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Colin Moore P2C Landscape Constn and Maint Works - 22 October 2008

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Chartered Landscape Architect



Tel: 020 8840 2963

Colin Moore

10 Haslemere Avenue London W13 9UJ

LANDSCAPE CONSTRUCTION
AND MAINTENANCE
WORKS
IMPLEMENTATION
P2C
Colin Moore P2C Landscape Constn and Maint Works - 22 October 2008
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INTRODUCTION TO CONTRACTS
Contracts generally
We all enter into contracts and/or perform contracts almost daily
Contracts needed in the construction/landscape industry because clients cant do it all
themselves Consultants Appointment contracts, contracts for construction, contracts for
maintenance
Parties to a contract need to know what they have to do and what the other will do and what
will happen if things dont go entirely as planned
Standard Forms of Contract have been developed for different types of contract to cover
standard circumstances and resolve common issues which arise and are developed by the
relevant industry to be fair to the parties
Imagine you are having your house built, what questions would you want answered? When
and how much do I have to pay? When will construction start and finish? If it is late I will
have to pay to stay in a hotel can this be recovered from the contractor? What if the
scaffolding falls down and kills a pedestrian passing the site (an eminent young plastic
surgeon to the celebs) as landowner will it cost me? I dont know what to do will someone
administer the contract for me? What happens if a crack appears just after the contractor
has finished? Etc.
Now imagine you are the contractor and ask questions, and then the contract administrator
and ask questions. The contract conditions address such issues. You need to understand
the concepts behind the strange words (eg Liquidated Damages)
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INTRODUCTION TO CONTRACTS (cont)
Essential requirements for a valid contract
Offer and acceptance (agreement)
Consideration (exchange, eg services for money)
Intent (to have a contract)
Purpose legal (cant contract to rob a bank)
Parties have capacity to enter contract (not under age, drunk, drugged, mentally
ill, etc)
Consent (no coercion, misrepresentation of facts, fraud)
Achievable
Formality if necessary (eg contracts for the sale of land must be in writing)
Consultants Appointments
The Landscape Consultants Appointment and the NEC Professional Services
Contract are Standard Forms of Contract for consultants services, in the same
way that JCLI LWC is a Standard Form of Contract for landscape construction
works. Many similarities eg due to Third Parties Act and HGCRA
Colin Moore P2C Landscape Constn and Maint Works - 22 October 2008
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TYPES OF CONSTRUCTION/MAINTENANCE CONTRACTS (cont)
Construction and Maintenance Contracts
Within construction industry, many different types of contract for different
circumstances and types of work and many different organisations producing
Standard Forms of Contract to suit
Types of construction contract
Traditional
Measurement
Cost reimbursement
Management
Construction Management
Design and Build
Serial
Package Deal
Measured term
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TYPES OF CONSTRUCTION/MAINTENANCE CONTRACTS (cont)
Framework Agreements
PFI, PPP, DBFO etc
STANDARD FORMS OF CONTRACT
Standard Forms of Contract: JCT
Mainly used for building works by architects, surveyors etc. Latest Editions 2005 with 2007
revision. Many different types:
Traditional: JCT SBC (big); JCT IC (intermediate), JCT MW (small)
Prime cost: JCT PCC
Management: JCT MC
Design and Build: JCT DB
Measured term: JCT MTC
Major Projects: JCT MP
JCT CE: Constructing Excellence Contract (part of a CE pack)
Homeowner contracts: JCT HOB and HOC
Associated JCT Practice Notes, Guides, Subcontracts etc and also RIBA (and RICS)
documents associated with contracts (eg RIBA Contract Administration Forms)
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STANDARD FORMS OF CONTRACT (cont)
Standard Forms of Contract: JCLI
Mainly used for landscape construction and maintenance works by landscape
architects, Latest Editions 2008
Based on JCT MW
JCLI LWC (landscape construction) and LMWC (landscape maintenance) also
LWCD and Practice Notes, Model Forms and other documents
Standard Forms of Contract: GC/Works
Mainly used for Government and Authority work, Not used much now.
GC/Works/1 for larger Government Contracts and GC/Works/2 Minor Works
Contract; (/3 M&E; /4 M&E Minor Works; /5 Consultants Appointment; /6
Dayworks; /7 Measured Term; /8 Specialist Term; /9 Lump Sum Maintenance
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STANDARD FORMS OF CONTRACT (cont)
Standard Forms of Contract: ICE
Mainly used for engineering works by engineers.
ICE 7
th
: Measurement Version.
ICE Term Version
ICE Target Cost Version
ICE Minor Works
ICE Design and Construct
ICE Ground Investigation
ICE Archaeological Investigation
ICE Partnering Addendum
Associated Practice Notes and Guides etc
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STANDARD FORMS OF CONTRACT (cont)
Standard Forms of Contract: NEC
Can be used for any construction work. Suite of documents including
consultants appointment. Latest Edition 3 (NEC3). Use continually increasing.
Modern contract, collaborative, very different terminology.
NEC3 Engineering and Construction Contract (core clauses)
NEC3 ECC Option A: Priced Contract with activity schedule
NEC3 ECC Option B: Priced Contract with bills of quantities
NEC3 ECC Option C: Target Contract with activity schedule
NEC3 ECC Option D: Target Contract with bills of quantity
NEC3 ECC Option E: Cost reimbursable contract
NEC3 ECC Option F: Management Contract
NEC3 Engineering and Construction Subcontract
NEC3 Engineering and Construction Short Contract
NEC3 Engineering and Construction Short Subcontract
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STANDARD FORMS OF CONTRACT (cont)
Standard Forms of Contract: NEC (cont)
NEC3 Professional Services Contract
NEC3 Adjudicators Contract
NEC3 Term Service Contract
NEC3 Framework Contract
Standard Forms of Contract: Others
SBCC: Scottish Forms of Contract based on JCT Forms
ACA: Association Consultant Architects Project Partnering and Term Partnering
contracts and traditional form
CIOB: formerly Architects and Surveyors Institute: Main, Small, Minor and Mini
contracts
BE: Collaborating for the Built Environment: Collaborative Contract
FIDIC: International Forms (based on ICE): and others
ILAM (now ISPAL) Model Conditions for landscape maintenance works
developed for local authorities for CCT and where Employer is Contract
Administrator. Not a Standard Form of Contract
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LANDSCAPE CONSTRUCTION WORKS
Soft landscape works fundamentally different from building/engineering works
Living materials (plants, soils, )
Seasons affect works
Weather affects works
Planting is the beginning not the end, practical completion is the start of
establishment, growth and development to maturity
These give rise to particular problems for soft landscape construction contracts
Maintenance required after practical completion in order to establish plants,
by same contractor as did planting in order to have plant guarantee, a
rectification/defects period alone is not adequate
Watering during establishment maintenance essential; provisions needed
for when restrictions on use of water apply.
Frost damage to plants, pre practical completion and during establishment
maintenance
Recompense for loss of amenity if Contractor fails to complete on time or if
plants die?
Colin Moore P2C Landscape Constn and Maint Works - 22 October 2008
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LANDSCAPE CONSTRUCTION WORKS (cont)
Seasons: missing planting in the right season may mean delaying planting
for 6 months (or a year for some plants) possibly a change in sequence of
doing work (and possibly cost implications)
Payment for works being done post practical completion must be possible
Instructing additional work or revisions to works post practical completion
must be possible
Defining the site and securing it is not always possible for landscape works
Partial possession of the works by the Employer needs to be possible
particularly when part of the works is complete but the rest has to be
delayed (eg due to seasons)
Doing construction work during the rectification/defects period must be
possible (eg planting bulbs in September)
Maintenance starts when plants are planted (grass sown/turf laid) so some
maintenance work is pre practical completion
Mechanism to not pay for work not done after practical completion
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LANDSCAPE CONSTRUCTION WORKS (cont)
Soft landscape construction works which forms part of a building or engineering
project implemented in one of two ways:
Sub-contract to the building/engineering contract
A separate direct contract between Employer and Landscape Contractor
There are three types of sub-contract:
Domestic sub-contracts
Named sub-contracts
Nominated sub-contract
Domestic sub-contracts:
The most common type of sub-contract
Arrangement entirely between the main contractor and the sub-contractor
and main contractor remains entirely responsible for undertaking the work
involved as if he were doing the work himself.
A sub-contract under a JCLI contract will be domestic
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LANDSCAPE CONSTRUCTION WORKS (cont)
The works concerned are fully detailed in the main contract tender
documents. The specification may require the contractor to sub-contract
specific works to a specific specialist contractor (this is not naming or
nominating) or to one of a list of 3 specialist contractors (ditto) but it will still
be a domestic sub-contract and the main contractor usually wants to use
someone else.
Most Standard Forms of construction contract require the Contractor to
submit details of proposed sub-contractors for comment by CA.
Considerable disadvantages for soft landscape works, quality usually lower,
landscape works are subject to damage by others (landscape sub-
contractor required to put it right but isnt paid to do so)
Domestic sub-contracts often cheaper than named or nominated sub-
contracts and in each case main contractor adds his %. A separate contract
for soft landscape works will be cheaper than nominated or named sub-
contract, but not necessarily cheaper than domestic sub-contract but should
be better quality
Standard Forms for domestic sub-contracts are produced to go with the
Standard Forms for main contracts
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LANDSCAPE CONSTRUCTION WORKS (cont)
Named sub-contracts
Specific to the JCT Intermediate Building Contract (JCT IC 05)
Either: the person you require to do the work is named in the specification,
but the work is included in the main contract tender to be priced by the main
contractor and the named sub-contract form of tender and agreement
(ICSub/NAM) incorporated in the tender documents (already completed by
consultant and by named person). Main contractor enters into sub-contract
with named person within 21 days of acceptance of tender. Named person
may have been selected by a tender process by consultants prior to main
contract tendering
Or: Instruction issued to main contractor requiring work covered by a
provisional sum in the contract documents to be expended by the work
being done by a named person ICSub/NAM filled out as above, main
contractor can object to named person, named person may have been
selected by tender process by consultants prior to instruction, ideal to agree
tender list with main contractor. In this case detail for soft landscape works
can be done later than in the first option.
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LANDSCAPE CONSTRUCTION WORKS (cont)
Employer also enters an agreement with the named sub-contractor
(ICSub/NAM/E). Conditions for named subcontract ICSub/NAM/C
Procedure simpler than nominated subcontracts were under JCT SBC, but
still complicated.
Nominated sub-contracts
Prior to JCT 80 nominated sub-contracts were common, subsequently
declined (main contractor could claim delay due to nominated sub-
contractor and escape liquidated damages)
Nominated sub-contracts no longer in JCT SBC since 2005 Edition.
(probably not in any other JCT contracts. Not in NEC)
Nominated sub-contracts are included in ICE 7
th
but no forms and not over
complicated but their use is discouraged by Engineers
Nominated sub-contracts now seem to be almost extinct.
Nominated sub-contracts were good for soft landscape works (art works),
better quality, detail prepared later, sub-contractor protected
Colin Moore P2C Landscape Constn and Maint Works - 22 October 2008
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LANDSCAPE CONSTRUCTION WORKS (cont)
Establishment maintenance under building/engineering contracts and sub-
contracts:
Not advisable to include establishment maintenance as part of building/
engineering contract even if soft landscape work undertaken as named or
nominated subcontract. Although this is common practice.
Ideal if the establishment maintenance is undertaken as a separate JCLI
LMWC back-to-back using the same landscape contractor, but can be
difficult to arrange, needs full cooperation of building/engineering contractor
Separate direct contracts for soft landscape works:
Contract between landscape Contractor and Employer entirely separate
from the building/engineering contract. Also can be used for installation of
artworks or any other specialist work.
Use JCLI LWC (or LWCD) for landscape works, or for larger (or more
complex) works JCT IC, or other appropriate Form; and JCLI LMWC back-
to-back for establishment maintenance (do not include maintenance in the
construction contract)
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LANDSCAPE CONSTRUCTION WORKS (cont)
Consecutive: landscape contract commences after practical completion of
the building/engineering contract. Advantages, quick implementation,
usually no disruption or damage to landscape works; Disadvantages,
planting not complete at completion of building (but often not a problem),
interface between contractors (eg builder leaves holes for landscaper to fill
with topsoil but usually not a problem in practice)
Concurrent: two contractors with different contracts on the same site at the
same time. Most contracts allow for it, ensure information in specifications
and details of any attendance or other work at interface. Usually
considered a recipe for disaster but used all over the world; problems are
exaggerated by consultants (QSs, Project Managers)
Stand-alone landscape projects not associated with building/engineering projects.
Landscape consultant usually lead consultant. Contracts for implementation:
If no soft landscape: use JCT contract, MW, IC, or SBC depending on size
and complexity; ICE Minor Works or 7
th
; NEC Short or long Contracts;
GC/Works/2 (minor works) or GC/Works/1. Choice depends on your
experience, client requirements, QS/Project Manager if any.
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LANDSCAPE CONSTRUCTION WORKS (cont)
Soft and hard landscape (or just soft): JCLI LWC (to about 250,000)
depending on size and complexity; JCT IC (to about 500,000); JCT SBC.
Note many consultants use the contracts for larger projects than these
values complexity is often a more significant issue. JCT IC and SBC may
need modifications to accommodate soft landscape (eg only paying for
works properly executed at practical completion rather than 97.5% of
contract value).
All cases: if there are small elements requiring contractor design use
appropriate contracts or versions of the contracts; if project is phased use
appropriate form (JCLI LWC and JCT MW dont have provisions for
phasing); ditto named sub-contractors or nominated sub-contractors
Establishment maintenance: JCLI LMWC back-to-back with the
construction contract (whatever Standard Form is used). Do not include
establishment maintenance in the construction contract.
Always use latest editions and revisions of Standard Forms with appropriate
Amendments (always check pre-tender)
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LANDSCAPE CONSTRUCTION WORKS (cont)
Landscape Architects powers/authority:
When landscape work undertaken as sub-contract to building / engineering
contract: no power/authority under the contract, only advisory to Contract
Administrator, line of communication is LA CA Main Contractor
Landscape Sub-contractor; unless LA given specific powers under specific
contract clauses by CA in writing, copied to Main Contractor
Where LA is CA then only have the powers / authority given to CA by the
construction contract (which vary between the different Standard Forms
In both cases LA will have duties from his appointment agreement (contract)
with client
Terminology varies between different Standard Forms. Eg. Contract
Administrator (JCT/JCLI) Architect (JCT) Landscape Architect (JCLI)
Supervising Officer Superintending Officer (GC/Wks) Engineer (ICE)
Project Manager + Supervisor (NEC); no CA in NEC Short Contract just
Contractor and Employer so you would be Employers Representative.
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LANDSCAPE MAINTENANCE WORKS
Soft landscape maintenance works fundamentally different from landscape
construction works. Still working with living materials and work influenced by
seasons and weather, but differences need to be accommodated in maintenance
Standard Forms of Contract:
Repetitive operations, no defects, rectification period, or retention; the work
is done, not done or inadequately or incorrectly done; some failures cant
be corrected
Completion date, extension of time and liquidated damages for failure to
complete on time are irrelevant
Duration typically 3-5 years; Commencement date and end date or
duration, with extension by agreement
Need redress for not doing important item of work on time, eg failure to
prepare the cricket pitch for the game on Sunday (its no good doing it
Monday)
Defaults in performance need resolving as well as financial adjustment;
penalty point systems, rectification notices, default notices, damages for
defaults all common but negative bonus for doing well?
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LANDSCAPE MAINTENANCE WORKS (cont)
Inflation: annual increase in rates /annual sum needed
Annual Accounts better than Final Account
Interaction with public and/or owner. Contractor doesnt have possession of
site; mowing round sunbathers? Maintenance at a girls school! Collection
of money from the public for events/activities in parks?
TUPE for Authorities, QUANGOs and NGOs (also Standing Orders, Best
Value, OJEC, etc)
Use of Employers buildings, equipment?
Need to establish standards of work and performance (preferably pre-
tender)
If need to implement significant construction work use separate construction
contract, only implement minor construction work under a maintenance contract,
no provisions for it in JCLI LMWC Conditions no commencement date,
completion date, liquidated damages for late completion, rectification period,
retention etc for the construction element(s)
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BACK-TO-BACK CONSTRUCTION & MAINTENANCE WORKS
JCLI LMWC is appropriate for the particular circumstance of establishment
maintenance after practical completion of a construction contract, by the same
contractor for at least the duration of the rectification/defects period (as well as for
any other landscape maintenance contract)
Prior to 1996 the JCLI Landscape Works Contract included maintenance for the
duration of the defects period within the Contract. However there were significant
problems:
No provision for interim payments for maintenance
Problems instructing variations after practical completion
Not clear whether retention applied to maintenance
No liquidated damages for performance failure during maintenance
No right to terminate for performance failure during maintenance
Over complex fluctuations provision
Long maintenance periods very difficult to accommodate
Problem accommodating different Employers for construction and
maintenance
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BACK-TO-BACK CONSTRUCTION & MAINTENANCE WORKS (cont)
Advantages of separate contracts for construction and maintenance
Less cumbersome than if two sets of conditions in one contract
Construction contract becomes more similar to JCT MW
Maintenance contract dual purpose
Potential for different Employers and novation of maintenance contract from
developer to landlord/tenant (but avoid different Employers before practical
completion of construction contract)
Potential to use maintenance contract for works constructed under
subcontract to JCT/ICE/NEC
Involving clients with maintenance contracts upfront
Potential for 5 year maintenance periods and 5 year plant replacement after
construction
More clarity to plant defects and replacement responsibilities
Makes designers more involved in maintenance and more involved with
Landscape Managers
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BACK-TO-BACK CONSTRUCTION & MAINTENANCE WORKS (cont)
More clarity to consultants maintenance input in consultants appointments
(stages for preparation of tender documentation to completion on site need
to be repeated for maintenance)
Contractors perform extremely well on the construction contract because
they know they are liable for plant losses for 5 years (a good reason for
setting up the maintenance contract for 5 years even if it is terminated
early). This can reduce CAs inspection input substantially on the
construction contract as well as improving the product.
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BACK-TO-BACK CONSTRUCTION & MAINTENANCE WORKS (cont)
Procedure to set up back-to-back contracts
Prepare separate sets of tender documents
Duration of maintenance contract should be greater than or at least equal to
rectification/defects period of construction contract
Commencement of maintenance contract is practical completion of
construction contract
Tender the construction works and maintenance works together
Evaluate tenders together and report together
Accept both tenders from one contractor at the same time
Ensure maintenance contract specification includes replacement of all
plants which fail to thrive for whatever reason other than theft, vandalism,
vehicular damage, for the duration of the maintenance contract (and
replacement frequency )
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BACK-TO-BACK CONSTRUCTION & MAINTENANCE WORKS (cont)
Disadvantages and problems with back-to-back contracts approach
Not easy to apply when construction is sub-contract to JCT/ICE/NEC
If separate clients, lowest construction and lowest maintenance tenders may
be from different contractors potential conflict of interest but not difficult
to resolve if parties are cooperative
Partial possession negotiate staggered commencement of maintenance
contract (but normally only one end date)
No maintenance contract = no defects periods for soft landscape
Cumbersome for small projects but this is exaggerated, it becomes easy
with practice
Increases consultants workload problem if fees low but reduced cost
over 5 years of landscape management / maintenance and with practice
extra time is negligible.
Maintenance pre practical completion (don't forget it)
Complexity of Novation Agreement procedure introduced in 2008 edition of
maintenance contract (need to see how it works in practice).

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