2  Appointment

2.1  The Service Provider and the Authority jointly appoint the Independent Certifier to perform the obligations and tasks which are ascribed to the Independent Certifier under the Project Agreement and which are set out in Appendix 1 upon the terms and conditions set out below.  The Construction Contractor is a party to this Deed solely to make the commitments on its part as expressly made in this Deed, and, for the avoidance of doubt, the Independent Certifier shall have no liability to the Construction Contractor7.

2.2  The Independent Certifier shall provide the services under clause 2.1 (the Services) independently, fairly and impartially to and as between the Service Provider and the Authority in relation to the Project Agreement at such times and at such locations as the parties shall agree from time to time.  In performing the Services, the Independent Certifier shall have regard to the interest of the Funders.  Whilst the Independent Certifier may take account of any representations made by the Service Provider and the Authority and the Construction Contractor (as appropriate) [and the Funder's Technical Adviser] the Independent Certifier shall not be bound to comply with any representations made by any of them in connection with any matter on which the Independent Certifier is required to exercise his professional judgement.

2.3  Varied Services

The Independent Certifier shall carry out and perform any additional and/or varied services required for the implementation of the Project reasonably required by the Authority and the Service Provider which are not included in, or which are omitted from, the Services (the Varied Services) subject to prior agreement by the Authority and the Service Provider to the costs thereof and the following provisions shall apply:

(a)  if the Independent Certifier shall at any time be required to perform Varied Services, it shall give to the Authority and the Service Provider a written estimate of the cost thereof (taking into account any reduction in work or other expense which might also occur as a result of the circumstances giving rise to the Varied Services); and

(b)  where a change to the Project occurs pursuant to the terms of the Project Agreement (whether by virtue of a Change, change to the Programme or otherwise) which may materially impact on the Services or otherwise on the Independent Certifier, the Authority and the Service Provider shall promptly notify the Independent Certifier of such change. The Independent Certifier shall within [♦] Business Days of receiving such notification, notify the Authority and the Service Provider of the impact of such change, if any, on the Services, including whether such change gives rise to any Varied Services and the provisions of this clause 2.3 shall apply accordingly.

2.4  The Independent Certifier shall promptly and efficiently provide the Services and the Varied Services:

(a)  with the reasonable care, skill and diligence to be expected of a properly qualified and competent professional adviser who has held itself out as competent and experienced in rendering such services for projects of a similar size, nature, scope and complexity to the Project; and

(b)  in accordance with all applicable Legislation and Guidance.

2.5  All instructions to the Independent Certifier must be given signed and given jointly by the Authority Representative and the Service Provider Representative or such other person appointed pursuant to clause [11] of the Project Agreement (Representatives), and for the avoidance of doubt, the Independent Certifier shall not act in accordance with any instructions given to him by either the Authority or the Service Provider (or any other person) not given in accordance with the provisions of this clause 2.5.

2.6  The Independent Certifier shall comply with all reasonable instructions given to it by the Service Provider and the Authority pursuant to clause 2.5 except and to the extent that the Independent Certifier reasonably considers that any such instructions vary or might vary the Services or its authority or responsibilities under this Deed or prejudices or might prejudice the exercise by the Independent Certifier of its professional judgement in accordance with clauses 2.2 and 2.4. The Independent Certifier shall promptly confirm in writing to the Service Provider and the Authority whether or not it shall comply with any such instruction setting out the grounds upon which the decision is made.

2.7  The Authority, the Service Provider and the Construction Contractor agree to co-operate with and provide reasonable assistance to the Independent Certifier to familiarise the Independent Certifier with all necessary aspects of the Project to enable the Independent Certifier to carry out its obligations under this Deed.

2.8  The Independent Certifier shall be deemed to have full knowledge of the provisions of the Project Agreement, the Construction Contract, the FM Contract, the Services Contract and the [Sub-Construction Contractor Co-operation Agreement (as defined in the Construction Contract)] such as relates to the Services and shall be deemed to be aware of and to have taken full account of all the undertakings and warranties, both expressed and implied, on the part of the Service Provider and the Authority which are set out in the Project Agreement, provided always that true and accurate copies have been delivered to the Independent Certifier.

2.9  Subject to clause 2.10, the Independent Certifier shall use the following partners, directors or employees: [insert names of individuals] in connection with the performance of the Services and such persons' services shall be available when necessary and for so long as may be necessary to ensure the proper performance by the Independent Certifier of the Services.  Such persons shall have full authority to act on behalf of the Independent Certifier for all purposes in connection with the Services.

2.10  The Independent Certifier may by written notice to the Authority and the Service Provider replace the staff identified in clause 2.9 by taking account the need for liaison, continuity, level of qualification and availability of personnel in respect of the Project.  Such replacement shall be subject to approval in writing by the Service Provider and the Authority (not to be unreasonably withheld or delayed).

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7  It has been suggested on some projects that the Construction Contractor should receive the benefit of a duty of care from the Independent Certifier (whether under this agreement or through a collateral warranty). Authority should consider the implications fully and seek advice from their legal advisers on this point.  Authority's interests are likely to be prejudiced as a result. Issues that need to be considered include: whether this would increase the fee, whether the financial liability of the ITC would be diluted (e.g. consider any cap on liability) and whether the ITC’s liability to the Authority may be prejudiced as a result of any claim made by the Construction Contractor, whether there could be any adverse impact on the resources of the ITC and whether the Construction Contractor’s remedy should lie against the Service Provider in the event of any claim.