39 Offices in 19 Countries

The Construction (Design

and Management)

Regulations 2007

Incorporation of the CDM Regulations in

contract terms for the procurement of an

offshore windfarm

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Julian Scott

• Thanet Windfarm

• Borkum West II in Germany

• Re-finance of UK offshore windfarm

• Advice in relation of R3 Projects

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CDM Regulations

• “Not a bolt on”

• How do typical offshore windfarm contracts deal with CDM

Regulations and roles of:

– Client

– Principal Contractor

– CDM Co-ordinator

– Designer

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Logic

• General Conditions of Contract 2004

• Health Safety and Environment

The COMPANY places prime importance on health, safety and environment

(hereinafter “HS&E”) issues and requires that the CONTRACTOR GROUP

subscribes to and actively pursues the highest standards of HS&E performance.

The CONTRACTOR shall take full responsibility for the adequacy, stability and

safety of all its operations and methods necessary for the performance of the

WORK and shall keep strictly to the provisions of Section V1 - Health, Safety

and Environment. The CONTRACTOR shall collaborate with the COMPANY in

establishing HS&E interface arrangements and the production of a HS&E

interface document.

Failure to meet the requirements of Section V1 – Health, Safety and

Environment or to satisfy the COMPANY’s reasonable requirements with regard

to the control of HS&E risks in any material respect will be regarded as due

cause for the COMPANY giving notice to terminate all or any part of the WORK

or the CONTRACT in accordance with Clause 30.1(b).

The CONTRACTOR shall co-operate with the COMPANY in providing an

appropriate response to any emergency occurring at the WORKSITE and shall

immediately take such action as may be necessary to protect life and make safe

property where such is imminent peril.

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FIDIC – Yellow Book

• The Contractor shall at all times take all reasonable precautions to maintain the

health and safety of the Contractor’s Personnel. In collaboration with local health

authorities, the Contractor shall ensure that medical staff, first aid facilities, sick bay

and ambulance service are available at all times at the Site and at any

accommodation for Contractor’s and Employer’s Personnel, and that suitable

arrangements are made for all necessary welfare and hygiene requirements and for

the prevention of epidemics.

• The Contractor shall appoint an accident prevention officer at the Site, responsible

for maintaining safety and protection against accidents. This person shall be

qualified for this responsibility, and shall have the authority to issue instructions and

take protective measures to prevent accidents. Throughout the execution of the

Works, the Contractor shall provide whatever is required by this person to exercise

this responsibility and authority.

• The Contractor shall send, to the Engineer, details of any accident as soon as

practicable after its occurrence. The Contractor shall maintain records and make

reports concerning health, safety and welfare of persons, and damage to property,

as the Engineer may reasonably require.

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ICC – Design and Construct 2011

• Safety and Security

The Contractor shall throughout the progress of the Works have full

regard for the safety of all persons entitled to be upon the Site and

shall keep the Site (so far as the same is under his control) and the

Works (so far as the same are not completed or occupied by the

Employer) in an orderly state appropriate to the avoidance of danger

to such persons and shall among other things in connection with the

Works provide and maintain at his own cost all lights guards fencing

warning signs and watching when and where necessary or required

by the Employer’s Representative or any of his assistants or by any

competent statutory or other authority for the protection of the Works

or for the safety and convenience of the public or others.

• Employer’s Responsibilities

If the Employer carries out work on the Site with his own workpeople he shall in

respect of such work

– Have full regard for the safety of all persons entitled to be on the Site and

– Keep the Site in an orderly state appropriate to the avoidance of danger to such persons

The Employer employs other contractors on the Site he shall require

them to have the same regard for safety and avoidance of danger.

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CDM Compliance

• Does it matter?

• Statutory obligation therefore applies

• Is it therefore just a “bolt on”?

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Contract Terms

• Contract should define roles of: – CDM-C

– Client

– Design

– Principal Contractor

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Multiple Principal Contractors

• Particularly important off given multiple and changing principal

contractor

• Need to define how principal contractor hands over to client or

another principal contractor

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Example Clause

• The construction of the [ ] Windfarm is a notifiable project

as defined by the Construction (Design and Management)

(CDM) Regulations 2007. [The Developer] is the Client for the

construction of the [ ] offshore Windfarm as defined by the CDM

Regulations 2007 and has appointed [ ] Limited to act as CDM

Co-ordinator for the project.

• The Contractor is appointed to act as the Principal Contractor for

the Work and shall undertake the duties required of the Principal

Contractor as defined by the Construction (Design and

Management) Regulations, 2007 This status shall apply to all

the works undertaken by the Contractor unless specifically

agreed otherwise in writing. As the Contractor is providing

design services, the Contractor is a Designer as defined by the

CDM Regulations 2007 as are any organisations appointed by

the Contractor for the design of any elements of the temporary or

permanent works.

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Phasing of Principal Contractor Role

• CONSTRUCTION PHASING

The construction phase of the project shall be managed by [Developer/CDM-C]

to ensure that the Contractor is assigned a clearly defined zone which shall

comprise the limit of the contractors duties and rights as Principal Contractor.

The Construction Sequence and zone boundaries shall be defined by the

Developer during the course of the works. It is expected that the size and

number of zones will be developed during the course of the [ ] offshore

Windfarm Project; however the Developer’s initial expectations are that there will

be [number] zones comprising the Offshore Substation and WTG locations as

Zones [1-?]. The envisaged Construction Sequence is set out in drawing [ ]

which is included in Section X.

The Contractor shall act as Principal Contractor for the works carried out within

the zone designated by [the Developer/the Project Manager] and shall be

expected to co-ordinate access to and control the health and safety of all

personnel working within that zone, irrespective of who they are employed by.

The Contractor may not undertake any Work outside the limits of any zone

assigned by [the Developer/Project Manager] without the written agreement of

[the Developer/Project Manager].

Upon taking over control of a zone and the commencement of the duties as

Principal Contractor, the Contractor shall be given all the health, safety and

environmental information relevant to the zone as specified by the CDM 2007

Regulations. This shall include the Pre-Construction information file for that

zone.

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Phasing of Principal Contractor Role – continued

• Upon completion of the work within a zone the Contractor shall

hand over control of the zone to another party (either [the

Developer] or another Contractor). Upon handing over control

the Contractor shall cease to be Principal Contractor for the zone

now vacated and shall not re-enter or carry out any works in that

zone without the written agreement of [the Developer/the Project

Manager]. Upon handing over control of a zone the Contractor

shall pass on all health, safety and environmental information

relevant to the zone which has now been completed as specified

by the CDM 2007 Regulations. This shall include the completed

Construction Phase Plan and all as-built information.

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Termination of CDM Roles

• Replacement in role of Principal Contractor

• Not necessarily termination of contract

• Contractor likely to be responsible for the cost of third party

principal contractor replacement

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Permit to Work

• A Permit to Work system shall apply to all situations where the actions of

another party could affect the safety of the Contractors Work as Principal

Contractor within a construction zone controlled by the Contractor. This

shall apply but not be limited to:

The electrical termination works at the WTG foundations

The electrical termination works at the Offshore Substation

The cable jointing works at the Onshore Junction Pit

Any other location as instructed by the Company for Health and Safety reasons.

• The Contractor shall not carry out any Work for which a Permit to Work

is required without receiving the Permit to Work that ensures the

electrical safety of his personnel. The Permit to Work system shall be

operated by [the Developer] or a Contractor appointed by [the

Developer] and will require the Contractor to:

Provide a detailed method statement and application permit detailing the precise

time, duration and nature of the proposed works and any associated electrical

isolation required to ensure safety. This shall be submitted a minimum of two (2)

weeks prior to the intended activity.

Commence work only upon receipt of a signed and fully authorised permit to

work that fully satisfies the Contractor’s isolation requirements.

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Permit to Work - continued

Sign off and return the Permit to Work upon completion of the work, or

intermediate stage of the work (as agreed), which shall confirm that the

electrical isolation may safely be discontinued.

• The Contractors detailed programme shall identify all Work that requires

a permit to work, including details of when such Permit shall be applied

for. The Company shall take all reasonable steps to ensure that the

Sequencing Contractor shall be given a Permit to Work that satisfies his

programme. The Company retains the right to request the Contractor

modify his Programme to suit the requirements of other Contractor’s

programmes.

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Other points to consider

• Contractual JV as client

• delay

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Delay

• LADs

• Contractor’s in the same zone

• Permit to work

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Conclusion

• Terms and roles need to be defined in contract

• Schedule must be included to deal with multiple Principal

Contractors

• Termination and replacement provisions required

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Worldwide Locations

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