"Government Contract Factoring"
MANAGEMENT CONTRACT In respect of MAINTENANCE AND COMMON REPAIRS Between THE CITY OF EDINBURGH COUNCIL, (hereinafter referred to as “the Council”), City Chambers, High Street Edinburgh And MR/MRS etc First Name Surname . Residing at HOME ADDRESS: (House number)…………(Flat number)………………. __________________________________________________ (hereinafter referred to as “the Owner”) WHEREAS : FIRST The Owner is the heritable proprietor of the property known as and forming (hereinafter referred to as “the Dwelling House”) being part of the tenement building Number SECOND The Council is prepared to provide the Owner with a factoring service in terms of Section 170 of the Local Government & Housing Act 1989 and The Housing (Relevant Works) (Scotland) Regulations 1992 in respect of the maintenance and repair of the common parts of the aforesaid tenement; THIRD The Owner has agreed to pay the Council a management charge of £50.00 (plus VAT) per annum for the provision of the aforesaid factoring service. In addition if the total repair costs, referred to at Preamble FIFTH below, exceed £4,000, excluding VAT, then a 5% supervision charge will apply to the excess FOURTH The Council and the Owner have agreed that for the purposes of this Agreement, the common parts are as defined in the Tenement Inspection Report annexed and signed as relative hereto; FIFTH The Council and the Owner will agree upon the maintenance and repair work to be performed each year in accordance with the arrangements set out in clause 3 hereof; THEREFORE: PROVIDED that all the Owners of the tenement building agree to appoint the Council as factor THEN the Council and the Owner hereby agree as follows:- 1. The Owner appoints the Council as factor in terms of the aforesaid Section 170 of the Local Government & Housing Act 1989 and The Housing (Relevant Works) (Scotland) Regulations 1992, for the purpose of arranging that the common repairs be carried out to ensure that the building is kept in a good state of repair to the reasonable satisfaction of both parties throughout the term of this Contract. 2. This Agreement will commence on TBA and will continue for an initial period of three years thereafter terminating on TBA (the „termination‟ date) without notice being given to or by either party. The Owner may offer in writing not less than 3 months prior to the termination date that this Agreement continue on a yearly basis thereafter. Notwithstanding the foregoing, the Council may terminate this Agreement at any time on giving six months written notice to all the Owners of the tenement building. 3. (a) The Council or its representatives will prepare an annual Tenement Inspection Report recommending the repair and maintenance work they consider necessary. (b) The Council may on request procure cost estimates for the recommended repair and maintenance work. (c) The Owners of the said Tenement Building in consultation with the Council will jointly decide on the repair and maintenance work that will be carried out. (d) The Council will confirm in writing to all Owners details of the repair and maintenance work which they have been authorised to arrange. The Council will only proceed to arrange the said works upon a majority instruction (i.e. more than 50 percent) of the tenement Owners (e) In the event of an emergency repair (emergency repair being defined as a repair required either to prevent water damage or to contain a security issue to/at the tenement) the Council will be entitled to immediately carry out such repair without obtaining a majority instruction and will apportion the costs of such emergency repair in terms of this agreement. 4. In respect of the common repairs to be carried out:- (a) The Council or its representatives will arrange for preparation of all necessary contract documents and will appoint a contractor on behalf of the Owner. Said contractor will carry out the common repairs. (b) The Council, on receiving reasonable notice shall permit the Owner to inspect the Contract Documents at the Council offices. (c) The cost of the Common Repairs shall be apportioned between the several owners of the subjects according to equal shares. Joint owners will be liable jointly and severally to reimburse the Council for the costs pertaining to their individual dwelling house. 5. An Account for the tenement building will be opened by the Council‟s Finance Department and will operate as follows:- (a) The Council will arrange payment from the said Account, of all costs involved in executing the said common repairs. (b) The Owner hereby irrevocably agrees to pay the Owner‟s costs (including VAT due to any contractor employed to perform work) calculated in accordance with Clause 4 (c) above, together with the management charge of £50 (plus VAT) per annum and, where required, the supervision charge. Such payments shall be made not later than twenty-eight days after the date on which the Owner receives such a request in writing from the Council or within such other period as may be agreed in writing by the Council. (c) On the termination of this Agreement, following payment of all sums due to the relevant contractors and the Council, any sums remaining will be divided between the Owners of the tenement building for the time being in proportion to their responsibility for the repairs as detailed on Clause 5 (b) and 4 (c) above. Notwithstanding the foregoing generality it is expressly agreed that all or any interest earned on sums held by the Council on behalf of the Owners will accrue to the Council and may, at the sole discretion of the Council, be applied towards the costs of common repairs to the said tenement building. 6. (a) The Council may, following discussion with the owners, request payment from the Owner of further estimated costs in so far as such costs exceed those previously estimated and paid. This payment shall be not later than twenty-eight days after the date on which the Owner receives such a request in writing from the Council or within such other period as may be agreed in writing by the Council. (b) When the Council demands payment from the Owner, it is agreed that the Owner will not be entitled to withhold payment (in whole or in part) on the basis that in the Owner‟s opinion the works have not been carried out to his complete satisfaction. The whole sum is payable on demand to the Council. (c) If the Owner fails to pay any of the above Owner‟s estimated costs or other charges as they fall due hereunder, or the annual standing charge, the Council shall be entitled to recover such sums, with interest, from the Owner as a debt. 7. All questions or disputes arising out of or in connection with the construction or effect of this agreement which cannot be settled between the Parties shall be referred to a single arbiter to be appointed by agreement between the Parties or, failing agreement, to an arbiter appointed on the application of either party to the President or Vice President of the Law Society of Scotland or the Royal Institute of Chartered Surveyors and the decision of such arbiter shall be final and binding on both Parties. 8. (a) It is hereby declared and understood that in appointing any Contractor in pursuance of this Agreement, the Council is acting in the capacity as agent for the owner. All rights and duties arising from any such contract made by the Council shall be enforceable by or against the owner and the contractor. The Council shall neither be liable under such a contract nor be entitled to enforce such a contract. (b) For the avoidance of doubt, it is hereby declared that the Council will not indemnify against loss any contractor employed in pursuance of this Agreement. 9. (a) The Council has in place Public Liability Insurance cover in respect of accidental injury or damage sustained by third parties as a result of negligent acts or omissions by the Council or its employees. The Council also carries Professional Indemnity Insurance cover against claims for breach of professional duty arising out of negligence in the performance of said duty. (b) The limit of liability under Professional Indemnity cover referred to at clause 9 (a) is, in respect of any one default resulting in direct loss or damage of property, or a series of defaults resulting in direct loss or damage to property, one million Pounds (£1,000,000) (c) The Council shall not be liable for loss of profits or of business or of revenue or of good will or of anticipated savings or any indirect or consequential loss or damage. (d) For the avoidance of doubt, it is hereby declared and agreed that the Council shall not be liable to the Owner or to any third party for the negligent acts and omissions of contractors appointed by the Council on the Owner‟s behalf, nor shall the Council be liable for the negligent acts and omissions of such contractors‟ employees, agents or sub-contractors, nor shall the Council be liable to the Owner for breach of contract by such contractors or their sub-contractors. 10. The terms of this contract shall be without prejudice to the Council‟s statutory powers. 11. On the sale,transfer, disposal by the Owner, his/her/their executor, agent or representative of the dwelling house the Owner, his/her/their executor, agent or representative shall ensure that there is a condition in either the missives of sale/ transfer/settlement binding the successor in title to adopt the rights and obligations of the Owner under this agreement failing which the Owner shall be held to be liable for any outstanding obligations in terms of this agreement. On that basis no payments made by the Owner to the Council shall be refundable on a sale. Furthermore the Owner, his/her/their executor, agent or representative shall forward a copy of the missives/transfer/ settlement to the Council. JOINT DUTIES: of the Council and Owners COUNCIL DUTIES 12 QUALITY OF WORK The Council or its representatives will inspect repair work prior to issuing payments to contractors. The Council will investigate any complaints of unsatisfactory work. Owners will assist here by reporting any such complaints to the Council as soon as possible. 13 MUTUAL REPAIRS Where any repair is mutual to an adjoining building the Owners will require to raise a Statutory Notice themselves but the Council acting in its capacity as Edinburgh Stair Partnership will work in conjunction with the department of the Council responsible for managing Statutory Notices to ensure works are organised in an efficient manner. 14 CONSULTANTS For major works the employment of another consultant may be necessary, for example a Structural Engineer or Quantity Surveyor. The fees (including VAT) rendered by said consultant will be recovered from the Owners. 15 MONITORING ACCOUNTS The Council will check all invoices when rendered, including the charge of VAT, prior to paying contractors. 16 QUALITY OF SERVICE The Council will respond to all written enquiries within 10 working days. The Council will provide all owners with a “Building log book” to record all the material supplied during the course of the maintenance contract. 17 MANAGEMENT INFORMATION An annual statement will be issued to all owners, for storage in the Building LogBook, detailing funds received, payments made, balance carried forward. OWNERS DUTIES 18 ACCESS Owners will allow the Council access to survey the building in order to report on its condition and will allow contractors access to carry out required work. Owners will notify their insurers prior to any major repairs being undertaken. 19 MANAGEMENT CHARGE The Council Management Charge will be fixed at £50 (plus VAT) per annum per Owner for the duration of the three-year contract, to be reviewed thereafter. The management fee will cover routine management duties but it is understood that if because of the complexity of a particular repair or because of any other reason the Council is involved in extra work an additional fee may be chargeable. 20 PAYMENTS The Owner(s) will pay all charges when requested notwithstanding any repair works have not commenced/been completed. ADDITIONAL 21 Further services will be developed by the Council, in conjunction with owners, and will be appended to this management agreement. DATA PROTECTION NOTICE The Housing Department is registered under the Data Protection Act. The Data Controller is: Michael Thain, Private Sector Services Manager, 23 Waterloo Place, Edinburgh EH1 3BH. 22 I understand and agree to the following: Information about me will be held on file both on computer and on a paper record. I can ask to see the information held about me or ask for a printed copy. The information I provide gives a true and accurate account of my circumstances. IN WITNESS WHEREOF these presents typewritten on this page and the six preceding pages are executed as follows:- They are subscribed by the said___________________________________________ [Owner(s) Name, Block letters please] On the ________[date]of______________[month] Two Thousand and__________ ______________________________________________________________[Sign] Before this witness:- _____________________________________[Witness Name, block letters please] _______________________________________[Sign] _______________________________________[Address] ________________________________________ ________________________________________ and they are subscribed on behalf of the City of Edinburgh Council by _________________________one of the Proper Officers of the City of Edinburgh Council, at__________________________________, Edinburgh, On the ________[date]of______________[month] Two Thousand and__________ Before this witness ______________________________________________[Sign].