Good contracts will take into account CDM 2007 arrangements. Learn from these practical examples when drafting your contracts - presentation by Julian Scott of Squire Sanders exclusively for ARMSA Consulting wind energy clients.

1. The Construction (Design
and Management)
Regulations 2007
Incorporation of the CDM Regulations in
contract terms for the procurement of an
offshore windfarm
39 Offices in 19 Countries

2. 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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3. 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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4. 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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5. 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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6. 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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7. CDM Compliance
• Does it matter?
• Statutory obligation therefore applies
• Is it therefore just a “bolt on”?
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8. Contract Terms
• Contract should define roles of:
– CDM-C
– Client
– Design
– Principal Contractor
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9. 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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10. 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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11. 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
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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.

12. 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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13. 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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14. 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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15. 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.
•
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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.

16. Other points to consider
• Contractual JV as client
• delay
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17. Delay
• LADs
• Contractor’s in the same zone
• Permit to work
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18. 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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19. Worldwide Locations
North America
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Cincinnati
Cleveland
Columbus
Houston
Los Angeles
Miami
New York
Latin America
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Northern Virginia
Palo Alto
Phoenix
San Francisco
Tampa
Washington DC
West Palm Beach
+ Independent Network Firm
Europe & Middle East
Asia Pacific
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Bogotá+
Buenos Aires+
Caracas+
La Paz+
Lima+
Panamá+
Santiago+
Santo Domingo
Beirut+
Berlin
Birmingham
Bratislava
Brussels
Bucharest+
Budapest
Frankfurt
Kyiv
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Leeds
London
Madrid
Manchester
Moscow
Paris
Prague
Riyadh
Warsaw
Beijing
Hong Kong
Perth
Seoul
Shanghai
Singapore
Sydney
Tokyo