JCLI contract revisions (2017 vs. 2012)

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    New editions of the JCLI ‘commercial’ contracts have recently been published by the Landscape Institute, alongside updates of the associated free documents. All are available for download at landscapeinstitute.org.

    The three contracts are:

    • JCLI Landscape Works Contract (JCLI LWC)
    • JCLI Landscape Works Contract with Contractor’s Design (JCLI LWCD)
    • JCLI Landscape Maintenance Works Contract (JCLI LMWC). (Note that a corrections document has been issued for JCLI LMWC 2017.)

    The updates have been prompted by the 2016 update of the JCT Minor Works Building Contract (JCT MW), although not all of the JCT revisions have been incorporated. The main revisions are listed below, but there are also many revisions to improve clarity and simplify wording throughout the contracts.

    1

    Revisions in JCLI LWC 2017 compared to LWC 2012

    1.1

    Payment provisions: conditions section 4

    The JCLI payment provisions continue to be different from the JCT MW payment provisions and the divergence has increased with the latest editions. This is because JCT have introduced an Interim Valuation Date (IVD) which is 7 days before the ‘due date’ for payment, with the date of the first IVD and their frequency being stated in the Contract Particulars. JCLI considers that there are contradictions in the new JCT clause wording and with the Construction Act, as well as the previous issues concerning potential overpayment of the contractor in certain circumstances if the payment clause wording is strictly applied. Hence the JCLI contracts retain the previous JCLI payment regimes with minor revisions.

    The following are the main differences between the payment clauses in JCLI LWC 2017 and 2012:

    • clauses 4.3 and 4.4 (interim payments): the amount of each adjustment is to be included in each certificate; and clarification has been added on how to deal with the following when calculating the amount to certify – fluctuations, deductions for defects not rectified (clauses 2.10A and B), and for the additional cost of work by others due to non-compliance with an instruction (clause 3.5). This originates from JCT MW 2016
    • clause 4.4: interim certificates after practical completion are to be issued within 5 days of the due date (rather than on the due date). This is a JCLI revision to achieve consistency with the procedure for other payment certificates and with JCT
    • clause 4.8.1 (final certificate): – clarification of how the amount is to be calculated has been added, including those in the item applying to clauses 4.3 and 4.4 above. This originates from JCT MW 2016.

    The Model Forms have been modified to accommodate these revisions

    1.2

    Insurance

    Clause 5.4 which concerns insurance of the works and existing structures previously had 3 options, but an additional option (clause 5.4D, insurance of the works and existing structures by ‘other means’) has been added to provide flexibility for circumstances not covered by the other options. The reasons for the revision and which of the options is appropriate for different circumstances are included in Guidance Note 28 on page 45 of the JCLI LWC 2017.Additionally: there are clarifications in clause 5.2 to the contractor’s liability concerning existing structures and their contents; clause 5.4A.2 has been deleted but expanded into new clause 5.6; and clause 5.7 added to give both parties the right of termination in the event of loss or damage to existing structures.

    These revisions originate from JCT MW 2016 although the JCT contract replaces the previous clause 5.4C with the new ‘insurance by other means’ clause. The retention of the previous clause 5.4C in JCLI reflects the differences between the insurance issues concerning building work to existing structures (for example, the refurbishment of one floor of an office building where the other floors remain occupied throughout the works) and those for landscape work to existing structures (for example, work like fixing a trellis to a building or re-pointing a boundary wall).

    1.3

    Supplemental Provisions

    There are two new Supplemental Provisions in Schedule 3: No 7 Transparency, to accommodate the Freedom of Information Act, which only applies for Local and Public Authority Employers; and No 8 The Public Contracts Regulations 2015, which only applies to some contracts for Local and Public Authority Employers. These originate from JCT MW 2016.

    1.4

    Oral instructions

    Clause 3.4 (Instructions): The 2 day limit for confirming oral instructions has been removed, but oral instructions do not have effect until confirmed in writing by the CA. This originates from JCT MW 2016.

    1.5

    CDM Regulations 2015

    Revisions to accommodate the CDM Regulations 2015 have been included, which are essentially the same as in the Amendment 1 (2015) document for the 2012 edition of the contract.

    If applicable to the particular project, the Principal Designer (PD) and Principal Contractor (PC) now have to be named in Articles 4 and 5. Previously the PD and PC were the Contract Administrator (CA) and Contractor (C) respectively, unless stated otherwise. The revision reflects the fact that for landscape contracts the PD is much more likely not to be the CA (or similarly the PC not being the C) than is the case for building contracts. It also avoids the possibility of the CA becoming the PD by default (or similarly the C becoming the PC by default). The JCLI contracts are now different in this respect from JCT MW.

    The industry standard guidance on the application of the CDM Regulations 2015 which has been agreed with the Health and Safety Executive (HSE) has been included in JCLI Practice Note No 8 Revision 2 (item 3), replacing the previous guidance.

    1.6

    Fluctuation provisions

    An additional option to state an alternative fluctuation provision has been included in the Contract Particulars (clauses 4.3, 4.4 and 4.8). Previously the only option was that the Contributions, Levy and Tax Changes clause either applied or didn’t apply. This revision originates from JCT MW 2016 and increases flexibility.

    1.7

    Definitions

    The definitions clause (1.1) now includes Contractor’s Persons, Employer’s Persons and Statutory Undertaker, which enables simplification of the wording in several subsequent clauses. This originates from JCT MW 2016.

    1.8

    Consents and approvals

    Clause 1.7 (Consents and Approvals) has been added, which improves clarity and simplifies several subsequent clauses. Consequently the previous clause 1.7 is renumbered 1.8. This originates from JCT MW 2016.

    1.9

    Insolvency

    Clause 6.1 has been substantially reduced by defining insolvency by reference to the definition in the Construction Act. This originates from JCT MW 2016.

    2

    Revisions in JCLI LWCD 2017 compared to LWCD 2012

    2.1

    General

    All of the revisions above also apply to JCLI LWCD 2017. However, for JCLI LWCD the reference to clause 2.10A or B in item 1.1 should be to clause 2.11A or B, and the Guidance Note reference in item 1.2 should be 30 not 28.

    2.2

    CDP

    Clause 2.1: the last paragraph has been added to elaborate on the procedure for submission of the Contractor’s Designed Portion (CDP) information by the Contractor, and the sub-clauses of 2.1 have been reordered. This originates from JCT MWD 2016.

    3

    Revisions in JCLI LMWC 2017 compared to LMWC 2012

    3.1

    General

    The first paragraph of item 1.1 and items 1.3, 1.4, 1.5 (except the last paragraph, see item 3.3 below), 1.7, 1.8 and 1.9 above also apply to JCLI LMWC. However, for item 1.3 the Supplemental Provisions in JCLI LMWC are Schedule 5 not 3.

    3.2

    Payment provisions: conditions section 4

    The JCLI LMWC payment provisions continue to be different from the JCLI LWC payment provisions in many respects, due to the differences between construction and maintenance works. These differences are identified in the track-changes document comparing JCLI LMWC 2017 and JCLI LWC 2017.The JCLI LMWC payment provisions continue to be different from the JCLI LWC payment provisions in many respects, due to the differences between construction and maintenance works. These differences are identified in the track-changes document comparing JCLI LMWC 2017 and JCLI LWC 2017.

    The main differences between the JCLI LMWC 2017 and 2012 payment provisions are in clauses 4.2.1 (periodic payments) and 4.4 (annual account payment). These clauses now include: clarification of how fluctuations and deductions associated with clause 3.5 (for additional cost of work by others due to non-compliance with instruction) are dealt with in calculating the amount to certify; and a requirement for the amount of each adjustment to be stated on the certificate (as well as the basis of calculation previously required). These revisions are similar to those in JCLI LWC and originate from JCT MW 2016. The Model Forms have been modified to accommodate these revisions.

    3.3

    CDM regulations

    Contract Particulars: Fourth Recital item. The landscape industry standard guidance (which has been agreed with the HSE) on the extent of the application of the CDM Regulations 2015 to landscape maintenance works is included in JCLI Practice Note No 9 Revision 2 (item 3). The guidance means that the CDM Regulations only apply to parts of landscape maintenance contracts and that only a few (or no) elements of the work will be notifiable to the HSE. The Contract Particulars now enable those notifiable elements to be listed. It is envisaged that such a list will be kept up to date as the works progress.

    3.4

    Assignment

    Clause 3.1: Assignment has been added as clause 3.1.1 (using the wording from the JCLI LWC 2017 clause 3.1) and the previous clause 3.1 Novation wording renumbered 3.1.2.

    3.5

    Definitions

    Definitions clause 1.1 includes the additions in item 1.7 above, but also the deletion of items defined in the Agreement (which are no longer required due to the revised wording of the introductory paragraph of clause 1.1), and deletion of the definitions of Excepted Risks and Specified Perils neither of which are relevant to the maintenance contract.

    3.6

    Termination account

    Following termination by the Employer of a JCLI construction contract due to default, insolvency or corruption by the Contractor, the Employer appoints another contractor to complete the Works and once complete an account is prepared to determine how much the first contractor is due (or how much the first contractor owes the Employer). In the case of a maintenance contract JCLI considers that delaying the account following termination until the contract End Date is unreasonable and the delay should only be until the current annual account period is completed. Hence, “for the annual account period current at termination” has been added to each of clauses 6.7.1, 6.7.3, 6.7.3.2 and 6.7.3.3. The same phrase has also been added in clauses 6.11.2 and 6.11.4 to clarify the calculation for the account when the Contractor terminates, or either party terminates due to suspension for the reasons listed in clause 6.10.

    3.7

    Termination due to loss or damage to site

    Clauses 6.10.1.3 and 6.11.3.2: The JCLI construction contracts allow termination due to suspension of work due to loss or damage to the Works. In the maintenance contract this wording has been revised to refer to ‘loss or damage to the site of Works or associated structures’ since loss or damage to the Works is not relevant for maintenance work.

     

    JCLI documents associated with the contracts have also been revised or produced for the 2017 contracts:

    • Practice Notes 8 and 9
    • Model Forms documents
    • Scottish Agreements for each of the contracts
    • Novation Agreements for the JCLI LMWC and for the Scottish Landscape Maintenance Works Agreement
    • Documents listing the differences between JCLI LWC 2017 and JCT MW 2016, and between JCLI LMWC 2017 and 2012
    • Track-changes documents (which are available free on request to purchasers of the contracts) showing the differences between: JCLI LWC 2017 and 2012; JCLI LWCD 2017 and LWC 2017; JCLI LMWC 2017 and JCLI LWC 2017

    Watermarked versions of the documents associated with the 2012 editions of the contracts are also available from the LI JCLI webpages.

    Any questions or feedback on the contracts should be submitted to .


    Colin Moore CMLI is an independent landscape consultant. He is the author/editor of JCLI contracts for the Landscape Institute and the Society of Garden Designers, as well as the SGD Heather’s Model Specification. He is also a recognised expert on the CDM Regulations for the landscape industry.

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