Resolution Procedure) and Project Co shall not act on the Submitted Item until such matter is so determined or otherwise agreed. In the case of a Submitted Item comprising Reviewable Design Data, if the Authority's Representative returns the Submitted Item endorsed other than "Level A - no comment", Project Co shall: where the Authority's Representative has endorsed the Submitted Item "Level B - proceed subject to amendment as noted", either proceed to construct or proceed to the next level of design of the part of the Works to which the Submitted Item relates but take into account any amendments required by the Authority's Representative in his comments; where the Authority's Representative has endorsed the Submitted Item "Level C - subject to amendment as noted" not act upon the Submitted Item, amend the Submitted Item in accordance with the Authority's Representative's comments and re-submit the same to the Authority's Representative in accordance with paragraph 4.4; and where the Authority's Representative has endorsed the Submitted Item "Level D - rejected" not act upon the Submitted Item, amend the Submitted Item and re-submit the Submitted Item to the Authority's Representative in accordance with paragraph 4.4,
Appears in 1 contract
Samples: Project Agreement
GROUNDS OF OBJECTION. 3.1 The expression “"raise comments” " in this paragraph shall be construed to mean “"raise comments or make objections” " unless the contrary appears from the context. The Authority’s 's Representative may raise comments in relation to any Submitted Item on the grounds set out in paragraph [ ] 132 (Further Information) above or on the grounds ground that the Submitted Item would (on the balance of probabilities) breach any Law or not be in accordance with any necessary consent but otherwise may raise comments in relation to a Submitted Item only as follows:
3.1.1 : in relation to any Submitted Item:
(A) the Contractor’s Item if: Project Co's ability to perform its obligations under this Agreement would (on the balance of probabilities) be adversely affected by the implementation of the Submitted Item; or
(B) or the implementation of the Submitted Item would (on the balance of probabilities) be adversely affect any right of the Authority under this Agreement or its ability to enforce any such right;
3.1.2 ; in relation to any Submitted Item submitted pursuant to Clause 7.1:
4.1 (AAncillary Documents) if: the Authority's ability to perform its obligations under the this Agreement would be adversely affected by the proposed course of action;
(B) ; the Authority's ability to provide the Educational relevant Authority Services or to carry out any of its statutory functions would (on the balance of probabilities) be adversely affected by the proposed course of action;
(C) ; the proposed course of action would be likely to result in an increase to the Authority's liabilities or potential or contingent liabilities under this Agreement;
(D) ; the proposed course of action would adversely affect any right of the Authority under this Agreement or its ability to enforce any such right;
(E) the Contractor; or Project Co's ability to perform its obligations under the this Agreement would be materially adversely affected by the proposed course of action; or
(F) in the case of a proposed Refinancing, satisfactory arrangements for the Trust to receive the Refinancing Share are not in place.
3.1.3 in relation to Reviewable Design Data submitted pursuant to Clause 9:
12.6: which does not comprise 1:50 scale Room Layout Drawings the Authority's Representative may raise comments, subject to and in accordance with paragraph 134 (AEffect of Review) on the ground that the Submitted Item is not in accordance with with: the Facilities Authority's Construction Requirements; or
and/or Project Co's Proposals; which comprises a 1:50 scale Room Layout Drawing in respect of which there is a corresponding generic 1:50 scale Room Layout Drawing for the relevant room type (B) which has previously been reviewed and commented upon by the Authority's Representative in accordance with this Schedule Part 8 (Review Procedure)), the Authority's Representative may raise comments, subject to and in accordance with paragraph 134 (Effect of Review), on the ground that the Submitted Item does not conform to the generic 1:50 scale Room Layout Drawing; and which comprises a 1:50 scale Room Layout Drawing in respect of which there is no corresponding generic 1:50 scale Room Layout Drawing for the relevant room type (which has previously been reviewed and commented upon by the Authority's Representative in accordance with this Schedule Part 8 (Review Procedure)), the Authority's Representative may raise comments, subject to and in accordance with paragraph 134 (Effect of Review), on the grounds that the Submitted Item: is not in accordance with the ContractorAuthority's Construction Requirements and/or Project Co's Proposals; [or is inconsistent with the guidance contained in any current NHS Requirement which is applicable to a room of that function provided that such guidance has not been superseded by and is not inconsistent with any other provisions of the Authority’s Construction Requirements (including any existing Approved RDD Item);
3.1.4 ] in relation to a proposal to amend Project Co’s Proposals and rectify (part of) the Works submitted pursuant to Clause 12.8, on the grounds that, following the amendment and rectification proposed: Project Co’s Proposals would not satisfy the Authority’s Construction Requirements; and/or the structural, mechanical and/or electrical performance of the Facilities would not be of an equivalent standard of performance to that set out in Project Co’s Proposals prior to their amendment or rectification (for the purpose of this comparison disregarding the fault which required the amendment or rectification to be made); in relation to Finishes: which have the effect of making a selection from the Range of Finishes (or any proposed variation alternative range or selection of Finishes submitted by Project Co to the ContractorAuthority's Proposals relating Representative) pursuant to the Works:
(A) Clause 12.6.1; or where the Submitted Item would increase the likelihood of Unavailability or Performance Point Deductions following does not comply with the relevant Service Availability Date; or
(B) would result in a decrease or worsening provisions of the quality of the Schools following the relevant Service Availability Date.
3.1.5 Authority's Construction Requirements and/or Project Co's Proposals; in relation to the submission of any revised Construction Programme pursuant to Clause 14 (Programme and Dates for Completion) on the ground that the revised Construction Programme:
(A) Programme would not (on the balance of probabilities) enable any part of the Works to be completed by the relevant Target Service Availability Completion Date; or
(B) would materially increase the cost or disruption in relation to the Authority submission of any decanting from Quality Plan or within an Existing Schoolpart of a Quality Plan or any changes to any Quality Plan pursuant to Clause 20.4 or Clause 20.7 or any quality manual or procedure in accordance with Clause 20.9 (Quality Manuals and Procedures), on the grounds that such Quality Plans, or parts of or changes to such Quality Plans, quality manuals or procedures, or the quality management systems which they reflect, would not comply with: in the case of the Design Quality Plan and the Construction Quality Plan referred to in Clause 20.8, the requirements referred to in Section 8 (Quality Plans (Design and Construction)) of Schedule Part 6 (Construction Matters); or
and in the case of the Services Quality Plan referred to in Clause 20 (CQuality Assurance), the requirements referred to in Section 3 (Services Quality Plan) would materially increase the disruption to the provision of Educational Services by the AuthoritySchedule Part 12 (Service Requirements); or
(D) would render the Authority unable to carry out any Joint Commissioning without material additional expense or disruption.
3.1.6 in relation to the submission of any proposed revision or substitution for the Contractor’s Service Delivery Proposals Method Statements or any part of any Method Statement (as the case may be) pursuant to Clause 22.4, on the grounds that:
(A) : the proposed revision or substitution is not in accordance with Good Industry Practice;
(B) ; the performance of the relevant Service Services in accordance with the proposed revision or substitution would (on the balance of probabilities):
(1) ): be materially different from the performance of the Services in accordance with the Method Statement prior to such proposed revision or substitution; or be less likely to achieve compliance with relevant parts of the Authority's RequirementsService Level Specification; or
(2) or have an adverse effect on the provision by the Authority of the Educational relevant Authority Services at, or on the safety of any users of of, the SchoolsFacilities; or
(3) would cause the Authority to incur material additional expense.
(C) or the proposed revision or substitution would (on the balance of probabilities) result in an inferior standard of performance of the relevant Service Services to the standard of performance in accordance with the Service Delivery Proposals Method Statement prior to such proposed revision or substitution;
3.1.7 ; and in relation to the submission of any Schedule of Programmed Maintenance Programmepursuant to Clause 23.1, any revision to any Schedule of Programmed Maintenance Programme pursuant to 23.4 or any submission of Unprogrammed Maintenance Works pursuant to Clause 23.8, on the grounds that:
(A) : carrying out the programmed maintenance Programmed Maintenance or the Unprogrammed Maintenance Works in the period or at the times suggested would (on the balance of probabilities) interfere with the operations of the Authority or a School and such interference could be avoided or mitigated by the Contractor Project Co rescheduling the programmed maintenanceProgrammed Maintenance or the Unprogrammed Maintenance Works; or
or in relation to the Schedule of Programmed Maintenance, the proposed hours for carrying out the Programmed Maintenance are not consistent with the principles set out in Appendix 2, Table B to this Schedule Part 8 (B) Review Procedure); or the proposed method of performance of the Programmed Maintenance or the Unprogrammed Maintenance Works would not be in accordance with the Service Level Specification; or the safety of pupils or staff or other users of the Schools Facilities would (on the balance of probabilities) be adversely affected; or
(C) or the period for carrying out the programmed maintenance Programmed Maintenance or the Unprogrammed Maintenance Works would (on the balance of probabilities) exceed the period reasonable reasonably required for the relevant works.
3.1.8 in relation to any proposal for Third Party Use, on the grounds that:
(A) Third Party Use would not be compatible with the use of the Schools as schools; or
(B) that Third Party Use would impair the ability of the Authority to provide Educational Services; or
(C) that Third Party Use would impair Community Use.
3.1.9 in . In relation to the submission of the ContractorProject Co's proposals for the Handback Works, the Handback Programme and the Handback AmountAmount pursuant to Schedule Part 18 (Handback Procedure), on the grounds that:
(A) : in the case of the Handback Works the ContractorWorks, Project Co's proposals will not (on the balance of probabilities) ensure that the Handback Requirements are achieved by the Expiry Date;
(B) ; in the case of the Handback Programme, performance of the Handback Works in accordance with the programme is not (on the balance of probabilities) capable of achieving satisfaction of the Handback Requirements by the Expiry Date; and
(C) and in the case of the Handback Amount, it does not represent the cost of carrying out the Handback Works according to the Handback Programme and the provisions of Schedule Part 18 (Handback Procedure). Any Submitted Item which is returned or deemed to have been returned by the Authority's Representative endorsed "no comment" (and in the case of Reviewable Design Data, endorsed "Level A - no comment") shall be complied with or implemented (as agreed the case may be) by Project Co. In the case of any Submitted Item other than Reviewable Design Data, if the Authority's Representative returns the Submitted Item to Project Co endorsed "comments", Project Co shall comply with such Submitted Item after amendment in accordance with the comments unless Project Co disputes that any such comment is on grounds permitted by this Agreement, in which case Project Co or determined.the Authority's Representative may refer the matter for determination in accordance with Schedule Part 20 (Dispute Resolution Procedure) and Project Co shall not act on the Submitted Item until such matter is so determined or otherwise agreed. In the case of a Submitted Item comprising Reviewable Design Data, if the Authority's Representative returns the Submitted Item endorsed other than "Level A - no comment", Project Co shall: where the Authority's Representative has endorsed the Submitted Item "Level B - proceed subject to amendment as noted", either proceed to construct or proceed to the next level of design of the part of the Works to which the Submitted Item relates but take into account any amendments required by the Authority's Representative in his comments; where the Authority's Representative has endorsed the Submitted Item "Level C - subject to amendment as noted" not act upon the Submitted Item, amend the Submitted Item in accordance with the Authority's Representative's comments and re-submit the same to the Authority's Representative in accordance with paragraph 134.4; and where the Authority's Representative has endorsed the Submitted Item "Level D - rejected" not act upon the Submitted Item, amend the Submitted Item and re-submit the Submitted Item to the Authority's Representative in accordance with paragraph 134.4,
Appears in 1 contract
Samples: Project Agreement
