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Design and Construction of Civil Works and Services for the
City East 132kV Cable Tunnel
FORMAL INSTRUMENT OF AGREEMENT
EA 0933/09
213212412_14
FORMAL INSTRUMENT OF AGREEMENT
DATE OF THE DEED:
day of December 2011
PARTIES
Ausgrid (ABN 67 505 337 385) (Principal)
Thiess Pty Ltd (ABN 87 010 221 486) (Contractor)
RECITAL
A.
The parties wish to enter into the Deed to record their agreement for the design,
procurement and construction of the Work under the Deed.
OPERATIVE PROVISIONS
1.
The Contractor must design (other than the design for which the Principal is
responsible), procure and construct the Work under the Deed in accordance with
the Deed.
2.
The Principal must pay the Contractor the Contract Price in accordance with the
Deed.
3.
The Principal and the Contractor agree that the following documents form the
Deed between them:
(a)
this Formal Instrument of Agreement; and
(b)
the other documents referred to in the definition of "Deed" in clause 1.1 of
the attached General Conditions of Deed.
4.
The law of the Deed is the law in force in New South Wales. The Princpal and
the Contractor submit to the jurisdiction of the courts of New Souith Wales.
5.
Each person who executes the Deed on behalf of a party under a power of
attorney declares that he or she is not aware of any fact or circumstance that might
affect his or her authority to do so under that power of attorney.
EXECUTED as a deed.
SIGNED for and on behalf of Ausgrid
in the presence of:
Signature of witness
Signature of person signing for Ausgrid
Name of witness
Name of person signing for Ausgrid
SIGNED for Thiess Pty Ltd under
power of attorney in the presence of:
Signature of attorney
Signature of witness
Name of attorney
Name of witness
Date of power of attorney
Design and Construction of Civil Works and Services for the
City East 132kV Cable Tunnel
GENERAL CONDITIONS OF DEED
EA 0933/09
GENERAL CONDITIONS OF DEED
Table of Contents
Clause
Number
Heading
1
Definitions
2
Contract Documents
21
3
Interpretation
22
4
Scope of the Work under the Deed
25
5
Time for Commencement
30
6
Contractor‟s Obligations
30
7
Terms of Payment
35
8
Security
42
9
Taxes
44
10
Security of Payment Act
45
11
Intellectual Property Rights
46
12
Confidential Information
47
13
Representatives
48
14
Contractor‟s Organisation
50
15
Contract Programme
50
16
Subcontracts
54
17
Design
55
18
Procurement
57
19
Construction
59
20
Testing and Inspection
63
20A
NGER Reporting Obligations
64
21
Substantial and Practical Completion
67
22
Completion and Close Out Workshop
70
23
Representations and Warranties
71
24
Warranties
72
25
Delay to Completion
73
26
Defect Correction
74
27
Care of the Work under the Deed
76
28
Indemnities
77
29
Insurance
78
30
Site Conditions, GBR administration and Selection of Equipment
81
31
Re-Instatement
85
213212412_14
Page
7
32
Force Majeure
85
33
Change in the Work under the Deed
86
34
Extension of Time
89
35
Acceleration
94
36
Suspension
95
37
Termination
95
38
Notices
99
39
Assignment and change
100
40
Claims and Dispute Resolution
102
41
Liability
110
Schedule 1 Contract Information
112
Schedule 2 Separable Portions
115
Schedule 3 Commercial Schedules
117
Schedule 4 GBR Administration
139
Schedule 5 Provisional Sums
159
Schedule 6 Key Personnel
160
Schedule 7 Insurances
161
Schedule 8 Approved Subcontractors
163
Schedule 9 Form of Security
165
Schedule 10 Contract Programme
166
Schedule 11 Pre-Contract Information
167
Schedule 12 DRB Appointment and Operating Procedures
168
Schedule 13 DRB Appointment Agreement
174
Schedule 14 Subcontractors Statement and Statutory Declaration
188
Schedule 15 Guarantee and Indemnity
193
Schedule 16 CECT Development Approval
202
Schedule 16A Schedule of CECT Development Approval Responsibilities
219
Schedule 17 Schedule of Interface Agreement Responsibilities
227
Exhibit A Specification
Exhibit A1 Alternate specification
Exhibit B Environmental Assessment
Exhibit C Geotechnical Baseline Report
Exhibit D Interface Agreements and Draft Interface Agreements
1
Definitions
1.1
The following words and expressions where used in the Deed have these meanings
unless the contrary intention appears:
Acceleration Direction has the meaning given to it by clause 35.2.
Acceleration Direction Information Request has the meaning given to it by
clause 35.3.
Adverse Condition has the meaning given to it in Schedule 4 - GBR Administration.
Affiliate means a person who is a related body corporate within the meaning of
“related body corporate” in Section 9 of the Corporations Act.
Approved Off-Site Materials means the items so nominated in Schedule 1 Contract Information.
Authorised Representative means:
(a)
in respect of the Principal, the person so specified in Schedule 1 - Contract
Information or such other person as may be nominated for the role of
Authorised Representative by the Principal by written notice to the Contractor
from time to time; and
(b)
in respect of the Contractor, the person so specified in Schedule 1 - Contract
Information or such other person of at least equivalent experience and
seniority:
(i)
nominated for the role of Authorised Representative by the Contractor
by written notice to the Principal; and
(ii)
approved in writing by the Principal (acting reasonably),
from time to time.
Best Industry Practices means the practices, methods, standards of safety, design
and performance and acts which are generally engaged in or observed by international
design, construction and maintenance industries with respect to the design,
construction and maintenance of works similar to the Work under the Deed and
which, with respect to any objective, may be expected, in the exercise of reasonable
judgment, to accomplish the same in a manner consistent with requirements of
Government Authorities, reliability, safety, economy, expediency and environmental
protection.
Bligh St Development Approval means the planning approval granted to the
Principal under Part 3A of the Environmental Planning and Assessment Act 1979
(NSW) for the construction of that part of the Project not included in the CECT
Development Approval, as may be modified or replaced from time to time.
BOOS means the Bondi Ocean Outfall Sewer.
business day means any day other than a Saturday, Sunday, public holiday in New
South Wales or 27, 28, 29, 30 or 31 December.
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Cable Installation Contractor means the Separate Contractor to be engaged by the
Principal for the installation of 33kV and 132kV cables in the Tunnel.
Cable Installation Works means all work to be performed by the Cable Installation
Contractor under its contract with the Principal.
CCM means CrossCity Motorway Pty Ltd (ABN 45 098 445 839) and CrossCity
Motorway Nominees No.2 Pty Ltd (ABN 53 098 445 811).
CCM Tunnels means the tunnel components of the CrossCity Motorway.
CECT Development Approval means the planning approval granted to the Principal
under Part 3A of the Environmental Planning and Assessment Act 1979 (NSW) dated
18 July 2011 (a copy of which is set out in Schedule 16 – CECT Development
Approval), as may be modified or replaced from time to time.
CES Site has the meaning given to it in the Specification.
CES Shaft has the meaning given to it in the Specification.
Change means any modification, addition to or omission from or other variation of
the Work under the Deed directed or approved by the Principal in writing in
accordance with clause 33.
Change Order has the meaning given to it in clause 33.5.
City East Substation Stub Tunnel or CES Stub Tunnel has the meaning given to
"City East Substation Stub Tunnel" in the Specification.
Claim has the meaning given to it in clause 40.1(a)(i).
Close Out Workshop means the close out workshop described clause 22.3.
Commencement Date means the later of the date on which the parties execute the
Deed or the date on which the Contractor provides to the Principal evidence of all
insurances required to be taken out by the Contractor, or such other date as the parties
may agree for the purpose of the Deed.
Completion means the stage in the execution of the Work under the Deed when the
Contractor has:
(a)
fully completed all of the Work under the Deed including rectification of all
Defects remaining at Practical Completion (including any which only became
patent subsequent to Practical Completion);
(b)
provided to the Principal electronic and hard copies of „as-built‟ survey and
drawings, and a geotechnical as-built report for the Works, in accordance with
the requirements of the Specification;
(c)
provided to the Principal all operational and maintenance manuals for the
Work under the Deed required to be provided under the Deed in a form
reasonably acceptable to the Principal;
(d)
provided to the Principal all geographical information systems for the Work
under the Deed required to be provided under the Deed in a form reasonably
acceptable to the Principal;
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(e)
provided to the Principal copies of all Government Approvals and other
approvals (including any necessary approvals from land owners and tenants)
relating to the Work under the Deed which the Contractor must obtain under
the Deed;
(f)
provided to the Principal all manufacturers‟, suppliers‟ and subcontractors‟
warranties in respect of the Work under the Deed specified in the Deed in a
form reasonably acceptable to the Principal, for the period specified in the
Deed (or, where no warranty period is specified in the Deed, for the period
normally provided by manufacturers, suppliers or subcontractors for work
similar to the part of the Work under the Deed subcontracted), and each duly
executed by the manufacturer, supplier or subcontractor, as applicable;
(g)
provided to the Principal all information necessary for the Principal to acquire
a stratum easement for the Works via the Land Titles Office;
(h)
provided to the Principal all information required under the Interface
Agreements in respect of the Work under the Deed which the Principal is
required to provide to each Interface Party;
(i)
delivered to the Principal all spare parts and other materials in respect of the
Works required to be supplied under the Deed;
(j)
completed all necessary cleaning up of the Works and that part of the Site on
which the Works are constructed, all site restoration works in respect of the
Work under the Deed required under the Deed and has removed all debris and
surplus materials, temporary works and Construction Plant from that part of
the Site on which the Works are constructed and from the Works; and
(k)
complied with all of the other obligations in respect of the Work under the
Deed required under the Deed to be performed prior to Completion.
Completion Certificate means a certificate issued by the Principal‟s Representative
in accordance with clause 22.2 stating the date upon which Completion is achieved.
Completion Payment means the outstanding balance of the Contract Price at
Completion, as assessed by the Principal‟s Representative following receipt of the
Contractor‟s statement under clause 7.4.
Confidential Information means all information disclosed to the Contractor by, or
on behalf of, the Principal, the Principal‟s Representative or any related entity of the
Principal, including:
(a)
information, which, either orally or in writing, is designated or indicated as
being the proprietary or confidential information of the Principal;
(b)
trade secrets or information, which is capable of protection at law or equity as
confidential information;
(c)
information from a third party, where the Contractor is advised by the
Principal, the Principal‟s Representative or any related entity of the Principal
that such information is confidential; and
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(d)
information derived or produced, partly or wholly, from the information
referred to above, including any calculation, conclusion, summary or
computer modelling,
whether the information was disclosed:
(e)
orally, in writing or in electronic or machine readable form;
(f)
before, on or after the date of the Deed;
(g)
as a result of discussions between the parties; or
(h)
by the Principal, any of its related entities or third parties,
which is not in the public domain.
Construction Plant means plant and equipment used to do the Work under the Deed,
which do not form part of the Works.
Contract Price means the aggregate of:
(a)
where the Principal has accepted lump sum prices, the lump sum prices stated
in Schedule 3 - Commercial Schedules;
(b)
where the Principal has accepted rates, the sum of the products of the actual
quantities and the relevant rate for each item in Schedule 3 - Commercial
Schedules; and
(c)
amounts payable in respect of Provisional Sums, as calculated in accordance
with clause 4.2,
subject to such additions and adjustments or deductions as may be made pursuant to
the Deed.
Contract Programme means Schedule 10 - Contract Programme, as revised by the
Contractor pursuant to clause 15.1.
Contractor means the person specified in Schedule 1 - Contract Information.
Contractor’s Cost Report means any report prepared or otherwise maintained by or
for the Contractor, which constitutes or evidences a record of all:
(a)
costs, expenses and losses; and
(b)
progress payments and income receipts,
that have been incurred in relation to the Project or otherwise charged to or recorded
against the Project by the Contractor to date.
Contractor’s Documents means drawings, specifications, calculations and other
documents and information, meeting the requirements of clause 17, which the
Contractor must produce to design and construct the Work under the Deed in
accordance with the Deed.
10
Contractor’s Margin means the margin for profit and additional overhead costs
(including administration, supervision, establishment and attendance costs) specified
in Schedule 1 - Contract Information.
Contractor’s Representative means the Contractor‟s Representative appointed at the
date of the Deed specified in Schedule 1 – Contract Information or replaced in the
manner provided in clause 13.2.
Controller has the meaning given to it in the Corporations Act.
Corporations Act means the Corporations Act 2001 (Cth).
CSCT Extension means the Roadheader section of the Tunnel to be constructed
between the Riley Street Shaft and the CSCT.
CSCT means the existing City South Cable Tunnel.
Date for Completion means the date 30 days after the Date for Practical Completion,
being the date by which Completion is to be achieved, as may be extended in
accordance with clause 34.
Date for Practical Completion means the relevant date stated in Schedule 2 Separable Portions being the date by which the Contractor is to bring the Work under
the Deed to Practical Completion, as may be extended in accordance with clause 34
or adjusted in accordance with clause 19.7(a).
Date for Substantial Completion means the date stated in Schedule 2 - Separable
Portions being the date by which the Contractor is to bring the Work under the Deed
for Separable Portion 1 to Substantial Completion, as may be extended in accordance
with clause 34.
Date of Completion means the date stated in the relevant Completion Certificate
issued by the Principal‟s Representative under clause 22.2 as the date upon which
Completion was achieved.
Date of Practical Completion means the date stated in the relevant Practical
Completion Certificate issued by the Principal‟s Representative under clause 21.2(c)
or clause 21.2(e) (as applicable) as the date upon which Practical Completion was
achieved.
Date of Substantial Completion means the date stated in the relevant Substantial
Completion Certificate issued by the Principal‟s Representative under clause 21.1(d)
or clause 21.1(f) (as applicable) as the date upon which Substantial Completion of
Separable Portion 1 or Substantial Completion of Separable Portion 2 (as the case
may be) was achieved.
day means a calendar day.
Deed means the engineering, design and construction deed entered into between the
Principal and the Contractor in respect of the Project, comprising:
(a)
the Formal Instrument of Agreement;
(b)
the General Conditions of Deed;
(c)
Schedules 1 to 17 (inclusive);
11
(d)
the Specification including its appendicies; and
(e)
the Exhibits A to D (inclusive).
Defect includes any omission from or defect in the Work under the Deed which:
(a)
does not conform to the requirements of the Deed (including the Specification
and the performance requirements for the Work under the Deed stated in the
Deed);
(b)
is improper or inferior; or
(c)
may adversely affect the reliable installation and/or operation of the Works or
the performance of any part of the Works, other than any deficiency falling
within (a) or (b) above which is due to:
(i)
improper use of the Works by the Principal (including operation
outside any specifications provided in the Deed); or
(ii)
normal wear and tear.
Defects Correction Period has the meaning given to it in clause 26.3.
Development Approvals means:
(a)
if the Bligh St Development Approval is granted, the Bligh St Development
Approval; and
(b)
the CECT Development Approval.
direction includes agreement, approval, assessment, authorisation, certificate,
decision, demand, determination, explanation, instruction, notice, order, permission,
rejection, request or requirement.
Dispute Resolution Board or DRB means the board constituted by the three neutral
individuals mutually selected by the Principal and the Contractor in accordance with
clause 40.2 to consider and recommend resolution of disputes referred to it.
Draft Interface Agreements means the agreements so described in Schedule 17 Schedule of Interface Agreement Responsibilities, forming part of Exhibit D, which
have been initialled by the Principal and the Contractor for identification purposes.
Drawings means:
(a)
the drawings which form appendices to the Specification; and
(b)
any modification of the drawings referred to in paragraph (a) above notified in
writing by the Principal‟s Representative to the Contractor.
DRB Appointment Agreement means the agreement so entitled between the
Principal, the Contractor and the DRB members appointed pursuant to the Deed, in
the form of Schedule 13 - DRB Appointment Agreement.
Environment means all aspects of the surroundings of human beings including:
12
(a)
the physical factors of those surroundings including the atmosphere, soil,
subsoil, waters and seabed;
(b)
the biological factors of those surroundings including human, other animal,
plant and other forms of life; and
(c)
the aesthetic factors of those surroundings including appearance, sounds,
smells, tastes and textures.
Environmental Assessment means the document so entitled, forming Exhibit B,
which has been initialled by the Principal and the Contractor for identification
purposes.
Event of Force Majeure means any of the following listed events or circumstances
or a combination of those events and circumstances:
(a)
war, hostilities or warlike operations (whether a state of war be declared or
not), invasion, act of foreign enemy or civil war; or
(b)
rebellion, revolution, insurrection, mutiny, usurpation of civil or military
government, riot, civil commotion or terrorist acts; or
(c)
confiscation, nationalisation, mobilisation, commandeering or requisition by
or under the order of any government or de jure or de facto authority or ruler
or any other act or failure to act of any local, state or national government
authority; or
(d)
sabotage, lock-out, embargo, import restriction, shipwreck, epidemics,
quarantine or plague; or
(e)
earthquake, landslide, volcanic activity, fire, flood or inundation, tidal wave,
typhoon or cyclone, hurricane, lightning, nuclear and pressure waves, or other
natural or physical disaster; or
(f)
shortage of labour, materials or utilities where caused by circumstances that
are themselves Events of Force Majeure,
which:
(g)
is beyond the reasonable control of the party affected by that event or
circumstance;
(h)
causes or results in delay in, or prevention of, the performance by the affected
party of any of its obligations under the Deed; and
(i)
cannot be prevented, overcome or remedied by the exercise by the affected
party of a standard of care and diligence consistent with that of a prudent and
competent utilities owner or contractor (as the case may be).
Final Payment means the payment to be made by the Principal or the Contractor
under clause 7.5(g).
Final Payment Certificate means the Principal‟s Representative‟s certificate under
clause 7.5, which states the final balance due to the Contractor or the Principal, as the
case may be.
13
Formal Instrument of Agreement means the deed signed between the Principal and
the Contractor attached to these General Conditions of Deed.
Geotechnical Baseline Report or GBR means the document entitled “Energy
Australia - City East Cable Tunnel Geotechnical Baseline Report PSM1055-008R
Rev 3, dated18 April 2011, forming Exhibit C, which has been initialled by the
Principal and the Contractor for identification purposes.
General Conditions of Deed means clauses 1 to 41 (inclusive) of this document.
Government Approval means any authorisation, consent, approval, licence, lease,
ruling, permit, exemption, variance, order, judgment, decree, publication, notice,
declaration or regulation made, issued or given by any Federal, State, or Local
Government, or any Government Authority, relating to the occupation, design,
construction, start-up, testing, operation or maintenance of the Works or to the
execution, delivery or performance of any document relating to the Project including
the Deed.
Government Authority means any national, state, local, regional, territorial or
municipal government, ministry, governmental department, commission, board,
bureau, agency, instrumentality, executive, legislative, judicial or administrative
body, or government corporation having jurisdiction over the Work under the Deed,
the Principal or the Contractor, or anything in connection with any of them.
GST means a goods and services tax, as governed by the GST Act.
GST Act is A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Hold Point means a position in the progress of the Work under the Deed beyond
which work must not proceed without mandatory verification and acceptance by the
Principal‟s Representative.
Insolvency Event means, with respect to a party, that:
(a)
it is, or states that it is, insolvent, as defined in the Corporations Act;
(b)
it has a Controller appointed to any part of its property;
(c)
it is in receivership, in receivership and management, in liquidation, in
provisional liquidation, under administration or wound up or has had a
Receiver appointed to any part of its property;
(d)
it is subject to any arrangement, assignment, moratorium or composition,
protected from creditors under any statute or dissolved, other than to carry out
a reconstruction or amalgamation while solvent on terms approved by the
other party;
(e)
an application or order has been made (and, in the case of an application, it is
not stayed, withdrawn or dismissed within 20 business days), a resolution
passed, a proposal put forward or any other action taken, in each case in
connection with that party, which is preparatory to, or could result in, any of
the circumstances set out in paragraphs (a), (b), (c) or (d) above;
(f)
it is taken, under section 459(F)(1) of the Corporations Act, to have failed to
comply with a statutory demand;
14
(g)
it is the subject of an event described in section 459(C)(2)(b) or section 585 of
the Corporations Act or it makes a statement from which the other party
reasonably deduces it is so subject;
(h)
it is otherwise unable to pay its debts when they fall due; or
(i)
something having a substantially similar effect to the circumstances set out in
paragraphs (a) to (h) above happens in connection with that party under the
law of any jurisdiction.
Intellectual Property Rights means copyright, all rights conferred under statute,
common law or equity in relation to inventions (including patents), registered and
unregistered trademarks, registered and unregistered designs, circuit layouts and
confidential information, and all other rights resulting from intellectual activity in the
industrial, scientific, literary or artistic fields.
Interface Agreements means the agreements so described in Schedule 17 - Schedule
of Interface Agreement Responsibilities, forming part of Exhibit D, which have been
initialled by the Principal and the Contractor for identification purposes, and will
include the executed versions of any Draft Interface Agreements.
Interface Party means:
(a)
Rail Corporation New South Wales (ABN 59 325 778 353) (“RailCorp”);
(b)
Roads and Traffic Authority NSW (ABN 64 480 155 255) (“RTA”);
(c)
Sydney Water Corporation (ABN 49 776 225 038) (“Sydney Water”);
(d)
State Library of New South Wales (ABN 19 665 924 697) (“State Library”);
(e)
The Domain Trust (ABN 97 270 414 025) (“Domain Trust”); and
(f)
CCM.
Key Personnel means the personnel specified in Schedule 6 - Key Personnel as the
Contractor‟s key personnel, including any replacement personnel engaged pursuant to
clause 14.2.
Law means:
(a)
Commonwealth and State legislation, including regulations, by-laws and other
subordinate legislation;
(b)
common law and equity;
(c)
Government Authority requirements; and
(d)
guidelines of Government Authorities with which the Contractor is legally
required to comply.
Materially Adverse Conditions has the meaning given to it in Schedule 4 - GBR
Administration.
Materials means materials, articles and things of all kinds to be utilised in the
execution of the Work under the Deed by the Contractor (including drafting, drawing,
15
computer hardware, software, accessories, spare parts and consumables to be supplied
by the Contractor under the Deed, but excluding any Construction Plant).
Moral Rights means any of the rights described in Article 6bis of the Berne
Convention for the Protection of Literary and Artistic Works 1886 (as amended and
revised from time to time), being “droit moral” or other analogous rights arising
under any statute (including the Copyright Act 1968 (Cth)) or any other law
(including any law outside Australia), that exist, or that may come to exist, anywhere
in the world.
OH&S Plan is the occupational health and safety management plan to be submitted
by the Contractor prior to commencement of any Work under the Deed on the Site, as
updated under clause 19.6.
OH&S Regulation is the Occupational Health and Safety Regulation 2001 (NSW).
Other Claims has the meaning given to it in clause 40.1(a)(ii).
Parameters has the meaning given to it in Schedule 4 - GBR Administration.
Payment Withholding Request means a request which is, or purports to be, a
payment withholding request made under the Building and Construction Industry
Security of Payment Act 1999 (NSW).
Practical Completion means the stage in the execution of the Work under the Deed
when:
(a)
the Work under the Deed has been completed in accordance with the Deed
and is free from Defects, except for minor defects or omissions as referred to
in clause 21.2(b);
(b)
the Contractor has completed all Tests in respect of the Works and has
provided evidence to the reasonable satisfaction of the Principal that all such
Tests have been passed in accordance with the Deed;
(c)
the Contractor has provided to the Principal all necessary surveys,
certifications and draft operations and maintenance manuals in respect of the
Work under the Deed;
(d)
the Contractor has provided to the Principal the up to date property
information log in respect of the Work under the Deed;
(e)
the Principal is able to install and commission its infrastructure components
and interconnect such infrastructure components with the Works;
(f)
the Contractor has provided to the Principal‟s personnel and such other
persons as nominated by the Principal such training as specified in the
documents comprising the Deed; and
(g)
the Contractor has complied with all of the other obligations in respect of the
Work under the Deed required under the Deed to be performed prior to
Practical Completion.
Practical Completion Certificate means the certificate issued by the Principal‟s
Representative in accordance with clause 21.2(c) or 21.2(e) (as applicable) stating the
date upon which Practical Completion is achieved.
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Pre-Contract Information comprises the documents listed in Schedule 11 - PreContract Information, which have been initialled by the Principal and the Contractor
for identification purposes.
Principal means the person so specified in Schedule 1 - Contract Information.
Principal’s Representative means any person appointed by the Principal in the
manner provided in clause 13.1 to perform the duties delegated by the Principal.
Progress Claim means each fully supported invoice delivered to the Principal‟s
Representative by the Contractor at the time set out in Schedule 1 - Contract
Information containing all of the requirements set out or contemplated in clause 7.3
and in a form approved by the Principal‟s Representative.
Project means Energy Australia‟s City East 132kV Cable Tunnel Project, as more
precisely described in the Deed.
Project Construction Manager means the person appointed by the Contractor under
clause 19.1.
Project Control Group means the project control group referred to in clause 15.2(a).
Project Plans means:
(a)
(b)
each of the following plans so described in the Deed, and particularly in the
Specification, to be prepared by the Contractor:
(i)
Quality Plan;
(ii)
Construction Environmental Management Plan (CEMP)
(iii)
OH&S Plan;
(iv)
Drainage and Water Quality Plan;
(v)
Waste Management Plan;
(vi)
Community Involvement Plan (CIP);
(vii)
Risk Management Plan;
(viii)
Contingency Management Plan;
(ix)
Traffic Control Plan;
(x)
Commissioning Plan; and
(xi)
Asset Management Plan; and
any other plans referred to in the Development Approvals and either:
(i)
specified in Schedule 16A - Schedule of CECT Development
Approval Responsibilities as the Contractor‟s responsibility; or
(ii)
notified by the Principal to the Contractor under clause 6.3(a)(i) as the
Contractor's responsibility,
17
each as is updated from time to time under clause 6.4.
Provisional Sums are the allowances included in the Contract Price which are
provisional monetary, prime cost, contingency or other such sums or allowances for
the work specified in Schedule 5 - Provisional Sums.
Receiver has the meaning given to it in the Corporations Act.
Riley Street Shaft has the meaning given to it in the Specification.
Roadheader means the machinery / equipment used to excavate the City East
Substation Stub Tunnel, the TBM Backshunt Tunnel and the CSCT Extension.
Roadheader Section of Tunnel has the meaning given to it in the Specification.
Schedule 1 - Contract Information means schedule 1 to the General Conditions of
Deed.
Schedule 2 - Separable Portions means schedule 2 to the General Conditions of
Deed.
Schedule 3 - Commercial Schedules means schedule 3 to the General Conditions of
Deed.
Schedule 4 - GBR Administration means schedule 4 to the General Conditions of
Deed.
Schedule 5 - Provisional Sums means schedule 5 to the General Conditions of Deed.
Schedule 6 - Key Personnel means schedule 6 to the General Conditions of Deed.
Schedule 7 - Insurances means schedule 7 to the General Conditions of Deed.
Schedule 8 - Approved Subcontractors means schedule 8 to the General Conditions
of Deed.
Schedule 9 - Form of Unconditional Undertaking means schedule 9 to the General
Conditions of Deed.
Schedule 10 - Contract Programme means schedule 10 to the General Conditions
of Deed.
Schedule 11 - Pre-Contract Information means schedule 11 to the General
Conditions of Deed.
Schedule 12 - DRB Appointment and Operating Procedures means schedule 12 to
the General Conditions of Deed.
Schedule 13 - DRB Appointment Agreement means schedule 13 to the General
Conditions of Deed.
Schedule 14 - Subcontractors Statement and Statutory Declaration means
schedule 14 to the General Conditions of Deed.
Schedule 15 - Guarantee and Indemnity means schedule 15 to the General
Conditions of Deed.
18
Schedule 16 – CECT Development Approval means schedule 16 to the General
Conditions of Deed.
Schedule 16A –Schedule of CECT Development Approval Responsibilities means
schedule 16A to the General Conditions of Deed.
Schedule 17 - Schedule of Interface Agreement Responsibilities means schedule
17 to the General Conditions of Deed.
Security Interest means any bill of sale, as defined in any Law, mortgage, charge,
lien, pledge, hypothecation, title retention arrangement, trust or power, as, or having
effect as, a security for the payment of any monetary obligation or the observance of
any other obligation.
Security of Payment Act means the Building and Construction Industry Security of
Payment Act 1999 (NSW).
Separable Portion means each of the discrete parts of the Work under the Deed so
identified in Schedule 2 - Separable Portions or created pursuant to clause 3.9.
Separate Contractors means contractors (other than the Contractor) engaged by the
Principal or third parties to carry out works or services of whatever nature at or in the
vicinity of the Site, including:
(a)
the Principal‟s cable supply and installation contractors;
(b)
the Riley Street STSS Building Contractor;
(c)
the City East Substation Building Contractor; and
(d)
other separate contractors as may be advised to the Contractor by the
Principal during the course of the Work under the Deed.
Shafts has the meaning given to it in the Specification.
Site means the land and other places upon which, or within which, the Works are to
be constructed and the Work under the Deed is to be performed, as shown in the
Drawings and the Specification, and any other lands and places made available to the
Contractor by the Principal for the purpose of the Deed.
Site Conditions means any physical conditions of the Site and its surroundings
(including hydrological, surface and sub-surface conditions and characteristics, but
excluding weather conditions or physical conditions which are a consequence of
weather conditions) encountered in the execution of the Work under the Deed.
Site Representative means each such person appointed by the Contractor under
clause 13.2.
Specification means the document titled “Design and Construction of Civil Works
and Services for the City East 132kV Cable Tunnel - Specification EA 0933/09",
including its Appendices A to R, forming Exhibit A to the Deed, as initialled by the
parties for identification purposes and as may be amended in accordance with clause
4.1A and otherwise in accordance with the Deed.
Subcontractor means any person to whom execution of any part of the Work under
the Deed, including preparation of any design for which the Contractor is responsible
19
under the Deed, is subcontracted directly or indirectly by the Contractor and includes
its legal successors or permitted assigns.
Substantial Completion means:
(a)
(b)
in respect of Separable Portion 1, the stage in the execution of the Work under
the Deed relating to Separable Portion 1 when:
(i)
the tunnel excavation is complete;
(ii)
all tunnel interface excavation works are complete;
(iii)
the structural lining, including walls, roof and invert slabs, is
complete;
(iv)
all physical permanent services fixtures (excluding permanent
lighting, cabling or hydraulic equipment) are installed in situ suitable
for clear unimpeded access for the Cable Installation Contractor;
(v)
the tunnel walls, ceiling and floor and the interfaces are ready for
installation of the 33kV and 132kV cables by the Cable Installation
Contractor; and
(vi)
the cable support bracket system is supplied and fixed to the tunnel
wall; and
in respect of Separable Portion 2, the stage in the execution of the Work under
the Deed relating to Separable Portion 2 when:
(i)
the tunnel excavation is complete;
(ii)
all tunnel interface excavation works are complete; and
(iii)
the Contractor has demobilised the Roadheader and all temporary
construction facilities installed by the Contractor or its Subcontractors
from the Site.
Substantial Completion Certificate means the certificate issued by the Principal‟s
Representative in accordance with clause 21.1(d) or clause 21.1(f) (as applicable)
stating the date upon which Substantial Completion of Separable Portion 1 or
Substantial Completion of Separable Portion 2 (as the case may be) is achieved.
Tax means any tax, levy, impost, deduction, charge, duty or withholding which is
levied or imposed by a Government Authority, including any income, capital gains,
or value added tax, goods and services tax, withholding, stamp and transaction tax,
duty or charge, sales tax or any similar tax pursuant to any Law together with interest,
penalties, charges, fees or other amounts (if any) imposed or made on or in respect of
the above.
TBM has the meaning given to it in the Specification.
TBM Backshunt Tunnel has the meaning given to it in the Specification.
TBM Section of the Tunnel has the meaning given to it in the Specification.
20
Tests includes examinations, measurements, trials and tests of all or any part of the
Work under the Deed, including all examinations, measurements, trials and tests
which are described in the Deed and particularly in the Specification.
Tunnel means Tunnel as defined in the Specification.
Tunnel Site means that part of the Site comprising the Tunnel.
Typical Condition has the meaning given to it in Schedule 4 - GBR Administration.
Unit has the meaning given to it in Schedule 4 - GBR Administration.
Valid Tax Invoice means an invoice which complies with the GST Act relating to the
production and form of tax invoices for GST purposes.
Work under the Deed means the whole of the work to be supplied and carried out by
the Contractor in accordance with the Deed and as further described in the
Specification and includes all Changes and all work and activities necessary for
completion of the work to be carried out by the Contractor, whether described in the
Deed or not.
Works means that part of the Work under the Deed (including Changes) which is
required by the Deed to be handed over to the Principal.
1.2
2
Where a word or expression is not defined in clause 1.1, reference should be made to
the Specification unless the contrary intention appears.
Contract Documents
2.1
All documents forming part of the Deed are intended to be correlative,
complementary and mutually explanatory of one another. The Deed must be read as
a whole, and anything required by one document forming part of the Deed is deemed
to form part of the relevant party‟s obligations, whether or not required by any other
such document.
2.2
If:
(a)
the Principal or the Contractor notifies the Principal‟s Representative in
writing of; or
(b)
the Principal‟s Representative otherwise discovers,
an ambiguity, error, omission, discrepancy, inconsistency or other fault in, from or
between any of the terms of the Deed, the Principal‟s Representative must issue such
direction as may be necessary to resolve or correct that ambiguity, error, omission,
discrepancy, inconsistency or other fault.
2.3
The Contractor is not entitled to any compensation or extension of time arising out of
a direction from the Principal‟s Representative under clause 2.2, except as set out in
clause 2.5.
2.4
The parties acknowledge and agree that the Contractor is not responsible for any
ambiguity, error, omission, discrepancy, inconsistency or other fault in, from or
between any documentation in relation to the design of such parts of the Work under
the Deed for which the Principal has design responsibility under the Deed.
21
2.5
If the Principal‟s Representative is notified of, or otherwise discovers, an ambiguity,
error, omission, discrepancy, inconsistency or other fault in, from or between any
documentation in relation to the design of such parts of the Work under the Deed:
(a)
for which the Principal has design responsibility under the Deed; and
(b)
which would not have been reasonably discoverable by the Contractor in
discharging its obligations under clause 17.1,
the Principal‟s Representative must direct a Change under clause 33.
3
Interpretation
3.1
General
In the Deed unless a contrary intention is stated:
(a)
a reference to the Deed or another instrument includes any variation or
replacement of the Deed or that instrument;
(b)
a reference to the Deed includes all schedules, exhibits and annexures to the
Deed;
(c)
a reference to a statute, ordinance, code or other Law includes
consolidations, amendments, re-enactments or replacements of any of them;
(d)
a reference to a court is to an Australian court;
(e)
a reference to a party is to a party to the Deed;
(f)
the singular includes the plural and vice versa;
(g)
person includes an individual, corporation, partnership, joint venture,
association, trust, unincorporated association, Government Authority or any
other entity;
(h)
a reference to a person includes a reference to the person‟s legal personal
representatives, executors, administrators, successors in title, substitutes and
assigns;
(i)
a reference to $, AUD or dollar is to the lawful currency of the
Commonwealth of Australia;
(j)
a reference to a subcontractor includes a consultant or supplier;
(k)
if an act must be done on a specified day which is not a business day, it must
be done instead on the next business day;
(l)
if a period of time is specified and dates from a given day or the day of an
actual event, it is to be calculated exclusive of that day;
(m)
a reference to a month means a calendar month;
(n)
where an expression is defined, another part of speech or grammatical form
of that expression has a corresponding meaning;
22
3.2
(o)
headings are for reference only and do not form part of the Deed;
(p)
references to “includes”, “including” and “include” are to be read as if
followed by the words “without limitation”;
(q)
a reference to a clause, schedule, exhibit, annexure or appendix is a reference
to a clause of or schedule, exhibit, annexure or appendix to these General
Conditions of Deed; and
(r)
(in the Specification) wherever the imperative form of a verb is used alone
without it being prefaced by the words “The Contractor must”, those words
must be read to be included as prefacing that verb.
Amendment
No amendment or other variation of the Deed will be effective unless it is in writing,
is dated, expressly refers to the Deed, and is signed by the Authorised Representative
of each party.
3.3
3.4
3.5
Independent Contractor
(a)
The Contractor is an independent contractor performing the Work under the
Deed and its other obligations under the Deed. The Deed does not, in any
way, create any agency, partnership, joint venture or other joint relationship
between the parties.
(b)
Subject to the provisions of the Deed, the Contractor is solely responsible for
the manner in which the Work under the Deed is performed. All employees,
representatives or Subcontractors engaged by the Contractor in connection
with the performance of the Deed will be under the complete control of the
Contractor and will not be deemed to be employees of the Principal. Nothing
contained in the Deed or in any subcontract awarded by the Contractor will
be construed to create any contractual relationship between any of the
Contractor‟s employees, representatives or Subcontractors and the Principal.
Non-waiver
(a)
Subject to clause 3.4(b), no relaxation, forbearance, delay or indulgence by
either party in enforcing any of the terms and conditions of the Deed or the
granting of time by either party to the other will prejudice, affect or restrict
the rights of that party under the Deed, nor will any waiver by either party of
any breach of the Deed operate as a waiver of any subsequent or continuing
breach of the Deed.
(b)
Any waiver of a party‟s rights, powers or remedies under the Deed must be
in writing, dated and signed by the Authorised Representative of the party
granting such waiver, and must specify the right and the extent to which it is
being waived.
Severability
If any provision or condition of the Deed is prohibited or rendered invalid or
unenforceable, such prohibition, invalidity or unenforceability does not affect the
validity or enforceability of any other terms and conditions of the Deed.
23
3.6
Contra proferentem
In the interpretation of the Deed, no rule of construction applies to the disadvantage
of one party on the basis that it put forward the Deed or any part of it.
3.7
Joint and several
If the Contractor is comprised of more than one person:
3.8
(a)
the obligations of those persons as the Contractor under the Deed are joint
and several; and
(b)
the Principal may proceed against any or all of them in respect of the
Contractor‟s obligations under the Deed.
Comments, review, representation or approval by the Principal or the
Principal’s Representative
The Contractor acknowledges that no comment, review, representation, vetting,
inspection, examination, testing or approval by the Principal or the Principal‟s
Representative in respect of the Contractor‟s performance of its obligations under the
Deed will lessen or otherwise affect the Contractor‟s obligations under the Deed.
3.9
Separable Portions and use of partly completed Works
(a)
The interpretations of:
(i)
Date for Substantial Completion;
(ii)
Date of Substantial Completion; and
(iii)
Substantial Completion,
and clauses 4.1A(f), 4.1B(c)(iii), 15.1(b), 15.4, 21.1, 25.1(a), 25.2(a),
25.2(c), 25.2(e), 25.2(f), 30.3(a), 30.3(e), 30.3(f), 32.2, 33.3, 33.5, 33.8, 34,
35 and 36.2 apply separately to each of Separable Portion 1 and Separable
Portion 2 and references in those definitions and clauses to the Works and
the Work under the Deed means those parts of the Works and the Work
under the Deed comprised in the relevant Separable Portion.
(b)
In addition to the Separable Portions described in the Contract, the
Principal‟s Representative may by notice in writing to the Contractor,
determine:
(i)
that any part of the Work under the Deed or of a Separable Portion
will be a Separable Portion;
(ii)
the respective dates for Substantial Completion and/or Practical
Completion for the new Separable Portion and the resultant
Separable Portion (as applicable), which should be made reasonably
and in consultation with the Contractor; and
(iii)
the liquidated damages applicable to each such Separable Portion on
the basis of the proportion that the value of each new Separable
Portion bears to the value of the prior Separable Portion of which it
forms part, or, if appropriate, to the whole of the Work under the
24
Deed, applied to the liquidated damages for the previous Separable
Portion, or the Work under the Deed, as the case requires,
and, if Substantial Completion is applicable to the new Separable Portion,
clause 3.9(a) will be interpreted and separately apply to that new Separable
Portion in addition to Separable Portion 1 and Separable Portion 2.
(c)
3.10
Without limiting paragraph (b), if part of the Works has reached a stage
equivalent to that of Practical Completion but another part of the Works has
not reached such a stage, the Principal's Representative may determine:
(i)
that the respective parts shall be Separable Portions; and
(ii)
the liquidated damages applicable to each such Separable Portion on
the basis of the proportion that the value of each new Separable
Portion bears to the value of the prior Separable Portion of which it
forms part, or, if appropriate, to the whole of the Work under the
Deed, applied to the liquidated damages for the previous Separable
Portion, or the Work under the Deed, as the case requires.
Application of Deed
The Deed applies to the performance of the Work under the Deed before, on or after
the date of the Deed.
3.11
Entire agreement
Except to the extent set out in clause 47 of the agreement titled "EnergyAustralia
City East 132kV Cable Tunnel Project – Early Contractor Involvement Agreement"
between the Principal and the Contractor, the Deed constitutes the entire agreement
between the parties in respect of its subject matter and supersedes all prior
agreements, representations, warranties, promises, statements, negotiations and
letters in respect of its subject matter.
3.12
Counterparts
The Deed may consist of a number of copies each signed by one or more parties to
the Deed. If so, the signed copies are treated as making up the one document.
4
Scope of the Work under the Deed
4.1
Scope of work
(a)
The scope of the Work under the Deed is described in the Specification, but
that description does not limit the Contractor‟s obligation to undertake all
activities, subject to the terms of the Deed, necessary for performance of the
Work under the Deed.
(b)
The Contractor warrants that:
(i)
it has examined the Site and its surroundings;
(ii)
it has examined all other information relevant to the risks,
contingencies and other circumstances having an effect on its
25
obligations under the Deed which is obtainable by making
reasonable enquiries;
(c)
4.1A
(iii)
it has examined the Deed;
(iv)
it has satisfied itself as to the extent and nature of work including:
(A)
Materials and Construction Plant necessary for the execution
and completion of the Work under the Deed; and
(B)
any works of environmental remediation which are required
to be carried out as a result of activities or works undertaken
by the Contractor or its Subcontractors provided that the
Contract Price will be adjusted for any works of
environmental remediation for any existing contaminates
found or uncovered on the Site during the execution and
completion of the Work under the Deed as if those works
were directed as a Change under the Deed;
(v)
it has satisfied itself as to the means of access to the Site and the
accommodation it may require;
(vi)
it has satisfied itself as to the correctness and sufficiency of the Deed
and that the Contract Price covers the costs of complying with all the
Contractor‟s obligations under the Deed and of all matters and things
necessary for the due and proper completion of the Work under the
Deed; and
(vii)
it is practicable to execute and complete the Work under the Deed in
accordance with the Deed without any need for Changes.
Subject to the terms of the Deed, the Contractor is not relieved of any of its
obligations under the Deed, and it does not have any remedy against the
Principal, by reason of the existence or occurrence of any matter or thing not
anticipated by the Contractor as at the date of the Deed and which may not
be contemplated by the Deed.
Alternate scope of work due to progress
(a)
The parties acknowledge and agree the following:
(i)
as at the date of the Deed, the parties expect that the applicable Work
under the Deed will be carried out as contemplated by clause
4.1A(a)(ii);
(ii)
the:
(A)
Specification forming Exhibit A to the Deed; and
(B)
Contract Programme,
have been compiled on the basis that the excavation of the City East
Substation Stub Tunnel will be complete before the TBM arrives at
the point where the TBM Section of the Tunnel intersects with the
City East Substation Stub Tunnel (Intersection Point);
26
(iii)
depending on the progress (as against the Contract Programme) of:
(A)
the excavation of the TBM Section of the Tunnel; relative to
(B)
the excavation of the City East Substation Stub Tunnel,
it may be necessary, after the date of the Deed, for the Contractor to
change the way in which the City East Substation Stub Tunnel is
constructed. The extent of this potential change in construction
methodology is described further in Section 4.3 of Schedule 4 – GBR
Administration; and
(iv)
(b)
accordingly, the parties have included the flexibility in clause
4.1A(b) to replace the drawings numbered 208450, 208451, 208457,
208458, 208465, 208466 and 208467 in the Specification with the
alternative drawing in Exhibit A1.
If the Contractor considers (acting reasonably) that the Work under the Deed
will not be completed in the order contemplated by clause 4.1A(a)(ii), the
Contractor must, not later than 60 days prior to the date on which the TBM is
expected to arrive at the Intersection Point, provide written notice to the
Principal setting out:
(i)
the progress of the excavation of the TBM Section of the Tunnel as
against the Construction Programme;
(ii)
the progress of the excavation of the City East Substation Stub
Tunnel as against the Construction Programme; and
(iii)
the reasons why the Contractor considers that:
(A)
the excavation of the TBM Section of the Tunnel and/or the
excavation of the City East Substation Stub Tunnel (as the
case may be) is progressing otherwise than in accordance
with the Contract Programme; and
(B)
the excavation of the City East Substation Stub Tunnel will
not be complete before the TBM arrives at the Intersection
Point,
together with all relevant supporting documentation as reasonably required
by the Principal.
(c)
Unless the parties otherwise agree in writing, if:
(i)
the Contractor provides a written notice under clause 4.1A(b) and the
Principal has provided a notice under clause 4.1A(e)(i), the drawings
numbered 208450, 208451, 208457, 208458, 208465, 208466 and
208467 in the Specification will be deleted and replaced with the
alternative drawing in Exhibit A1 with effect from the date which is
30 days after the Principal receives the Contractor's notice under
clause 4.1A(b); or
(ii)
the Principal has provided a notice under clause 4.1A(e)(ii), the
drawings numbered 208450, 208451, 208457, 208458, 208465,
208466 and 208467 in the Specification will be deleted and replaced
27
with the alternative drawing in Exhibit A1 with effect from the date
of the Principal's notice under clause 4.1A(e)(ii).
(d)
Subject to clause 4.1A(f), the Contractor is not entitled to any adjustment to
the Contract Price, any extensions of time or delay costs, or any other
compensation, arising out of or in connection with the giving of the written
notice under clause 4.1A(b) or clause 4.1A(e) or the replacement of the
drawings numbered 208450, 208451, 208457, 208458, 208465, 208466 and
208467 in the Specification with the alternative drawing in Exhibit A1 under
this clause 4.1A.
(e)
If:
(i)
both of the following have occurred:
(A)
the Contractor has provided a written notice and all relevant
supporting documentation in accordance with clause 4.1A(b);
and
(B)
the Principal considers (acting reasonably) that the Work
under the Deed will not be completed in the order
contemplated by clause 4.1A(a)(ii) soley:
(aa)
due to an act or omission of the Principal (including a
failure to provide access to the Site in accordance
with clause 19.3 but excluding the exercise of the
Principal's express rights or powers under the Deed);
or
(ab)
because:
(I)
the proportion of Adverse Ground Conditions
encountered in the City East Substation Stub
Tunnel is greater than the expected
proportions included in Table 5.5.3 of the
GBR; or
(II)
Materially Adverse Conditions were
encountered in the City East Substation Stub
Tunnel,
the Principal must, within 30 days of receipt by the Principal of the
Contractor's written notice and all relevant supporting documentation
under clause 4.1A(b), provide a written notice to the Contractor to
that effect; or
(ii)
(f)
the Work under the Deed has not been completed in the order
contemplated by clause 4.1A(a)(ii), the Principal may provide a
written notice to the Contractor to that effect.
If the Principal provides a written notice to the Contractor under clause
4.1A(e):
(i)
the Contract Price will be adjusted by the relevant amount; and
28
(ii)
the Date for Substantial Completion and the Date for Practical
Completion will be adjusted by the relevant period,
set out in Schedule 1 – Contract Information.
4.1B
Masked for Confidentiality
4.2
Provisional Sums
A Provisional Sum is not itself payable by the Principal but where the work or item
to which the Provisional Sum relates is performed or supplied by the Contractor,
unless otherwise provided or agreed, the reasonable cost to perform the work or
supply the item (exclusive of GST) must be determined by the Principal‟s
Representative, and:
(a)
any difference between such cost and the particular Provisional Sum; and
(b)
the amount calculated by applying the rate specified in Schedule 1 - Contract
Information to such cost,
must be added to or deducted from the Contract Price, as the case may require.
29
5
Time for Commencement
5.1
6
Subject to clause 19.3, the Contractor must commence the Work under the Deed on
the Commencement Date.
Contractor’s Obligations
6.1
Compliance with the Deed, Law and Government Approvals
(a)
The Contractor must perform the Work under the Deed in a professional
manner and in accordance with the Specification and all other terms and
conditions of the Deed.
(b)
The Contractor must acquire all Government Approvals, which are necessary
for the performance of the Work under the Deed, except for the Development
Approvals.
(c)
Unless otherwise specified in the Deed, the Contractor must comply with all
Laws affecting the performance of the Work under the Deed and its other
obligations under the Deed and binding upon the Contractor.
(d)
The Contractor must, when performing its obligations under the Deed,
comply with all NSW Government policies, codes and guidelines relevant to
the Project and its execution of the Work under the Deed including the
following:
(e)
6.2
(i)
NSW Government‟s Occupational Health, Safety and Rehabilitation
Management System Guidelines;
(ii)
NSW Government‟s Industrial Relations Management Guidelines;
(iii)
NSW Government‟s Environmental Management System; and
(iv)
the NSW Government Code of Practice for Procurement.
The Contractor must, to the extent practical, conduct all work for the design
and construction of the Work under the Deed in a manner which will ensure
that it has minimum impact on and disruption to the Environment or the
community at or in the vicinity of the Site.
Compliance with Interface Agreements
(a)
The Contractor:
(i)
acknowledges that the Principal has entered or will enter into the
Interface Agreements described in Schedule 17 - Schedule of
Interface Agreement Responsibilities;
(ii)
must, during the performance of its obligations under the Deed, not
cause the Principal to be in breach of its obligations under those
Interface Agreements;
30
(b)
(iii)
must not transfer, grant or create, or purport to grant or create or
permit the creation of any right of way, easement, licence or security
interest in or over those agreements referred to in clause 6.2(a)(i);
(iv)
must comply with all of the Principal‟s obligations under each
Interface Agreement other than those identified in Schedule 17 Schedule of Interface Agreement Responsibilities as the Principal‟s
responsibility;
(v)
must assist the Principal in any way that the Principal reasonably
requires to enable the Principal to perform the obligations identified
as the Principal‟s responsibility in Schedule 17 - Schedule of
Interface Agreement Responsibilities; and
(vi)
must comply with any reasonable directions of the Principal‟s
Representative (who will have regard to any reasonable submissions
made by the Contractor to the Principal‟s Representative) in relation
to compliance with the relevant conditions and requirements of each
Interface Agreement.
The parties acknowledge that:
(i)
as at the date of the Deed, the terms and conditions of the Draft
Interface Agreements have not been finalised between the Principal
and the relevant Interface Party;
(ii)
subject to clause 6.2A, the Contractor has reviewed the Interface
Agreements executed at the date of the Deed (if any) and the Draft
Interface Agreements and has included in the Contract Price:
(A)
all of its costs (including the cost of all physical works) in
complying with the Principal‟s obligations under the
Interface Agreements executed at the date of the Deed (if
any) and the Draft Interface Agreements other than those
identified in Schedule 17 - Schedule of Interface Agreement
Responsibilities as the Principal‟s responsibility; and
(B)
a Provisional Sum amount of one hundred and eighty
thousand dollars ($180,000) for the activities described in
item 13.1 of the pricing schedule included in Schedule 3 –
Commercial Schedules and item 5.1 of Schedule 5 –
Provisional Sums;
(iii)
following execution of any Interface Agreement after the date of the
Deed, the Principal must promptly give the Contractor a copy of that
Interface Agreement;
(iv)
within 14 days of receipt of an executed Interface Agreement, the
Contractor must inform the Principal‟s Representative in writing of
any terms and conditions of the executed Interface Agreement which
the Contractor reasonably considers are substantially more onerous
than those contained in the relevant Draft Interface Agreement and
provide details of:
31
(A)
the additional administration costs to be incurred by the
Contractor in complying with such terms and conditions; and
(B)
the cost of carrying out any additional physical works not
forming part of the Work under the Deed;
(v)
if the Principal does not receive a notice from the Contractor under
clause 6.2(b)(iv) within the 14 day period, it is deemed that the
Contractor can carry out its obligations under the executed Interface
Agreement without any adjustment to the Contract Price;
(vi)
if the Principal‟s Representative receives a notice from the
Contractor under clause 6.2(b)(iv) within the 14 day period, then the
Principal‟s Representative must:
(A)
give the Contractor a notice setting out the Principal‟s
Representative‟s determination of the reasonable, additional
administration costs incurred by the Contractor in complying
with the executed Interface Agreement (as determined by the
Principal‟s Representative in accordance with clause 4.2);
and
(B)
if the terms of any Interface Agreements executed after the
date of the Deed require the Contractor to carry out any
physical work which:
(aa)
does not form part of the Work under the Deed; and
(ab)
is additional to any physical works contemplated by
the Interface Agreements executed at the date of the
Deed and the Draft Interface Agreements,
the Principal must direct a Change under clause 33; and
(vii)
6.2A
notwithstanding the provisions of this clause 6.2(b), the amount of
any additional costs incurred by the Contractor as a result of the
circumstances referred to in clause 6.2(b)(iv) will not be added to the
Contract Price unless the Contractor has taken all proper and
reasonable measures to avoid or minimise the extra costs resulting
from such circumstances.
Interface Agreement between the Principal and RailCorp
The Principal and the Contractor acknowledge and agree that any changes required
to the Design Documents by RailCorp under the RailCorp Interface Agreement may
impact on the Work under the Deed. If the Contractor is delayed or incurs more or
less cost as a result of RailCorp's rights to require changes to the Design Documents,
this will be deemed to be a Change and clause 33 (including clauses 33.3 and 33.8)
applies.
6.3
Development Approvals
(a)
The Contractor must comply with:
(i)
if the Bligh St Development Approval is granted, the conditions of
the Bligh St Development Approval which are notified by the
32
Principal to the Contractor as the Contractor's responsibility on the
following basis:
(A)
the notice is taken to be a direction for a Change for the
purposes of clause 33; and
(B)
the Change is to be valued in accordance with clause 33.8,
except to the extent that the responsibilities were already included in
the scope of the Work under the Deed; and
(ii)
(b)
6.4
the conditions of the CECT Development Approval which are
identified in Schedule 16A –Schedule of CECT Development
Approval Responsibilities as the Contractor's responsibility.
If the Contractor does not comply with any condition of the Development
Approvals for which it is responsible, the Principal may:
(i)
comply with that condition; and
(ii)
recover from the Contractor all costs and expenses incurred as a debt.
Project Plans
(a)
(b)
The Contractor acknowledges and agrees that the intended purposes of the
Project Plans include:
(i)
demonstrating to the Principal and relevant Government Authorities
that the Contractor has the understanding, capacity and capability at
all times to carry out the Work under the Deed in accordance with
the requirements of the Deed;
(ii)
ensuring that the Work under the Deed complies with the
requirements of the Deed, including the Development Approvals;
and
(iii)
allowing the Principal to understand how the Contractor will achieve
the performance outcomes specified in the Deed and otherwise fulfil
its obligations under the Deed.
The Contractor must:
(i)
develop, continually review and, if necessary, update the Project
Plans:
(A)
to take into account events or circumstances which will, or
may reasonably be expected to, affect the manner in which
the Contractor carries out the Work under the Deed,
including:
(aa)
Changes;
(ab)
changes in Law;
(ac)
Government Approvals;
33
(B)
(ii)
(c)
(ad)
the commencement of new phases or stages of
design or construction as shown in the Contract
Programme; and
(ae)
those events or circumstances identified in the
Specification in respect of each Project Plan; and
as otherwise specified in the Deed or directed by the
Principal‟s Representative; and
promptly submit each updated Project Plan to the Principal‟s
Representative.
The Principal and the Principal‟s Representative may:
(i)
review any Project Plan submitted under this clause 6.4; and
(ii)
if the Project Plan does not comply with the requirements of the
Deed, notify the Contractor of that non-compliance within 20
Business Days of the submission of the Project Plan.
If the Contractor receives a notice under this clause 6.4(c), the Contractor
must promptly submit an amended Project Plan to the Principal‟s
Representative.
(d)
The Principal and the Principal‟s Representative owe no duty of care to the
Contractor to review any Project Plan submitted by the Contractor for errors,
omissions or compliance with the Deed. No review of, comments upon, or
notice in respect of, or any failure to review, comment upon or give notice in
respect of, any Project Plan submitted by the Contractor, or any other
direction, act or omission of the Principal or the Principal‟s Representative,
will in any way:
(i)
relieve the Contractor from, or alter or affect, the Contractor‟s
liabilities, obligations or responsibilities whether under the Deed or
otherwise according to Law; or
(ii)
prejudice the Principal‟s rights against the Contractor whether under
the Deed or otherwise according to Law.
(e)
The Contractor must comply with each Project Plan which has been
submitted to the Principal‟s Representative and in respect of which the
Contractor has not been given a notice under clause 6.4(c).
(f)
The Contractor will not be relieved from compliance with any of its
obligations under the Deed or from any of its liabilities under the Deed or
otherwise according to Law as a result of:
(i)
compliance by the Contractor with its obligations under this
clause 6.4, including compliance with any Project Plan; or
(ii)
any failure by the Principal, or anyone acting on behalf of the
Principal, to detect any non-compliance, including where any failure
arises from any negligence on the part of the Principal, the
Principal‟s Representative or any other person.
34
7
Terms of Payment
7.1
7.2
Payments
(a)
The Principal must pay to the Contractor the Contract Price in accordance
with the procedures set out in this clause 7, Schedule 3 - Commercial
Schedules and Schedule 4 - GBR Administration.
(b)
Work performed pursuant to a Change must be paid for in accordance with
the applicable Change and must be invoiced and documented under
clause 7.3 as part of the Work under the Deed.
Detailed Statement
The Contractor must submit to the Principal a cash flow indicating the anticipated
value of work to be executed during each month from commencement of any part of
the Work under the Deed until Completion at the following times:
7.3
(a)
not later than one week after the Commencement Date; and
(b)
each month following the Commencement Date.
Progress Claims
(a)
At each time identified for a progress claim in Schedule 1 - Contract
Information, the Contractor must submit to the Principal‟s Representative a
Progress Claim signed by the Contractor‟s Representative which must set
out:
(i)
the value of Work under the Deed completed by the Contractor
(subject to the limitations (if any) for the particular work set out in
the pricing schedule included in Schedule 3 - Commercial
Schedules), to the date of the Progress Claim, detailed against the
applicable categories of costs in Schedule 3 - Commercial
Schedules; and
(ii)
the sum of all prior payments made to that date,
and be accompanied by the statements, declarations and other documents:
(b)
(iii)
described in clause 7.3(e); and
(iv)
described in the pricing preamble to the pricing schedule included in
Schedule 3 - Commercial Schedules.
The Contractor may not include in a Progress Claim under clause 7.3(a) any
amount for Materials which have been fabricated or manufactured off-site
but which have not been incorporated into the Works, except for Approved
Off-Site Materials.
The Principal‟s Representative may give written approval for payment to the
Contractor for Approved Off-Site Materials, provided the Contractor:
(i)
ensures that the Approved Off-Site Materials are:
35
(c)
(A)
in a secured location;
(B)
properly stored, marked with the names of the Contractor
and the Principal, protected and insured; and
(C)
free from defects, which are discoverable by inspection;
(ii)
ensures that clear title to the materials, goods or equipment will pass
to the Principal upon payment;
(iii)
indemnifies the Principal against loss of, or damage to, the Approved
Off-Site Materials and against any claims by third parties to title in
the Approved Off-Site Materials, until they are incorporated into the
Works; and
(iv)
provides the Principal with:
(A)
an unconditional undertaking in the form of Schedule 9 Form of Unconditional Undertaking, and from a financial
institution acceptable to the Principal, equal to the total value
of the Approved Off-Site Materials, and
(B)
evidence reasonably satisfactory to the Principal‟s
Representative that the Approved Off-Site Materials have
been insured.
Within 10 business days of receiving a Progress Claim and the Contractor‟s
progress report under clause 15.3 for the relevant month, the Principal‟s
Representative must determine the amount payable in respect of the Progress
Claim and issue a certificate to the Principal and the Contractor identifying
the Progress Claim to which it relates and setting out that determination
showing:
(i)
the Principal‟s Representative‟s assessment of the value of the Work
under the Deed completed by the Contractor, after allowing for the
cost of rectifying any Defect;
(ii)
the value of the Work under the Deed completed by the Contractor
assessed by the Principal‟s Representative and taken into account in
determining the amount certified for payment to the Contractor by
the Principal, or to the Principal by the Contractor, in the last
certificate issued under this clause 7.3(c);
(iii)
any moneys which have been set-off or deducted under clause 7.6;
(iv)
any moneys which are due or which may become due from the
Contractor to the Principal in respect of the Deed or the Work under
the Deed; and
(v)
the amount (if any) certified as then being due for payment to the
Contractor by the Principal or to the Principal by the Contractor, as
the case may be.
The Principal‟s Representative must include in or with the certificate, details
of the reason for any difference between the amount certified as payable and
36
the amount claimed by the Contractor, including (if applicable) the reason
why any payment is being withheld.
(d)
The Contractor must give the Principal a Valid Tax Invoice in respect of the
amount certified as then being due for payment to the Contractor by the
Principal plus any amount in respect of GST to which the Contractor is
entitled under clause 9.2 within seven business days of receipt of that
certificate.
(e)
The Contractor must give the Principal‟s Representative as part of each
Progress Claim under clause 7.3(a), statement under clause 7.4(a) and
statement under clause 7.5(a):
(f)
(g)
(i)
a duly signed written statement which complies with the Contractor‟s
obligations under section 127 of the Industrial Relations Act 1996
(NSW), Schedule 2 Part 5 of the Pay-roll Tax Act 2007 (NSW) and
section 175B of the Workers Compensation Act 1987 (NSW) to
provide a statement to the “principal contractor” as contemplated by
those Acts. At the date of the Deed, a duly completed signed written
statement in the approved form set out in Part 1 of Schedule 14 Subcontractors Statement and Statutory Declaration, accompanied
by the required certificate of currency, will comply with the
requirements of this clause 7.3(e)(i); and
(ii)
a statutory declaration in the approved form set out in Part 2 of
Schedule 14 - Subcontractors Statement and Statutory Declaration
that all its Subcontractors have been paid all amounts due and
payable to them for work performed by them in respect of the Work
under the Deed.
Subject to clause 7.9, where an amount is due from the Principal to the
Contractor in respect of a certificate issued pursuant to clause 7.3(c), the
Principal must pay the Contractor the amount certified as payable by the
Principal‟s Representative under clause 7.3(c) by the latest of:
(i)
the 25th day of the following month after receipt by the Principal‟s
Representative of the Progress Claim provided in accordance with
clause 7.3(a);
(ii)
the receipt by the Principal‟s Representative of the Contractor‟s
progress report under clause 15.3 for the month the subject of the
Progress Claim;
(iii)
the receipt by the Principal of the evidence required under
clause 7.3(b) (where the certificate from the Principal‟s
Representative includes payment for Approved Off-Site Materials);
(iv)
the receipt by the Principal of security under clause 8; and
(v)
the receipt by the Principal of the evidence of insurance referred to in
clause 29.
Where an amount is due from the Contractor to the Principal in respect of a
certificate issued pursuant to clause 7.3(c), the Contractor must, within 30
37
days after receipt of that certificate, pay the Principal the amount stated in
that certificate as due from the Contractor to the Principal.
7.4
Completion Payment
(a)
Within one month after receipt of the last Completion Certificate under
clause 22.2, the Contractor must submit to the Principal‟s Representative a
statement for the Contract Price, summarising and reconciling all previous
payments made by the Principal and all adjustments in the Contract Price
pursuant to the terms of the Deed together with the statements, declarations
and other documents described in clause 7.3(e).
(b)
Within 10 business days of receiving a statement under clause 7.4(a), the
Principal‟s Representative must determine the amount payable in respect of
the Contractor‟s statement and issue a certificate to the Principal and the
Contractor identifying the statement to which it relates and setting out that
determination showing:
(i)
the Principal‟s Representative‟s assessment of the value of the Work
under the Deed completed by the Contractor, after allowing for the
cost of rectifying any Defect;
(ii)
the value of the Work under the Deed completed by the Contractor
assessed by the Principal‟s Representative and taken into account in
determining the amount certified for payment to the Contractor by
the Principal, or to the Principal by the Contractor, in the last
certificate issued under clause 7.3(c);
(iii)
any moneys which have been previously set-off or deducted under
clause 7.6;
(iv)
any moneys which are due or which may become due from the
Contractor to the Principal in respect of the Deed or the Work under
the Deed; and
(v)
the amount (if any) certified as then being due for payment to the
Contractor by the Principal or to the Principal by the Contractor, as
the case may be.
The Principal‟s Representative must include in or with the certificate, details
of the reason for any difference between the amount certified as payable and
the amount claimed by the Contractor, including (if applicable) the reason
why any payment is being withheld.
(c)
The Contractor must give the Principal a Valid Tax Invoice in respect of the
amount certified as then being due for payment to the Contractor by the
Principal plus any amount in respect of GST to which the Contractor is
entitled under clause 9.2 within seven business days of receipt of that
certificate.
(d)
Subject to clause 7.9, where an amount is due from the Principal to the
Contractor in respect of a certificate issued pursuant to clause 7.4(b), the
Principal must pay the Contractor the amount certified as payable by the
Principal‟s Representative under clause 7.4(b) by the latest of:
38
(e)
7.5
(i)
the 25th day of the following month after receipt by the Principal‟s
Representative of the Contractor‟s statement under clause 7.4(a);
(ii)
the receipt by the Principal‟s Representative of the written statement
and statutory declaration referred to in clause 7.3(e);
(iii)
the receipt by the Principal‟s Representative of the Contractor‟s
progress report under clause 15.3 for the month the subject of the
Contractor‟s statement under clause 7.4(a);
(iv)
the receipt by the Principal of security under clause 8; and
(v)
the receipt by the Principal of the evidence of insurance referred to in
clause 29.
Where an amount is due from the Contractor to the Principal in respect of a
certificate issued pursuant to clause 7.4(b), the Contractor must, within 30
days after receipt of that certificate, pay the Principal the amount stated in
that certificate as due from the Contractor to the Principal.
Final Payment
(a)
Within one month of the expiry of the last Defects Correction Period under
the Deed to expire, the Contractor must submit to the Principal‟s
Representative a statement endorsed as its “Final Statement” setting out any
amounts claimed by the Contractor under the Deed or otherwise arising out
of or in connection with the Work under the Deed together with the
statements, declarations and other documents described in clause 7.3(e).
(b)
Any claims or actions whatsoever which the Contractor may have which are
not included in the Final Statement under clause 7.5(a), whether in contract,
tort, equity, under statute or otherwise, under or arising out of or in
connection with the Deed, will be released and forever discharged upon the
expiry of the time stipulated in clause 7.5(a) for the Contractor to lodge its
Final Statement.
(c)
The Principal‟s Representative may, within five business days of receipt of
the Final Statement, request further substantiating information of any claim
in the Final Statement and the Contractor must provide such information
within three business days of the Principal‟s Representative‟s request.
(d)
The Principal‟s Representative may issue a Final Payment Certificate at any
time after the time for the Contractor to submit the Final Statement (whether
or not the Contractor has submitted a Final Statement). If the Contractor has
submitted the Final Statement, the Principal‟s Representative must issue the
Final Payment Certificate within the later of:
(i)
10 business days after the Contractor has submitted the Final
Statement; and
(ii)
receipt by the Principal of a duly executed deed of release (in a form
acceptable to the Principal) from the Contractor stating that it
releases the Principal from and against any and all claims under or
arising out of or in connection with the Deed which may be brought
39
by the Contractor against the Principal or any of its employees,
agents, consultants, successors or assignees.
(e)
The Final Payment Certificate must state:
(i)
the Contract Price adjusted according to the provisions of the Deed;
(ii)
any moneys which have been previously set-off or deducted under
clause 7.6;
(iii)
any moneys which are due or which may become due to the Principal
in respect of the Deed or the Work under the Deed; and
(iv)
the amount certified as then being due for payment to the Contractor
by the Principal or to the Principal by the Contractor, as the case
may be.
The Principal‟s Representative must include in or with the certificate, details
of the reason for any difference between the amount certified as payable and
the amount claimed by the Contractor in its Final Statement, including (if
applicable) the reason why any payment is being withheld.
(f)
The Contractor must give the Principal a Valid Tax Invoice in respect of the
amount certified as then being due for payment to the Contractor by the
Principal plus any amount in respect of GST to which the Contractor is
entitled under clause 9.2 within seven business days of receipt of that
certificate.
(g)
Subject to clause 7.9, where an amount is due from the Principal to the
Contractor in respect of the Final Payment Certificate, the Principal must pay
the Contractor the amount stated in the Final Payment Certificate as due from
the Principal to the Contractor on the later of:
(h)
7.6
(i)
the 25th day of the following month after the issue of the Final
Payment Certificate; or
(ii)
the receipt by the Principal‟s Representative of the written statement
and statutory declaration referred to in clause 7.3(e).
Where an amount is due from the Contractor to the Principal in respect of the
Final Payment Certificate, the Contractor must, within one month after the
issue of the Final Payment Certificate, pay the Principal the amount stated in
the Final Payment Certificate as due from the Contractor to the Principal.
Set Off
The Principal may deduct or set off from:
(a)
any payments due to the Contractor under the Deed (including any amounts
certified by the Principal‟s Representative); and
(b)
the amount available to the Principal if it exercises its rights under the
security (whether in the form of unconditional undertakings or retention
moneys) referred to in clause 8,
40
any moneys due or which may become due from the Contractor to the Principal,
whether under the Deed or otherwise (unless they have already been included in a
Principal‟s Representative‟s determination under clauses 7.3(b), 7.4(b) or 7.5(d))
including the liquidated damages referred to in clause 25 and, where the Contractor
has failed to rectify any Defect of which the Principal has given reasonable notice to
the Contractor, the reasonable costs of rectifying that Defect. Such amount of
reasonable costs (less any amounts actually expended by the Principal) must be paid
to the Contractor in future progress payments if the Contractor rectifies the Defect.
7.7
Nature of Payments
No payment by the Principal to the Contractor will be taken to be acceptance of any
work undertaken by the Contractor or evidence of the value of work or an admission
of liability on the part of the Principal, and all payments other than the Final Payment
will be payment on account only.
7.8
No adjustment to Contract Price for rise and fall
The Contract Price, and the rates and lump sums it includes, are not subject to change
for rise and fall including:
(a)
for exchange rates;
(b)
in the cost of labour or materials provided by the Contractor; or
(c)
for new, changed or increased taxes or duties,
unless expressly stated in the Deed.
7.9
Payment Withholding Request
Without limiting clause 7.6, the Principal and the Contractor acknowledge and agree
that where:
(a)
the Principal receives a Payment Withholding Request from a Subcontractor;
and
(b)
the Principal withholds, from any one or more payments of the Contract
Price and/or any other payments under the Deed, the amount set out in the
Payment Withholding Request,
then:
(c)
the Principal's withholding of any payment or amount referred to in
clause 7.9(b) shall not be a breach of the Deed;
(d)
subject to clause 7.9(e), the Principal will not be liable in respect of any
claim or action whatsoever by the Contractor arising out of or in connection
with the Principal's withholding of any payment or amount referred to in
clause 7.9(b), including any claim or action for interest on such payment or
amount; and
(e)
clause 7.9(d) does not apply to any right, claim or action by the Contractor
arising under the Building and Construction Industry Security of Payment
Act 1999 (NSW).
41
8
Security
8.1
If it has not done so before the date of the Deed, on the date of the Deed the
Contractor must provide to the Principal five unconditional undertakings for the
amounts specified in Schedule 1 - Contract Information in the form in Schedule 9 Form of Unconditional Undertaking and from a financial institution acceptable to the
Principal, as security for the performance of its obligations under the Deed.
8.2
Before the Contractor is entitled to make a claim for payment in respect of any
portion of Items 2.3 – 2.6 (inclusive) of the Pricing Schedule included in Schedule 3
- Commercial Schedules, the Contractor must provide to the Principal an
unconditional undertaking for the amount specified in Schedule 1 - Contract
Information and in the form in Schedule 9 - Form of Unconditional Undertaking and
from a financial institution acceptable to the Principal, as security for the
performance of the Contractor‟s obligations under the Deed in respect of the
procurement and installation of the TBM.
8.3
The Contractor may by written notice to the Principal request permission to
substitute any form of security required under this clause 8. The Principal may, in its
absolute discretion, accept or reject the request. If permission is granted, to the
extent another form of security is provided by the Contractor, the Principal must
promptly release and return the original security.
8.4
Subject to clause 8.5, the Principal must:
(a)
(b)
in respect of the security referred to in clause 8.1:
(i)
release one of the unconditional undertakings for the value of 0.5%
of the Contract Price within 10 days after the Date of Substantial
Completion of Separable Portion 1;
(ii)
release one of the unconditional undertakings for the value of 0.5%
of the Contract Price within 10 days after the Date of Substantial
Completion of Separable Portion 2;
(iii)
release the unconditional undertaking for the value of 3% of the
Contract Price within 10 days after the Date of Practical Completion
of Separable Portion 3;
(iv)
release one of the unconditional undertakings for the value of 0.5%
of the Contract Price within one month after the expiry of the last
Defects Correction Period; and
(v)
release one of the unconditional undertakings for the value of 0.5%
of the Contract Price within one month after the issue of the Final
Payment Certificate;
in respect of the security referred to in clause 8.2, release the unconditional
undertaking within 10 days after the TBM has been installed on the Site and
the Contractor has provided the Principal with evidence reasonably
satisfactory to the Principal‟s Representative that:
(i)
the TBM has passed all acceptance testing required under the Deed;
42
(c)
8.5
(ii)
title to the TBM has passed to the Contractor; and
(iii)
the TBM has been insured by the Contractor for the full
reinstatement value of the TBM; and
in respect of any security provided by the Contractor pursuant to
clause 7.3(b)(iv)(A), release the unconditional undertaking within 10 days
after all of the relevant materials have been incorporated into the Works.
The Principal may have recourse to the security:
(a)
(b)
referred to in clause 8.1:
(i)
at any time where it reasonably believes that the Contractor has not
duly and properly performed any of its obligations under the Deed;
or
(ii)
to recover any moneys which become payable from the Contractor to
the Principal, under or in connection with the Deed including any
liability of the Contractor for liquidated damages, pursuant to the
indemnities given under clause 28.1 or pursuant to any cause of
action which the Principal may have against the Contractor whether
for breach of contract, in tort, under statute or otherwise. The
Principal will have no obligation to release any security for so long
as the Contractor has any liability to the Principal (whether actual or
contingent) of which the Principal has given notice to the Contractor
and which equals or exceeds the value of the security;
referred to in clause 8.2, at any time where it reasonably believes the
Contractor:
(i)
has not duly and properly performed any of its obligations as
contemplated by clause 8.4(b); or
(ii)
is unable to demonstrate to the Principal‟s Representative‟s
reasonable satisfaction that it is able to install the TBM on the Site
within a reasonable time after the date identified in the Contract
Programme for the installation and commissioning of the TBM on
the Site; and
(c)
referred to in clause 7.3(b)(iv)(A), at any time where it reasonably believes
the Contractor has not duly and properly performed any of its obligations as
contemplated by clause 7.3(b).
(a)
The Contractor must not take any steps whatever to:
8.6
(i)
injunct the issuer of the unconditional undertakings referred to in
clauses 8.1, 8.2 and 7.3(b)(iv)(A) or the Principal in respect of
dealing with those unconditional undertakings; or
(ii)
restrain the Principal from exercising its rights under the
unconditional undertakings referred to in clause 8.1, 8.2 and
7.3(b)(iv)(A).
43
(b)
(c)
8.7
9
The Principal:
(i)
is not obliged to pay the Contractor interest on the proceeds of the
unconditional undertakings referred to in clauses 8.1, 8.2 and
7.3(b)(iv)(A) if any of them is converted into cash; and
(ii)
does not hold the proceeds of any unconditional undertakings on
trust for the Contractor.
The Contractor is responsible for all stamp duty (including penalties, if
applicable) payable in connection with:
(i)
the unconditional undertakings provided by the Contractor under
clauses 8.1, 8.2 and 7.3(b)(iv)(A); and
(ii)
any demands made on those unconditional undertakings.
If the Contractor is a subsidiary (as defined in the Corporations Act), and it has not
done so prior to the date of the Deed, on the date of the Deed the Contractor must
provide to the Principal a parent company guarantee and indemnity in the form set
out in Schedule 15 - Guarantee and Indemnity, duly executed by the Contractor‟s
parent company (the “Guarantor”) for the performance of the obligations and the
discharge of the liabilities of the Contractor under the Deed.
Taxes
9.1
Except as otherwise specifically provided in the Deed, the Contractor must bear and
pay all present Taxes (other than GST) in connection with the Deed and the
execution of the Work under the Deed.
9.2
If any supply made under the Deed is, or becomes, subject to GST, the party to
whom the supply is made (“Recipient”) must pay to the party making the supply
(“Supplier”), as consideration, in addition to any consideration payable or to be
provided elsewhere in the Deed, subject to issuing a Valid Tax Invoice, an additional
amount on account of GST, such amount to be calculated by multiplying the
consideration by the applicable rate of GST.
9.3
Any amount in respect of GST payable under clause 9.2 must be paid to the Supplier
by the 21st day of the month following the month in which the Recipient receives the
Valid Tax Invoice.
9.4
If any party is required to reimburse or indemnify the other party for a cost or
expense (“Cost”) incurred by the other party, the amount of that Cost for the purpose
of the Deed is the amount of the Cost incurred, less the amount of any input tax
credit or refund of GST, which the party incurring the Cost is entitled to claim in
respect of the Cost.
9.5
If GST is linked with the abolition or reduction of other taxes and charges, all
amounts payable by the Recipient to the Supplier under the Deed (excluding GST)
must be reduced by the same proportion as the actual total costs of the Supplier
(excluding GST) are reduced either directly as a result of the abolition or reduction
of other taxes and charges payable by the Supplier or indirectly by way of any
reduction in prices (excluding GST) charged to the Supplier.
44
9.6
10
Unless otherwise expressly stated, all prices or other sums payable or consideration
to be provided under the Deed are exclusive of GST.
Security of Payment Act
10.1
The Contractor must:
(a)
(b)
promptly give the Principal and the Principal‟s Representative a copy of any
notice the Contractor:
(i)
receives from a Subcontractor under section 15, 16 or 24 of the
Security of Payment Act; or
(ii)
has been required to supply to a Subcontractor under section 15(1) of
the Contractors Debts Act 1997 (NSW) setting out the Principal‟s
name; and
promptly notify the Principal and the Principal‟s Representative if it becomes
aware that a Subcontractor intends to exercise a statutory lien, under section
11(3) of the Security of Payment Act, over unfixed Materials or Construction
Plant supplied by the Subcontractor for use in carrying out work forming part
of the Work under the Deed.
10.2
If the Principal becomes aware that a Subcontractor is entitled to suspend work under
section 27 of the Security of Payment Act, the Principal may pay the Subcontractor
such money that is, or may be, owing to the Subcontractor for work forming part of
the Work under the Deed and the Principal may recover any amount so paid for the
Contractor as a debt.
10.3
The Contractor must indemnify the Principal against any loss, expense or damage of
any nature, including financial loss and lawyers‟ fees and expenses on an indemnity
basis, suffered or incurred by the Principal arising out of:
10.4
(a)
a suspension by a Subcontractor of work, which forms part of the Work
under the Deed, under section 27 of the Security of Payment Act;
(b)
a notice of claim being served on the Principal under Part 2 of the
Contractors Debts Act 1997 (NSW);
(c)
a Subcontractor exercising a statutory lien, under section 11(3) of the
Security of Payment Act, over unfixed Materials or Construction Plant
supplied by the Subcontractor for use in carrying out work forming part of
the Work under the Deed; and
(d)
a failure by the Contractor to comply with clause 10.1(a).
Any payment claim under section 13 of the Security of Payment Act the Contractor
serves on the Principal, and any notice required to be served on, or copy of an
adjudication application required to be copied to, the Principal by the Contractor
under any provision of the Security of Payment Act, must be addressed to the address
and to the attention of the Authorised Representative of the Principal.
45
10.5
11
For the purposes of this clause 10, work refers to work which the Contractor is, or
may be, required to do under the Deed and includes Materials, design and other
services and temporary works.
Intellectual Property Rights
11.1
11.2
Vesting of Intellectual Property Rights
(a)
All Intellectual Property Rights created, discovered, or coming into existence
as a result of, for the purposes of, or in connection with the performance of
the Work under the Deed in accordance with the Deed will be vested in and
owned by the Principal upon their creation, discovery or coming into
existence and the Contractor must do all things necessary to ensure that the
Principal has the benefit of and unencumbered title to such Intellectual
Property Rights.
(b)
If anything referred to in clause 11.1(a) cannot be immediately transferred to
or vested in the Principal, the Contractor must ensure that the Principal is
provided with an unrestricted, non-exclusive, irrevocable (in whole or in
part) and royalty-free licence (whether by sub-licence from the Contractor or
direct licence from the owner of those Intellectual Property Rights) to use,
and to grant rights to third parties to use, those Intellectual Property Rights.
Non-exclusive licence
The Contractor grants to the Principal an unrestricted, non-exclusive, irrevocable (in
whole or in part) and royalty-free licence to use the Intellectual Property Rights in
anything owned or developed by the Contractor prior to the date of the Deed for the
purposes of executing, using, operating or maintaining the Works.
11.3
Infringement of Intellectual Property Rights
Each party must inform the other immediately upon becoming aware of any
infringement or threatened infringement of any Intellectual Property Rights. The
parties agree to co-operate with each other by doing all acts and things which the
party owning such Intellectual Property Rights may reasonably require in respect of
any infringement or threatened infringement.
11.4
Moral Rights
The Contractor must procure from any person (including each of its relevant
employees and relevant employees of its Subcontractors) who is an author (in this
clause called “author”) of any copyright work forming part of the documentation
produced by or on behalf of the Contractor as part of the Work under the Deed (in
this clause called “material”) which is assigned or licensed to the Principal under the
Deed, and (to the extent the Contractor itself has any Moral Rights as an author of
such material) hereby itself grants:
(a)
to the extent permitted by law, an unconditional and irrevocable waiver of all
Moral Rights in respect of such material to which the author may be or
become entitled, whether in Australia or overseas; and
(b)
consent in writing authorising:
46
(i)
the Principal;
(ii)
the Principal‟s licensees and successors in title; and
(iii)
any other person authorised by the Principal or by such a licensee or
successor in title,
to exercise in accordance with the Deed all acts comprised in the copyright
in the material including the use, dealing, reproduction, modification,
distortion, abridgement, revision, retitling, transmission, publication,
exhibition, adaptation or translation into other dimensions, format or media
of that material:
(iv)
without attribution of authorship to the author;
(v)
bearing the name of the Project, the Contractor, the Principal, the
Principal‟s Representative, or any other person associated with the
Project;
(vi)
even if it results in “derogatory treatment” which may be prejudicial
to the author‟s honour or reputation; and
(vii)
by changing, relocating, demolishing or destroying any three
dimensional reproduction of that material without notice to or
consultation with the author,
and the Contractor must ensure that the consent and waiver is genuinely
given and not obtained by duress or by the making of any false or
misleading statement. The Contractor must produce all consents and
waivers to the Principal‟s Representative upon receipt of a direction to do
so.
11.5
Survival of Obligations
The obligations in this clause 11 will continue notwithstanding completion,
termination or any other discharge of the Deed.
12
Confidential Information
12.1
The Contractor must ensure that all Confidential Information is kept confidential and
must not disclose directly or indirectly any Confidential Information to a third party
without the prior approval of the Principal, provided that the foregoing provisions
will not apply to Confidential Information which:
(a)
was in the Contractor‟s possession prior to the date of the Deed except where
the Confidential Information was provided directly or indirectly by the
Principal or which is the subject of a confidential obligation between the
parties; or
(b)
becomes generally available to the public or is in the public domain; or
(c)
is required to be produced by order of the Court or under the requirements of
any applicable Law; or
(d)
is obtained from a third party without an obligation of confidentiality.
47
13
12.2
The Contractor must not use any Confidential Information received from the
Principal for any purpose other than the performance of the Work under the Deed
and its obligations under the Deed.
12.3
The Contractor may disclose Confidential Information:
(a)
as required or authorised by any Law; and
(b)
as required by the listing rules of any stock exchange where the Contractor‟s
securities are listed or quoted.
12.4
The obligation imposed upon the Contractor not to disclose Confidential Information
will not cease on the completion, expiry, or termination of the Deed or any other
discharge of the Deed.
12.5
Except as contemplated by clause 12.7, the Contractor must not, and must ensure its
Subcontractors and other parties employed directly or indirectly by the Contractor do
not, release or disclose to the media any information relating to the Work under the
Deed.
12.6
All media requests received by the Contractor must be directed to the Principal for
consideration.
12.7
Where the Contractor considers a media release is required, the Contractor must
submit the details and a draft to the Principal for consideration and/or approval.
Details to be included in such a submission are the media name, contact name,
telephone number, facsimile number and electronic address, as applicable.
Representatives
13.1
Principal’s Representative
(a)
Within seven days of the date of the Deed, the Principal must appoint and
notify the Contractor of the name of the Principal‟s Representative. The
Principal may from time to time appoint some other person as the Principal‟s
Representative in place of the person previously so appointed and must give
a notice of the name of such other person to the Contractor without delay.
Such appointment will only take effect upon receipt of such notice by the
Contractor. The Principal‟s Representative must represent and act for the
Principal at all times during the currency of the Deed.
All notices, instructions, information and other communications to be given
by the Contractor to the Principal under the Deed must be given to the
Principal‟s Representative, except as otherwise provided.
(b)
The Principal‟s Representative may at any time delegate to any person any of
the powers and duties vested in him or her. Any such delegation may be
revoked at any time. Any such delegation or revocation will be subject to a
prior notice signed by the Principal‟s Representative and any notice of
delegation or revocation must specify the powers and duties thereby
delegated or revoked. Such delegation or revocation will become valid upon
receipt of such notice by the Contractor.
48
Any act or exercise by any person of powers and duties delegated to him or
her in accordance with this clause 13.1(b) will be deemed to be an act or
exercise by the Principal‟s Representative.
13.2
(c)
The Principal‟s Representative will carry out his or her functions under the
Deed as the agent of the Principal (and not as an independent certifier,
assessor or valuer).
(d)
If pursuant to a provision of the Deed enabling the Principal‟s Representative
to give directions, the Principal‟s Representative gives a direction, the
Contractor must comply with that direction.
(e)
Except where the Deed otherwise provides, the Principal‟s Representative
may give a direction orally but must as soon as practicable confirm it in
writing. If the Contractor in writing requests the Principal‟s Representative
to confirm an oral direction, the Contractor will not be bound to comply with
the direction until it is confirmed in writing by the Principal‟s
Representative.
Contractor’s Representative and Site Representative
(a)
The Contractor has appointed the person so specified in Schedule 1 Contract Information as the Contractor‟s Representative who at all times
during the currency of the Deed has authority to act on behalf of the
Contractor in respect of the Deed.
(b)
All notices, instructions, information and all other communications by the
Principal to the Contractor under the Deed must be given to the Contractor‟s
Representative, except as otherwise provided in the Deed.
(c)
The Contractor‟s Representative may at any time delegate to any person any
of the powers, functions and authorities vested in him or her. Any such
delegation may be revoked at any time. Any such delegation or revocation
will be subject to a prior notice signed by the Contractor‟s Representative
and any notice of delegation or revocation must specify the powers, functions
and authorities delegated or revoked. No such delegation or revocation will
take effect unless and until the Principal has received such notice.
Any act or exercise by any person of powers, functions and authorities so
delegated to him or her in accordance with this clause 13.2(c) will be deemed
to be an act or exercise by the Contractor‟s Representative.
The Contractor must ensure that any delegate notified to the Principal under
this clause 13.2(c) is not replaced without the prior approval of the Principal.
(d)
From the commencement of the Work under the Deed at the Site until
Completion, the Contractor‟s Representative must appoint suitable persons
as the Site Representatives. The Site Representatives must supervise all
work done at the Site by the Contractor and must be present at the Site
throughout working hours except when on leave, sick or absent for reasons
connected with the proper performance of the Work under the Deed.
Whenever a Site Representative is absent from the Site, a suitable person
must be appointed to act as his or her deputy.
49
The Principal or the Principal‟s Representative must give all notices,
instructions, information and other communications pertaining to the
execution of the Work under the Deed at the Site to the relevant Site
Representative or, in his or her absence, his or her deputy.
A notice given by the Principal or the Principal‟s Representative under this
clause 13.2(d) will be deemed to be a notice to the Contractor‟s
Representative for the purposes of clause 13.2(b).
14
15
Contractor’s Organisation
14.1
On or before the Commencement Date, the Contractor must supply to the Principal
an organisation chart showing the proposed organisation to be established by the
Contractor for carrying out the Work under the Deed, including the Contractor‟s Key
Personnel specified in Schedule 6 - Key Personnel.
14.2
The Contractor must not remove or replace any members of the Key Personnel
without the prior approval of the Principal‟s Representative, which approval must not
be unreasonably withheld. Any substitute personnel proposed by the Contractor
must at least be equally qualified for the duties of the position as the persons for
whom they are substituted.
14.3
The Contractor must promptly give to the Principal‟s Representative notice of any
replacement personnel for persons identified by name in the Contractor‟s
organisation chart. The Principal may make reasonable objection to any proposed
replacement personnel, in which case the Contractor must substitute a person to
whom the Principal has no objection.
14.4
The Principal‟s Representative may direct the Contractor to remove from the Site, or
from any activity connected with the Deed or the Work under the Deed, any person
who, in the opinion of the Principal‟s Representative, is guilty of misconduct or is
incompetent or negligent or is otherwise interfering with the orderly progress of the
Work under the Deed or any other work on, or in the vicinity of, the Site or in
connection with the Deed. Any person so removed may not be subsequently
engaged in any activity concerned with the Deed or the Work under the Deed
without the prior written approval of the Principal‟s Representative.
Contract Programme
15.1
Contract Programme
(a)
The Contractor must:
(i)
carry out the Work under the Deed in accordance with; and
(ii)
comply with the requirements of clause 1.2.6 of the Specification in
respect of,
the Contract Programme.
(b)
The Contractor must revise the Contract Programme in accordance with the
requirements of the Deed, including the Specification, and must submit all
such revisions to the Principal‟s Representative. No revision of the Contract
50
Programme will amend any dates specified in the Deed (including the Date
for Substantial Completion, the Date for Practical Completion and the Date
for Completion) except to take account of approved extensions of time.
15.2
Project Control Group
(a)
The Project Control Group comprises the representatives of the Principal and
the Contractor referred to in clause 1.2.3 of the Specification.
(b)
The Contractor, when the Principal‟s Representative requires, must ensure
that representatives of Subcontractors attend Project Control Group
meetings.
(c)
The Project Control Group must meet:
(i)
fortnightly for the first three months during the currency of the
Deed; and
(ii)
monthly thereafter until Practical Completion; and
(iii)
at other times as agreed between the parties,
at times and at a place to be nominated by the Principal‟s Representative.
(d)
15.3
The Principal‟s Representative must:
(i)
convene and chair all meetings of the Project Control Group;
(ii)
take minutes of all meetings held by the Project Control Group;
(iii)
not later than four days after a meeting held by the Project Control
Group, provide a copy of those minutes to the Contractor‟s
Representative who must, if he or she accepts them as accurate,
notify the Principal‟s Representative as soon as practicable of their
acceptance (upon which notification such minutes become the
official record of the relevant meeting, or if the Contractor‟s
Representative fails to notify the Principal‟s Representative within
10 days of receipt of such minutes whether he or she accepts them as
accurate, those minutes will be deemed to be the official record of
the relevant meeting);
(iv)
if the Contractor‟s Representative disagrees with those minutes,
discuss and amend the minutes to reflect the agreed position (upon
which amendment such minutes become the official record of the
relevant meeting); and
(v)
give to the Project Control Group members a copy of those minutes
if the minutes are accepted by the Contractor‟s Representative or
deemed to be the official record of the relevant meeting under
clause 15.2(d)(iii), or are agreed by the Principal‟s Representative
and the Contractor‟s Representative under clause 15.2(d)(iv).
Reporting
On the first Tuesday of each month, for the period from the date of the Deed and
until Practical Completion, the Contractor must submit to the Principal‟s
51
Representative a progress report prepared by a suitably qualified person acceptable to
the Principal‟s Representative in a form agreed between the Contractor and the
Principal‟s Representative or otherwise as reasonably required by the Principal‟s
Representative. The progress report must indicate and include:
(a)
percentage completion achieved compared with the planned percentage
completion for each activity on the Contract Programme;
(b)
actual and planned progress shown against the Contract Programme;
(c)
where any activity is behind the Contract Programme, the likely
consequences and stating the corrective action being taken;
(d)
a general report on the status of the Work under the Deed;
(e)
information of all critical aspects influencing the progress of the Work under
the Deed;
(f)
any foreseen delays to future activities on the Contract Programme;
(g)
the likely effect on the Contract Programme of any actual or foreseen delays;
(h)
current claims for extensions of time, including details of dates submitted,
dates determined and any other details the Principal‟s Representative
requires;
(i)
the forecast Date of Substantial Completion of Separable Portions 1 and
Separable Portion 2 and the forecast Date of Practical Completion of
Separable Portion 3;
(j)
a summary of all Changes including approved Changes and proposed
Changes (separately and individually identified);
(k)
a forecast completion cost of the Works;
(l)
key actions to be undertaken by the Principal or others under the Deed;
(m)
details of all Subcontractors currently engaged or proposed to be engaged by
the Contractor;
(n)
details of daily staff levels of the Contractor and all Subcontractors on the
Site including all activities, locations and hours of work of those staff;
(o)
details of Construction Plant used in connection with the carrying out of
Work under the Deed, including whether in use, on standby, or under or
awaiting maintenance;
(p)
details of safety-related issues including all lost-time injuries records;
(q)
evidence of compliance with the quality management requirements of the
Deed;
(r)
evidence of compliance with the environmental management requirements of
the Deed;
52
(s)
a summary of community consultation issues including details of public
complaints and corrective actions;
(t)
expenditure against predicted cash flow and budget;
(u)
revised cashflow based on the Contract Programme;
(v)
industrial relations issues affecting or which may affect the Work under the
Deed;
(w)
any other matters required by the Principal‟s Representative.
Within 2 business days after the end of each week for the period from the date of the
Deed and until Practical Completion, the Contractor must submit to the Principal‟s
Representative a report prepared by a suitably qualified person acceptable to the
Principal‟s Representative, in a form agreed between the Contractor and the
Principal‟s Representative or otherwise as reasonably required by the Principal‟s
Representative. This report must include details of:
(x)
each Unit of ground conditions the Contractor has encountered working at
the tunnel face;
(y)
the actual length of ground conditions encountered in each category of
Typical Conditions, Adverse Conditions and Materially Adverse Conditions;
(z)
water inflow into the Tunnel, including adjustments for spoil moisture; and
(aa)
any other matters relevant to the procedures included in the Deed (including
in Schedule 4 - GBR Administration and the Specification) for the
classification and measurement of ground conditions encountered by the
Contractor.
The Contractor must advise the Principal‟s Representative (in writing if the
Principal‟s Representative requires and within the time specified by the Principal‟s
Representative) of suitable courses of action in relation to matters raised in Project
Control Group meetings.
The Contractor must establish and maintain any records and registers which the
Principal‟s Representative reasonably requires.
15.4
Progress of Work under the Deed
If at any time in the opinion of the Principal the Contractor‟s actual progress falls
behind the Contract Programme, or it becomes apparent that it will fall behind, and
the Contractor is not entitled to an extension of time under clause 34, the Contractor
must:
(a)
take all necessary steps (at its own cost) to mitigate the effects of any delay;
and
(b)
notify the Principal of the steps being taken to expedite progress,
so as to achieve Substantial Completion by the Date for Substantial Completion,
Practical Completion by the Date for Practical Completion and Completion by the
Date for Completion.
53
16
Subcontracts
16.1
Subcontracting
(a)
Except for subcontracting the works specified in Schedule 8 - Approved
Subcontractors to the Subcontractors specified in Schedule 8 - Approved
Subcontractors, the Contractor must not subcontract any part of the Work
under the Deed which has a value of greater than $100,000 without the
written approval of the Principal‟s Representative.
(b)
With a request for approval, the Contractor must provide to the Principal‟s
Representative full particulars in writing of the part of the Work under the
Deed to be subcontracted and the name and address of the proposed
Subcontractor. The Contractor must promptly give the Principal‟s
Representative any information requested by the Principal‟s Representative
(including an unpriced copy of the relevant subcontract) to enable it to
consider any request for approval from the Contractor to appoint a
Subcontractor.
(c)
The Contractor must ensure that all subcontracts for the Work under the
Deed adequately address all industrial relations, safety, environmental and
programming issues relevant to the Work under the Deed.
(d)
The Contractor must manage the performance of each Subcontractor to
ensure the quality and timeliness of its performance meet the requirements of
the Deed for the Work under the Deed.
(e)
The Contractor must ensure that each subcontract entered into by the
Contractor contains:
(f)
(i)
a covenant (in a form acceptable to the Principal) which will entitle
the Contractor to novate the subcontract to the Principal, at no cost
to the Principal;
(ii)
a covenant (in a form acceptable to the Principal) which will entitle
the Guarantor (as that term is defined in clause 8.7) to novate the
subcontract in its favour, at no cost to the Guarantor, for the purpose
referred to in clause 5(b) of the form of guarantee and indemnity in
Schedule 15 - Guarantee and Indemnity; and
(iii)
a term which:
(A)
requires the Subcontractor to provide to the Principal any
warranties specified in the Deed and other types of
warranties normally provided by subcontractors for work
similar to the part of the Work under the Deed subcontracted;
and
(B)
ensures that the Principal obtains the benefit of the
warranties referred to in clause 16.1(e)(iii)(A).
The Contractor:
54
(g)
16.2
(i)
irrevocably and severally appoints (for valuable consideration) the
Principal and the Authorised Representative of the Principal to be
the Contractor‟s attorney to execute, sign, seal and deliver all
notices, deeds and documents for the purpose referred to in
clause 16.1(e); and
(ii)
ratifies anything done by an attorney or its delegate in accordance
with this clause 16.1(f).
The Contractor must ensure that the Principal obtains the benefit of the
warranties referred to in clause 16.1(e)(iii)(A) on or before the Date of
Completion.
Responsibility
The Contractor‟s obligations under the Deed are not lessened or otherwise affected
by subcontracting the performance of those obligations. The Contractor will be
liable to the Principal for the acts and omissions of Subcontractors and employees
and agents of Subcontractors, as if they were acts or omissions of the Contractor.
17
Design
17.1
Documents comprising the Deed
(a)
(b)
17.2
Without limiting clause 2, the Contractor warrants that, prior to entering into
the Deed:
(i)
it checked the documents comprising the Deed; and
(ii)
subject to clauses 4.1A and 17.1(b), there are no ambiguities,
inconsistencies or discrepancies in any documents comprising the
Deed which would be reasonably discoverable by an appropriately
qualified and experienced professional designer, engineer and
constructor with experience in designing, engineering and
constructing facilities of a similar size, type, nature and complexity
of the Work under the Deed.
The parties acknowledge and agree that the Contractor is not responsible for
detailed design review and verification of the design of those parts of the
Work under the Deed for which the Principal has design responsibility under
the Deed.
Contractor’s Documents
(a)
The Contractor must carry out all necessary design to complete the design of
those parts of the Work under the Deed for the design of which it is
responsible under the Deed and produce Contractor‟s Documents which meet
the requirements of all of the following:
(i)
the Deed;
(ii)
Principal‟s instructions;
(iii)
Law (including Government Approvals);
55
17.3
(iv)
the Building Code of Australia and relevant international and
Australian Standards described in the Specification; and
(v)
if no other standard is specified in the Deed, then Best Industry
Practices.
(b)
The Contractor must not change the Principal‟s design in the Deed without
the Principal‟s prior written approval. Whenever requested by the Principal,
the Contractor must promptly confirm in writing that the Contractor‟s
Documents are consistent with and comply with the Deed. If the Principal‟s
design is required to be changed (with the Principal‟s prior written approval),
the Change must be dealt with under the procedures in clause 33.
(c)
The Contractor must produce the Contractor‟s Documents to ensure that the
design of those parts of the Work under the Deed for the design of which it is
responsible under the Deed fulfils the requirements of the Deed and is
suitable for its intended purpose.
Submitting Contractor’s Documents
(a)
The Contractor must submit Contractor‟s Documents (as developed
progressively and in stages, but so that each part is complete and in sufficient
detail to explain what is proposed) to the Principal at least 21 days before the
date the Contractor proposes to use them for construction (including
procurement, manufacture or fabrication) of any part of the Work under the
Deed.
(b)
The Contractor must, in respect of all Contractor‟s Documents:
(i)
develop and complete the Contractor‟s Documents to the standards
required by the Deed for the proper completion of the Work under
the Deed;
(ii)
ensure that all Contractor‟s Documents are prepared by employees or
Subcontractors with appropriate professional qualifications; and
(iii)
ensure that it obtains all relevant Government Approvals in respect
of Contractor‟s Documents.
(c)
The Contractor is responsible for and must bear the cost of any expenses
arising out of any discrepancies, errors or omissions in the specifications,
drawings and other technical documents prepared by it.
(d)
The Principal‟s Representative may (but is not obliged to) comment on any
Contractor‟s Documents. Review of any Contractor‟s Documents by the
Principal‟s Representative in accordance with the Deed is solely to monitor
the performance of the Contractor. The Contractor is solely responsible for
carrying out all design to complete the design of those parts of the Work
under the Deed for the design of which it is responsible under the Deed and
to produce the Contractor‟s Documents in accordance with the Deed and
(unless a Change is directed under clause 33) is not entitled to any extensions
of time or delay costs arising out of such comments.
(e)
The Principal‟s Representative may give a written notice to the Contractor
stating that the Contractor‟s Documents submitted for its review do not meet
56
the requirements of the Deed and must where practicable give notice of any
objections prior to the Contractor‟s Documents being used for construction.
17.4
(f)
If the Principal‟s Representative notifies the Contractor in accordance with
clause 17.3(e), the Contractor must revise the Contractor‟s Documents so as
to comply with the requirements of the Deed and resubmit the document to
the Principal‟s Representative and clauses 17.3(d) to 17.3(f) apply again.
(g)
The Principal is not liable for the costs of orders placed or work commenced
by the Contractor before the review of the Contractor‟s Documents by the
Principal‟s Representative is complete and nothing the Principal does, or
omits to do, in connection with clause 17 makes the Principal liable for
Contractor‟s Documents, or prevents the Principal from relying on or
enforcing a right, under the Deed or otherwise.
Codes and standards
Wherever references are made in the Deed to codes and standards in accordance with
which the Work under the Deed must be executed, the Contractor must comply with
the latest edition or the latest revised version of such codes and standards unless
otherwise specified in the Deed.
18
Procurement
18.1
Materials and Construction Plant
The Contractor must procure and transport to the Site all the Materials and
Construction Plant in an expeditious and orderly manner in accordance with the
Contract Programme.
18.2
Title to Materials
Except where expressly provided to the contrary in the Deed, title to all Materials
and other items and assets intended to form, or forming, part of the Work under the
Deed, will pass to the Principal upon the earlier of:
18.3
(a)
the delivery of such Materials or other items or assets to the Site; and
(b)
payment by the Principal (either in part or in full) for such Materials or other
items or assets.
Removal of Materials, Construction Plant and temporary works
(a)
Subject to clause 18.3(b), all Materials, Construction Plant and temporary
works provided by the Contractor will, when brought onto the Site, be
deemed to be exclusively intended for the execution of the Work under the
Deed and the Contractor must not remove the same or any part of them,
except for the purpose of moving it from one part of the Site to another,
without the written consent of the Principal‟s Representative.
(b)
The written consent of the Principal‟s Representative is not required for
vehicles engaged in transporting any staff, labour, Materials, Construction
Plant and temporary works to and from the Site.
57
(c)
The Principal will not at any time be liable for the loss of or damage to any
of the said Materials, Construction Plant or temporary works.
(d)
The Principal must use reasonable endeavours in assisting the Contractor,
where required, in obtaining clearance through Customs of Materials,
Construction Plant and other things required for the Work under the Deed.
(e)
If the Deed is terminated under clause 37.1 or clause 37.2 prior to
Completion, then the Principal may require the Contractor to give, and
require its Subcontractors to give, to the Principal (or its nominee) possession
of any Materials, Construction Plant and temporary works being used in the
performance of the Work under the Deed which are reasonably required to
facilitate Completion.
(f)
If the Principal (or its nominee) takes possession of Materials,
Construction Plant or temporary works in accordance with clause 18.3(e),
then the Principal must use its reasonable endeavours to procure:
(i)
the proper use and maintenance; and
(ii)
when they are no longer required in the performance of the Work
under the Deed, the handover to the Contractor,
of such Materials, Construction Plant and temporary work which have not
been consumed or incorporated in the Work under the Deed.
(g)
18.4
The Principal will pay the Contractor its reasonable direct costs in respect of
clause 18.3(f) if the Deed is terminated under clause 37.2.
Restrictions on sale, lease and parting with possession
(a)
The Contractor must not:
(i)
create or allow to exist any security interest over; or
(ii)
lease, license, transfer, sell, dispose of, part with possession of, or
otherwise deal with,
the whole or any part of the Construction Plant identified in Schedule 1 Contract Information, except as approved in writing by the Principal.
(b)
18.5
The Contractor warrants that clear title to the TBM will pass to the
Contractor upon delivery of the TBM to the Site.
Samples
(a)
Where works or items are referred to as requiring samples in the Deed or the
Contractor is directed to provide samples by the Principal‟s Representative,
the Contractor must provide to the Principal‟s Representative samples in
accordance with the Deed and the requirements of the Principal‟s
Representative.
(b)
Where samples have been provided to and approved by the Principal‟s
Representative, the Contractor must label the approved samples and keep
them on the Site for reference unless otherwise directed by the Principal‟s
Representative.
58
19
(c)
The samples provided by the Contractor and approved by the Principal‟s
Representative may be used in the Work under the Deed with the Principal‟s
Representative‟s prior written consent, such consent to be in the Principal‟s
Representative‟s absolute discretion.
(d)
All relevant Work under the Deed must conform to the samples as approved
by the Principal‟s Representative.
Construction
19.1
Contractor’s Supervision
The Contractor must give or provide all necessary superintendence during the
execution of the Work under the Deed, and the Project Construction Manager or a
deputy must be constantly on the Site to provide full-time superintendence of the
Work under the Deed. The Contractor must provide and employ only such technical
personnel as are approved by the Principal and skilled and experienced in their
respective callings and such supervisory staff as are competent to give adequate
supervision to the work they are required to supervise.
19.2
Labour
The Contractor must provide and employ on Site in the execution of the Work under
the Deed such skilled, semi-skilled and unskilled labour as is necessary for the
proper and timely execution of the Work under the Deed.
19.3
Access to Site
(a)
The Principal must make the Site available to the Contractor in accordance
with, and subject to the conditions in, clause 3.3 of the Specification and the
other requirements of the Deed, sufficient for the Contractor to carry out its
obligations under the Deed in accordance with the requirements of the Deed.
(b)
Access to or possession of the Site will confer on the Contractor a right only
to such use and control as is necessary to enable the Contractor to execute the
work under the Deed.
(c)
Failure by the Principal to make the Site available to the Contractor as
contemplated by clause 19.3(a) is not a breach of contract by the Principal,
but will entitle the Contractor to claim an extension of time and delay costs
in accordance with clause 34.
(d)
The Contractor:
(i)
is not entitled to, and must not, access or carry out any Work under
the Deed on any part of the Site which has not been made available
by the Principal under clause 19.3(a);
(ii)
acknowledges that failure by the Principal to make the Site available
to the Contractor as contemplated by clause 19.3(a) may result in
(among other things) the Contractor being required to slow or stop
the progress of the Work under the Deed; and
59
(iii)
19.4
19.5
is not entitled to any adjustment to the Contract Price or any other
compensation arising out of or in connection with any failure by the
Principal to make the Site available to the Contractor as
contemplated by clause 19.3(a) other than as contemplated by clause
19.3(c).
Principal’s Access to the Site and the Work under the Deed
(a)
The Principal or any personnel or officers of the Principal or related
corporations, contractors, agents and consultants of the Principal authorised
by the Principal may enter the Site provided that no person who enters the
Site upon the authority of the Principal interferes with or impedes the
progress of the Work under the Deed (subject to the right of the Principal‟s
Representative to give directions with respect to work which in its opinion is
not in accordance with the Deed).
(b)
The Principal must give to the Contractor reasonable (and in any event not
less than 24 hours‟) notice of all persons other than personnel or officers of
the Principal or related corporations of the Principal whom the Principal
proposes to authorise to enter the Site or inspect the Work under the Deed.
(c)
Without limiting clause 19.4(b), the Principal must, where practicable, give
the Contractor reasonable notice of any personnel or officers of the Principal
or its related corporations it authorises to enter the Site but will not be
obliged to give such notice with respect to the Principal‟s Representative.
(d)
The Principal must use reasonable endeavours to procure that any person
authorised by the Principal to enter the Site complies with the Contractor‟s
site regulations and safety procedures.
Separate Contractors
(a)
The Contractor acknowledges that Separate Contractors will be present on
the Site during the execution of the Work under the Deed by the Contractor.
(b)
The Contractor must:
(c)
(i)
coordinate the execution of the Work under the Deed with the work
of Separate Contractors as notified to the Contractor by the
Principal;
(ii)
co-operate with Separate Contractors;
(iii)
not obstruct, delay or interfere with the work of Separate
Contractors;
(iv)
not damage the work of Separate Contractors; and
(v)
comply with all written directions from the Principal‟s
Representative regarding Separate Contractors and their work.
Without limiting any other provision of the Deed, if a Separate Contractor
checks tolerances of any part of the Work under the Deed and determines
that they are not strictly within tolerances stated in the Specification, the
Principal‟s Representative may direct the Contractor to make good the
relevant part or parts of the Work under the Deed so as to be strictly within
60
tolerances stated in the Specification and the Contractor must comply with
such a direction without delay and at its own cost.
(d)
19.6
Any action of the Contractor under clause 19.5(b) does not lessen or
otherwise affect the Contractor‟s other obligations under the Deed. Neither
the Principal nor the Principal‟s Representative assumes any responsibility or
duty of care to the Contractor in respect of its actions under clause 19.5.
Occupational Health and Safety
(a)
In accordance with clause 210 of the OH&S Regulation, the Principal:
(i)
appoints the Contractor as the principal contractor for the
construction work forming part of the Work under the Deed; and
(ii)
authorises the Contractor to exercise such authority of the Principal
as is necessary to enable the Contractor to discharge the
responsibilities imposed on a principal contractor under Part 8 of the
OH&S Regulation,
except as otherwise provided in clauses 19.6(b) and 19.6(h).
(b)
The Contractor acknowledges and agrees that the Principal will appoint the
Cable Installation Contractor as the principal contractor for the construction
work forming part of the Cable Installation Works from the date the
Contractor hands over the CSCT Extension to the Cable Installation
Contractor (as directed by the Principal‟s Representative under clause 19.7)
until the time the CSCT Extension is handed back to the Contractor.
(c)
From the Date of Substantial Completion of Separable Portion 1 until the
time the CSCT Extension is handed back to the Contractor under the Deed,
the Contractor:
(d)
(i)
is only permitted access to the CSCT Extension with the prior
approval, and in accordance with the directions, of the Principal and
the Cable Installation Contractor; and
(ii)
must comply with, and ensure that its Subcontractors and employees
engaged in executing the Work under the Deed in the CSCT
Extension, comply with:
(A)
the Cable Installation Contractor‟s occupational health and
safety management plan in respect of the CSCT Extension;
and
(B)
any reasonable direction of the Cable Installation Contractor
or the Principal in respect of occupational health and safety
in the CSCT Extension.
The Principal agrees to use all reasonable endeavours to procure that any
Separate Contractor present on the Site during the execution of the Work
under the Deed by the Contractor will comply with the Contractor‟s
reasonable directions with respect to occupational health and safety while the
Contractor is appointed the principal contractor under the Deed.
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19.7
(e)
The Contractor must comply with the requirements of the Specification in
respect of occupational health and safety requirements.
(f)
If the Contractor fails to comply with any of its obligations under the Deed in
respect of occupational health and safety, the Principal may perform, or have
performed, the obligation on the Contractor‟s behalf and recover from the
Contractor as a debt all costs and expenses incurred.
(g)
If and to the extent the Principal or the Principal‟s Representative considers it
necessary to undertake any activity, give any direction or otherwise perform
any of the works or services for which the Contractor is responsible under
the Deed, the parties acknowledge and agree that in doing so the Principal is
not acting as a principal contractor, nor is the Principal to be taken, for any
purpose, to be the principal contractor. In these circumstances, the
Contractor must indemnify the Principal against any loss, expense or damage
of any nature, including financial loss and lawyers‟ fees and expenses on an
indemnity basis, suffered or incurred by the Principal arising out of the
performance or authorisation of the performance of any of the works or
services referred to in this clause 19.6.
(h)
The Contractor acknowledges and agrees that:
(i)
part of the Work under the Deed will be carried out on land which is
owned by an Interface Party;
(ii)
clause 210 of the OH&S Regulation requires the owner of the land
on which any construction work is carried out to appoint a principal
contractor for that work; and
(iii)
the Contractor must execute any reasonable agreement required by
the Principal or an Interface Party which gives effect to the
appointment of the Contractor as the principal contractor for Work
under the Deed to be carried out on land which is owned by an
Interface Party.
(i)
For the purpose of this clause 19.6, the term construction work has the
meaning given to it in the OH&S Regulation.
(j)
If there is any change to the OH&S Regulation following the execution of
the Deed:
(i)
the Principal and the Contractor agree that any principal contractor
appointment made under this clause 19.6 continues to be effective as
an appointment under any new or amended regulation or law; and
(ii)
by this clause, the Principal authorises the Contractor to have
management and control of the workplaces at which the Contractor
is performing the Work under the Deed to the extent necessary to
discharge its obligations as principal contractor.
Handover to Cable Installation Contractor
(a)
The parties acknowledge and agree that:
62
19.8
20
(i)
in respect of Separable Portion 1, the Contract Programme has
allowed 10 months following Substantial Completion of Separable
Portion 1 for the CSCT Extension to be handed over to the Principal
for the purposes of the Cable Installation Contractor carrying out the
Cable Installation Works; and
(ii)
if the period referred to in clause 19.7(a)(i) exceeds 10 months, the
Contractor may claim an extension of time and delay costs in
accordance with clause 34 but is not entitled to any other
compensation.
(b)
Following Substantial Completion of Separable Portion 1, the Principal‟s
Representative will give the Contractor written notice of the date the
Contractor must hand over the CSCT Extension to the Principal for the
purposes contemplated by clause 19.7(a)(i).
(c)
The Contractor must hand over the CSCT Extension to the Principal on the
date directed by the Principal‟s Representative under clause 19.7(b).
(d)
The Principal will, as soon as reasonably practicable, notify the Contractor in
writing of the time when the CSCT Extension will be handed back to the
Contractor to complete the remaining Work under the Deed.
Industrial relations
(a)
The Contractor must, and must ensure that its Subcontractors, comply with
all applicable Commonwealth and state industrial instruments.
(b)
The Contractor must regularly consult with the Principal‟s Representative,
throughout the performance of the Work under the Deed, concerning any
industrial relations issues which may arise and, in particular, its negotiation
of any industrial instruments with its employees.
Testing and Inspection
20.1
Tests and inspections must be conducted as provided in the Deed and by the relevant
person specified in Schedule 6 - Key Personnel.
20.2
Subject to clause 20.5, the Principal‟s Representative (or its delegate) will be entitled
to attend any Tests.
20.3
Whenever the Contractor is ready to carry out a Test:
(a)
which is nominated by the Principal as a Hold Point, the Contractor must
give the Principal five business days‟ advance notice of such Test and of the
place and time; or
(b)
which is required by an Interface Party under an Interface Agreement, the
Contractor must give the Principal not less than 2 business days‟ advance
notice of such Test prior to the time the Principal is required to give such
notice to the relevant Interface Party and any other information required by
the Interface Agreement in respect of such Test.
63
The Principal‟s Representative may agree to a shorter period of notice in any
particular instance.
20.4
20.5
The Contractor must provide the Principal‟s Representative with a report of the
results of any such Test:
(a)
in both hard copy and electronic format; and
(b)
which is certified as contemplated by the Specification.
If the Principal‟s Representative (or its delegate) fails to attend a Test, or it is agreed
between the parties that the Principal‟s Representative must not do so, the Contractor
may proceed with the Test in the absence of the Principal‟s Representative and
provide the Principal with a report of the results of any such Test:
(a)
in both hard copy and electronic format; and
(b)
which is certified as contemplated by the Specification.
20.6
The Contractor must pay the costs of all Tests.
20.7
The Contractor must submit its testing procedures and methodologies and the
proposed form of the test report to the Principal‟s Representative for approval prior
to commencing any testing, in accordance with the requirements of the Specification.
The Principal‟s Representative must review and comment on the documents
submitted to it within 10 days of such submission and the Contractor must revise any
such documents as reasonably required by the Principal‟s Representative.
20.8
The Principal‟s Representative must not unreasonably withhold its approval to any
procedures, methodologies or reports in connection with testing provided that the
documents are in accordance with the requirements of the Deed (including the
Specification).
20.9
Neither the Principal nor the Principal‟s Representative is under any obligation to the
Contractor to enter, inspect or Test under clause 20 and owes no duty of care or
otherwise to the Contractor in doing so (other than to the extent expressly stated in
clause 19.4) and no entry, inspection or Test by the Principal, the Principal‟s
Representative or any person authorised by the Principal or the Principal‟s
Representative will affect the Contractor‟s obligations under the Deed.
20A NGER Reporting Obligations
20A.1 - Definitions
In clauses 20A and 34.4:
(a)
'GHG Legislation' means any Law which has as one of its purposes the
reduction, offset or management of GHG emissions and includes a law in
connection with:
(i)
any GHG emissions trading scheme (howsoever named);
(ii)
a tax, levy, impost, deduction, charge, withholding or duty, together
with a related interest, penalty, fine or other statutory charge,
relating to GHG emissions, fuel or energy use; or
64
(iii)
a requirement to undertake action to reduce, minimise or offset GHG
emissions, fuel or energy use.
(b)
'GHG' means one or more of the gases listed in Annex A to the Protocol of
the United Nations Framework Convention on Climate Change adopted at
the meeting of the parties in Kyoto, Japan on 10 December 1997 as amended
or implemented by the conference of the parties to the Protocol.
(c)
'NGER Act' means the National Greenhouse and Energy Reporting Act
2007 (Cth).
20A.2 - Reporting Obligation
The parties acknowledge and agree, to the extent permitted by Law, that:
(a)
either of the parties could satisfy section 11(1)(a) of the NGER Act in
respect of the Work under the Deed;
(b)
the Contractor has the greatest authority to introduce and implement the
policies mentioned in section 11(1)(a)(i) and 11(1)(a)(iii) of the NGER Act
in respect of the Work under the Deed; and
(c)
the Contractor has operational control in respect of the Work under the Deed
for the purposes of the NGER Act until Practical Completion and
accordingly, without limiting clause 6.1, the Contractor shall comply with
the NGER Act in relation to the Work under the Deed.
20A.3 - Amendments to Reporting Obligation
(a)
This clause 20A.3 applies if the NGER Act, the GHG Legislation or other
Law enables the parties to nominate the person with the reporting obligation
under the NGER Act.
(b)
The parties acknowledge and agree, to the extent permitted by Law, that:
(c)
(i)
either of the parties could satisfy section 11(1)(a) of the NGER Act
in respect of the Work under the Deed; and
(ii)
despite clause 20A.2, a court or Government Authority may
determine that neither of the parties has the greatest authority to
introduce and implement the policies mentioned in section
11(1)(a)(i) and 11(1)(a)(iii) of the NGER Act in respect of the Work
under the Deed.
The parties jointly nominate the Contractor as the nominated person under
the NGER Act and acknowledge and agree that the Contractor is taken to
have operational control in respect of the Work under the Deed for the
purposes of the NGER Act until Completion.
20A.4 - Provision of Information
(a)
The Principal agrees to provide all reasonable assistance to the Contractor to
enable the Contractor to comply with the NGER Act in relation to the Work
under the Deed.
65
(b)
The Principal warrants that all information and data provided to the
Contractor under this clause 20A.4 is, to the knowledge of the Principal, not
false or misleading.
(c)
Without limiting clause 12, the Contractor agrees to keep any information or
data provided to it by the Principal confidential except to the extent that:
(d)
(i)
the Contractor is required to disclose the information to comply with
a Law; or
(ii)
the information is otherwise in the public domain.
The Contractor agrees to provide data requested by the Principal relating to
GHG emissions, energy consumption and energy production arising from, or
in connection with, the Work under the Deed. The Contractor warrants that
all information and data provided to the Principal under this clause is, to the
knowledge of the Contractor, not false or misleading.
20A.5 - No Liability from Determination
If, despite clauses 20A.2, 20A.3 and 20A.4, a court or Government Authority
determines that the Principal has the reporting obligation under the NGER Act in
respect of the Work under the Deed, the Principal has no liability to the Contractor
for any loss, claim, cost, damage or expense arising from, or in connection with, that
determination.
20A.6 - Principal has Reporting Obligation
(a)
This clause applies if, despite clauses 20A.2, 20A.3 and 20A.4, a court or
Government Authority determines that the Principal has the reporting
obligation under the NGER Act in respect of the Work under the Deed.
(b)
If the NGER Act, the GHG Legislation or other Law enables the Principal to
transfer the reporting obligation to the Contractor:
(c)
(i)
the parties acknowledge and agree that the reporting obligation is to
be transferred from the Principal to the Contractor; and
(ii)
the parties acknowledge and agree that they will take all reasonable
steps to transfer the reporting obligation from the Principal to the
Contractor.
If the NGER Act, the GHG Legislation or other Law does not enable the
Principal to transfer the reporting obligation to the Contractor, the Contractor
agrees to provide all necessary assistance to the Principal to enable it to
comply with the NGER Act and the GHG Legislation in relation to the Work
under the Deed including:
(i)
providing all data relating to GHG emissions, energy consumption
and energy production arising from, or in connection with, the Work
under the Deed in a form reasonably requested by the Principal; and
(ii)
providing all reasonable assistance to an auditor appointed by the
Contractor under the NGER Act or the GHG Legislation.
66
(d)
The Contractor warrants that all information and data provided to the
Principal under this clause is, to the knowledge of the Contractor, not false or
misleading.
(e)
The Contractor indemnifies, and will keep indemnified, the Principal for any
loss, claim, cost, damage, expense or other liability which may be suffered or
incurred in connection with the failure of the Contractor to provide the data
requested under this clause or if the data provided by the Contractor is
incorrect or otherwise false or misleading.
20A.7 Changes to NGER Act of GHG Legislation which impacts on Reporting
Obligations
(a)
Subject to clause 20A.7(b), if there is:
(i)
a change in the NGER Act after the date of the Deed; or
(ii)
a change in the GHG Legislation after the date of the Deed,
that will increase the Contractor's reporting obligations under this clause
20A, the Contractor is entitled to claim an adjustment to the Contract Price
as if those increased reporting obligations were directed as a Change under
the Deed.
(b)
21
The Contractor is not entitled to be paid for the same amount under both this
clause 20A.7 and any delay costs in respect of the cause of delay
contemplated in clause 34.4(d)(xi).
Substantial and Practical Completion
21.1
Substantial Completion
(a)
This clause 21.1 only applies in respect of Separable Portion 1 and Separable
Portion 2.
(b)
The Contractor must give the Principal‟s Representative:
(i)
at least 25 business days‟ notice; and
(ii)
at least five business days‟ notice,
of the date upon which the Contractor anticipates the Contractor will achieve
Substantial Completion.
(c)
As soon as the Contractor has, in the opinion of the Contractor, satisfied all
of the requirements for Substantial Completion, the Contractor must notify
the Principal‟s Representative.
(d)
The Principal‟s Representative must, within 10 days after receipt of the
Contractor‟s first notice under clause 21.1(c), either issue a Substantial
Completion Certificate stating that the Work under the Deed has reached
Substantial Completion as at the date of the Contractor‟s notice under
clause 21.1(c) (or such other date specified by the Principal's
Representative), or notify the Contractor of any matters listed in the
67
definition of Substantial Completion to be attended to before Substantial
Completion will be achieved.
(e)
If the Principal‟s Representative notifies the Contractor under clause 21.1(d)
or clause 21.1(g) of any matters to be attended to, the Contractor must attend
to such matters and must repeat the procedure described in clause 21.1(c).
(f)
If the Work under the Deed has reached Substantial Completion, the
Principal‟s Representative must, within five days after receipt of the
Contractor‟s repeated notice contemplated in clause 21.1(e), issue a
Substantial Completion Certificate stating that the Work under the Deed has
reached Substantial Completion as at the date of the Contractor‟s repeated
notice (or such other date specified by the Principal's Representative).
(g)
If the Principal‟s Representative determines that Substantial Completion has
still not been achieved, the Principal‟s Representative must within five days
after receipt of the Contractor‟s repeated notice contemplated in clause
21.1(e) notify the Contractor of any remaining matters listed in the definition
of Substantial Completion to be attended to. The Contractor must then
repeat the procedure described in clause 21.1(e) and clause 21.1(f) and
21.1(g) shall apply accordingly.
(h)
While the Contractor may achieve Substantial Completion before the Date
for Substantial Completion, the Principal and the Principal‟s Representative
have no responsibility or duty of care to do, or refrain from doing, anything
to enable the Contractor to achieve those results.
(i)
The Contractor acknowledges and agrees that for the purposes of this
clause 21.1:
(j)
21.2
(i)
the Principal‟s Representative may inspect the Work under the Deed;
(ii)
the Principal‟s Representative may request the Contractor to inspect
the Work under the Deed jointly with the Principal‟s Representative
and the Contractor must attend such inspections; and
(iii)
the Principal‟s Representative may request (and the Contractor must
allow) other consultants, the Cable Installation Contractor and other
persons to attend any inspection where the Principal‟s
Representative considers it appropriate.
The Contractor acknowledges that the inspections referred to in
clause 21.1(i) will not relieve the Contractor of any obligations under the
Deed, including the obligation to bring the Work under the Deed to
Substantial Completion by the Date for Substantial Completion.
Practical Completion
(a)
The Contractor must give the Principal‟s Representative at least 20 days‟
notice of the date upon which the Contractor anticipates the Work under the
Deed will be brought to Practical Completion.
(b)
As soon as the Work under the Deed has, in the opinion of the Contractor,
been completed in accordance with the Deed, excluding minor defects or
omissions not materially affecting the design, procurement and construction
68
or safety of the Work under the Deed, and the Contractor has satisfied all of
the other requirements for Practical Completion, the Contractor must notify
the Principal‟s Representative.
(c)
The Principal‟s Representative must, within 10 days after receipt of the
Contractor‟s first notice under clause 21.2(b), either issue a Practical
Completion Certificate stating that the Work under the Deed has reached
Practical Completion as at the date of the Contractor‟s notice under
clause 21.2(b) (or such other date specified by the Principal's
Representative), or notify the Contractor of any Defects in the Work under
the Deed or other matters listed in the definition of Practical Completion to
be attended to before Practical Completion will be achieved.
(d)
If the Principal‟s Representative notifies the Contractor under clause 21.2(c)
or clause 21.2(f) of any Defects and/or other matters to be attended to, the
Contractor must correct such Defects or attend to such matters, as applicable,
and must repeat the procedure described in clause 21.2(b).
(e)
If the Work under the Deed has reached Practical Completion, the Principal‟s
Representative must, within five days after receipt of the Contractor‟s
repeated notice contemplated in clause 21.2(d), issue a Practical Completion
Certificate stating that the Work under the Deed has reached Practical
Completion as at the date of the Contractor‟s repeated notice (or such other
date specified by the Principal's Representative).
(f)
If the Principal determines that Practical Completion has not been achieved,
the Principal‟s Representative must within five days after receipt of the
Contractor‟s repeated notice contemplated in clause 21.2(d) notify the
Contractor of any remaining Defects or matters listed in the definition of
Practical Completion to be attended to. The Contractor must then repeat the
procedure described in clause 21.2(d) and clause 21.2(e) and 21.2(f) shall
apply accordingly.
(g)
With a Practical Completion Certificate in respect of the Work under the
Deed, the Principal‟s Representative must issue a certificate setting out the
minor items referred to in clause 21.2(b) which are to be attended to by the
Contractor prior to Completion. As soon as possible, but in any case no later
than 4 weeks after Practical Completion, the Contractor must complete the
minor items set out in such certificate. All such work must be completed as a
condition of Completion.
(h)
While the Contractor may achieve Practical Completion before the Date for
Practical Completion, the Principal and the Principal‟s Representative have
no responsibility or duty of care to do, or refrain from doing, anything to
enable the Contractor to achieve those results.
(i)
The Contractor acknowledges and agrees that for the purposes of this
clause 21.2:
(i)
the Principal‟s Representative may inspect the Work under the Deed;
(ii)
the Principal‟s Representative may request the Contractor to inspect
the Work under the Deed jointly with the Principal‟s Representative
and the Contractor must attend such inspections; and
69
(iii)
(j)
22
the Principal‟s Representative may request (and the Contractor must
allow) other consultants, the Cable Installation Contractor and other
persons to attend any inspection where the Principal‟s
Representative considers it appropriate.
The Contractor acknowledges that the inspections referred to in
clause 21.2(i) will not relieve the Contractor of any obligations under the
Deed, including the obligation to bring the Work under the Deed to Practical
Completion by the Date for Practical Completion.
Completion and Close Out Workshop
22.1
Notice of Completion
When the Contractor is of the opinion that it has satisfied all of the requirements for
Completion, it must give notice to that effect to the Principal‟s Representative
requesting the issue of a Completion Certificate.
22.2
Completion Certificate
(a)
(b)
22.3
Within 15 days of the Contractor‟s notice under clause 22.1, the Principal‟s
Representative must either:
(i)
issue the Completion Certificate; or
(ii)
notify the Contractor of its reasons for not issuing the Completion
Certificate.
If the Principal‟s Representative gives notice under clause 22.2(a)(ii), the
Contractor must attend to the matters in the notice and the provisions of
clause 22.1 and 22.2(a) re-apply.
Close Out Workshop
(a)
The Principal may, in its absolute discretion, convene a close-out workshop
within 21 days after achieving Completion to evaluate the performance of the
parties in connection with the Deed.
(b)
If directed by the Principal, the Contractor must attend the Close Out
Workshop and must, in conjunction with the Principal, decide who else will
attend (which may include Subcontractors and Interface Parties and, if
appropriate, representatives of Government Authorities, persons to be
involved in using or occupying any part of the Works, and local community
representatives).
(c)
Each party and any others who participate in the workshop must meet their
own costs for attendance at the Close Out Workshop, and the parties will
share equally any other costs.
70
23
Representations and Warranties
23.1
Representations and warranties of the Principal
The Principal warrants that it has the power to execute, deliver and perform its
obligations under the Deed and all necessary corporate and other action has been
taken to authorise that execution, delivery and performance.
23.2
Representations and warranties of the Contractor
The Contractor makes the following representations and warranties to the Principal
each of which is true and correct on the date of execution of the Deed:
(a)
the Contractor has been incorporated in accordance with the laws of its place
of incorporation, is validly existing under those laws, and has the power and
authority to carry on its business as it is now being conducted;
(b)
the Contractor has the power to enter into and deliver the Deed and comply
with its obligations under the Deed;
(c)
the Deed and the transactions under it which involve the Contractor do not
contravene its constituent documents (if any) or any law or obligation by
which it is bound or to which any of its assets are subject or cause a
limitation on its powers or the powers of its directors to be exceeded;
(d)
to the best of the Contractor‟s knowledge, no suit, claim, action, arbitration,
or legal, administrative or other proceedings is pending or threatened against
the Contractor that would affect the validity or enforceability of the Deed or
the ability of the Contractor to fulfil its commitments hereunder in any
material respect, or that could result in any material adverse change in the
business or financial condition of the Contractor;
(e)
the Contractor is a solvent legal entity and is under no form of insolvency,
administration or legal disability to contract of any kind;
(f)
the Contractor has no conflict of interest or anticipated conflict of interest in
entering into the Deed and doing all things required of it under the Deed
which has not otherwise been disclosed in writing to the Principal prior to or
at the time of entering into the Deed;
(g)
the Contractor has after diligent inquiry and investigation fully disclosed to
the Principal all information (within its knowledge or which ought to have
been within its knowledge) which could reasonably be regarded as affecting
in any way the decision of the Principal to enter into the Deed with the
Contractor;
(h)
all authorisations, registrations, consents, approvals, licences or permits
required by any Government Authority or under any Law which are or will
be required in connection with the execution and delivery of, performance of
obligations under or validity or enforceability of, the Deed have been or will
be obtained or effected and are or will be in force and effect; and
(i)
the Contractor will immediately notify the Principal of the occurrence of any
event which may constitute a breach of any of the representations, warranties
71
or covenants made in connection with the Deed, including any event which
may result in material adverse change in the business of the Contractor.
24
Warranties
24.1
24.2
24.3
The Contractor warrants to the Principal that:
(a)
the Work under the Deed will be designed, engineered, constructed and
maintained with all the skill and care to be expected of appropriately
qualified and experienced professional designers and engineers with
experience in designing, engineering, constructing and maintaining facilities
of a similar size, type, nature and complexity of the Work under the Deed;
(b)
the Work under the Deed will be designed, engineered, constructed and
maintained in a manner commensurate with Best Industry Practices;
(c)
the Works will comprise Materials which will be of good quality and free
from any encumbrance or lien and will conform to the requirements of the
Deed, including the Specification; and
(d)
the Work under the Deed will be designed, engineered, constructed,
maintained, completed, tested and delivered in accordance with the Deed.
The Contractor further warrants that:
(a)
the Work under the Deed will be designed, engineered, constructed and
maintained in accordance with all Government Approvals, all Laws, the
requirements of all Government Authorities and to the applicable Australian
Standards and industry standards;
(b)
all Materials specified by the Contractor or used in the construction of the
Works will be suitable new materials, will meet the requirements of the Deed
and will be fit for their intended purpose;
(c)
all Construction Plant used in the construction of the Work under the Deed
will meet the requirements of the Deed and will be fit for their intended
purpose;
(d)
all the Work under the Deed will be carried out in a professional manner and
to the standards otherwise required by the Deed;
(e)
the Works upon Completion will:
(i)
be suitable in all respects for their purpose stated in the Deed;
(ii)
without limiting clause 24.2(e)(i), meet all performance requirements
stated in the Deed; and
(iii)
without limiting clauses 24.2(e)(i) and 24.2(e)(ii), strictly comply
with every aspect of the Deed and any variations in size,
configuration or performance will be strictly within tolerances stated
in the Specification.
The Contractor‟s warranties given in clause 24.1 and 24.2 will not be affected or
limited by:
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24.4
25
(a)
any Change directed or approved by the Principal; or
(b)
any review of, comment (or failure to comment) on or concurrence with or
approval by the Principal or the Principal‟s Representative of any
Contractor‟s Documents prepared by the Contractor or samples submitted by
the Contractor.
The warranties given by the Contractor under this clause 24, to the extent that they
relate to design, are only given in relation to such parts of the Works and the other
Work under the Deed for which the Contractor has design responsibility under the
Deed.
Delay to Completion
25.1
25.2
Time for Completion
(a)
The Contractor must achieve Substantial Completion by the Date for
Substantial Completion.
(b)
The Contractor must achieve Practical Completion by the Date for Practical
Completion.
(c)
The Contractor must achieve Completion by the Date for Completion.
Liquidated damages
(a)
In the event of the Contractor‟s failure to achieve Substantial Completion by
the Date for Substantial Completion, the Contractor must pay to the Principal
liquidated damages at the rate specified in Schedule 2 - Separable Portions
for each day from that date until the earlier of the Date of Substantial
Completion or the date the Deed is terminated.
(b)
In addition to the liquidated damages payable under clause 25.2(a), in the
event of the Contractor‟s failure to achieve Practical Completion by the Date
for Practical Completion, the Contractor must pay to the Principal liquidated
damages at the rate specified in Schedule 2 - Separable Portions for each day
from that date until the earlier of the Date of Practical Completion or the date
the Deed is terminated.
(c)
The parties agree that the liquidated damages specified in Schedule 2 Separable Portions are a fair and reasonable pre-estimate of the damages
likely to be sustained by the Principal as a result of the Contractor‟s failure to
achieve Substantial Completion by the Date for Substantial Completion
and/or the Contractor‟s failure to achieve Practical Completion by the Date
for Practical Completion, as the case may be.
(d)
The aggregate liability of the Contractor for liquidated damages under
clauses 25.2(a) and 25.2(b) will not exceed the amount specified in Schedule
1 - Contract Information.
(e)
The liability of the Contractor to pay liquidated damages under
clauses 25.2(a) and 25.2(b) is, subject to clause 25.2(f), in substitution of the
Principal‟s right to recover damages at general law due to a delay to the Date
of Substantial Completion and/or the Date of Practical Completion, as the
73
case may be, but does not otherwise limit any right or entitlement of the
Principal in respect of any breach of the Deed by the Contractor.
(f)
26
If clauses 25.2(a) or 25.2(b) are found for any reason to be void, invalid or
otherwise inoperative, so as to disentitle the Principal from recovering
liquidated damages for the Contractor‟s failure to achieve Substantial
Completion by the Date for Substantial Completion and/or Practical
Completion by the Date for Practical Completion (as the case may be), the
Principal is entitled to recover damages from the Contractor for such failure
under general law, which damages will not be limited to the liquidated
damages that the Principal would otherwise have been entitled to recover
from the Contractor.
Defect Correction
26.1
Defective materials or work
(a)
If the Principal‟s Representative discovers material or work provided by the
Contractor, which is not in accordance with the Deed, the Principal may, at
any time before the expiry of the last Defects Correction Period, direct the
Contractor at its own cost to do any or all of the following:
(i)
remove the material from the Site;
(ii)
demolish the work;
(iii)
reconstruct, replace or correct the material or work; or
(iv)
not deliver the material or work to the Site.
(b)
The Principal may direct the times within which the Contractor must
commence and complete the removal, demolition, replacement or correction.
(c)
If:
(i)
the Contractor fails to comply with a direction issued by the
Principal‟s Representative pursuant to this clause 26.1 within the
time frame specified by the Principal‟s Representative in the
direction; and
(ii)
that failure has not been made good within seven days after the
Contractor receives written notice from the Principal‟s
Representative that the Principal intends to have the subject work
rectified by others,
the Principal may have the work of removal, demolition, replacement or
correction carried out by others and the cost incurred by the Principal in
having the work so carried out will be a debt due from the Contractor to the
Principal.
74
26.2
26.3
Acceptance of defective materials or work
(a)
The Principal‟s Representative may, instead of a giving a direction under
clause 26.1(a), notify the Contractor that the Principal elects to accept
material or work notwithstanding that it is not in accordance with the Deed.
(b)
If the Principal‟s Representative gives a notice under clause 26.2(a), the
Principal‟s Representative must give the Principal and the Contractor‟s
Representative its determination of the cost incurred by the Principal in
accepting the defective work or materials, such cost to be valued based on
the cost of rectifying the defective work or based on diminution of value of
the Works (or relevant part of the Works) or a combination of the costs of
partial rectification and the remaining diminution of value (as the case may
be), and that amount will be a debt due from the Contractor to the Principal.
Defects Correction Period
(a)
The Contractor warrants that the Works will be free from Defects in design
(in relation to those parts of the Works, for the design of which the
Contractor is responsible), engineering and construction.
(b)
If during the Defects Correction Period, any Defect should be found in the
design, engineering, construction or other work executed by the Contractor,
the Contractor must promptly and at its cost repair, replace or otherwise
make good (as the Principal‟s Representative may at its discretion direct)
such Defect as well as damage to the Works caused by such Defect.
(c)
The Defects Correction Period shall commence on the Date of Practical
Completion and end when the period specified in Schedule 1 - Contract
Information expires after the Date of Practical Completion.
(d)
The Principal must give the Contractor a notice stating the nature of any
Defect and a reasonable date or time by which the Contractor must complete
the repair, replacement or other making good (as the case may be) having
regard to the nature of the Defect.
(e)
Subject to clause 26.4, the Principal must afford the Contractor all necessary
access to the Works and the Site to enable the Contractor to perform its
obligations under this clause 26 and must where necessary authorise the
Contractor to enter land on behalf of the Principal.
(f)
If the Contractor fails to commence the work necessary to remedy any Defect
or any damage to the Works caused by such Defect within the time stated in
a notice from the Principal‟s Representative, the Principal may (or may
engage others to) proceed to do such work and the reasonable costs incurred
by the Principal will be a debt due from the Contractor to the Principal.
(g)
If it becomes necessary under clause 26 for the Contractor to carry out any
repair, replacement or other making good:
(i)
the provisions of the Deed relating to the Works apply to the repair,
replacement or other making good as if it were the Works; and
(ii)
the Defects Correction Period for such repair, replacement or other
making good:
75
26.4
(A)
commences on the day on which the repair, replacement or
other making good is completed to the Principal‟s
Representative‟s reasonable satisfaction; and
(B)
ends 12 months thereafter or 12 months after the Date of
Completion to reach Completion, whichever is the later.
Operation of Works during Defects Correction Period
The Contractor acknowledges and agrees that, during the Defects Correction Period:
27
(a)
live 132kV cables will be operational within, or in the vicinity of, the Works;
and
(b)
the Contractor must:
(i)
access the Site only with the prior approval, and in accordance with
the directions, of the Principal‟s Representative;
(ii)
perform any repair or replacement work in such a manner as to
interfere to the least extent possible with the conduct of the business
of the Principal on the Site;
(iii)
only access the Site during the hours and on the days directed in
writing by the Principal‟s Representative;
(iv)
take all steps necessary to protect all people from risks to safety
caused by the performance of the repair or replacement work;
(v)
complete such safety or other training or induction as the Principal‟s
Representative from time to time directs;
(vi)
comply with all procedures, policies and rules adopted from time to
time by the Principal in connection with the Site; and
(vii)
keep itself informed as to the requirements of, comply with and not
do anything which may place the Principal in breach of Law.
Care of the Work under the Deed
27.1
27.2
(a)
Subject to clause 27.3, the Contractor is responsible for the care and custody
of the Work under the Deed until the Date of Completion and must make
good at its own cost any loss or damage that may occur to the Work under
the Deed from any cause whatsoever during such period.
(b)
The Contractor is also responsible for any loss or damage to the Work under
the Deed caused by the Contractor or its Subcontractors in the course of the
work carried out pursuant to clause 26.
The Contractor is liable for any loss of or damage to any construction equipment or
any other property of the Contractor used or intended to be used for the purposes of
the Work under the Deed, save where such loss or damage arises by reason of the use
or occupation by the Principal or any third party (other than a Subcontractor)
authorised by the Principal of any part of the Work under the Deed.
76
27.3
28
The Contractor‟s obligations under clause 27.1(a) do not apply in respect of the
CSCT and CSCT Extension from the date the CSCT and CSCT Extension is handed
over to the Principal until the date the CSCT and CSCT Extension is handed back to
the Contractor as contemplated by clause 19.7 or any loss or damage to the Work
under the Deed arising from:
(a)
any negligent act or omission of the Principal‟s Representative, the Principal
or its consultants, agents, employees, Interface Parties, Separate Contractors
or other contractors (not being employed by the Contractor);
(b)
any risk specifically excepted elsewhere in the Contract;
(c)
war, invasion, acts of foreign enemies, hostilities (whether war be declared or
not), civil war, rebellion, revolution, insurrection or military or usurped
power, martial law or confiscation by order of any government or public
authority;
(d)
ionising radiations or contamination by radioactivity from any nuclear fuel or
from any nuclear waste from the combustion of nuclear fuel not caused by
the Contractor or its subcontractors or either‟s employees or agents;
(e)
use or occupation of any part of the Works by the Principal‟s Representative,
the Principal or its consultants, agents, Interface Parties, Separate Contractors
or other contractors (not being employed by the Contractor); and
(f)
defects in the design of the Works, other than design provided by the
Contractor or design for which the Contractor is responsible.
Indemnities
Masked for Confidentiality
28.2
The Contractor‟s obligation to indemnify the Principal under clause 28.1 will be
reduced only to the extent that the same was caused by or contributed to by any
negligent act or omission of the Principal or an Interface Party.
28.3
Each indemnity in the Deed is a continuing obligation, separate and independent
from the other obligations of the party giving that indemnity, and remains in full
force and effect following completion or termination of the Deed.
77
29
Insurance
29.1
The Contractor must at its expense take out and maintain, or cause to be taken out
and maintained, the insurances at the times, in the manner, on the terms and in the
form specified in Schedule 7 - Insurances and this clause 29.
29.2
The Contractor must:
(a)
ensure that the insurance policies effected under clause 29.1 and Schedule 7 Insurances (with the exception of statutory insurances) are effected with
reputable insurers with a financial security rating of "A-" or better by
Standard & Poors or the equivalent rating with another recognised rating
agency, or another reputable insurer approved in writing by the Principal‟s
Representative, which approval must not be unreasonably withheld;
Masked for Confidentiality
78
Masked for Confidentiality
29.3
The Contractor must, on or prior to the Commencement Date and thereafter upon
request by the Principal‟s Representative, provide evidence of compliance with
clause 29.1 to the Principal‟s Representative. Where the Contractor employs
Subcontractors, the Contractor must also provide evidence of compliance by the
Subcontractors with clause 29.1 to the satisfaction of the Principal‟s Representative.
For the purposes of this clause 29.3, the Contractor must give the Principal‟s
Representative certificates from the relevant insurer or broker specifying for each
insurance policy:
29.4
(a)
the cover;
(b)
any significant exclusions, limitations or conditions;
(c)
the policy number;
(d)
the expiry date; and
(e)
sufficient information to enable the Principal‟s Representative to confirm
proof of currency and coverage of each insurance policy
The Contractor must:
(a)
give (or make available for inspection by) the Principal‟s insurance brokers
the insurance policies effected by the Contractor under clause 29.1;
(b)
immediately notify the Principal and the Principal‟s Representative if an
insurer gives notice of cancellation or other notice in respect of any insurance
policy, including notice of any proposed variation, amendment or
endorsement which materially adversely affects the amount, scope or terms
of any policy;
(c)
ensure that premiums are paid on time and the conditions of insurance are
otherwise complied with;
(d)
promptly pay the deductible in connection with any claim made in respect of
any loss or risk covered by an insurance policy effected under clause 29.1. In
circumstances where the claim is as a result of the Principal‟s or Principal‟s
Representative‟s act, error or omission or the matters described in clauses
27.3(a) to 27.3(f) (inclusive) the Principal will reimburse the Contractor a
79
proportion of the deductible paid by the Contractor which reflects the extent
to which the claim was as a result of the Principal‟s or Principal‟s
Representative‟s act, error or omission or the matters described in clauses
27.3(a) to 27.3(f) (inclusive);
29.5
(e)
not do or omit to do anything which might vitiate, impair or derogate from
the cover under any insurance policy or which might prejudice any claim
under any policy;
(f)
immediately notify the Principal‟s Representative of an event which may
result in any insurance policy lapsing or being cancelled or avoided; and
(g)
as soon as practicable notify the Principal‟s Representative of any occurrence
that may give rise to a claim under any insurance policy and thereafter keep
the Principal‟s Representative informed of developments concerning the
claim.
If any insurance the Contractor is required to maintain under clause 29 is effected
with an insurer in Australia:
(a)
(b)
29.6
where the insurance policy was effected before the date of the Deed, the
Contractor:
(i)
warrants that it informed the insurer of the extent of its entitlement to
an input tax credit for the last premium it paid at or before the time
of first making any subsequent claim under the insurance policy; and
(ii)
must provide written proof of this to the Principal‟s Representative
within five business days of the date of the Deed; and
with respect to every insurance policy referred to in clause 29, whether
effected before, on or after the date of the Deed, the Contractor must:
(i)
immediately inform the insurer of any change in the extent of its
entitlement to an input tax credit for the last premium paid;
(ii)
inform the insurer of the extent of its entitlement to an input tax
credit for any future premium it pays immediately after paying that
premium; and
(iii)
provide written proof to the Principal‟s Representative that it has
complied with clauses 29.5(b)(i) and 29.5(b)(ii) within five business
days of informing the insurer.
If the Contractor fails to take out or maintain, or to cause to be taken out or
maintained, any specified insurance as required by Schedule 7- Insurances and this
clause 29, or to provide satisfactory evidence of such insurance in accordance with
clause 29.3, the Principal may (but is not obliged to) take out the insurance and the
costs of doing so will be a debt due and payable from the Contractor to the Principal.
The Contractor is not relieved of any liability under the Deed due to, or as a result of,
the Principal taking out or maintaining any insurance policy referred to in Schedule 7
- Insurances.
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30
Site Conditions, GBR administration and Selection of Equipment
30.1
Site Conditions
Subject to clause 4.1A(e), clause 4.1(b)(iv)(B) and clause 30.3, the Contractor bears
the risk of all Site Conditions encountered during the execution of the Work under
the Deed and is not entitled to any additional payment or adjustment to the Contract
Price, or any extension of time, arising out of the actual conditions encountered.
30.2
Site Information
(a)
Neither the Principal nor the Principal‟s Representative:
(i)
is responsible for the accuracy or the contents of; or
(ii)
makes any representation or assumes any duty of care in respect of,
the following information:
(b)
(iii)
the Pre-Contract Information; and
(iv)
any other reports, data, test results, samples or geotechnical
investigations or information provided to the Contractor prior to the
date of the Deed that have not been expressly included in the Deed.
The Contractor acknowledges that:
(i)
the information referred to in clause 30.2(a) does not form part of the
Deed and the Contractor has not relied on that information in
choosing to enter into the Deed;
(ii)
the Principal is not responsible for the accuracy of the information
referred to in clause 30.2(a) or for any negligence in the preparation
of that information;
(iii)
the Contractor has:
(iv)
(A)
been allowed adequate access to the Site;
(B)
been allowed to consult with the authors of the information
referred to in clause 30.2(a);
(C)
had sufficient time to review thoroughly the information
referred to in clause 30.2(a);
(D)
carried out its own investigations of the Site and its
surroundings, before the date of the Deed, to reach its own
conclusions as to the Site Conditions; and
to the extent the Principal is not the author of the information
referred to in clause 30.2(a), the Principal is not adopting or
endorsing, but is merely passing on that information to the
Contractor.
81
(c)
(d)
30.3
Neither the Principal nor the Principal‟s Representative is liable in contract,
tort or otherwise for any damage, expense, loss or liability suffered or
incurred by the Contractor (whether arising by the negligence of the
Principal or the Principal‟s Representative or their employees, consultants or
agents or otherwise) however caused in respect of:
(i)
the provision of the information referred to in clause 30.2(a); or
(ii)
a failure to provide any information to the Contractor.
The Contractor acknowledges that the Principal has entered into the Deed in
reliance on the acknowledgments made by the Contractor in this clause 30.2.
GBR administration and adjustments to time and costs for actual ground
conditions encountered
(a)
The parties acknowledge and agree that:
(i)
the GBR contains descriptions of Typical Conditions and Adverse
Conditions agreed by the parties prior to the date of the Deed for the
sole purpose of determining the Contractor‟s entitlement under the
Deed to:
(A)
payment; and
(B)
any adjustment to the Date for Substantial Completion, the
Date for Practical Completion and the Date for Completion
(as the case may be),
arising out of the actual ground conditions encountered by the
Contractor;
(ii)
they have not relied, and will not rely, on the GBR for any reason
other than for the purpose stated in clause 30.3(a)(i); and
(iii)
in respect of the TBM Section of the Tunnel:
(A)
the "relative production factor" and "relative wear factor"
included in item 6.5 of the pricing schedule in Schedule 3 Commercial Schedules for Typical Conditions is 1.00;
(B)
the "relative production factor" and "relative wear factor"
included in item 6.5 of the pricing schedule in Schedule 3 Commercial Schedules for Adverse Conditions is also 1.00;
and
(C)
accordingly, whether or not the actual ground conditions
encountered by the Contractor in the TBM Section of the
Tunnel are Typical Conditions or Adverse Conditions, the
application of the regime in this clause 30.3 will result in
Typical Conditions and Adverse Conditions being treated the
same.
82
(b)
(c)
The Contractor:
(i)
must sample, test and measure the characteristics of ground
conditions encountered during the execution of the Work under the
Deed in accordance with the procedures set out in Schedule 4 - GBR
Administration (or such additional or alternative procedures agreed
in writing by the parties); and
(ii)
acknowledges and agrees that ground conditions encountered will be
deemed to be Typical Conditions for the purposes of the Deed unless
the Contractor demonstrates, to the Principal‟s Representative‟s
reasonable satisfaction, by agreed testing procedures, that the ground
conditions encountered are:
(A)
outside the limits of one or more of the Parameters for
Typical Conditions; and
(B)
within, or in the case of Materially Adverse Conditions
beyond, the limits of one or more of the Parameters for
Adverse Conditions (where applicable).
If the Contractor encounters, in the execution of the Work under the Deed,
the types of Site Conditions referred to below, the Contractor must promptly
notify the Principal in writing (and in any event within seven days of
encountering the relevant Site Conditions and prior to making any Claim):
(i)
(ii)
in respect of any Adverse Conditions or Materially Adverse
Conditions, giving full details of:
(A)
the relevant Site Conditions encountered; and
(B)
the manner in which they are said to be different from those
defined to be Typical Conditions by the GBR, together with
information, including records of samples, supporting this
contention; and
in respect of Materially Adverse Conditions, giving full details of:
(A)
the effect on the Work under the Deed;
(B)
the delay (if any) to progress of the Work under the Deed;
and
(C)
any other relevant matters,
and the Principal may request the Contractor to provide any further
information relating to the circumstances of the relevant Site Conditions
encountered and the Contractor must provide such further information within
the time reasonably required by the Principal.
(d)
Subject to the other provisions of the Deed, the Contractor is entitled to
payment in connection with actual ground conditions encountered in the
Roadheader Section of the Tunnel and TBM Section of the Tunnel and the
Shafts as calculated in accordance with the procedures described in Schedule
4 - GBR Administration.
83
(e)
Subject to the other provisions of the Deed, the Contractor is entitled to an
adjustment to the Date for Substantial Completion and the Date for Practical
Completion in connection with actual ground conditions encountered as
calculated in accordance with the procedures described in Schedule 4 - GBR
Administration.
(f)
The Contractor acknowledges and agrees that:
(g)
(h)
30.4
(i)
it is solely responsible for dealing with the Site Conditions
encountered in a manner so as to minimise any extra costs and in a
manner to which the Principal has no objection; and
(ii)
the Contractor is not entitled to any compensation or adjustment to
either the Date for Substantial Completion or the Date for Practical
Completion as a result of delay or disruption arising out or in
connection with actual ground conditions encountered by the
Contractor other than as set out in Schedule 4 - GBR Administration.
No claim by the Contractor for an adjustment under this clause 30.3 will be
allowed unless:
(i)
the Contractor has given the written notices (as applicable) under
clause 30.3(c)(i) above; and
(ii)
the Contractor has promptly allowed the Principal‟s Representative
to have access to such parts of the Site as are required by the
Principal‟s Representative to investigate the Site Conditions the
subject of the Contractor‟s notice in clause 30.3(c)(i).
No claim by the Contractor for an adjustment under this clause 30.3 will be
allowed if it is made after the Principal has issued the Final Payment
Certificate.
Selection of equipment
The Contractor acknowledges that by providing geotechnical information in the
Deed (including in the GBR) and otherwise, the Principal is deemed not to have
attempted to determine, or assist in, the selection of the size, excavation cutters,
consumable parts and other characteristics of the Contractor‟s Construction Plant,
including the type of Roadheader equipment, type of TBM or any other equipment
necessary to perform the Work under the Deed. The selection of Construction Plant,
including type of Roadheader and type of TBM capable of performing the relevant
parts of the Work under the Deed, is solely the responsibility of the Contractor. Any
errors in selecting any aspect of the Contractor‟s Construction Plant, and any
consequences flowing from such selection, will be the Contractor‟s responsibility.
Subject to the Contractor‟s express entitlements under Schedule 4 - GBR
Administration, the Principal will not accept or consider, and the Contractor will not
be entitled to, any Change, extension of time or relief from liquidated damages in
respect of the suitability of the type of Roadheader equipment or type of TBM
selected or any other Construction Plant necessary to perform the Work under the
Deed.
30.5
Dilapidation surveys
The Contractor must:
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(a)
have a property condition assessment undertaken in accordance with the
requirements of the Specification; and
(b)
lodge with the Principal‟s Representative a copy of the property condition
assessment showing the date of the property condition assessment and signed
on behalf of the Contractor by way of acknowledgment that the property
condition assessment is true and correct.
The Contractor is responsible for any discrepancy between the conditions described
in the property condition assessment referred to in this clause 30.5 and the actual
condition of any property adjoining or in the vicinity of the Site, to the extent the
discrepancy can be attributed to the execution of the Work under the Deed. As soon
as practicable, but no later than the Date of Practical Completion, the Contractor
must promptly reinstate each such affected property to the condition in which it
existed prior to the commencement of the Work under the Deed.
31
Re-Instatement
31.1
32
The parties acknowledge that re-instatement of disturbed artificial surfaces (paving,
asphalt, concrete etc) to equivalent conditions as existed prior to the Work under the
Deed and in accordance with local council specifications, to the extent the
disturbance can be attributed to the execution of the Work under the Deed, forms part
of the Work under the Deed and must be undertaken by the Contractor at its cost
under arrangements between local councils and the Contractor.
Force Majeure
32.1
If either party is prevented, hindered or delayed from or in performing any of its
obligations under the Deed by an Event of Force Majeure, it must promptly notify
the other party in writing of the occurrence of the Event of Force Majeure and the
circumstances as soon as practicable after becoming aware of the Event of Force
Majeure and in any case within five days after the occurrence of the Event of Force
Majeure.
32.2
The party who has given such notice will be excused from the performance or
punctual performance of its obligations under the Deed for so long as the Event of
Force Majeure continues and to the extent that such party‟s performance is
prevented, hindered or delayed. If applicable, the Date for Substantial Completion,
the Date for Practical Completion and the Date for Completion must be extended in
accordance with (and subject to) clause 34.
32.3
The party or parties affected by the Event of Force Majeure must use reasonable
efforts to mitigate the effect upon its or their performance of the Deed and to fulfil its
or their obligations under the Deed, but without prejudice to the Principal‟s right to
terminate the Deed under clause 32.6.
32.4
On the cessation of the Event of Force Majeure which is the subject of a written
notice given under clause 32.1, the party affected by the Event of Force Majeure
must:
(a)
immediately give written notice to the other party of the cessation of the
Event of Force Majeure; and
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(b)
32.5
33
resume performance of the obligations suspended as a result of the Event of
Force Majeure.
The Contractor will have no entitlement, and the Principal will have no liability for:
(a)
any costs, losses, expenses, damages or the payment of any part of the
Contract Price relating to work affected by the Event of Force Majeure
during any period of Event of Force Majeure (but will, subject to clause 7, be
obliged to pay to the Contractor any payments which fall due during such
period in respect of work undertaken by the Contractor and included in a
Progress Claim prior to the relevant Event of Force Majeure); or
(b)
any delay costs in any way incurred by the Contractor due to an Event of
Force Majeure.
32.6
If the performance of the Work under the Deed is substantially prevented, hindered
or delayed for an aggregate period of more than 60 days on account of one or more
Events of Force Majeure during the currency of the Deed, the Principal may
terminate the Deed by giving a written notice to the Contractor.
32.7
In the event of termination pursuant to clause 32.6, the rights and obligations of the
Principal and the Contractor will be as specified in clause 37.2, except that the
amount specified in Schedule 1 - Contract Information referred to in
clause 37.2(d)(iii) will be nil.
Change in the Work under the Deed
33.1
33.2
General
(a)
The Principal has the right to direct by written notice to the Contractor any
Change.
(b)
The Principal may, prior to giving any such direction, give written notice to
the Contractor of its proposal to direct a Change but shall not be obliged to
give such notice.
(c)
Upon receipt of a direction or proposal under this clause 33.1, the Contractor
must promptly notify the Principal in writing if it considers that the Change
is not technically practicable, taking into account the state of advancement of
the Work under the Deed or the technical compatibility of the Change
envisaged with the nature of the Work under the Deed as specified in the
Deed.
(d)
The Contractor acknowledges and agrees that directions given to the
Contractor by the Principal or the Principal‟s Representative in connection
with the Deed will not constitute a Change unless the direction is the subject
of a Change Order given pursuant to clauses 33.5 or 33.6 or an Urgent
Change Direction under clause 33.7.
Proposal by Contractor
(a)
The Contractor may from time to time during its performance of the Deed
propose to the Principal any Change which the Contractor considers
86
necessary or desirable to improve the quality, efficiency or safety of the
Work under the Deed.
(b)
The Principal may, in its absolute discretion and without in any way being
obliged to do so, approve any Change proposed by the Contractor by written
notice to the Contractor. Any such approval may be given on such
conditions as the Principal considers appropriate.
(c)
The Contractor acknowledges and agrees that if:
(i)
the Principal approves a Change proposed by the Contractor under
this clause 33.2; and
(ii)
such Change requires amendment to any aspect of the design of the
Works which is the Principal‟s responsibility under the Deed so as to
enable the Change proposed by the Contractor to be implemented,
the amount of any costs (including any consultant‟s costs) incurred by the
Principal in amending such design will be a debt due and payable by the
Contractor to the Principal.
33.3
Detailed particulars
If either party proposes a Change, the Contractor must promptly prepare and furnish
to the Principal a written statement setting out detailed particulars of any such
Change (and if the Change is proposed by the Contractor, the reasons for the
Change), the work and/or Materials and Construction Plant required or no longer
required, the increase or decrease in the Contract Price calculated on the basis of the
rates in the Contractor's statement under clause 7.2 and Schedule 3.3 - Cost
Reimbursable Schedules, any requisite adjustment to the Date for Substantial
Completion, the Date for Practical Completion or the Date for Completion and any
effect such Change would have on the Work under the Deed or the performance of
any of the Contractor‟s other obligations under the Deed. Subject to clause 33.7, the
Contractor must not commence any Change without the written approval of the
Principal.
33.4
Deductions
In determining the deduction to be made for work or services which is taken out of
the Deed, or for a Change which results in a saving to the Contractor, the deduction
must include an amount for the Contractor‟s Margin.
33.5
Change Order After Proposal
If, in the case of a Change proposed by either the Principal or the Contractor, the
Principal and the Contractor reach agreement on all matters identified in the written
statement furnished by the Contractor pursuant to clause 33.3, the Principal may, if it
wishes to proceed with the Change, issue a written Change Order giving effect to the
Change. Such Change Order must contain full particulars of the Change, any
adjustment of the Contract Price, the Date for Completion and/or the Date for
Practical Completion and/or the Date for Substantial Completion and must be signed
by the Principal. Such Change will thereupon be deemed to form part of the Work
under the Deed.
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33.6
Change Otherwise
Whether or not a Change has been proposed and whether or not the Contractor has
furnished a statement under clause 33.3, the Principal may at any time (subject to
clause 34.1) give the Contractor a written Change Order directing the Contractor to
implement a Change specified in such direction, and the Contractor must comply
with any such direction.
33.7
Urgent Change
Notwithstanding any other provision of the Deed, the Principal‟s Representative
may, by a written form expressly identified as an “Urgent Change Direction,”
direct the Contractor to carry out the work described in the Urgent Change Direction
and the Contractor must immediately proceed to carry out that work.
33.8
Valuation by Principal’s Representative
(a)
If a Change is directed by the Principal:
(i)
pursuant to clause 33.6 or 33.7; or
(ii)
without agreement having been reached on the valuation of the
Change or any other matter relevant to the Change (including any
applicable extension or reduction of time),
the Principal‟s Representative must value the Change and those other
matters and, subject to the parties‟ rights to refer any aspect of such
valuation to dispute resolution under clause 40, the Contract Price and the
Date for Substantial Completion, the Date for Practical Completion and the
Date for Completion must be adjusted accordingly.
(b)
For the purpose of this clause 33.8:
(i)
the Principal‟s Representative must value any Change in accordance
with the rates and prices set out in:
(A)
the detailed statement provided by the Contractor under
clause 7.2; and
(B)
Schedule 3 - Commercial Schedules,
to the extent that the Principal‟s Representative determines that those
rates and prices are applicable to the Change;
(ii)
(iii)
where the Principal‟s Representative determines that the rates and
prices do not apply to a Change:
(A)
the Principal‟s Representative and the Contractor must
attempt to agree on the value of the Change; or
(B)
failing agreement, the Principal‟s Representative must use
reasonable rates (exclusive of GST);
the allowance for overhead and profit applying to any Change will be
calculated by multiplying the Contractor‟s Margin to the sum of the
rates and prices determined in accordance with clause 33.8(b)(i) or
88
clause 33.8(b)(ii) to the extent those rates and prices do not include
provision for the Contractor‟s overhead and profit; and
(iv)
34
the Contractor is not entitled to any extension of time unless:
(A)
in the case of a Change proposed by the Principal in respect
of which the Contractor is obliged to prepare a statement
under clause 33.3, details of the need for an adjustment to the
Date for Substantial Completion, the Date for Practical
Completion and/or the Date for Completion are set out in
such statement; and
(B)
in the case of any other Change directed by the Principal, the
Contractor has given notice under clause 34 of the likely
delay to the progress of the Work under the Deed prior to
commencing to comply with the direction.
Extension of Time
34.1
Application of clause 34
(a)
34.2
The Contractor acknowledges and agrees that:
(i)
it has no entitlement under this clause 34 to an extension of time for
delay arising out of or in connection with Site Conditions; and
(ii)
clause 30.3 and Schedule 4 - GBR Administration regulate the
Contractor‟s sole entitlement to any adjustment to the Date for
Substantial Completion, Date for Practical Completion and Date for
Completion (as the case may be) arising out of or in connection with
actual ground conditions encountered during the execution of Work
under the Deed comprising Separable Portion 1.
Notice of Delay
(a)
The Contractor must immediately notify the Principal‟s Representative of all
incidents and/or events of whatsoever nature affecting or likely to affect the
progress of the Work under the Deed, including delays in obtaining data and
information necessary for the performance of the Work under the Deed, the
supply or transportation of Materials or Construction Plant, strikes or
disruption of the Work under the Deed involving employees and/or agents of
the Contractor and Subcontractors engaged in the performance of the Work
under the Deed and hidden obstacles or obstructions on Site. Notice under
this clause 34.2(a) will not entitle the Contractor to any extension of time and
any such entitlement must be determined strictly in accordance with the
following provisions of this clause 34.
(b)
The Contractor must at all times keep the Principal‟s Representative
informed of any actual delay to the progress of the Work under the Deed and
the effect on the Work under the Deed of any event which has been the
subject of a notice under clause 34.2(a).
(c)
Without limiting clause 34.2(b), within 10 days after any event referred to in
a notice under clause 34.2(a) which has affected the progress of the Work
89
under the Deed has ceased to have effect, the Contractor must give a further
notice to the Principal‟s Representative:
34.3
(i)
setting out the material circumstances including the cause or causes
and the nature and extent of the delay to the progress of the Work
under the Deed and detailing the corrective action already
undertaken or to be undertaken by the Contractor; and
(ii)
if the event is one listed in clause 34.4 as a cause entitling the
Contractor to an extension of time (but not otherwise), stating the
period by which in its opinion the Date for Substantial Completion,
the Date for Practical Completion and the Date for Completion
should be extended.
Determination of Extension of Time
(a)
The Principal‟s Representative must, within 30 business days of receipt of
notice under clause 34.2(c) pursuant to which a claim is made for an
extension of time:
(i)
request the Contractor to provide further details relating to the claim;
or
(ii)
notify the Contractor‟s Representative whether an extension of time
is to be granted or not and, if so, its determination as to the period, if
any, by which the Date for Substantial Completion, the Date for
Practical Completion and the Date for Completion are to be
extended.
(b)
If a request is made under clause 34.3(a)(i), the Contractor must provide such
details within five business days, and the Principal must thereafter determine
the Contractor‟s claim and give notice under clause 34.3(a)(ii) to the
Contractor as soon as practicable and in any event within 10 business days.
Nothing in this clause 34.3 will oblige the Principal‟s Representative to
request further information from the Contractor and the onus will at all times
remain with the Contractor to establish all elements necessary to establish its
entitlement to an extension of time.
(c)
If the Principal‟s Representative:
(i)
does not make a request or give a notice within the period referred to
in clause 34.3(a); or
(ii)
if applicable, does not give a notice within the period referred to in
clause 34.3(b),
the Contractor must within seven days of the expiry of that period give
written notice to the Principal and the Principal‟s Representative requesting
the Principal‟s Representative to make such a request or give such a notice.
(d)
Subject to clause 34.3(e), if the Principal‟s Representative does not make a
request or give a notice within seven days of receipt of a written notice from
the Contractor under clause 34.3(c) the Date for Substantial Completion, the
Date for Practical Completion and the Date for Completion are extended by
the period stated in the Contractor‟s notice given under clause 34.2(b).
90
(e)
34.4
If the Date for Substantial Completion, the Date for Practical Completion and
the Date for Completion are extended in accordance with clause 34.3(d), the
Principal may, if it does not agree with that extension, refer the matter for
dispute resolution in accordance with clause 40.
Causes of delay
Subject to clause 35 and without limiting the separate operation of clause 4.1A(f)(ii),
the Contractor will be entitled to a reasonable extension of time to any or all of the
Date for Substantial Completion, the Date for Practical Completion or the Date for
Completion, subject to the other provisions of this clause 34, only where the
Contractor reasonably satisfies the Principal‟s Representative that:
(a)
Substantial Completion, Practical Completion or Completion (as applicable)
have actually been delayed;
(b)
the delay is demonstrable on an assessment of the critical path of the network
of the revision of the Contract Programme last submitted under
clause 15.1(b) when the delay first arose;
(c)
the cause of the delay is not in any way connected with an act of, or omission
by, the Contractor or its Subcontractors; and
(d)
the delay is caused by any of the following events:
(i)
any breach by the Principal or the Principal‟s Representative of its
obligations under the Deed;
(ii)
an act or omission of the Principal or the Principal‟s Representative
(excluding an act or omission which relates to the exercise of the
Principal's or the Principal's Representative's express rights or
powers under the Deed);
(iii)
an act or omission of a Separate Contractor;
(iv)
a Change (other than as contemplated in clause 33.8(b)(iv));
(v)
an order to suspend the execution of the Work under the Deed
pursuant to clause 36, except where such order is caused by an act or
omission of the Contractor;
(vi)
an Event of Force Majeure;
(vii)
suspension by the Contractor of the performance of the Work under
the Deed where entitled to do so under section 27 of the Security of
Payment Act;
(viii)
the cause of delay contemplated by clause 19.7(a)(ii);
(ix)
an event which entitles an adjustment to the Date for Substantial
Completion and the Date for Practical Completion in accordance
with clause 30.3;
(x)
delays as a result of state or industry wide Industrial Relations
disputes;
91
34.5
(xi)
changes to the GHG Legislation or the NGER Act after the date of
the Deed;
(xii)
changes in law after the date of the Deed other than those described
in clause 34.4(d)(xi);
(xiii)
the cause of delay contemplated by clause 19.3(c).
Extension of Time without claim
Notwithstanding any other provisions of this clause 34, if there is a delay to any
Work under the Deed for which the Contractor is not entitled to an extension of the
Date for Substantial Completion, the Date for Practical Completion or the Date for
Completion, the Principal or the Principal‟s Representative may grant, but has no
obligation to grant, nor to consider whether it should grant, an extension to the Date
for Substantial Completion, the Date for Practical Completion and the Date for
Completion (as the case may be).
34.6
Best endeavours
The Contractor must constantly use its best endeavours to avoid delay in the progress
of the Work under the Deed.
34.7
Concurrent delays
If there are two or more concurrent causes of delay and at least one of those
concurrent causes is not a cause of delay which would entitle the Contractor to an
extension of time under clause 34.4, the Contractor is not entitled to an extension of
time to the extent that the causes are concurrent.
34.8
Conditions Precedent to extension of time
It is a condition precedent to any entitlement of the Contractor to an extension of
time that:
34.9
(a)
the Contractor has given notice under clause 34.2(c) claiming an extension of
time within the period stated in that clause;
(b)
if the cause is one described in clause 34.4(d)(i), the Contractor has given
notice under clause 34.2(a) either before the event has caused delay to the
Work under the Deed or within 24 hours of reasonably becoming aware that
the relevant event was likely to delay the progress of the Work under the
Deed, whichever is the later; and
(c)
the Contractor has taken all reasonable measures both to preclude the
occurrence of the cause of delay and to avoid or minimise its consequences
and, in respect of Separable Portion 3, to reprogram the sequence of activities
with a view to minimising the delay to the Work under the Deed (including
carrying out any activities in parallel with the Work under the Deed for
Separable Portions 1 and 2 without incurring demonstrated additional costs
to the Contractor).
Delay Costs
(a)
Subject to clauses 30.3(e) and 34.9(b) and Part 5 of Schedule 4 - GBR
Administration, the Contractor accepts the risk of all increased costs
92
resulting from delay in the execution of the Work under the Deed and the
performance of its other obligations under the Deed with the exception of a
delay directly caused by:
(i)
a breach by the Principal or the Principal‟s Representative of its
obligations under the Deed;
(ii)
the suspension of the execution of the Work under the Deed (or any
part of the Work under the Deed) pursuant to a written order issued
under clause 36 except where such order was issued as a result of a
breach by an act or omission of the Contractor;
(iii)
a Change;
(iv)
a suspension by the Contractor of the performance of the Work under
the Deed where entitled to do so under section 27 of the Security of
Payment Act;
(v)
the cause of delay contemplated by clause 19.3(c);
(vi)
subject to clause 34.9(d), the cause of delay contemplated by
clause 19.7(a)(ii); and
(vii)
the causes of delay contemplated by clause 34.4(d)(iii) or clause
34.4(d)(xi),
in respect of which the Contractor has been granted an extension of time
under the Deed.
(b)
Subject to clauses 30.3(d) and Part 4 of Schedule 4 - GBR Administration,
the Principal and the Contractor acknowledge and agree that the Contractor‟s
sole entitlement to recover from the Principal any compensation incurred as a
result of delay or disruption to the execution of the Work under the Deed is
limited to the amount determined in accordance with Schedule 1 - Contract
Information and the Contractor has such entitlement only if:
(i)
there is a delay in achieving Substantial Completion or Practical
Completion or Completion for which the Contractor has been
granted an extension of time under clause 34.3; and
(ii)
the Contractor has used reasonable endeavours to mitigate the delay
costs.
(c)
The Principal‟s Representative must give a written notice to the Contractor
adjusting the Contract Price to reflect the amount of delay costs referred to in
clause 34.9(b).
(d)
The Contractor accepts the risk of all increased costs resulting from delay in
the execution of the Work under the Deed and the performance of its other
obligations under the Deed for the first 8 weeks of any extension of time
granted for the cause of delay referred to in clause 34.4(d)(viii).
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35
Acceleration
35.1
The Principal‟s Representative may direct the Contractor to do any or all of the
following:
(a)
alter the sequence of activities comprised in the Work under the Deed from
that shown in the Contract Programme;
(b)
accelerate the progress of any one or more of such activities so as to
complete such activities in advance of the dates for completion of those
activities shown on the Contract Programme; and
(c)
overcome or minimise the extent and effects of some or all of a delay,
including to achieve Substantial Completion by the Date for Substantial
Completion and Practical Completion by the Date for Practical Completion,
if the Contractor submits a notice under clause 34.1 or clause 34.2.
35.2
A direction given under clause 35.1 may only be effected by a written form expressly
identified as “Acceleration Direction” signed by the Principal‟s Representative and
given to the Contractor.
35.3
Before issuing an Acceleration Direction, the Principal‟s Representative may issue a
written form, expressly identified as an “Acceleration Direction Information
Request”, advising the Contractor of the proposed actions and requiring the
Contractor, within the time specified, to:
(a)
advise whether it is practicable to accelerate the Work under the Deed, and
(b)
if it is practicable to accelerate the Work under the Deed:
(i)
provide an estimate of the valuation of the proposed acceleration and
any adjustment to the Contract Price; and
(ii)
provide an estimate of the effect the proposed acceleration will have
on the time for achieving Substantial Completion and Practical
Completion (as applicable), including the earlier date.
35.4
Within the time specified in the Acceleration Direction Information Request, the
Contractor must provide the required information to the Principal‟s Representative in
writing.
35.5
The Contractor must (where practicable) execute the Work under the Deed in
accordance with an Acceleration Direction.
35.6
The Contractor is entitled to payment of the additional direct and reasonable costs
incurred as a result of complying with an Acceleration Direction, except to the extent
the Acceleration Direction is given as a result of, or in connection with, an act or
omission of the Contractor.
35.7
The Principal‟s Representative and the Contractor‟s Representative must attempt to
agree on the payment to which the Contractor will be entitled under clause 35.6 as a
result of complying with an Acceleration Direction under clause 35.1. If the
Principal‟s Representative and the Contractor‟s Representative agree on that
payment, the Principal‟s Representative must give a written notice to the Contractor
94
setting out the adjustment to the Contract Price. If the Principal‟s Representative and
the Contractor‟s Representative fail to reach agreement within seven days of the
issue of the Acceleration Direction, the Principal‟s Representative may determine the
amount payable and give a written notice to the Contractor setting out the adjustment
to the Contract Price.
35.8
36
37
The Principal and the Contractor acknowledge and agree that the Principal‟s
Representative may issue an Acceleration Direction in accordance with this clause 35
in lieu of the Contractor‟s entitlement to an extension of time under clause 34.
Suspension
36.1
The Principal may by written notice to the Contractor order the Contractor to
suspend performance of all or any of its obligations under the Deed. Such notice
must specify the obligation the performance of which is to be suspended, the
effective date of the suspension and the reasons for the suspension. The Contractor
must thereupon suspend performance of such obligation (except those obligations
which are necessary for the care, safety or preservation of the Works) until ordered in
writing to resume such performance by the Principal.
36.2
If the Contractor‟s performance of its obligations is suspended pursuant to this
clause 36, the Date for Substantial Completion, the Date for Practical Completion
and the Date for Completion may, subject to the provisions of clause 34, be extended
in accordance with clause 34.
36.3
The Contractor may suspend the performance of any part of the Work under the
Deed only where it is ordered to do so under clause 36.1 or it has a statutory
entitlement to do so.
Termination
37.1
Termination for the Contractor’s Default
(a)
(b)
The Principal, without prejudice to any other rights or remedies it may
possess, may immediately either terminate the Deed or determine the
Contractor‟s engagement under the Deed and take over the whole of the
work remaining to be completed in the following circumstances by giving a
written notice to the Contractor referring to this clause 37.1(a) and its reasons
for giving the notice:
(i)
if an Insolvency Event occurs with respect to the Contractor;
(ii)
if the Contractor assigns any right or interest under the Deed in
breach of clause 39.1; or
(iii)
if the Contractor has abandoned the Work under the Deed or
repudiated the Deed.
Without limiting or otherwise affecting the Principal‟s rights at general law,
if the Contractor:
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(i)
has without valid reason failed to commence the Work under the
Deed promptly or has suspended any part of the Work under the
Deed in breach of clause 36.3;
(ii)
defaults in the performance of any provision of the Deed; or
(iii)
without limiting clause 37.1(b)(ii), fails to comply with any of its
safety obligations under the Deed,
the Principal may, without prejudice to any other rights or remedies it may
possess, give a written notice to the Contractor stating the nature of the
default and requiring the Contractor to remedy the same.
(c)
(d)
If the Contractor fails to remedy a default of which it has been given notice
under clause 37.1(b), or show cause why the Principal should not terminate
the Deed or take the Work under the Deed (or any part of the Work under the
Deed) out of the Contractor‟s hands within 10 days of its receipt of such
notice, the Principal may immediately:
(i)
terminate the Deed by giving a written notice of termination to the
Contractor referring to this clause 37.1(c); or
(ii)
by written notice to the Contractor take out of the hands of the
Contractor either the whole of the Work under the Deed remaining
to be completed or such works as are specified in the notice.
Upon receipt of notice of termination (whether under the above provisions or
otherwise) or notice of taking over the Work under the Deed under
clause 37.1(a) or clause 37.2(a), the Contractor must either immediately or
upon such date as is specified in the relevant notice:
(i)
cease all further work, except for:
(A)
such work as the Principal may specify in a notice of
termination for the sole purpose of protecting that part of the
Work under the Deed already executed; or
(B)
any work required to leave the Site in a clean and safe
condition; or
(C)
where the Principal takes over part only of the Work under
the Deed, any remaining work which is not within the scope
of the Principal‟s notice;
(ii)
terminate all subcontracts, except those to be assigned to the
Principal pursuant to paragraph (iv) below or those necessary to
perform any work referred to in paragraph (i) above;
(iii)
deliver to the Principal the parts of the Work under the Deed
executed by the Contractor up to the date of the Principal‟s notice;
(iv)
to the extent legally possible, assign or transfer to the Principal all
right, title and benefit of the Contractor to the Work under the Deed
and in the Materials and Construction Plant as at the date of the
Principal‟s notice and, as may be required by the Principal, in any
subcontracts concluded between the Contractor and its
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Subcontractors or other agreements entered into for the purpose of
the Work under the Deed, including the benefit of all warranties
obtained by the Contractor;
(v)
where anything referred to in paragraph (iv) above cannot be
assigned or transferred to the Principal:
(A)
hold the right, title and interest of the Contractor in the
agreement or warranty for the benefit of the Principal, and do
any act or thing reasonably requested by the Principal in
respect of the agreement or warranty; and
(B)
where any Construction Plant is leased to the Contractor,
sub-lease such Construction Plant to the Principal at no cost
to the Principal;
(vi)
deliver to the Principal all drawings, specifications and other
documents prepared by the Contractor or its Subcontractors in
connection with the Work under the Deed as at the date of the
Principal‟s notice and all Government Approvals held by the
Contractor; and
(vii)
if required by the Principal, novate to the Principal any subcontracts
or other agreements in relation to the Work under the Deed.
(e)
The Contractor hereby irrevocably (for valuable consideration) appoints the
Principal as its lawful attorney for the purpose of executing any documents
on behalf of the Contractor necessary to give effect to clause 37.1(d).
(f)
Upon termination or taking over the Work under the Deed or part of the
Work under the Deed under clause 37.1(a) or 37.1(c), the Principal is not
obliged to make any further payment to the Contractor until the whole of the
Work under the Deed is completed.
(g)
When the Principal completes the Work under the Deed, the cost of
completing the Work under the Deed by the Principal must be determined by
the Principal‟s Representative.
(h)
If the sum which the Contractor has been paid up to the date of the
Principal‟s notice under clause 37.1(a) or 37.1(c), plus the reasonable costs
incurred by the Principal, in completing the Work under the Deed exceeds
the Contract Price, the Contractor is liable to the Principal for such excess
which will be a debt due and payable within 30 days of the Principal‟s
Representative‟s determination under clause 37.1(g).
The Contractor is liable to the Principal for any costs, losses, expenses or
damages incurred by the Principal arising out of the Contractor‟s breach or
the termination of the Deed (if applicable).
(i)
If clause 37.1(h) does not apply, subject to clause 7.9, the Contractor is
entitled to be paid the portion of the Contract Price attributable to the Work
under the Deed executed as at the date of termination and the value of any
unused or partially used Materials on the Site. Any sums due to the Principal
from the Contractor accruing prior to the date of the Principal‟s notice under
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clause 37.1(a)) or 37.1(c) must be deducted from the amount to be paid to the
Contractor under this clause 37.1(i).
(j)
37.2
Notwithstanding any termination of the Deed under this clause 37.1, any
dispute concerning the amount payable by the Principal or the Contractor
under clause 37.1(h) or 37.1(i) must be referred to dispute resolution under
clause 40.
Termination by the Principal for convenience
(a)
Notwithstanding any other provision of the Deed:
(i)
the Principal may at its sole discretion terminate the Deed by giving
28 days‟ written notice to the Contractor; and
(ii)
the Contractor must:
(A)
cease the execution of the Work under the Deed within the
time specified in the written notice; and
(B)
ensure that the Site is left in a clean and safe condition and
the Work under the Deed is properly secured.
(b)
If for any reason a purported termination under clause 37.1 by the Principal
is held to be ineffective, the purported termination is not a breach or
repudiation of the Deed and must be treated to have been effected under
clause 37.2(a).
(c)
If the Deed is terminated pursuant to clause 37.2(a), the Contractor may,
after demobilisation from the Site, submit a statement in a form approved by
the Principal‟s Representative showing:
(i)
the value of Work under the Deed completed by the Contractor to the
date of termination; and
(ii)
except to the extent already covered under clause 37.2(c)(i), the cost
of materials ordered for the Work under the Deed to the extent the
Contractor cannot cancel such orders provided that:
(iii)
(d)
(A)
upon payment by the Principal, the unencumbered title to the
materials passes to the Principal; and
(B)
the materials have not been prematurely ordered; and
reasonable demobilisation costs incurred by the Contractor.
Following receipt of a statement provided in accordance with clause 37.2(c),
the Principal‟s Representative must, within 14 days, determine the amount
payable in respect of that statement and issue a certificate to the Principal
and the Contractor setting out that determination showing:
(i)
the Principal‟s Representative‟s assessment of the value of the items
stated in the statement provided in accordance with clause 37.2(c);
(ii)
the value of the Work under the Deed completed by the Contractor,
assessed by the Principal‟s Representative and taken into account in
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determining the amount certified for payment to the Contractor by
the Principal or to the Principal by the Contractor, as the case may
be, in the last certificate issued pursuant to clause 7.3(c) or 7.4(b);
(e)
(f)
38
(iii)
the amount specified in Schedule 1 - Contract Information;
(iv)
any moneys which have been previously set-off or deducted under
clause 7.6;
(v)
any moneys which are due or which may become due from the
Contractor to the Principal in respect of the Deed or the Work under
the Deed; and
(vi)
the amount certified as then being due for payment to the Contractor
by the Principal or to the Principal by the Contractor, as the case
may be.
The Contractor must give the Principal:
(i)
a Valid Tax Invoice in respect of the amount certified as then being
due for payment to the Contractor by the Principal plus any amount
in respect of GST to which the Contractor is entitled under
clause 9.2 within two days of receipt of that certificate; and
(ii)
before it receives a payment under clause 37.2(f), the written
statement and statutory declaration referred to in clause 7.3(e).
Subject to clause 7.9, where an amount is due from the Principal to the
Contractor in respect of a certificate issued pursuant to clause 37.2(d), the
Principal must pay the Contractor the amount certified as payable by the
Principal‟s Representative under clause 37.2(d) by the later of:
(i)
30 days after receipt by the Principal‟s Representative of the
statement provided in accordance with clause 37.2(c); and
(ii)
the receipt by the Principal‟s Representative of the Valid Tax
Invoice, statement and statutory declaration referred to in
clause 37.2(e)(ii).
(g)
Where an amount is due from the Contractor to the Principal in respect of a
certificate issued pursuant to clause 37.2(d), the Contractor must, within 30
days after receipt of that certificate, pay the Principal the amount stated in
that certificate as due from the Contractor to the Principal.
(h)
The Contractor is not entitled to any other compensation, including any
consequential costs, losses or damages.
Notices
38.1
Unless otherwise stated in the Deed, all notices to be given under the Deed must be
in writing, and sent by personal delivery, post, courier or facsimile to the address of
the relevant party provided that:
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39
(a)
any notice sent by facsimile must be confirmed within two days after
dispatch by notice sent by post or courier;
(b)
any notice sent by post or special courier will be deemed (in the absence of
evidence of earlier receipt) to have been delivered three days after dispatch
and in proving the fact of dispatch it will be sufficient to show that the
envelope containing such notice was properly addressed, stamped and
conveyed to the postal authorities or courier service for transmission by post
or special courier; and
(c)
any notice delivered personally or sent by facsimile will be deemed to have
been delivered on the date of its dispatch if a business day, otherwise on the
next business day.
38.2
Either party may, by notice to the other party, change its postal or facsimile address
or addressee for the receipt of notices to be given under the Deed. If a party changes
its address it must give prompt notice of the change to the other party.
38.3
In the Deed, notices include any approvals, consents, instructions, orders, requests,
certificates or other communication to be given under the Deed.
Assignment and change
39.1
Subject to clause 39.2, neither party may assign any interest or right arising under the
Deed without the consent of the other party.
39.2
The Principal may:
(a)
assign the benefit of the Deed to an Affiliate of the Principal without the
consent of the Contractor; or
(b)
with the consent of the Contractor (such consent not to be unreasonably
withheld or delayed), assign, novate, transfer, mortgage, charge, encumber or
otherwise deal with the Deed, any security or any of its interests, rights or
obligations under or in connection with the Deed at any time to:
(i)
any government owned entity or entities that the New South Wales
Government nominates to assume any part or all; or
(ii)
any other party that the New South Wales Government nominates to
assume a substantial part or all,
of the Principal's functions, rights or obligations (including as set out in
clause 39.6) (a Purchaser) and the Contractor must, if requested by the
Principal, execute a deed on terms reasonably required by the Principal
giving effect to the assignment, novation, transfer, charge, mortgage,
encumbrance or other dealing.
39.3
The Contractor must not create any Security Interest, or allow any Security Interest
to subsist, over the Deed, without the Principal‟s written approval.
39.4
Without limiting clause 39.2, if requested by the Principal, the Contractor must,
subject to the Principal not being in material breach of any provision of the Deed,
enter into an agreement pursuant to which the Deed is novated by the Principal to a
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person of equivalent financial standing to the Principal, and reasonably acceptable to
the Contractor, acting reasonably.
39.5
39.6
39.7
If the Principal assigns or novates the Deed in accordance with this clause 39, the
Contractor agrees that it will:
(a)
provide substitute unconditional undertakings in favour of the person to
whom the Deed is assigned or novated for those held by the Principal in
accordance with clause 8. The form and issuer of the substitute unconditional
undertakings must satisfy the requirements of clause 8; and
(b)
extend all relevant insurance policies effected under the Deed to name the
party to which the Deed is novated under clause 39.4 as a named insured.
The Contractor acknowledges that:
(a)
the Principal may be reconstituted, renamed, dissolved, replaced or
restructured and that some or all of the powers, functions, assets, liabilities or
responsibilities of the Principal (the Principal's Assets) may be transferred
to or vested in another entity (an Entity);
(b)
the Principal may, or may be required to (including as a result of changes to
New South Wales Government policy or directions) add to, or dispose of,
any property or assets forming part of the Principal's Assets;
(c)
any such change to the Principal's Assets may involve amendment to the
Contractor's rights and obligations under the Deed (where any such
amendment will be deemed to be a Change and clause 33 (including clauses
33.3 and 33.8) applies); and
(d)
other than as contemplated in clause 39.6(c), the Contractor shall not have,
and the Principal shall not be liable for, any claim or action whatsoever as a
result of the changes to the Principal's Assets referred to in this clause 39.6.
The Contractor acknowledges that:
(a)
the Principal may, or may be required to, provide the benefit of any or all of
its rights under or in connection with the Deed to:
(i)
TRUenergy Pty Ltd as purchaser of the Principal's retail business;
(ii)
any Purchaser or Purchasers referred to in clause 39.2; or
(iii)
any Entity or Entities referred to in clause 39.6(a),
for the purpose of any current or future arrangements between the Principal
and any or all of the parties referred to in clauses 39.7(a)(i), 39.7(a)(ii) or
39.7(a)(iii) for the provision of transitional services by the Principal to any or
all of those parties. If, by Ausgrid providing the benefit of any or all of its
rights under or in connection with the Deed as contemplated by this clause
39.7(a), there is any change in the Contractor's obligations under the Deed,
then any such change will be deemed to be a Change and clause 33
(including clauses 33.3 and 33.8) applies; and
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(b)
40
other than as contemplated in clause 39.7(a), the Contractor shall not have,
and the Principal shall not be liable for, any claim or action whatsoever as a
result of any of the matters referred to in clause 39.7(a).
Claims and Dispute Resolution
40.1
Claims, Other Claims and time bars
Definitions
(a)
For the purposes of this clause 40:
(i)
a “Claim” means any claim for money or time in connection with the
Deed or a Change directed under clause 33, other than Other Claims;
and
(ii)
“Other Claims” means claims for payment made pursuant to
clause 7 or claims for extensions of time made pursuant to clause 34.
Notification of Claims
(b)
All Claims must initially be made to and considered by the Principal‟s
Representative in accordance with the Deed.
(c)
The Contractor must ensure that all Claims are delivered to the Principal‟s
Representative in the form and containing such details as stipulated in the
Deed. If the Deed does not specifically stipulate the form or detail required
for a Claim, the Claim must be in writing and clearly identify the factual and
legal bases for the Claim, the quantification of the Claim (or if the Contractor
is unable to quantify the Claim, the Contractor‟s best estimate of the value of
the Claim) and the calculations and methodology used in arriving at the
quantification (or estimate).
Time bars
(d)
Time bars will apply at two stages:
(i)
the initial occurrence of the facts or events giving rise to a Claim (as
set out in clauses 40.1(e) and 40.1(f)); and
(ii)
the time at or within which a dispute must be referred to the dispute
resolution process after the Claim or the Other Claim has been
rejected by the Principal‟s Representative (as set out in
clause 40.1(i)).
(e)
A notice of Claim in accordance with clause 40.1(c) must be given to the
Principal‟s Representative within 10 business days of the occurrence of the
facts and circumstances on which the Claim is based.
(f)
The 10 day time bar referred to in clause 40.1(e) will commence to run in the
manner set out below. If the basis of the Claim can be construed as being
more than one of the bases set out below, the time bar will commence to run
from the first of the bases to occur:
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(g)
(i)
if the Claim is based on a direction from the Principal or the
Principal‟s Representative, then from the date of the Contractor‟s
receipt of the direction;
(ii)
if the Claim is based on a breach of the Deed, then from the date on
which the breach is alleged to have occurred;
(iii)
if the Claim is based on tort, then from the date on which the tortious
act or breach of duty is alleged to have occurred;
(iv)
if the Claim is based on a breach of statute, then from the date on
which the statute is alleged to have been breached; or
(v)
if the Claim is based on an equitable or restitutionary principle, then
from the date on which the last of the facts alleged to give rise to the
Claim occurred.
The Principal‟s Representative must:
(i)
notify both parties in writing of its determination in respect of a
Claim within a reasonable time (not exceeding 20 business days
from receipt of the Claim), providing reasons for the determination;
and
(ii)
deal with Other Claims in accordance with the relevant provisions of
the Deed.
Notification of disputes
(h)
If the Principal‟s Representative rejects a Claim or an Other Claim (as the
case may be), in whole or part, the rejected portion of the Claim or the Other
Claim may become the subject of a dispute.
(i)
If the Contractor or the Principal wishes to dispute the Principal‟s
Representative‟s determination of a Claim or an Other Claim, that party must
deliver to the Principal‟s Representative and the other party a notice setting
out the legal and factual bases of the dispute and the portion of the
Principal‟s Representative‟s determination that it wishes to refer to dispute
within 15 business days of the issue of the Principal‟s Representative‟s
determination.
Bar on Claims and Other Claims
(j)
If a party fails to comply with the time bars set out in this clause, all Claims
and, in the case of clause 40.1(h), Other Claims arising out of the facts and
circumstances which gave rise to the Claim or the Other Claim will be barred
and extinguished.
(k)
The time bars set out in this clause 40.1 are in addition to and will not
derogate from any specific time bars or timing requirements set out in the
Deed.
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40.2
Dispute Resolution Board (DRB)
Appointment
(a)
A DRB will be jointly established by the parties to assist in the resolution of
disputes.
(b)
The DRB will comprise three suitably qualified persons (“the members”).
Each party must nominate one member for approval by the other party. The
parties must consult both these members and agree upon the third member,
who will be appointed to act as chairman. The parties must have regard to
the selection criteria and procedures set out in Schedule 12 - DRB
Appointment and Operating Procedures.
(c)
The parties acknowledge and agree that:
(d)
(i)
the Principal, the Contractor and the three DRB members must enter
into the DRB Appointment Agreement in the form of Schedule 13 DRB Appointment Agreement, with such amendments as are agreed
between them, within two weeks after the selection and approval of
the third DRB member;
(ii)
the DRB Appointment Agreement will formalise the creation of the
DRB and establish the scope of its service, and the related rights and
responsibilities of the parties;
(iii)
the DRB Appointment Agreement and clauses 40.1 to 40.3 are not an
arbitration agreement within the meaning of section 4 of the
Commercial Arbitration Act 2010 (NSW); and
(iv)
the Commercial Arbitration Act 2010 (NSW) does not apply to any
determination made by the DRB under the Deed.
The DRB will be dissolved as of the date of final payment to the Contractor
under clause 7.5(g) or to the Principal under clause 7.5(h) (as the case may
be), unless the DRB is earlier terminated or dissolved by mutual agreement
of the Principal and the Contractor.
Purpose
(e)
The DRB, as an independent third party, will assist in and facilitate the
timely resolution of disputes between the Principal and the Contractor that
are referred to the DRB under clause 40.3(c), in an effort to achieve a just
and speedy resolution of the real issues in dispute between the parties and
minimise delay to the Project.
(f)
The primary functions of the DRB are:
(i)
to impartially consider the dispute referred to it; and
(ii)
to provide a written recommendation for resolution of the dispute to
the Principal and the Contractor.
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Operation
(g)
The DRB must agree and provide the Principal and the Contractor with a
written copy of the DRB operating procedures consistent with the rules and
procedures contained in clauses 40.2 and 40.3 and Schedule 12 - DRB
Appointment and Operating Procedures.
(h)
The parties must use all reasonable endeavours to keep the DRB informed of
construction activity and other developments by means of timely transmittal
of relevant information prepared by the Principal and the Contractor in the
normal course of construction, including progress reports, minutes of Project
Control Group meetings, updates to the Contract Programme, Other Claims
and Claims submitted by the Contractor.
(i)
The DRB must visit the Site and meet with representatives of the Principal
and the Contractor no less frequently than three monthly intervals or
otherwise as requested by both the Principal and Contractor, and at times of
significant construction milestones nominated in the Contract Programme.
The frequency and scheduling of these visits will be as agreed among the
Principal, the Contractor and the DRB, depending on the progress of the
Work under the Deed. In case of failure to agree, the DRB will schedule the
visits.
(j)
Each meeting of the DRB will consist of an informal round table discussion
followed by field observation of the Work under the Deed. The round table
discussion may be attended by no more than two representatives each of the
Principal and the Contractor, unless otherwise agreed by the DRB. The
agenda will generally include the following:
(i)
opening remarks by the chairman;
(ii)
Contractor discussion items:
(iii)
(iv)
(A)
work accomplished since the last meeting;
(B)
current status of the Contract Programme and schedule for
future work;
(C)
anticipated or potential disputes and proposed solutions; and
(D)
status of current and potential disputes, Claims and other
controversies;
Principal discussion items:
(A)
the Contract Programme;
(B)
perspectives on potential disputes, Claims and other
controversies; and
(C)
status of current and past disputes, Claims and other
controversies;
such other items as the parties may wish to discuss with the DRB;
and
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(v)
40.3
tentative date for next meeting(s).
(k)
The Principal‟s Representative must prepare minutes of all meetings and
circulate them for comment, revisions and/or approval of the parties and the
DRB.
(l)
The field observations of the DRB will cover all active segments of the Work
under the Deed. The DRB must be accompanied by representatives of both
the Principal and Contractor.
(m)
The Principal, at its own expense, will provide the DRB with administrative
services, such as conference facilities and secretarial support, as specified in
the DRB Appointment Agreement.
Review of disputes by Dispute Resolution Board
(a)
The Principal and the Contractor must co-operate to ensure that the DRB
considers disputes promptly, taking into consideration the particular
circumstances and the time required to prepare appropriate documentation.
(b)
Procedures and time periods referred to in this clause 40.3 may be modified
by mutual agreement in writing of the parties and the DRB.
Requesting Review
(c)
Either party may refer a dispute to the DRB by notice in writing to the
chairman of the DRB, provided that, prior to referring the dispute to the
DRB:
(i)
the parties have followed the express provisions of the Deed in
relation to Other Claims and the Principal‟s Representative has made
a determination in respect of such claims; or
(ii)
if the dispute relates to a Claim made under clause 40.1, the
Principal‟s Representative has given its determination of the Claim
in accordance with the procedures in clause 40.1.
The request for review must state clearly and in full detail:
(iii)
the specific details of the dispute to be considered by the DRB; and
(iv)
a recommendation as to whether it should be heard at the next
regular DRB meeting or at a special meeting.
A copy of the request for review must be simultaneously provided to the
other party.
(d)
Upon receipt of a request for review, the DRB chairman will confer with
both parties and:
(i)
establish a submissions schedule so that adequate time is allowed for
the other party to respond to the requesting party's statement and for
the DRB members to review both statements and the supporting
documentation before the next meeting of the DRB; and
(ii)
schedule a meeting date.
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Suspension of Review
(e)
If a party becomes aware that the whole or part of a dispute referred to the
DRB under clause 40.3(c):
(i)
has not been referred to the Principal‟s Representative for prior
determination as required under the Deed; or
(ii)
is the subject of an adjudication application under the Security of
Payment Act,
that party must immediately give notice of that fact to the other party and the
DRB
(f)
Within two business days of receipt of a notice under clause 40.3(e), the
parties must meet to determine whether, and to what extent, the DRB will
continue its review of a dispute the subject of a notice under clause 40.3(e).
(g)
Unless the parties mutually agree to suspend the DRB process (in which case
the parties must notify the DRB in writing of their election to suspend the
DRB process in respect of a dispute the subject of a notice under
clause 40.3(e)), the DRB will continue to review that dispute unless and until
such time as it receives a written notice from both parties requesting the
DRB to cease it review of the dispute.
Pre-meeting Requirements
(h)
Concise written position statements must be prepared by both parties, with
page number references to any supporting documentation, and submitted by
each party to each DRB member and to the other party in accordance with
the schedule established under clause 40.3(d)(i).
(i)
A single and complete compilation of supporting documentation, with pages
consecutively numbered for ease of reference, must be used. The parties
must cooperate in compiling and submitting this documentation to each DRB
member for review before the next DRB meeting.
(j)
For the purpose of position statements and supporting documentation under
clauses 40.3(h) and 40.3(i):
(k)
(i)
a copy of any prior determination by the Principal‟s Representative
in respect of the subject matter of the dispute (including all
supporting documentation considered by the Principal‟s
Representative in reaching its determination) must be provided to the
DRB; and
(ii)
the Contractor acknowledges and agrees to provide the Principal
with the Contractor‟s Cost Report (in both electronic and hard copy
format) upon request by the Principal.
Subject to clause 40.3(s)(i), the parties acknowledge and agree that, if the
whole or any part of a dispute has previously been the subject of an
adjudicator‟s determination under the Security of Payment Act, the parties
must not provide the DRB with a copy of the adjudicator‟s determination,
including reasons.
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Meeting
(l)
The parties acknowledge and agree that:
(i)
typically, meetings of the DRB will be conducted at the Site office of
the Principal‟s Representative;
(ii)
a location away from the Site office of the Principal‟s Representative
is satisfactory for meetings of the DRB if it is more convenient to all
concerned and that location still provides all required facilities and
access to necessary documentation; and
(iii)
private sessions of the DRB may be held at any convenient location.
(m)
The Principal and the Contractor may have no more than two representatives
at all meetings (unless otherwise agreed by the DRB), other than private
sessions of the DRB.
(n)
The DRB members and the parties may ask questions, request clarification,
or ask for additional data. In difficult or complex cases, additional meetings
may be necessary with the agreement of the parties and the DRB, in order to
facilitate full consideration and understanding of all the evidence presented
by both parties.
Deliberations
(o)
After the meeting is concluded, the DRB will confer to formulate its
recommendations. All DRB deliberations will be conducted in private.
(p)
The DRB must endeavour to reach a unanimous decision. If this proves
impossible, the applicable decision will be made by a majority of the
members, who may require the minority member to prepare a written report
for submission to the Principal and the Contractor.
Recommendations
(q)
The DRB's recommendations for resolution of the dispute will be provided in
writing to both the Principal and the Contractor within two weeks of the
completion of the meetings. The DRB‟s recommendations must include
reasons for the decisions made by the DRB.
(r)
If necessary due to either or both of the nature and complexity of the dispute
and the DRB's schedule, the period referred to in clause 40.3(q) may be
extended by mutual agreement of the parties and the DRB members.
(s)
If the DRB‟s recommendation involves a Progress Claim that has been the
subject of an adjudicator‟s determination under the Security of Payment Act,
then:
(i)
within two business days from the date of receipt by the parties of
the DRB‟s recommendation, the Contractor must notify the DRB of
the adjudicated amount only as set out in the adjudicator‟s
determination; and
(ii)
the DRB must allow for any amount paid to either party under or for
the purposes of Part 3 of the Security of Payment Act and issue to
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both parties its revised recommendation (which will supersede the
recommendation issued under clause 40.3(r)).
(t)
(u)
If the DRB‟s recommendation (either under clause 40.3(q) or 40.3(s)(ii)) is
for a payment by one party to the other of an amount:
(i)
equal to or less than $1 million, then that recommendation will be
binding on both parties; or
(ii)
greater than $1 million, then that recommendation will be binding on
both parties unless and until it is revised in an amicable settlement or
in legal proceedings.
The parties agree that a binding recommendation of the DRB will be a
decision of a tribunal for the purposes of section 32(3) of the Security of
Payment Act.
Acceptance or Rejection
(v)
Subject to clause 40.3(t), within ten weeks of receiving the DRB's
recommendations or such longer time as the parties may agree, each of the
Principal and the Contractor must provide written notice to the other and to
the DRB of its acceptance or rejection of the DRB's recommendation.
(w)
The failure of either party to respond within the period specified in
clause 40.3(v) will be deemed an acceptance of the DRB's recommendation.
Admissibility
(x)
40.4
If the DRB's recommendation does not resolve the dispute, the written
recommendation, including any minority report, and the disclosure
statements referred to in clause 1.5 of Schedule 12 - DRB Appointment and
Operating Procedures, will be admissible as evidence to the extent permitted
by law in any subsequent dispute resolution proceeding or forum to establish:
(i)
that a DRB considered the dispute;
(ii)
the qualifications of the DRB members; and
(iii)
the DRB recommendation that resulted from the issue resolution
process contemplated by clauses 40.2 to 40.4.
Payment and expenses
(a)
The Principal will pay all fees and expenses of the three DRB members for
attendance at site visits and periodic meetings of the DRB and for review of
regular reports and other relevant information provided to the DRB.
(b)
The fees and expenses of all three members of the DRB for additional
meetings and for the review of referred disputes in accordance with the
Deed, where additional costs are incurred including a requirement for
meetings additional to the periodic DRB meetings, will be shared equally by
the Principal and the Contractor.
(c)
The Contractor must pay the invoices of the DRB members after approval by
both parties. The Contractor will then invoice the Principal for 100% of such
109
invoices for the site visits and periodic meetings and 50% of such invoices
for additional costs of additional meetings required and for the review of
disputes.
40.5
(d)
If the DRB wishes to obtain special services such as legal or other
consultation, accounting, data research and the like, both parties must first
agree in writing, and the costs will be shared by them equally.
(e)
Each party will be responsible for its own costs during the DRB process.
including staff time for preparatory work and attendance at meetings,
consultants and legal fees and any other costs.
Contractor to perform the Work under the Deed
Notwithstanding the other provisions of this clause 40, the Contractor must:
40.6
(a)
continue to execute the Work under the Deed;
(b)
perform its other obligations under the Deed; and
(c)
comply with all directions of the Principal or the Principal‟s Representative
including any direction in respect of a dispute or difference being dealt with
in accordance with this clause 40.
Legal proceedings
Nothing in this clause 40 will prevent:
41
(a)
either party commencing any legal proceedings for urgent or interlocutory
relief; or
(b)
the Contractor from applying for adjudication of a Progress Claim or from
taking any other action under the Security of Payment Act.
Liability
41.1
Civil Liability Act 2002 (NSW)
The parties agree that it is their intention that all rights, obligations and liabilities
under or in connection with the Deed are to apply, even where the relevant
circumstances involve a failure to take reasonable care and the existence of
concurrent wrongdoers (as that term is defined in section 34(2) of the Civil Liability
Act 2002 (NSW)), unlimited and otherwise unaffected by anything that, but for this
clause 41.1, may by virtue of the provisions of the Civil Liability Act 2002 (NSW)
have limited or otherwise affected those rights, obligations and liabilities.
41.2
Limitation on and exclusions from the Contractor’s Liability
(a)
Except as specified in clause 41.2(b), the Contractor‟s liability to the
Principal:
(i)
under or in connection with the Deed or the Contractor‟s
performance of the Work under the Deed and its other obligations
under the Deed; or
110
(ii)
in tort (including negligence) or under any statute or otherwise at
law,
notwithstanding any other provision of the Deed (including indemnities):
Masked for Confidentiality
(iv)
(b)
is limited in the aggregate to the amount stated in Schedule 1 Contract Information.
The limitations on and exclusions from the Contractor‟s liability contained in
clause 41.2(a) do not apply to or limit or restrict in any way:
Masked for Confidentiality
111
Schedule 1
Contract Information
Description
Clause Reference
Details
Authorised Representative of the
Contractor
Clause 1.1
Glen Ashton
Authorised Representative of the
Principal
Clause 1.1
Trevor Armstrong
Contractor
Clause 1.1
Thiess Pty Ltd (ABN 87
010 221 486)
Contractor‟s Margin
Clause 1.1
Principal
Clause 1.1
Ausgrid (ABN 67 505 337
385) of 570 George Street,
Sydney NSW 2000
Time for Progress Claims
Clause 1.1
Last day of the month
Masked for Confidentiality
Clause 7.3(a)
Adjustment to Contract Price, Date
for Substantial Completion and
Date for Practical Completion for
the purposes of clause 4.1A(f)
Clause 4.1A(f)
Adjustment to Contract
Price: the Contract Price
will, with effect from the
date of the notice from the
Principal under clause
4.1A(e), be increased by an
amount of
(more particularly described
in the preabmble to the
pricing schedule in
Schedule 3 – Commercial
Schedules).
Masked for Confidentiality
Adjustment to Date for
Substantial Completion
for Separable Portion 1:
there will be no adjustment
to the Date for Substantial
Completion for Separable
Portion 1.
Adjustment to Date for
Substantial Completion
for Separable Portion 2:
the Date for Substantial
Completion of Separable
112
Description
Clause Reference
Details
Portion 2 will, with effect
from the date of the notice
from the Principal under
clause 4.1A(e), be extended
by a period of 10 days.
Adjustment to Date for
Practical Completion of
Separable Portion 3: the
Date for Practical
Completion of Separable
Portion 3 will, with effect
from the date of the notice
from the Principal under
clause 4.1A(e), be extended
by a period of 25 days.
Rate to be applied to the cost to
perform the work or supply the
item to which a Provisional Sum
relates (exclusive of GST)
Clause 4.2(b)
Approved Off-Site Materials
Clause 7.3(b)
Precast concrete segments
Amount of unconditional
undertaking
Clause 8.1
Four unconditional
undertakings each for
of the Contract Price.
Masked for Confidentiality
Masked for Confidentiality
One unconditional
undertaking for
of the
Contract Price.
Masked for Confidentiality
Amount of unconditional
undertaking
Clause 8.2
Contractor‟s Representative
Clause 13.2(a)
Christian D'Hondt
Construction Plant over which the
Contractor must not create any
security interest
Clause 18.4(a)
TBM and Roadheader
Limit of the Contractor‟s aggregate
liability for liquidated damages
Clause 25.2(d)
Defects Correction Period
Clause 26.3(c)
Masked for Confidentiality
of the Contract Price
Masked for Confidentiality
In respect of all civil works
forming part of the Work
under the Deed - 12 months
In respect of all other Work
under the Deed (excluding
civil works) - 24 months
113
Description
Clause Reference
Details
Delay costs
Clause 34.9(b)
The costs per day which the
Contractor demonstrates (to
the reasonable satisfaction
of the Principal‟s
Representative) that it has
incurred as a result of the
delay commencing from the
date Substantial
Completion, Practical
Completion or Completion
(as applicable) was or were
first actually delayed
Amount payable on termination for
convenience
Clause 37.2(d)(iii)
Masked for Confidentiality
Limitation on the Contractor‟s
liability
Clause 41.2(a)(iv)
Masked for Confidentiality
114
of the value of the
remaining Work under the
Deed, as assessed by the
Principal‟s Representative
of the Contract Price
Schedule 2
Separable Portions
Work under the Deed
Date for
Substantial
Completion
Date for
Practical
Completion
Liquidated
damages
Not Applicable
Masked for Confidentiality
SEPARABLE PORTION 1
Consisting of the construction of the CSCT Extension, the Surry Hills Annex Joint Bay, the Little The date which is
561 business days
Riley Street 33kV Cable Shaft, and the Rose Bay Feeder Shaft and Vault, including:
from the date of the
Completion of the permanent tunnel and shaft linings and all other permanent structural Deed
elements;
Installation of all cable support members and tunnel and shaft fixtures excluding
permanent lighting, cabling or hydraulic equipment (eg. rising mains);
Construction of a partition between the CSCT Extension and the Riley Street Shaft and
provision of a temporary ventilation outlet for the CSCT Extension;
Completion of all structural modifications required to the Surry Hills shaft.
Upon Substantial Completion of Separable Portion 1, ventilation of the CSCT Extension will be
via the permanent CSCT fan system however a temporary ventilation outlet for the tunnel will be
required to be installed by the Contractor. It is envisaged that this outlet will be via the Riley
Street Shaft.
The Contractor must make available temporary lighting in the CSCT Extension to facilitate Cable
Installation works. This temporary lighting must be maintained until commissioning of the
permanent Tunnel lighting system.
Following Substantial Completion of Separable Portion 1, the CSCT Extension will be considered
as a live electrical facility, with access by the Contractor to be controlled in accordance with
Clause 3.11.2 of the Specification.
115
Work under the Deed
Date for
Substantial
Completion
Date for
Practical
Completion
Liquidated
damages
SEPARABLE PORTION 2
Consisting of all work associated with the excavation and temporary support of the City East
Shaft and the City East Stub Tunnel, including the sump and cavern at the interface with the main
TBM alignment (at Chainage 2148m), the removal of the Roadheader and the demobilisation of
all temporary construction facilities installed by the Contractor at the CES Site and anything else
necessary to allow handover of the CES Site to the City East Substation Building Contractor in
accordance with Clause 3.3.4 of the Specification.
The date which is
Not
633 business days
Applicable
from the date of the
Deed
Masked for Confidentiality
Not applicable
Masked for Confidentiality
SEPARABLE PORTION 3
Consisting of all Work under the Deed not covered by Separable Portions 1 and 2 or otherwise
associated with the finalisation of the Work under the Deed.
116
The date
which is
1270
business days
from the date
of the Deed
Schedule 3
Commercial Schedules
General Measurement and Pricing Principles
1.
The Contract Price has the meaning defined in clause 1.1. The Contract Price is
made up of a mixture of lump sum prices, the sum of the products of the actual
quantities and the relevant rate for each item and amounts payable in respect of
Provisional Sums as described in the Pricing Schedule.
2.
When carrying out Work under the Deed, payment will be made for the actual
quantities measured on Site in respect of the schedule of rate items, unless noted
otherwise in the Pricing Schedule.
3.
When carrying out the Work under the Deed and in the event that Materially
Adverse Conditions (as defined in Schedule 4 – GBR Administration) are
encountered the Contractor will be reimbursed at the rates and margin allowances
in the Cost Reimbursable Schedules.
4.
This Schedule 3 - Commercial Schedules comprises:
(a)
Pricing Schedule (a mixture of lump sums, Provisional Sums and
schedule of rates);
(b)
Dayworks Rates Schedule (including schedules for Labour,
Construction Plant and Equipment and margin for subcontract works);
and
(c)
Cost Reimbursable Schedule (as described in clause 3 above).
117
1.
Pricing Schedule
Preamble
1.
The Contract Price is broken down in the Pricing Schedule. The Pricing Schedule
includes a lump sum for each lump sum item of Work under the Deed and a rate
and sum for each schedule of rates item of Work under the Deed. For the
purposes of clause 7.3 of the General Conditions of Deed and without limiting
item 11(b) below, for each lump sum item of Work under the Deed, the Contracor
is not entitled to, and must not, claim (in aggregate) more than the total lump sum
amount specified in the Pricing Schedule (as adjusted in accordance with the
Deed) in respect of that particular item of work.
2.
Quantities identified to be measured in-situ in the Pricing Schedule shall be
measured in accordance with the measurement instructions and assumptions
noted in the Pricing Preamble for those items.
3.
Unit rates are fixed and shall not be varied, re-valued or adjusted in any way,
even in the event of a significant increase or decrease in quantities as compared to
the quantities shown in the Pricing Schedule.
5.
The quantities shown in the Pricing Schedule are by way of example only, and are
not warranted in any way by the Principal.
6.
The rates included in the Pricing Schedule are deemed to include margins for
head office overheads and profit, all direct costs for labour, plant and materials,
and all recurring time dependent costs not otherwise included in other items
including, inter alia, supervisory and site office costs, surface and underground
direct and support labour, plant, services and materials.
7.
Nothing in this Schedule 3 describes, limits or otherwise affects the Work under
the Deed to be carried out by the Contractor under the Deed and the Contract
Price is deemed to cover all of the Work under the Deed to be carried out under
the Deed, regardless of whether or not it is listed in this Schedule 3.
8.
Only one of the rates set out in items 3.7.1, 3.7.2, 3.7.3 or 3.7.4 of the Pricing
Schedule can apply in respect of a particular unit of measure of Work under the
Deed at any one time.
9.
Only one of the rates set out in items 4.7.1, 4.7.2, 4.7.3 or 4.7.4 of the Pricing
Schedule can apply in respect of a particular unit of measure of Work under the
Deed at any one time.
10.
If the Contract Price is to be adjusted under clause 4.1A(f)(i) of the General
Conditions of Deed, the adjustment to the Contract Price will be applied to item
4.9 of the Pricing Schedule.
11.
If the Contract Price is to be reduced under clause 4.1B(c)(ii) of the General
Conditions of Deed, the reduction in the Contract Price will be applied:
(a)
firstly to items 4.1 to 4.8 (inclusive) of the Pricing Schedule, then to items
4.10 to 4.11 (inclusive) of the Pricing Schedule and then to item 4.9 of the
Pricing Schedule; and
118
(b)
if the amounts in items 4.1 to 4.11 (inclusive) of the Pricing Schedule are
insufficient to satisfy the reduction, to the next Progress Claim(s) made
by the Contractor under the Deed as if the remainder of the reduction
were moneys which are due from the Contractor to the Principal in
respect of the Deed.
12.
All rates and prices included in the Pricing Schedule exclude GST.
13.
For the purposes of the Pricing Schedule, a reference to the AECOM
Geotechnical Engineer means the person(s) nominated in writing by the
Principal to the Contractor from time to time as being the AECOM Geotechnical
Engineer for the purposes of the Deed.
119
Pricing Schedule:
Item
1
Item Description
Unit of
Measure
Qty
Rate
Amount
Lump
Sum
N/A
N/A
N/A
Schedule
of Rates
1.1
Preliminary Items
Design
1.2
Condition Surveys
Lump
Sum
N/A
N/A
N/A
1.3
Insurances
Lump
Sum
N/A
N/A
N/A
1.4
General Site Establishment (Offices etc)
Lump
Sum
N/A
N/A
N/A
1.5
Site Labour
N/A
N/A
N/A
1.6
Survey
N/A
N/A
N/A
1.7
Security - unconditional undertakings
Lump
Sum
Lump
Sum
Lump
Sum
N/A
N/A
N/A
1.8
Fees
Lump
Sum
N/A
N/A
N/A
Pricing Preamble
Lump Sum
Masked for Confidentiality
120
A Progress Claim which relates to this item must be accompanied
by itemised design activities and “For Construction” drawings
verified by Aecom Australia Pty Ltd on behalf of the Principal and
certified by the Contractor‟s designer(s).
The condition surveys are to be done both pre and post
construction activities. A Progress Claim which relates to this item
must be accompanied by a copy of the completed survey with
documentary evidence satisfactory to the Principal
A Progress Claim which relates to this item must be accompanied
by documentary evidence that all required policies are in place for
the term required under the Deed. In the event that policies are
renewable annually, payment made will be pro-rata the existing
policy validity period compared to the contract period
For the purposes of clause 7.3(a)(i) of the General Conditions of
Deed, a Progress Claim which relates to this item can only be
submitted upon completion of the facilities in accordance with the
“For Construction” Temporary Works drawings and occupation
and/or commissioning of services.
A Progress Claim which relates to this item must be accompanied
by documentary evidence that all required unconditional
undertakings are in place for the term required under the Deed.
Item
Item Description
Unit of
Measure
Qty
Rate
Amount
Schedule
of Rates
Pricing Preamble
Lump Sum
Procurement, Mobilisation and Commissioning of Tunnelling Equipment and associated Facilities
2
Masked for Confidentiality
2.1
Procurement of Plant & Equipment for RHOperation
Lump
Sum
N/A
N/A
N/A
For the purposes of clause 7.3(a)(i) of the General Conditions of
Deed, a Progress Claim which relates to this item can only be
submitted:
Masked for Confidentiality
when roadheader is
ordered, in which case the Progress Claim for this 50%
amount must be accompanied by a copy of the relevant
purchase order issued by the Contractor; and
in respect of the remaining Masked for Confidentiality upon
delivery of the roadheader to the Site.
2.2
Procurement of Plant & Equipment for TBMTunnel excluding TBM
Lump
Sum
N/A
N/A
N/A
2.3
Procurement of TBM - 1st instalment Place
Order
Lump
Sum
N/A
N/A
N/A
2.4
Procurement of TBM - 2nd instalment
Lump
Sum
N/A
N/A
N/A
2.5
Procurement of
TBM - 3rd instalment
Workshop Acceptance
Lump
Sum
N/A
N/A
N/A
For the purposes of clause 7.3(a)(i) of the General Conditions of
Deed, a Progress Claim which relates to this item can only be
submitted:
Masked for Confidentiality
when all nessecary
TBM plant and equipment is ordered, in which case the
Masked for Confidentiality
Progress
amount must be
accompanied by a copy of all relevant purchase order(s)
issued by the Contractor; and
in respect of the remaining 50% of the lump sum, upon
delivery of all nessecary TBM plant and equipment to the
Site.
For the purposes of clause 7.3(a)(i) of the General Conditions of
Deed, a Progress Claim which relates to this item can only be
submitted on order of TBM. The Progress Claim for this amount
must be accompanied by a copy of the relevant purchase order
issued by the Contractor.
For the purposes of clause 7.3(a)(i) of the General Conditions of
Deed, a Progress Claim which relates to this item can only be
submitted after 90 calendar days from the order date.
For the purposes of clause 7.3(a)(i) of the General Conditions of
Deed, a Progress Claim which relates to this item can only be
submitted when Factory Acceptance Testing is complete and
approved by the Contractor's Representative. The Progress Claim
for this amount must be accompanied by evidence of the relevant
testing and approval.
121
Item
Item Description
Unit of
Measure
Qty
Rate
Amount
Schedule
of Rates
2.6
Procurement of TBM - final instalment Site
Assembly Complete
Lump
Sum
N/A
N/A
N/A
2.7
Procurement of
Lining Works
Lump
Sum
N/A
N/A
N/A
Riley St Substation Site - RSS
General Tunnelling Worksite Establishment
Riley Street Site - RSS
Lump
Sum
N/A
N/A
N/A
3.2
Services Establishment for
Operations (RH & TBM) - RSS
Lump
Sum
N/A
N/A
N/A
3.3
Excavate and Support Shaft - RSS-S
N/A
N/A
N/A
3.4
Concrete lining to Shaft - RSS-S
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
3
3.1
Plant & Equipment for
Tunnelling
3.5.1
TBM Launch Chamber Class-RH-6-T and
Class-RH-6-A
Lump
Sum
Lump
Sum
Lump
Sum
3.5.2
TBM Backshunt Class-RH-6-T and ClassRH-6-A
Lump
Sum
122
Pricing Preamble
Lump Sum
Masked for Confidentiality
For the purposes of clause 7.3(a)(i) of the General Conditions of
Deed, a Progress Claim which relates to this item can only be
submitted, when the TBM is fully commissioned on Site and
approved by the Contractors Representative as „Ready to Bore‟.
The Progress Claim for this amount must be accompanied by
evidence of the relevant commissioning and approval.
For the purposes of clause 7.3(a)(i) of the General Conditions of
Deed, a Progress Claim which relates to this item can only be
submitted:
Masked for Confidentiality
when lining works
plant and equipment is ordered, in which case the
Progress Claim for this 50% amount must be
accompanied by a copy of all relevant purchase order(s)
issued by the Contractor; and
Masked for Confidentiality
upon
delivery of the applicable plant and equipment to the Site.
For the purposes of clause 7.3(a)(i) of the General Conditions of
Deed, a Progress Claim which relates to this item can only be
submittedafter completion of the facilities in accordance with the
“For Construction” Temporary Works drawings and occupation
and/or commissioning of services.
For the purposes of clause 7.3(a)(i) of the General Conditions of
Deed, a Progress Claim which relates to this item can only be
submitted after completion of the facilities in accordance with the
“For Construction” Temporary Works drawings and occupation
and/or commissioning of services.
Payment will be valued based upon actual quantity
determined by the AECOM Geotechnical Engineer,
also be used for time adjustments.
Payment will be valued based upon actual quantity
determined by the AECOM Geotechnical Engineer,
also be used for time adjustments.
encountered as
the quantity will
encountered as
the quantity will
Item
3.6
Item Description
Unit of
Measure
Qty
Rate
Amount
Schedule
of Rates
Pricing Preamble
Lump Sum
Excavate and Support CSCT Extension
Tunnel
Excavate and Support CSCT Extension
Tunnel in Class-RH-6-T
Lineal
metre
37.6
N/A
3.6.2
Excavate and Support CSCT Extension
Tunnel in Class-RH-6-A
Lineal
metre
9.4
N/A
3.6.3
Excavate and Support CSCT Extension
Tunnel in Class-RH-8a-T
Lineal
metre
33.0
N/A
3.6.4
Excavate and Support CSCT Extension
Tunnel in Class-RH-8b-T
Lineal
metre
32.0
N/A
3.6.5
Excavate and Support CSCT Extension
Tunnel in Class-RH-8b-A
Lineal
metre
8.0
N/A
3.6.6
Excavate and Support CSCT Extension
Tunnel in Class-RH-2-T
Lineal
metre
25.0
N/A
Extra over for excavation in „adverse‟
Lineal
metre
Lineal
metre
3.6.1
3.7
3.7.1
Extra over for excavation in the single
„adverse‟ criteria for UCS
Masked for Confidentiality
Masked for Confidentiality
1.00
Rate only
Rate Only
Payment will be valued based upon actual quantity
determined by the AECOM Geotechnical Engineer,
also be used for time adjustments.
Payment will be valued based upon actual quantity
determined by the AECOM Geotechnical Engineer,
also be used for time adjustments.
Payment will be valued based upon actual quantity
determined by the AECOM Geotechnical Engineer,
also be used for time adjustments.
Payment will be valued based upon actual quantity
determined by the AECOM Geotechnical Engineer,
also be used for time adjustments.
Payment will be valued based upon actual quantity
determined by the AECOM Geotechnical Engineer,
also be used for time adjustments.
Payment will be valued based upon actual quantity
determined by the AECOM Geotechnical Engineer,
also be used for time adjustments.
encountered as
the quantity will
encountered as
the quantity will
encountered as
the quantity will
encountered as
the quantity will
encountered as
the quantity will
encountered as
the quantity will
For the purposes of Schedule 4 – GBR Adminiatration, where
conditions are classified as „adverse‟ for the criteria of UCS only an
extra over payment will be made and a time adjustment made of
Masked for Confidentiality
3.7.2
Extra over for excavation in the single
„adverse‟ criteria for Defects
Lineal
metre
1.00
Rate only
Rate Only
3.7.3
Extra over for excavation in the single
„adverse‟ criteria for Groundwater inflow
Lineal
metre
1.00
Rate only
Rate Only
3.7.4
Extra over for
„adverse‟ criteria
Lineal
metre
1.00
Rate only
Rate Only
excavation
in
multiple
123
For the purposes of Schedule 4 – GBR Adminiatration, where
conditions are classified as „adverse‟ for the criteria of Defects only
an extra over payment will be made and a time adjustment made of
3hrs per M
For the purposes of Schedule 4 – GBR Adminiatration, where
conditions are classified as „adverse‟ for the criteria of Groundwater
inflow only an extra over payment will be made and a time
adjustment made of Masked for Confidentiality
For the purposes of Schedule 4 – GBR Adminiatration, where
conditions are classified as „adverse‟ for more than one criteria
simultaneously an extra over payment will be made and a time
adjustment made of Masked for Confidentiality
Item
Item Description
Unit of
Measure
Qty
Rate
Amount
Schedule
of Rates
3.8
Concrete lining to CSCT Extension Tunnel RSS-T
Lineal
metre
3.9
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
3.12
U/G Excavation and Lining Costs - RSS
Lump
Sum
Lump
Sum
Lump
Sum
Lump
Sum
N/A
3.11
Interface Works at Surry Hills Substation RSS
Rose Bay Feeder Cable Jointing Bay RSS-S
Control Room Structure - RSS-S
N/A
N/A
N/A
3.13
Spoil Disposal - RSS
N/A
N/A
N/A
3.14
Demobilisation of Worksite - RSS
Lump
Sum
Lump
Sum
N/A
N/A
N/A
City East Substation Site - CES
General Tunnelling Worksite Establishment
- CES
Lump
Sum
N/A
N/A
N/A
4.2
Worksite and Services Establishment for RH
Operation - CES
Lump
Sum
N/A
N/A
N/A
4.3
Excavate and Support Shaft - CES-S
N/A
N/A
N/A
4.4
Concrete lining to Shaft - CES-S
N/A
N/A
N/A
4.5
Excavate and Support Stub Tunnel and
Cavern in Class RH-6-T and RH-6-A
Lump
Sum
Lump
Sum
Lineal
metre
145.0
Pricing Preamble
Lump Sum
N/A
Masked for Confidentiality
Masked for Confidentiality
Masked for Confidentiality
3.10
4
4.1
165.64
Masked for Confidentiality
Masked for Confidentiality
124
The value of work completed for this item will be determined by
reference to the estimated % complete of all work described in this
item 3 (Riley St Substation Site – RSS) at the time of the relevant
Payment Claim
For the purposes of clause 7.3(a)(i) of the General Conditions of
Deed, a Progress Claim which relates to this item can only be
submitted upon completion of the facilities in accordance with the
“For Construction” Temporary Works drawings and occupation
and/or commissioning of services.
For the purposes of clause 7.3(a)(i) of the General Conditions of
Deed, a Progress Claim which relates to this item can only be
submitted upon completion of the facilities in accordance with the
“For Construction” Temporary Works drawings and occupation
and/or commissioning of services.
N/A
Payment will be valued based upon actual quantity encountered as
determined by the AECOM Geotechnical Engineer, the quantity will
also be used for time adjustments.
Item
Item Description
Unit of
Measure
4.6
Extra over for additional 3.7m CT rock bolts
4.7
Extra over for excavation in „adverse‟
Qty
Rate
Amount
Schedule
of Rates
Ea
1.00
Masked for Confidentiality
Pricing Preamble
Lump Sum
Rate Only
Rate Only
For the purposes of clause 7.3(a)(i) of the General Conditions of
Deed, a Progress Claim which relates to this item can only be
submitted for the each CT bolt which has been installed as at the
time of the relevant Payment Claim
For the purposes of Schedule 4 – GBR Adminiatration, where
conditions are classified as „adverse‟ for the criteria of UCS only an
extra over payment will be made and a time adjustment made of
4.7.1
Extra over for excavation in the single
„adverse‟ criteria for UCS
Lineal
metre
1.00
Rate only
Rate Only
4.7.2
Extra over for excavation in the single
„adverse‟ criteria for Defects
Lineal
metre
1.00
Rate only
Rate Only
4.7.3
Extra over for excavation in the single
„adverse‟ criteria for Groundwater inflow
Lineal
metre
1.00
Rate only
Rate Only
4.7.4
Extra over for
„adverse‟ criteria
multiple
Lineal
metre
1.00
Rate only
Rate Only
4.8
Concrete lining to Tunnel & Cavern - CES-T
N/A
N/A
N/A
4.9
U/G Excavation and Lining Costs - CES
Lump
Sum
Lump
Sum
N/A
N/A
N/A
4.10
Spoil Disposal - CES
N/A
N/A
N/A
4.11
Demobilisation and Re-instatement of
Worksite - CESS
Not used
TBM Tunnel from RSS to CNS - CECT
Mobilisation, Assembly, Test & Commission
TBM Plant & Equipment
Lump
Sum
Lump
Sum
N/A
N/A
N/A
Lump
Sum
N/A
N/A
N/A
Masked for Confidentiality
For the purposes of Schedule 4 – GBR Adminiatration, where
conditions are classified as „adverse‟ for the criteria of Defects only
an extra over payment will be made and a time adjustment made of
Masked for Confidentiality
excavation
in
For the purposes of Schedule 4 – GBR Adminiatration, where
conditions are classified as „adverse‟ for the criteria of Groundwater
inflow only an extra over payment will be made and a time
adjustment made of Masked for Confidentiality
For the purposes of Schedule 4 – GBR Adminiatration, where
conditions are classified as „adverse‟ for more than one criteria
simultaneously an extra over payment will be made and a time
adjustment made of Masked for Confidentiality
Masked for Confidentiality
5
6
6.1
125
The vaue of work completed for this item will be determined by
reference to the estimated % complete of all work described in this
section 4 (City East Substation Site - CES) at the time of the
relevant Payment Claim
This lump sum amount includes the fixed cost of mobilising,
installing and commissioning all required tunnel equipment along
this section of tunnel, including fixed components of all man and
materials transport arrangements.
Item
Item Description
Unit of
Measure
Qty
N/A
Rate
Amount
Schedule
of Rates
Pricing Preamble
Lump Sum
6.2
Supply of Tunnel Lining Segments - CECT
Lump
Sum
6.3
Excavate and Line TBM Tunnel in GBR
ground conditions - CECT
Lineal
metre
3,193.68
N/A
6.4
Wear allowance per m of TBM excavated
tunnel
Lineal
metre
3,193.68
N/A
N/A
N/A
Masked for Confidentiality
126
For the purposes of clause 7.3(a)(i) of the General Conditions of
Deed, a Progress Claim which relates to this item can only be
submitted upon:
acceptance by the Principal of documentary evidence of
manufacture to the standard defined in the Specification;
and
delivery of units into secure storage area with guaranteed
ownership of units passing to the Principal in accordance
with the General Conditions of Deed.
The value of work completed for this item will be determined by
reference to the average rate per m of tunnel excavated through a
mix of rock types not worse than identified in the GBR and
summarised in 6.5
Masked for Confidentiality
The rate includes any necessary forward probe drilling
The value of work completed for this item will be determined by
reference to each m of tunnel excavated. The rate includes wear
costs for all equipment associated with the excavation of
undisturbed rock at tunnel face and spoil removal from the tunnel
face into the ultimate transport system for removal off Site.
Item
6.5
Item Description
Ground
Grouping
Dyke Zones
Typical
Adverse
Type
Expected %
total length
Unit of
Measure
of
Qty
Rate
Amount
Schedule
of Rates
Relative
product
ion
factor
(applies
to 6.3)**
Relative
wear
factor
(applies
to
item
6.4)**
Pricing Preamble
Lump Sum
The summation of (% length x Relative production or wear factor)
must equal 100% in each case.
Progressive payment will be made at the average rates in item 6.4
and 6.5
Adjustments to the total payment will be made following Substantial
Completion where, for the actual conditions encountered, the
summation of (relative production or wear factor x % type) exceeds
the value for the original material type assumptions.
Rock will be classified as „Typical‟ or „Adverse‟ in accordance with
the definitions contained in the GBR, Exhibit C of the Deed and the
regular sampling and testing undertaken in accordance with Section
6.2 of Part 6 of Schedule 4 GBR Administration of the Deed
Masked for Confidentiality
Adverse conditions may include different combinations of the factors identified in
the GBR (Exhibit C to the Deed) and administered in accordance with Schedule 4
to the Deed. The Contractor may subdivide the relative production and relative wear
factors if it so chooses. However, the summation of (% length x relative production
or wear factor) for Typical and any Adverse combinations must remain equal to
100%.
Payment will not be adjusted for better than expected conditions.
Time will be adjusted by pro-rating time using the actual weighted
relative production factor.
The average programmed drive time calculated from completion of
the first 200 rings, excluding Dyke zones and Materially Adverse
Conditions, until completion of the first Masked forofConfidentiality
excavation of the
TBM section of the tunnel, will be used as the average production
rate for all excavation of the TBM section of the tunnel for the
purposes of calculating any time adjustments.
No negative time adjustments will apply.
The comparative relative wear factor will be applied to the amount
included for item 6.4 only
Masked for Confidentiality
6.6
6.7
Remove TBM lining Segments at LPS and
CNSS
Tunnel Invert Slab - CECT
Lump
Sum
Lump
Sum
N/A
N/A
N/A
N/A
N/A
N/A
127
Item
Item Description
Unit of
Measure
Qty
Rate
Amount
Schedule
of Rates
6.8
Dismantle TBM, bury remainders, tunnel
cleanup - CECT
Lump
Sum
N/A
N/A
N/A
6.9
Construction of Sump at Ch 640
Lump
Sum
Lump
Sum
N/A
N/A
N/A
N/A
N/A
N/A
Lump
Sum
N/A
N/A
N/A
Lump
Sum
Lump
Sum
Lump
Sum
Lump
Sum
Lump
Sum
Lump
Sum
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
Lump
Sum
N/A
N/A
N/A
6.10
U/G Excavation and Lining Costs - CECT
6.11
Spoil Disposal - CECT
7
7.1
7.2
City North Substation Site - CNS
General Worksite Establishment - CNS
7.3
Worksite and Services Establishment for
U/G Operations - CNS
Excavate and Support Cavern - CNS
7.4
Concrete lining to Cavern - CNS
7.5
7.6
Interface Works at City North Substation CNS
U/G Excavation and Lining Costs - CNS
7.7
Spoil Disposal - CNS
128
Pricing Preamble
Lump Sum
Masked for Confidentiality
For the purposes of clause 7.3(a)(i) of the General Conditions of
Deed, a Progress Claim which relates to this item can only be
submitted:
Masked for Confidentiality
of the lump sum for this item, after
completion of removal from the shaft of all TBM
components and backup; and
Masked for Confidentiality of the lump sum for this
item, after removal of all TBM components from the Site.
The value of work completed for this item will be determined by
reference to the estimated % complete of all work described in this
section 6 (TBM Tunnel from RSS to CNS – CECT) at the time of the
relevant Payment Claim
The vaue of work completed for this item will be determined by
reference to the estimated % complete of all work described in this
section 7 (City North Substation Site – CNS) at time of the relevant
Payment Claim.
Item
Unit of
Measure
Qty
Feeder Shaft Construction
Construction of Little Riley St 33 kV Feeder
Connection, Cable Shaft
Lump
Sum
N/A
N/A
N/A
This lump sum amount includes all costs associated with boring the
shaft, supply and installation of steel liner, backfill grouting of liner
as may be required, and provision of any necessary sealing
arrangements between liner and base intersection chamber.
8.2
Construction of Rose Bay Feeder Cable
Shaft
Lump
Sum
N/A
N/A
N/A
This lump sum amount includes all costs associated with boring the
shaft, supply and installation of steel liner, backfill grouting of liner
as may be required, and provision of any necessary sealing
arrangements between liner and base intersection chamber.
8.3
Construction of Domain 33 kV Cable Shaft
Lump
Sum
N/A
N/A
N/A
This lump sum amount includes all costs associated with boring the
shaft, supply and installation of steel liner, backfill grouting of liner
as may be required, and provision of any necessary sealing
arrangements between liner and base intersection chamber.
8.4
Re-instate Cable Shaft Worksites
Lump
Sum
N/A
N/A
N/A
9.1
General Tunnel and Shaft Fitout
Supply and Install Cable Support Structures
Lump
Sum
Lump
Sum
N/A
N/A
N/A
N/A
N/A
N/A
Lump
Sum
Lump
Sum
Lump
Sum
Lump
Sum
Lump
Sum
Lump
Sum
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
8
8.1
9
9.2
Item Description
10.1
Structural Steelwork, Grated Floors, Fire
Doors & Seals
Mechanical & Electrical Tunnel Fitout
Cable Support Structures
10.2
Ventilation
10.3
Drainage System
10.4
Electrical Services
10.5
Radio Comms
10.6
Monitoring & Control System
10
Rate
Amount
Schedule
of Rates
Pricing Preamble
Lump Sum
Masked for Confidentiality
129
Item
10.7
Fire Detection & Alarm System
10.8
Ancillary Services
10.9
Fire Rating
10.10
Signage
10.11
Telephones
10.12
Commissioning Training Documentation
10.13
Maintenance Provision 12 Mths
11
11.1
12
Item Description
Post Construction Works
Maintenance of permanent Works and
temporary
services
upon
Practical
Completion (for 12 months)
ESTIMATED SCHEDULE SUB-TOTALS
Unit of
Measure
Qty
Rate
Amount
Lump
Sum
Lump
Sum
Lump
Sum
Lump
Sum
Lump
Sum
Lump
Sum
Lump
Sum
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
Lump
Sum
N/A
N/A
N/A
Schedule
of Rates
Lump Sum
Masked for Confidentiality
Masked for Confidentiality
Masked for ConfidentialityMasked for Confidentiality
130
Pricing Preamble
Item
13
13.1
13.2
Item Description
Provisional Sums
Provisional Sum for:
the additional administration costs of
complying with the terms and conditions
of any Interface Agreement executed
after the date of the Deed which the
Contractor reasonably considers are
substantially more onerous than those
contained in the relevant Draft Interface
Agreement (refer clause 6.2(b)(ii)(B) of
the General Conditions of Deed); and
all monitoring required to be undertaken
by the Contractor as part of the Work
under the Deed including:
monitoring of CCM Tunnels and
adjustments to construction
methodologies in the vicinity of
CCM Tunnels as a result of
restrictions on excavation imposed
by CCM or otherwise associated
with the actual crossing of the CCM
Tunnels;
monitoring of BOOS in accordance
with Sydney Water requirements;
and
monitoring of RailCorp assets in
accordance with RailCorp
requirements.
Provisional Sum for disposing of water from
CES (Refer Part 4.5 of Schedule 4)
Unit of
Measure
Qty
Rate
Amount
Lump
Sum
N/A
N/A
N/A
N/A
N/A
N/A
Schedule
of Rates
Lump Sum
Masked for Confidentiality
(Provisional)
Lump
Sum
(Provisional)
13.3
Provisional Sum for maintaining site
infrastructure at CES during excavation of
CES
14
TOTAL PROVISIONAL SUMS
15
ESTIMATED CONTRACT PRICE
Lump
Sum
N/A
N/A
N/A
(Provisional)
141,543,241
131
Pricing Preamble
2
Daywork Rates Schedule
The Daywork rates, overheads and margins are deemed to include all costs of design,
construction works, maintaining and operating site facilities and services, including tunnel
services. Any other cost not noted in this Daywork Rates Schedule is deemed to be included
in the daywork rates, overheads and margins listed in this Daywork Rates Schedule.
TABLE 2.1 LABOUR DAYWORK RATES
This Table 2.1 contains a comprehensive list covering all classifications of trade labour
expected to be employed on the Work under the Deed.
An overhead and margin allowance of 43% is included in the rates detailed below.
Ref Staff
and
Labour
Hourly rate
Classification
List by trade or award
classification.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
1
2
3
Average hourly shift
pattern Rate
Underground Labour - single
shift
Tunnel Worker Class 1
Tunnel Worker Class 2
Tunnel Worker Class 3
Tunnel Worker Class 4
Tunnel Worker Class 5
Underground Labour - double
shift
Tunnel Worker Class 1
Tunnel Worker Class 2
Tunnel Worker Class 3
Tunnel Worker Class 4
Tunnel Worker Class 5
Surface Labour - single shift
|Surface Worker Class 2
|Surface Worker Class 3
|Surface Worker Class 4
|Surface Worker Class 5
|Surface Worker Class 6
Time
& Double time
1/2
Masked for Confidentiality
Notes
Rates included cover all direct and indirect employee costs including loadings for
holidays and sick pay, superannuation, bonus provisions, statutory on-costs, vehicle
and accommodation allowances where applicable and any other costs associated with
employment of labour under the terms of the industrial instrument applicable to the
Project.
Rates included cover all costs associated with employment of subcontract workers
under the terms of the industrial instrument applicable to the Project.
Rates included cover all costs associated with direct supervision of daywork labour
during the performance of the work; kitting out of staff, including but not limited to small
tools with a capital value lessMasked for Confidentialityand clothing; non-project dedicated company
costs relating to fleet vehicles, IT, communications and depreciation of equipment,
allocated divisional infrastructure costs including general management, business
development, safety, accredited systems, finance and costing, billing and debt
recovery, human resources and administration; staff training time and training costs;
Workers Compensation costs
132
TABLE 2.2 CONSTRUCTION PLANT DAYWORKS RATES
This Table 2.2 contains a comprehensive list of all Construction Plant required for the Project
in excess Masked for Confidentiality
capital value expected to be provided by the Contractor.
For avoidance of doubt, the rates included in this Table 2.2 are to reimburse the Contractor
for the operating costs only.
Masked for Confidentiality
Any items not listed but found to be required during the progress of the Work under the Deed
will be valued using the same principles applied by the Contractor to arrive at the rates
included in this Table 2.2.
Ref
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
1
Item Description
Operating costs,
(excluding operators)
Hourly Rate
|TBM - 3.9M Dia open SS - Operate incl cutter
consumption
TBM Grout Plant - Operate
TBM Grout Plant - Cement & Bentonite Silos
Roadheader S200m, 200 Kw, Hire and operating costs
|Roadheader, 200Kw, Auto Profile System, Hire
Locomotive
Tunnel Car
Vent Fan - TBM Tunnel - Operate (excl power costs)
Gantry Crane - Operate (no power costs)
|Water Treatment Plant, 16 L/Sec - Operate, Maintain incl
chemicals
Telehandler - Operate
Shotcrete Pump & Boom - Operate
Rockbolter - Operate
Fel CAT 972 - Operate - in Tunnel
Elevated Work Platform - Hire & Operate
Compressor, 1000 Cfm & Receiver - Operate
Bunded Fuel Installation - Operate
Bobcat - Operate
Hiab Truck - Operate
Grout Pump for Rockbolts
Site Vehicle
Alimak
|Electrical Reticulation - Maintain
Dewatering Pump 20KW
Power Reticulation Hire for RH
TBM Power Reticulation, Hire for Job Duration
Masked for Confidentiality
Notes
Operating costs include all fuels, oils and greases, power, spares and any other
direct operating expenses.
TABLE 2.3 OVERHEAD AND MARGIN ON MATERIAL AND SUBCONTRACT DAYWORK
(OTHER THAN SUBCONTRACT LABOUR):
Masked for Confidentiality
133
3
Cost Reimbursable Schedule
TABLE 3.1 CONSTRUCTION PLANT DIRECT COSTS
This Table 3.1 contains a comprehensive list of Construction Plant required for the Project to
be provided by the Contractor.
Masked for Confidentiality
This Table 3.1 includes all surface and underground Construction Masked for Confidentiality
which is expected to be required and is included in the Contract Price.
Masked for Confidentiality
Masked for Confidentiality
Masked for Confidentiality
Any items not listed but found to be required during the progress of the Work under the Deed
will be valued using the same principles applied by the Contractor to arrive at the rates
included in this Table 3.1.
Ref
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
Item Description
Owned or Operating
costs,
External
excluding
Hire
operators
Daily
cost
Note 2
standby
on
Per
hour
of Ownership,
Other
Note 1
operation
incl insurance
(list)
Masked for Confidentiality
TBM - 3.9M Dia open
SS - Operate incl cutter
consumption
TBM Grout Plant Operate
TBM Grout Plant Cement & Bentonite
Silos
Roadheader S200m,
200 Kw, Hire and
operating costs
Roadheader, 200Kw,
Auto Profile System,
Hire
Locomotive
Tunnel Car
Vent Fan - TBM Tunnel Operate (excl power
costs)
Gantry Crane - Operate
(no power costs)
|Water Treatment Plant,
16 L/Sec - Operate,
Maintain incl chemicals
Telehandler - Operate
Shotcrete Pump & Boom
- Operate
Rockbolter - Operate
Fel CAT 972 - Operate in Tunnel
Elevated Work Platform
- Hire & Operate
Compressor, 1000 Cfm
& Receiver - Operate
Bunded Fuel Installation
134
TABLE 3.1 CONSTRUCTION PLANT DIRECT COSTS
- Operate
Masked for Confidentiality
18
Bobcat - Operate
19
Hiab Truck - Operate
20
Grout Pump for
Rockbolts
21
Site Vehicle
22
Alimak
23
|Electrical Reticulation Maintain
24
Dewatering Pump 20KW
25
Power Reticulation Hire
for RH
26
TBM Power Reticulation,
Hire for Job Duration
Notes
Operating time measured by recorded time on equipment hour meter or other agreed
method of recording. Operating costs to include all fuels, oils and greases, power,
spares and any other direct operating expenses.
1
2
Items required as spares or backup and available for use will be classed as on standby.
Items part used on any day will be considered as on standby for the balance of the day
(pro rata) assuming a 20 hour maximum day for underground works and a 12 hour
maximum day for surface works.
3
Items no longer in use or awaiting or undergoing repair will be classed as unavailable
and not included for payment.
Rates do not include costs of power (to be supplied by the Principal free of charge)
135
TABLE 3.2 LABOUR AND SUPERVISION DIRECT COSTS
The Table 3.2 contains a comprehensive list covering all classifications of staff and trade
labour expected to be employed on the Work under the Deed.
Masked for Confidentiality
Any classifications not listed but found to be required during the progress of the Work under
the Deed will be valued using the same principles applied by the Contractor to arrive at the
rates included in this Table 3.2.
Ref
Labour Classification
Daily rate Note
Hourly rate Note 2
1
Average
hourly shift
pattern
Rate
Staff classifications:
List by category. Daily or
hourly rate according to
employment terms.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
Masked for Confidentiality
Project Manager
Project Superintendent
Project Engineer Snr Tunnel
Project Engineer Jnr Tunnel
Safety Officer/Coord
Shift Boss - Tunnel
Foreman - Senior
Foreman - Mid level
Site Engineer - Senior
Site Engineer - Tunnel
Project Engineer M&E
Foreman M&E
Office Mngr/Administrator
Admin Clerk
Direct employed worker classifications
List by trade or award
classification.
15
16
17
18
19
20
21
22
23
24
Underground Labour
single shift
Tunnel Worker Class 1
Tunnel Worker Class 2
Tunnel Worker Class 3
Tunnel Worker Class 4
Tunnel Worker Class 5
-
Underground Labour
double shift
Tunnel Worker Class 1
Tunnel Worker Class 2
Tunnel Worker Class 3
Tunnel Worker Class 4
Tunnel Worker Class 5
-
Masked for Confidentiality
136
Time & Double time
1/
2
TABLE 3.2 LABOUR AND SUPERVISION DIRECT COSTS
25
26
27
28
29
Surface Labour - single
shift
|Surface Worker Class 2
|Surface Worker Class 3
|Surface Worker Class 4
|Surface Worker Class 5
|Surface Worker Class 6
Masked for Confidentiality
Subcontract worker classifications Note 3
List by trade or award
classification.
1
2
3
Notes
Rates included cover all direct and indirect employee costs including loadings for
holidays and sick pay, superannuation, bonus provisions, statutory on-costs, vehicle
& accommodation allowances where applicable, company supplied vehicles to be
included in plant & equipment, and any other costs associated with staff employment.
Rates included cover all direct and indirect employee costs including loadings for
holidays and sick pay, superannuation, bonus provisions, statutory on-costs, and any
other costs associated with employment of labour under the terms of the industrial
instrument applicable to the Project.
Rates included cover all costs associated with employment of subcontract workers
under the terms of the industrial instrument applicable to the Project.
137
TABLE 3.3 DAILY DIRECT COSTS OF MAINTAINING AND OPERATING SITE FACILITIES
AND SERVICES, INCLUDING TUNNEL SERVICES NOT OTHERWISE INCLUDED IN
TABLE 3.1.
Masked for Confidentiality
Ref
Item Description
1
Operate miscellaneous
tunnel
and
shaft
services not otherwise
included in Table 3.1
Maintain site offices
and facilities, including
ownership
and
operating costs of all
miscellaneous
office
and
communication
costs and equipment
during periods of cost
reimbursable working
2
Rate per
24 hr day
when
working
in tunnel
Rate per
24 hr day
when not
working in
the tunnel
Rate per 12
hr working
day when
working in
the tunnel
Rate per day
when no work is
proceeding on
site
Masked for Confidentiality
TABLE 3.4 OVERHEAD AND MARGIN ON MATERIAL AND SUBCONTRACT COSTS
(OTHER THAN SUBCONTRACT LABOUR):
Masked for Confidentiality
138
Schedule 4
GBR Administration
Masked for Confidentiality
139
Masked for Confidentiality
140
Masked for Confidentiality
141
Masked for Confidentiality
142
Masked for Confidentiality
143
Masked for Confidentiality
144
Masked for Confidentiality
145
Masked for Confidentiality
146
Masked for Confidentiality
147
Masked for Confidentiality
148
Masked for Confidentiality
149
Masked for Confidentiality
150
Masked for Confidentiality
151
Masked for Confidentiality
152
Masked for Confidentiality
153
Masked for Confidentiality
154
Masked for Confidentiality
Masked for Confidentiality
155
Masked for Confidentiality
156
Masked for Confidentiality
157
Masked for Confidentiality
158
Schedule 5
Provisional Sums
Item
No.
5.1
Description
Provisional Sum for:
the additional administration costs of
complying with the terms and conditions of any
Interface Agreement executed after the date of
the Deed which the Contractor reasonably
considers are substantially more onerous than
those contained in the relevant Draft Interface
Agreement (refer clause 6.2(b)(ii)(B) of the
General Conditions of Deed); and
all monitoring required to be undertaken by the
Contractor as part of the Work under the Deed
including:
monitoring of CCM Tunnels and
adjustments to construction
methodologies in the vicinity of CCM
Tunnels as a result of restrictions on
excavation imposed by CCM or
otherwise associated with the actual
crossing of the CCM Tunnels;
monitoring of BOOS in accordance
with Sydney Water requirements; and
monitoring of RailCorp assets in
accordance with RailCorp requirements.
5.2
5.3
159
Provisional Sum for disposing of water from CES
(Refer Part 4.5 of Schedule 4).
Provisional Sum for maintaining site infrastructure at
CES during excavation of CES.
Provisional Sum
Masked for Confidentiality
Schedule 6
Key Personnel
Name
Christian D‟Hondt
Nominated Position
Project Manager
John Milner
Construction Manager
Dougal Guthrie
Senior Project Engineer
Claire Driver
Project Engineer
Todd Ferguson
Site Engineer
Charles Scarf
Occupational Health, Safety,
Environment & Community Manager
Glenn Day
Tunnel Superintendent
Darren Campbell
Mechanical & Electrical Superintendent
160
Schedule 7
Insurances
The Contractor agrees to take out and maintain, or cause to be taken out and maintained,
the following insurance coverage in accordance with clause 29 of the General Conditions
of Deed.
(a)
Public and Products Liability Insurance
covering bodily injury or death suffered by third parties and loss of or damage to
property, including the property of the Principal, occurring in connection with the
execution by the Contractor of the Work under the Deed and its other obligations
under the Deed or arising out of the use, manufacture, supply or installation of any
item or thing by the Contractor, in an amount not less than
per
Masked for Confidentiality
for Products and Completed Operations
liability to be in the joint names of each Interface Party or note each Interface
Party‟s interests.
Masked for Confidentiality
This insurance must be in force on the Commencement Date and be maintained
until the issue of the Final Payment Certificate or the early termination of the
Deed.
(b)
Worker’s Compensation
in accordance with the statutory requirements applicable in any jurisdiction where
the Work under the Deed or any part is executed.
This insurance must be in force on the Commencement Date and be maintained
until the issue of the Final Payment Certificate or the early termination of the
Deed.
(c)
Contract Works Insurance
covering the Work under the Deed for the full reinstatement value plus the costs
of demolition and removal and reasonable allowances for escalation and
consultants‟ fees. Masked for Confidentiality
Masked for Confidentiality
This insurance must
be in force before the Work under the Deed commences and be maintained until
the expiry of the Defects Correction Period in relation to the Work under the
Deed to which the insurance relates.
(d)
Professional Indemnity Insurance
covering liability or damage arising from professional duties undertaken by the
Contractor in an amount of not less than Masked for Confidentiality
Masked for Confidentiality
This insurance must be in force on
the Commencement Date and be maintained until the expiration of the period of
161
seven years from the issue of the Final Payment Certificate or early termination of
the Deed.
(e)
Transit Insurance
covering the TBM and any Materials to be employed about or used in performing
the Work under the Deed, for loss or damage, from the time such insured property
leaves the premises of the manufacturer or any other place where the insured
property is procured until delivery at the Site, for an insured sum of not less than
the full replacement value of the insured property shipped or transported,
including freight and insurance. This insurance must be in force at the start of
each conveyance and be maintained until the end of each conveyance by delivery
at the Site.
Masked for Confidentiality
(f)
Motor Vehicle Insurance
covering all motor vehicles owned, leased or hired by the Contractor used in the
connection with the Work under the Deed, including the use of unregistered
motor vehicles and plant in an amount not less than Masked for Confidentiality
This insurance must be in force on or by the date any plant, equipment or motor
vehicles are used in connection with the Work under the Deed or used on or
around the Site and be maintained until the plant, equipment or motor vehicles
cease to be used in connection with the Work under the Deed or on or around the
Site.
(g)
All other insurances which:
(i)
a prudent contractor would provide or take out in respect of work of the
nature of the Work under the Deed or any equipment utilised by the
Contractor in undertaking the Work under the Deed; or
(ii)
are required by Law to be taken out or maintained by the Contractor.
162
Schedule 8
Approved Subcontractors
Subcontracting
The following parts of the Work under the Deed may be subcontracted to the following
Subcontractors without the approval of the Principal‟s Representative under clause 16.1
of the General Conditions of Deed:
Project Element
Proposed Subcontractor/Supplier
Precast Concrete Segment Manufacturer
Structural Concrete Industries (Aust) Pty
Limited (ABN: 62 003 872 259) or Wilson
Tunnelling Pty Ltd (NZ Company)
Gasket Manufacturers
Phoenix GmbH (germany)
Concrete Supplier
Boral Construction Material Group Ltd
(ABN 15 000 028 080) / Holcim (Australia)
Pty Ltd (ABN 87 099 732 297) / Hanson
Construction Materials Pty Ltd (ABN 90 009
679 734)
Formwork / Concrete Placement
P&T Formworking & Welding Pty Limited
(ABN 72 003 994 625), Lis-con Services Pty
Ltd (ABN 55 130 866 474)
Traffic Management
Australian Retro Pty Ltd (ABN 60 003 387
497)
Temporary Water Treatment Plant
OVIVO Australia Pty Ltd (ABN 11 089 029
809)
Radio Communication
Star Electrical Co Pty Ltd (ABN 65 000 218
708)
Mechanical Contractor
Star Electrical Co Pty Ltd (ABN 65 000 218
708)
Electrical Contractor
Star Electrical Co Pty Ltd (ABN 65 000 218
708)
Cable Support Manufacturer
Ancon Building Products Pty Ltd (ABN 41
000 496 079), Korvest Ltd (ABN 20 007 698
106) trading as EzyStrut or Ogis Engineering
Pty Ltd (ABN 15 000 425 865)
163
Project Element
Proposed Subcontractor/Supplier
Piling Contractor
Avopiling (NSW) Pty Ltd (ABN 58 142 840
275)or Advance Foundation Solutions (Aust)
Pty Ltd (ABN 80 099 819 762)
Steel Shaft Lining Manufacturer
Rollpress Proplate Group Pty Ltd (ABN 92
011 070 394)
Reinforcing Steel
Bluescope Distribution Pty Ltd (ABN 88 096
380 068) trading as Smorgon Steel Sheet
Metal Supplies, The Australian Steel
Company (Operations) Pty Ltd (ABN 89 069
426 955), Onesteel Trading Pty Ltd (ABN 50
007 519 646)
Structural Steel
S&L Steel Fabrications Pty Ltd (ABN 54 121
540 038) or F.&D. Normoyle Engineering
Pty Ltd (ABN 12 003 635 461)
Systems Contractor (PLC programming etc)
Star Electrical Co Pty Ltd (ABN 65 000 218
708)
Fire System Contractor
Star Electrical Co Pty Ltd (ABN 65 000 218
708)
Spoil Removal
Earth Exchange Pty Limited (ABN 58 124
884 206), Lion Earthworks Pty Ltd (ABN 72
106 908 365) or Kingsfeld Contracting (ABN
55 106 123 755)
Waterproofing
Bluey Technologies Pty Ltd (ABN 36 115
613 646) or Eptec Pty Ltd (ABN 48 080 052
259)
Acoustic Shed
Protector Building Systems Pty Limited (81
003 633 314), IDEC Solutions Pty Ltd (ABN
15 082 559 920) or Advance Steel Design Pty
Ltd (ABN 46 121 192 523)
Condition Surveys
Opus International Consultants (NSW) Pty
Limited (ABN 69 001 184 694) or
Dilapidation Surveys Pty Limited (ABN 19
074 423 466)
Survey
Lynton Surveys Pty Ltd (ABN 27 084 774
514), Surex Pty Ltd (ABN 64 107 423 414)
or VMT GmbH (Germany)
164
Schedule 9
Form of Security
UNCONDITIONAL UNDERTAKING
Bond No: 2010XX-XXXX
At the request of Thiess Pty Ltd ABN 87 010 221 486 (“the Contractor”) and in consideration of
Ausgrid ABN 67 505 337 385 of 570 George Street, Sydney NSW 2000 (“the Principal”) accepting
this undertaking in respect of the contract for Design and Construction of Civil Works and Services for
the City East 132kV Cable Tunnel (“the Contract”), Swiss Re International SE ARBN 138 873 211
(“the Financial Institution”) C/- Assetinsure Pty Limited ACN 066 463 803 of Level 3, 44 Pitt Street,
Sydney NSW 2000 unconditionally undertakes to pay on demand any sum or sums which may from
time to time be demanded by the Principal to a maximum aggregate sum of [Bond Amount in Words
and Figures] (“the Sum”).
This undertaking is to continue until:
written notification has been received by the Financial Institution from the Principal that the
Sum is no longer required by the Principal; or
this undertaking is returned to the Financial Institution; or
payment to the Principal by the Financial Institution of the whole of the Sum or such part as
the Principal may require.
Should the Financial Institution be notified in writing to its address set out above, purporting to be
signed by the person holding the position of Executive Manager, Projects (or equivalent) for and on
behalf of the Principal that the Principal desires payment to be made of the whole or any part or parts of
the Sum, it is unconditionally agreed that the Financial Institution will make the payment or payments
to the Principal forthwith without reference to the Contractor and notwithstanding any notice given by
the Contractor not to pay same and without regard to the performance or non-performance by the
Contractor or the Principal of the Contract.
Provided always that the Financial Institution may at any time without being required so to do pay to
the Principal:
the Sum less any amount or amounts it may previously have paid under this undertaking or
such lesser sum as may be specified by the Principal in writing to the Financial Institution to
it‟s address set out above,
and thereupon the liability of the Financial Institution hereunder shall immediately cease.
This undertaking is governed by the laws of New South Wales, Australia. Each person who executes
this undertaking on behalf of the Financial Institution under a power of attorney declares that he or she
is not aware of any fact or circumstance that might affect his or her authority to execute under the
power of attorney.
Signed by the attorney of
Swiss Re International SE under Power of
Attorney dated this
______________ Day of _____________ 2011
Signature of
Witness: ___________________________
Signature of
Attorney: ___________________________
Name of
Witness: ___________________________
Name of
Attorney: ___________________________
165
Schedule 10
Contract Programme
166
Schedule 11
Pre-Contract Information
1
DESIGN REPORT
The document titled "Design of Civil Works and Services for the City East
132kV Cable Tunnel Project, Detailed Design Report (Rev B)" dated 9
September 2011, Document No. 60102986-RP-020
167
Schedule 12
DRB Appointment and Operating Procedures
1
DRB Appointment
Selection criteria
(a)
(b)
The parties agree that the following criteria apply in the selection and
approval of DRB members:
(i)
It is desirable that all DRB members be experienced in the
type of construction required in connection with the Contract,
interpretation of contract documents and resolution of
construction disputes.
(ii)
It is imperative that the DRB members be neutral, act
impartially and be free of any conflict of interest.
(iii)
The goal in selecting the third member is to appoint a legal
practitioner experienced in construction and engineering law
who will complement the experience of the first two members
and provide leadership of the operation of the DRB.
(iv)
If a list of potential members is included in the Contract, the
members will be selected from those on the list, other than
anyone who is unable or unwilling to accept appointment to
the DRB.
The parties agree the following circumstances (unless otherwise
agreed in writing by the party giving its approval) constitute
prohibitions and disqualifying relationships for prospective members:
(i)
a direct ownership interest in any entity or its related bodies
corporate involved in the Project except for disclosed
shareholdings approved by the parties, or a financial interest in
the Project except for payment for services on the DRB;
(ii)
previous employment by, or financial ties to, any party
involved in the Project within a period of twelve months prior
to award of the Contract, except for fee-based consulting
services on other projects and disclosed shareholdings
approved by the parties;
(iii)
a close professional or personal relationship with any key
member of any entity involved in the Project which, in the
168
reasonable judgment of either party, could suggest partiality or
a conflict of interest; or
(iv)
(c)
(d)
prior involvement in the Project of a nature which could
compromise that member's ability to participate impartially in
the operations of the DRB.
The parties agree the following circumstances constitute prohibitions
and disqualifying relationships for members of the DRB following
appointment:
(i)
employment, including fee-based consulting services, by any
entity involved in the Project except with the express approval
of both parties; or
(ii)
discussion concerning or the making of an agreement with any
entity involved in the Project regarding employment after the
Project is completed.
For the purpose of clauses 1(a) to (d) of this Schedule 12 - DRB
Appointment and Operating Procedures:
(i)
the term “member" also includes the member's current primary
or full time employer; and
(ii)
the term “involved” means having a contractual relationship
with either party to the Contract, or any other entity, such as a
Subcontractor, Supplier, Consultant or other design
professional, having a role in the Project.
Disclosure statement
(e)
As a part of the selection process, the first two prospective members
will be required to submit complete disclosure statements for the
approval of both the Principal and the Contractor. Each statement
must include:
(i)
a resumé of experience; and
(ii)
a declaration describing all past, present, anticipated and
planned future relationships, including indirect relationships
through the prospective member‟s primary or full-time
employer:
(A)
to the Project; and
(B)
with all parties involved in the Contract, including
Subcontractors, Suppliers and Consultants.
Disclosure of close professional or personal relationships with
all key members of all parties involved in the Project must be
included, as well as current shareholdings in any entity
involved in the Project.
169
(f)
The third DRB member will be required to submit a statement that
complies with clause 1(e) of this Schedule to the first two DRB
members and to the Principal and Contractor as a part of the selection
and evaluation process.
Nomination and approval of first two members
(g)
The Principal and the Contractor must each nominate a proposed DRB
member and convey the nominee's name and disclosure statement to
the other party within three weeks after the Date of Contract.
(h)
If a nominee is not rejected within one week after receipt of the name
and disclosure statement, that nominee will be deemed approved.
(i)
No reasons for rejection need be stated. In the event of rejection, the
nominating party will submit another nomination within two weeks of
receipt of the notice of rejection. This process will be repeated until
two mutually acceptable members are named or clause 1(m) of this
Schedule applies.
Nomination and approval of third member
(j)
Upon approval of both of the first two members, the Principal and
Contractor will instruct them to begin the selection process for the
third member. The first two members will endeavour to nominate a
third member who meets all the criteria listed in this Schedule.
(k)
The third member must be nominated within two weeks after the first
two members are instructed to proceed with this selection. The
nominee‟s name and disclosure statement will be conveyed to the
Principal and the Contractor, who will either accept or reject the
nominee within one week. In the event of rejection, the first two
members will be requested to submit another nomination within one
week of receipt of the notice of rejection.
Replacement of members
(l)
If at any time the parties so agree, they may appoint a suitably
qualified person or persons to replace any one or more members of the
DRB. Unless the parties otherwise agree, the appointment will come
into effect if a member declines to act or is unable to act as a result of
death, disability, resignation or termination of appointment. The
replacement will be appointed in the same manner as the replaced
person was nominated and agreed upon under clause 1 of this
Schedule.
Failure to agree DRB
(m)
If any of the following conditions apply:
(i)
either party fails to nominate a member (for approval by the
other party) within the time stated in clause 1(g) of this
Schedule;
170
(ii)
the parties fail to agree upon the appointment of the first two
members within eight weeks after the Date of Contract;
(iii)
the parties fail to agree upon the appointment of the third
member (to act as chairman) of the DRB within six weeks
after the appointment of the first two members; or
(iv)
the parties fail to agree upon the appointment of a replacement
person within six weeks after the date on which the original
member declines to act or is unable to act as contemplated by
clause 1(l) of this Schedule,
then, at the request of either or both of the parties and after due
consultation with both parties, the Institution of Engineers Australia
(in the case of either of the first two members) or the NSW Law
Society (in the case of the chairman) will appoint this member of the
DRB.
(n)
An appointment pursuant to clause 1(m) of this Schedule will be final
and conclusive.
(o)
Each party will be responsible for paying one-half of the remuneration
of the appointing entity or official.
2
DRB Operating Procedures
(a)
The Principal and the Contractor must provide the DRB with one copy
of all documents which the DRB may request, including the Deed,
progress reports, variation instructions, certificates, determinations by
the Principal‟s Representative and other documents pertinent to the
dispute. All communications between the DRB and the Principal or
the Contractor must be copied to the other party. The Principal and the
Contractor must send copies of these requested documents and these
communications to each member of the DRB.
(b)
The DRB must proceed in accordance with clauses 40.2 and 40.3 and
this Schedule. Subject to the time allowed to give notice of a
recommendation and other relevant factors, the DRB must:
(i)
act fairly and impartially as between the Principal and the
Contractor, giving each of them a reasonable opportunity of
putting its case and responding to the other's case; and
(ii)
adopt procedures suitable to the dispute, avoiding unnecessary
delay or expense.
(c)
The DRB may conduct a hearing on the dispute, in which event it will
decide on the date and place for the hearing and may request that
written documentation and arguments from the Principal and the
Contractor be presented to it prior to or at the hearing.
(d)
Except as otherwise agreed in writing by the Principal and the
Contractor, the DRB has power to adopt an inquisitorial procedure, to
171
refuse admission to hearings or audience at hearings to any persons
other than representatives of the Principal and the Contractor, and to
proceed in the absence of any party who the DRB is satisfied received
notice of the hearing; but has discretion to decide whether and to what
extent this power may be exercised.
(e)
(f)
The Principal and the Contractor empower the DRB, among other
things, to:
(i)
establish the procedure to be applied in formulating its
recommendation concerning a dispute;
(ii)
decide upon the DRB's own jurisdiction, and as to the scope of
any dispute referred to it;
(iii)
conduct any hearing as it thinks fit, not being bound by any
rules or procedures other than those contained in the Deed;
(iv)
take the initiative in ascertaining the facts and matters required
for a recommendation;
(v)
make use of its own specialist knowledge, if any;
(vi)
decide upon the payment of financing charges in accordance
with the Deed;
(vii)
decide upon any provisional relief such as interim or
conservatory measures; and
(viii)
open up, review and revise any certificate, decision,
determination, instruction, opinion or valuation of the
Principal‟s Representative, relevant to the dispute.
The DRB:
(i)
may convene in private after a hearing, if any, in order to have
discussions and prepare its recommendation;
(ii)
must endeavour to reach a unanimous decision concerning its
recommendation: if this proves impossible, the applicable
recommendation will be made by a majority of the members,
who may require the minority member to prepare a written
report for submission to the Principal and the Contractor; and
(iii)
if a member fails to attend a meeting or hearing, or to fulfil
any required function, the other two members may
nevertheless proceed to make a recommendation, after first
informing the parties, unless:
(A)
either the Principal or the Contractor does not agree
that they do so; or
172
(B)
the absent member is the Chairman and he/she
instructs the other members not to make a
recommendation.
173
Schedule 13
DRB Appointment Agreement
DRB Appointment Agreement
Dated
Ausgrid ABN 67 505 337 385 (“Principal”)
Thiess Pty Ltd ABN 87 010 221 486 (“Contractor”)
[#] (“Member”)
174
Details
Parties
Principal, Contractor and Member
Principal
Name
Ausgrid
ABN
67 505 337 385
Address
570 George Street
Sydney NSW 2000
Telephone
[#]
Fax
[#]
Attention
[#]
Name
Thiess Pty Ltd
ABN
87 010 221 486
Address
[#]
Telephone
[#]
Fax
[#]
Attention
[#]
Name
[Name of Member]
Address
[Address of Member]
Telephone
[#]
Fax
[#]
Attention
[#]
Contractor
Member
Recitals
A
The Principal and the Contractor have entered into a
contract for the construction of the City East 132kV cable
tunnel and services, including design of the TBM lining
(“CECT Contract”).
B
Clause 40 of the CECT Contract provides for a dispute
resolution process through the establishment and the
operation of a Dispute Resolution Board (“DRB”) to
assist in resolving disputes under the CECT Contract. The
DRB will comprise of the Member and two other
members.
175
C
Governing law
Together with clause 40 of the CECT Contract, this
Agreement sets out the rights, obligations and duties of
the Member, the Principal and the Contractor.
New South Wales
Date of
agreement
176
General terms
1
Definitions and interpretation
1.1
Definitions
In this Agreement:
Agreement means this Agreement.
Change means any modification, addition to or omission from or other
variation of the Work under the Deed directed or approved by the Principal in
writing in accordance with clause 33 of the CECT Contract.
Confidential Information means all information disclosed to the Member
by, or on behalf of, the Principal, the Contractor or any related entity of the
Principal or the Contractor, including:
(a)
information, which, either orally or in writing, is designated or
indicated as being the proprietary or confidential information of the
Principal or the Contractor;
(b)
trade secrets or information, which is capable of protection at law or
equity as confidential information;
(c)
information from a third party, where the Member is advised by the
Principal, the Contractor or any related entity of the Principal or the
Contractor that such information is confidential; and
(d)
information derived or produced, partly or wholly, from the
information referred to above, including any calculation, conclusion,
summary or computer modelling,
whether the information was disclosed:
(e)
orally, in writing or in electronic or machine readable form;
(f)
before, on or after the date of this Agreement;
(g)
as a result of discussions between the Parties; or
(h)
by the Principal, the Contractor, any of the Principal‟s or the
Contractor‟s related entities or third parties,
which is not in the public domain.
Details is the section of this Agreement headed “Details”.
Dispute Resolution Board or DRB means the board constituted by the
Member and two other members mutually selected by the Principal and the
Contractor in accordance with clause 40.2 of the CECT Contract to consider
and recommend resolution of disputes referred to it.
177
GST means a goods and services tax, as governed by the GST Act.
GST Act is A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Parties means the Principal, the Contractor and the Member.
Project means Energy Australia‟s City East 132kV Cable Tunnel Project, as
more precisely described in the CECT Contract.
Schedule of Rates means Schedule 1 to this Agreement.
Site means Site as defined in the CECT Contract.
Valid Tax Invoice means an invoice which complies with the provisions of
the GST Act relating to the production and form of tax invoices for GST
purposes.
Work under the Deed means the whole of the work to be supplied and
carried out by the Contractor in accordance with the CECT Contract and
includes all Changes and all work and activities necessary for completion of
the work to be carried out by the Contractor, whether described in the CECT
Contract or not.
Works means that part of the Work under the Deed (including Changes)
which is required by the CECT Contract to be handed over to the Principal.
1.2
Interpretation
In this Agreement unless a contrary intention is stated:
2
(a)
the singular includes the plural and vice versa;
(b)
a reference to a clause is a reference to a clause of this Agreement;
and
(c)
headings are for reference only and do not form part of this
Agreement.
Formation of the DRB
The Parties acknowledge that the DRB has been formed.
3
Relationship between Agreement and CECT Contract
3.1
Application of CECT Contract
Clauses 40.2 and 40.3 of, and Schedule 12 to, the CECT Contract apply to
this Agreement as if they were set out in full in this Agreement.
3.2
Agreement to prevail
Each Party agrees that if there is any inconsistency between the terms of this
Agreement and the CECT Contract, the terms of this Agreement prevail.
178
4
Agreement effective
This Agreement is effective as of the date all Parties have signed this
document and continues until:
(a)
the DRB is dissolved in accordance with clause 40.2(d) of the CECT
Contract; or
(b)
this Agreement is terminated under clause 12.
5
Member warranties and obligations
5.1
Member warranties
The Member warrants that he or she (as the case may be):
(a)
does not have a direct ownership interest in any entity or its related
bodies corporate involved in the Project;
(b)
does not have a financial interest in the Project except for payment for
services under this Agreement;
(c)
has not been previously employed by, and does not have and has not
had, within a period of 12 months prior to execution of the CECT
Contract, any financial ties to any party involved in the Project except
for fee-based consulting services on other projects and shareholdings
disclosed before the date of this Agreement to, and approved by, the
Principal and the Contractor;
(d)
does not have a close professional or personal relationship with any
key person associated with any entity involved in the Project which,
in the reasonable judgment of the Principal or the Contractor, could
suggest partiality or a conflict of interest; and
(e)
has no prior involvement in the Project of a nature which could
compromise the Member's ability to participate impartially in the
operations of the DRB,
except as disclosed to the Principal and the Contractor in accordance with the
process set out in clauses 1(e) and (f) of Schedule 12 to the CECT Contract.
5.2
Member obligations
The Member must:
(a)
consider fairly and impartially each dispute referred to the DRB;
(b)
act independently in the consideration of facts and conditions relating
to each dispute referred to the DRB;
(c)
perform honestly the duties and functions set out in clauses 40.2 and
40.3 of, and Schedule 12 to, the CECT Contract:
(i)
with due care and diligence; and
179
(ii)
in compliance with all applicable laws, regulations and other
statutory requirements;
(d)
be available for any Site visit and hearings described in clause 40.2 of
and clause 2 of Schedule 12 to the CECT Contract;
(e)
not give advice to the Principal, the Contractor, the Principal‟s
directors, officers or employees or the Contractor‟s directors, officers
or employees concerning the conduct of the CECT Contract, other
than in accordance with the operating procedures set out in clause 2
of Schedule 12 to the CECT Contract;
(f)
not, for the duration of this Agreement, be employed, including as a
fee-based consultant, by any entity involved with the Project, except
as may be agreed in writing by the Principal and the Contractor; and
(g)
not enter into discussions or make any agreement with any entity
involved in the Project regarding employment after the Project is
finished.
6
Principal’s commitments and responsibilities
6.1
Principal’s obligations
The Principal must:
6.2
(a)
not solicit advice or consultation from the DRB or the Member on
matters dealing with the resolution of disputes which may
compromise the DRB‟s integrity;
(b)
act in good faith towards the Member and the DRB; and
(c)
comply with reasonable requests of the DRB.
Principal’s provision of services
The Principal must, at its own expense, provide the DRB with the following
administrative services:
7
(a)
a meeting room;
(b)
clerical support; and
(c)
[Note: To be agreed between the parties prior to the execution of
this Agreement].
Contractor’s commitments and responsibilities
The Contractor must:
(a)
not solicit advice or consultation from the DRB (including the
Member) on matters dealing with the resolution of disputes which
may compromise the DRB‟s integrity;
(b)
act in good faith towards the Member and the DRB; and
180
(c)
8
comply with reasonable requests of the DRB.
Confidentiality
In relation to all Confidential Information disclosed to the DRB during the
resolution of a dispute, the Member:
9
(a)
must keep that information confidential;
(b)
must not disclose that information except to a Party or a
representative of that Party participating in the resolution of the
dispute or if compelled by law to do so;
(c)
must not use that information for a purpose other than the resolution
of the dispute; and
(d)
is bound by this obligation of confidentiality whether or not such
Confidential Information is or later becomes available in the public
domain.
Conflict of interest
If the Member, during the term of appointment as a member of the DRB,
becomes aware of any circumstance that might reasonably be considered to
affect the Member‟s capacity to act impartially, or which is inconsistent with
a warranty that the Member has given under clause 5.1, the Member must
inform the Principal and the Contractor and the other two members of the
DRB as soon as practicable after becoming aware of the circumstance.
10
Liability
10.1
Liability
The Member is not liable to either the Principal or the Contractor for any act
done or omission made in good faith and with due care and diligence in the
performance or non-performance of his or her (as the case may be)
obligations under this Agreement.
10.2
Due care and diligence
For the purpose of clauses 10.1, the Member‟s act is deemed to have been
done in good faith and with due care and diligence unless no reasonable
person in the position of the Member would have so acted or made such an
omission.
11
Payment
11.1
Payment for services and expenses
(a)
The Contractor must pay the Member for the services performed by
the Member at the rates set out in the Schedule of Rates.
(b)
Any direct expenses not included in the rates set out in the Schedule
of Rates and incurred by the Member in the course of carrying out the
Member‟s functions and obligations under this Agreement must be
reimbursed at the actual cost to the Member in accordance with this
Agreement. Such expenses include, but are not limited to, parking,
181
travel expenses, food and accommodation, telephone and postage.
Billing for such expenses must include an itemised listing supported
by copies of the original bills, invoices, expense accounts and
miscellaneous supporting data.
11.2
Invoices
The Member must submit a Valid Tax Invoice to the Contractor for
payment for services provided not more often than once per month
during the progress of Work under the Deed. Such invoices must be
in a format approved by the Contractor, and accompanied by a
general description of activities performed during that period.
11.3
11.4
Taxes
(a)
If any supply made by the Member under this Agreement is, or
becomes, subject to GST, the Member is, subject to his or her (as the
case may be) compliance with clause 11.2, entitled to receive the
amount equal to any GST owed or owing in addition to the amount
forming the payment under this Agreement for the services supplied
by the Member.
(b)
If any Party is required to reimburse or indemnify another Party for a
cost, expense or liability (“Cost”) incurred by that other Party, the
amount of that Cost for the purpose of this Agreement is the amount
of the Cost incurred less the amount of any credit or refund of GST to
which the Party incurring the Cost is entitled to claim in respect of the
Cost.
(c)
In this clause 11.3 the expressions “supply”, “recipient” and “taxable
supply” have the meaning given to those expressions in the GST Act.
(d)
Unless otherwise expressly stated, all prices or other sums payable or
consideration to be provided under this Agreement are exclusive of
GST.
(e)
If the amount of GST paid or payable by the supplier on any supply
made under this Agreement differs from the amount of GST paid by
the recipient, because the Commissioner of Taxation lawfully adjusts
the value of the taxable supply for the purpose of calculating GST,
then the amount of GST paid by the recipient will be adjusted
accordingly by a further payment by the recipient to the supplier or
the supplier to the recipient, as the case may be.
Audit
The Member must keep available for inspection by the Principal or the
Contractor for a period of three years after final payment, the cost records and
accounts pertaining to this Agreement.
12
Termination of Agreement
(a)
Subject to clauses 12(b) and 13.3, this Agreement may be terminated
by mutual written agreement of the Principal and the Contractor.
(b)
This Agreement remains in force until:
182
(i)
(ii)
a replacement Agreement is entered into by:
(A)
the Principal;
(B)
the Contractor; and
(C)
the replacement member of the DRB; or
the DRB is dissolved in accordance with clause 40.2(d) of the
CECT Contract.
13
Termination of Member
13.1
Resignation
The Member may resign from the DRB by providing four weeks‟ written
notice to the two other members of the DRB, the Principal and the Contractor.
13.2
Termination
The Principal and the Contractor may, by mutual written agreement,
terminate the Member‟s appointment by providing ten business days‟ written
notice to the Member.
13.3
Re-Appointment
If the Member resigns under clause 13.1 or has his or her membership
terminated under clause 13.2, then, unless the circumstances referred to in
clause 12(a) and 12(b)(ii) pertain, a replacement member of the DRB must
promptly be appointed using the procedures set out in clause 1(l) of Schedule
12 to the CECT Contract. The Principal and the Contractor acknowledge that
they must enter into a replacement agreement in the same form as this
Agreement with the replacement member.
14
15
16
Law of this Agreement
(a)
The law of this Agreement is the law in force in New South Wales.
(b)
The Parties submit to the non exclusive jurisdiction of the courts of
New South Wales.
Nature of the relationship
(a)
Nothing in this Agreement constitutes a joint venture, agency,
partnership or other fiduciary relationship between any two or more
of the Parties.
(b)
No Party has authority to bind another Party.
(c)
At all times during the performance of services pursuant to this
Agreement, the Member is an independent consultant and is not an
employee or agent of the Principal or Contractor.
Notices
Unless otherwise specifically provided, any notice, consent, approval or other
communication under this Agreement must be:
183
17
(a)
in writing; and
(b)
delivered by hand or by mail to the address, or sent to the facsimile
number or email address, shown in the Details, or such other postal
address, facsimile number or email address as a Party may notify to
the other Parties from time to time in writing.
Assignment
The Member may not assign any right under this Agreement without the prior
written approval of the Principal and the Contractor.
EXECUTED as an agreement
184
Schedule 1 - Schedule of Rates
[Note: Rates for payment of the Member’s services to be inserted.]
185
Signing page
DATED:______________________
SIGNED by #NAME OF
AUTHORISED
REPRESENTATIVE # as
authorised representative for
AUSGRID in the presence of:
)
)
)
)
............................................................
)
Signature of witness
)
)
............................................................
)
Name of witness (block letters)
)
............................................................
)
By executing this agreement the
signatory warrants that the signatory
is duly authorised to execute this
agreement on behalf of AUSGRID
)
186
SIGNED by #NAME OF
)
AUTHORISED
)
REPRESENTATIVE # as
authorised representative for THIESS
)
PTY LTD in the presence of:
)
............................................................
)
Signature of witness
)
)
............................................................
)
Name of witness (block letters)
)
............................................................
)
By executing this agreement the
signatory warrants that the signatory
is duly authorised to execute this
agreement on behalf of THIESS PTY
LTD
)
)
SIGNED by [#NAME OF
MEMBER#] in the presence of:
)
)
)
)
............................................................
)
Signature of witness
)
)
............................................................
)
............................................................
)
Signature of [#NAME OF
MEMBER#]
Name of witness (block letters)
)
187
Schedule 14
Subcontractors Statement and Statutory Declaration
188
189
190
Part 2 Statutory Declaration
[Name of Contractor]
[#]
STATUTORY DECLARATION
Statutory declaration in the matter of building contract dated [#] (“Contract”)
between
[#] (the “Principal”)
and
[#] (ABN [#]) (“Contractor”)
I, [#] of [#] in the state of New South Wales, [occupation], do solemnly and sincerely declare that,
after having made enquiries:
1
I have knowledge of the relevant facts and am authorised by the Contractor to make this
statutory declaration on its behalf;
2
this statutory declaration is made under clause 7.3(e)(ii) of the Contract in relation to the
payment of a progress certificate in respect of the progress claim no. [#] submitted by the
Contractor on [#];
[Note : in the case of payment of the final payment certificate issued by the Principal’s
Representative under clause 7.5(a) of the Contract, replace the above paragraph with the
following paragraph:
this statutory declaration is made under clause 7.5(g) of the Contract in relation to the
payment of the final payment certificate issued by the Principal’s Representative under
clause 7.5(d) of the Contract]
[Note : in the case of payment of the certificate issued by the Principal’s Representative
under clause 37.2(d) of the Contract, replace the above paragraph with the following
paragraph:
this statutory declaration is made under clause 37.2(f)(ii) of the Contract in relation to the
payment of the certificate issued by the Principal’s Representative under clause 37.2(d) of
the Contract]
3
all amounts properly payable by the Contractor to consultants, suppliers and subcontractors
in respect of the Work under the Contract have been paid;
4
there are no outstanding amounts due and payable by the Contractor or any security held by
any person in relation to the Works.
AND I MAKE this solemn declaration conscientiously believing the same to be true and by virtue of
the provisions of the Oaths Act 1900 (NSW).
191
DECLARED at
this [#] day of [#] before me:
)
)
)
_______________________________ )
Signature of authorised witness
)
)
_______________________________ )
Name of authorised witness
)
(block letters)
)
)
)
_______________________________ )
Address of authorised witness
)
)
Capacity in which authorised witness
)
takes the statutory declaration
)
Justice of the Peace */ Solicitor of the )
Supreme Court of New South Wales
)
holding a current practising certificate )
under the Legal Profession Act 1987
)
(NSW)*
)
*Delete whichever is not applicable
)
)
_______________________________
Signature of declarant
192
Schedule 15
Guarantee and Indemnity
Guarantee and Indemnity
Masked for Confidentiality
193
Guarantee and Indemnity
Masked for Confidentiality
194
Masked for Confidentiality
195
Masked for Confidentiality
196
Masked for Confidentiality
197
Masked for Confidentiality
198
Masked for Confidentiality
199
Guarantee and Indemnity
Masked for Confidentiality
200
Masked for Confidentiality
201
Schedule 16
CECT Development Approval
202
203
204
205
206
207
208
209
210
211
212
213
214
215
216
217
218
Schedule 16A
Schedule of CECT Development Approval Responsibilities
DA
Ref
Subject matter
Contractor’s Responsibility
Principal’s Responsibility
Minister for Planning and Infrastructure, Project Approval 18th July 2011, Application #: MP 10_0141
A1
Compliance with planning
approval documents
The Contractor must comply
with the requirements of the
documents listed in A1 to the
extent they relate to Work
under the Deed and, in respect
of condition A1(e), to the
extent allocated under this
Schedule 16A – Schedule of
CECT Development Approval
Responsiblities.
The Principal must comply
with condition A1(e) to the
extent allocated under this
Schedule 16A – Schedule of
CECT Development Approval
Responsiblities.
A2
Inconsistency between
documents
Interpretation condition only.
Interpretation condition only.
A3
Compliance with reasonable
requirements of the Director
General
The Contractor must comply
with any reasonable
requirements of the Director
General to the extent they
relate to Work under the Deed.
The Principal must comply
with all other reasonable
requirements of the Director
General.
A4
Limits of approval
Interpretation condition only.
Interpretation condition only.
A5
Statutory requirements
Without limiting any of the
Contractor's obligations under
clause 6.1 of the General
Conditions of Deed, the
Contractor must obtain and
maintain all approvals, licences
and permits which relate to
Work under the Deed other
than the CECT Development
Approval and Bligh Street
Development Approval.
The Contractor must ensure
that a copy of the CECT
Development Approval and all
relevant environmental
approvals are available on the
Site at all times during the
219
DA
Ref
Subject matter
Contractor’s Responsibility
Principal’s Responsibility
Minister for Planning and Infrastructure, Project Approval 18th July 2011, Application #: MP 10_0141
Project.
A6
Compliance by employees,
The Contractor must ensure
contractors and sub-contractors that all of its employees,
contractors and sub-contractors
are aware of, and comply with,
the conditions of the CECT
Development Approval in
relation to the Work under the
Deed.
A7
Environmental impacts
resulting from actions of
invitees
The Contractor shall be
responsible for environmental
impacts resulting from the
actions of all persons that it
invites onto the Site.
B1
Pollution of waters
The Contractor must comply
with (and not comit an offence
under) section 120 of the
Protection of the Environment
Operations Act 1997 (NSW)
and prevent the pollution of
any waters in relation to the
Work under the Deed.
B2
Waste generated outside the
Site
The Contractor must not cause,
permit or allow waste
generated off Site to be
received at the Site for storage,
treatment, processing,
reprocessing or disposal on the
Site (except as expressly
permitted by a licence under
the Protection of the
Environment Operations Act
1997 (NSW)) where Work
under the Deed is performed.
B3
Reuse and/or recycling of
waste materials
All in relation to the Work
under the Deed.
B4
Waste classification and
disposal
All in relation to the Work
under the Deed.
220
DA
Ref
Subject matter
Contractor’s Responsibility
Principal’s Responsibility
Minister for Planning and Infrastructure, Project Approval 18th July 2011, Application #: MP 10_0141
B5
Storage and handling of
dangerous goods, combustible
liquids and other hazardous
materials
All in relation to the Work
under the Deed.
C1
Pre and post construction road
dilapidation reports and repair
of damage
All in relation to the Work
under the Deed.
C2
Consultation with
infrastructure owners regarding
impacts
C3
Non interference with
infrastructure and allowance
for impacts
The Contractor must comply
with this condition in relation
to the Work under the Deed.
The Principal must satisfy this
condition in relation to work
not under the Deed.
C4
RailCorp Rail Party Access
Authority.
The Contractor must comply
with terms of this instrument
which relate to Work under the
Deed.
The Principal must obtain this
instrument.
C5
Advise the Director General
after a RailCorp authority
issued
The Principal must satisfy this
condition.
C6
Enrty into interface agreements
Without limiting the operation
of clause 6.2 of the General
Conditions of Deed and
Schedule 17 – Schedule of
Interface Agreement
Responsibilities, the Principal
must satisfy this condition.
C7
Advise the Director General of
entry into interface agreements
The Principal must satisfy this
condition.
C8
Note regarding scope of
interface
C9
Environmental Representatives
The Principal must satisfy this
condition.
Interpretation condition only.
Interpretation condition only.
The Principal must satisfy this
condition.
221
DA
Ref
Subject matter
Contractor’s Responsibility
Principal’s Responsibility
Minister for Planning and Infrastructure, Project Approval 18th July 2011, Application #: MP 10_0141
C10
Construction Environmental
Management Plan (CEMP)
The Contractor must prepare
the CEMP addressing Works
under the Deed in consultation
with the Environmental
Representative and the
Principal and implement the
CEMP in respect of the Work
under the Deed. The
Contractor must allow the
Principal 1 week to review the
CEMP before approval is
sought.
The Principal must submit and
obtain approval for the CEMP.
The Principal must prepare and
submit further CEMP‟s
relating to works not under the
Deed.
C11(a)
Construction Noise and
Vibration Management Plan
All in relation to Work under
the Deed.
C11(b)
Traffic Management Plan
All in relation to Work under
the Deed.
C11(c)
Air Quality Management Plan
All in relation to Work under
the Deed.
C11(d)
Water Quality Management
Plan
All in relation to Work under
the Deed.
C11(e)
Groundwater Management
Plan
All in relation to Work under
the Deed.
C11(f)
Spoil Management Sub Plan
All in relation to Work under
the Deed.
C12
Urban Design and
Landscaping Sub-Plan
The Principal must satisfy this
condition.
C13
Landscaping works
The Principal must satisfy this
condition.
C14
Property inspections
All in relation to Work under
the Deed, notwithstanding the
references to "Ausgrid" in the
condition.
C15
Risk assessment
All in relation to Work under
the Deed.
222
The Principal is responsible for
providing operational stage
groundwater control measures.
DA
Ref
Subject matter
Contractor’s Responsibility
Principal’s Responsibility
Minister for Planning and Infrastructure, Project Approval 18th July 2011, Application #: MP 10_0141
C16
Rectification of property
damage
The Contractor is responsible
for rectification of, or payment
of compensation for, property
damage caused by the
performance of the Work
under the Deed.
The Contractor may negotiate
compensation with the
property owner for property
damage caused by Work under
the Deed, but must permit the
Principal to attend any
settlement negotiations and
must not agree to a settlement
or resolution without the
Principal's prior written
approval.
C17
Maintenance of access to
properties
All in relation to Work under
the Deed.
C18
Utilities and services
All in relation to Work under
the Deed other than those
aspects for which the Principal
is responsible.
C19
Cathodic protection systems
and stray currents
All in relation to Work under
the Deed.
C20
Contingency plans for
accidental damage and repair
of services
All in relation to Work under
the Deed.
C21
Minimise disruption to
services and advise affected
customers.
The Contractor must minimise
disruption of services.
The Contractor must provide
the Principal with details of
any proposed service
disruptions which may arise
from the Work under the Deed
to facilitate customer
notification.
223
The Principal is responsible for
rectification of, or payment of
compensation for, property
damage caused solely by
Operation of the Works.
The Principal may negotiate
with property owners in
respect of any property damage
caused solely by the Operation
of the Works.
The Principal is responsible for
any nessecary diversion of any
utilities and services.
Advise affected local residents
and businesses of service
disruption to the extent that the
Contractor has provided the
relevant notification to the
Principal.
DA
Ref
Subject matter
Contractor’s Responsibility
Principal’s Responsibility
Minister for Planning and Infrastructure, Project Approval 18th July 2011, Application #: MP 10_0141
C22
CEMP and Operational
Environment Management
Plan: Waste Management and
Reuse Sub-Plans
The Contractor must prepare a
Waste Management and Reuse
Sub-Plan for the CEMP.
D1
Minimise noise emmissions
and vibration
All in relation to Work under
the Deed.
D2
Acoustic enclosure
All in relation to Work under
the Deed.
D3
Hours of work
All in relation to Work under
the Deed.
D4
Hours of noise intensive
activities
All in relation to Work under
the Deed.
D5
Tunnelling 24 hours per day
All in relation to Work under
the Deed.
D6
Out of hours construction work
All in relation to the Work
under the Deed except that, in
relation to D6(c), the
Contractor must inform the
Principal of any notification
(together with nessecary
accompanying details) to be
provided to affected residential
receivers.
D7
Construction noise objectives
All in relation to Work under
the Deed.
D8
Regenerated noise criteria
All in relation to Work under
the Deed.
D9
Construction noise
All in relation to Work under
the Deed.
D10
Vibration limits
All in relation to Work under
the Deed.
D11
High vibration levels
All in relation to Work under
the Deed.
224
The Principal must prepare a
Waste Management and Reuse
Sub-Plan for the Operational
Environment Management
Plan (OEMP).
The Principal must notify
affected residential receivers to
the extent that the Contractor
has provided the relevant
notification to the Principal of
any proposed out of hours
activities.
DA
Ref
Subject matter
Contractor’s Responsibility
Principal’s Responsibility
Minister for Planning and Infrastructure, Project Approval 18th July 2011, Application #: MP 10_0141
D12
Vibration levels at heritage
buildings and sensitive
structures
All in relation to Work under
the Deed.
D13
Unidentified Aboriginal
objects
All in relation to Work under
the Deed.
D14
Unexpected historical relics
All in relation to Work under
the Deed.
D15
Soil and water quality impacts
All in relation to Work under
the Deed.
D16
Acid sulphate soils
management
All in relation to Work under
the Deed.
D17
Contaminated land
All in relation to Work under
the Deed.
D18
Lighting
All in relation to design,
installation and control of
temporary construction
lighting and the installation of
permanent lighting.
D19
Blasting
All in relation to Work under
the Deed.
D20
Dust generation
All in relation to Work under
the Deed.
All in relation to Operation of
the Works.
E1
Operational Environment
Management Plan
The Contractor must provide
all relevant information
requested by the Principal in
respect of the Work under the
Deed.
The Principal must prepare,
submit and obtain approval for
the OEMP.
E2
Certification of Tunnel
The Contractor must obtain,
and provide the Principal with,
the nessecary certification
from a suitably qualified
structural engineer at least one
month prior to the time
notified by the Principal as the
time it proposes to submit the
OEMP.
The Principal must include the
certification in the OEMP.
225
All in relation to the design
and operation of any
permanent lighting.
Notes:
1.
For the purposes of this Schedule 16A – Schedule of CECT Development Approval
Responsibilities, a reference to "All in relation to Work under the Deed" means "The Contractor
must comply with all of the requirements of the condition as part of the Work under the Deed".
2.
Nothing in this Schedule 16A - Schedule of CECT Development Approval Responsibilities
limits any of the parties obligations elsewhere in the Deed.
226
Schedule 17
Schedule of Interface Agreement Responsibilities
1.
2.
Interface Agreements
(a)
Draft Interface Agreement between the Principal and Sydney Water
(b)
Draft Interface Agreement between the Principal and State Library
(c)
Draft Interface Agreement between the Principal and Domain Trust
(d)
Draft Interface Agreement between the Principal and RailCorp
(e)
Draft Interface Agreement between the Principal, RTA and CCM
Principal's obligations under Interface Agreements which are not the responsibility of
the Contractor and are the Principal's responsibility for the purposes of the Deed
Interface Agreements
Draft Interface Agreement
between the Principal and
Sydney Water
Allocation of responsibilities
Category A: Obligations to be performed by the
Principal
All obligations other than those contained in
paragraphs 1, 2, 3 and 4.
Draft Interface Agreement
between the Principal and
State Library
Category A: Obligations to be performed by the
Principal
None stated
Draft Interface Agreement
between the Principal and
Domain Trust
Category A: Obligations to be performed by the
Principal
None stated
City East Cable Tunnel
Interface Deed with
RailCorp, draft dated 12
October 2011
Category A: Obligations to be performed by the
Principal
Clauses 2, 3.1, 4, 5, 6, 7.4
Category B: Obligations where the Contractor must
assist as required
Clauses 3.2, 3.3, 7.2, 7.3, 9.1, 9.2, 9.3, 9.4, 12,
17.1, 22.2
Interface Agreements
Allocation of responsibilities
RTA / CCM City East
Cable Tunnel Stakeholder
Deed, draft dated 29
September 2011
Category A: Obligations to be performed by the
Principal
Clauses 2, 3.1(b) and (c), 3.3, 3.4, 3.4,4.3(b),
4.4(a), (i) and (k), 4.4(n), 4.5, 5.1 (to the extent
only that the Principal is responsible for the
design of the Works), 5.2 (to the extent only that
the Principal is responsible for the design of the
Works), 6.3(b), 6.6, 6.7, 7.1(b), 7.4(b), 8.1,
9.1(b)(ii) and (iii), 9.1(c)(i), 9.2, 10, 11, 12.1 and
13.1 (but without limiting Principal's rights
against the Contractor under the Deed or the
operation of clause 41 of the General Conditions
of Deed), 14 (in respect to any insurance
obligations additional to the Contractors
obligations under the Deed), 16.3(a), 17, 18 and
19.
Category B: Obligations where the Contractor must
assist as required
Clauses 3, 3.1(b) and (c), 3.3, 3.4, 4.3(b), 4.4(a)
and (k), 4.5, 5.1(b) (to the extent the Contractor is
responsible for the design of the Works), 6.3(b),
6.6, 6.7, 7.1(b), 7.4(b), 8.1, 9.1(b)(ii) and (iii),
9.1(c)(i), 9.2, 10, 11, 14.2(i), 16.3(a) and 17.
1
The Contractor acknowledges that in order to comply with its obligations under
clause 6.2(a)(iv) of the Deed, it shall assist the Principal in any way that the Principal
may reasonably require to allow the Principal to perform the obligations specified in
category B in the tables above, in accordance with the terms specified in this
schedule 17.
2
Where the Interface Agreement requires or permits the Principal to request, obtain or
provide information, reports, material, documents, notice or an approval
(„information‟) to or from the Interface Party, then the Contractor must:
(a)
make such request of the Principal setting out the need for such information
(who in turn shall make the request from the Interface Party); and
(b)
provide such information to the Principal not less than 2 business days‟ prior
to the time the Principal is required to give such information to the relevant
Interface Party to allow the Principal to comply with its obligations under the
Interface Agreement, provided that if the time frame for provision of
information to an Interface Party is less than 2 Business Days, the Contractor
must provide such information to the Principal in a time frame as reasonably
agreed between the Principal and the Contractor.
228
3
Where the Interface Agreement requires that the Principal and the Interface Party
meet, confer, co-operate, negotiate or discuss, then the Contractor must participate in
such activities if and when required by the Principal.
4
Terms defined in each Interface Agreement shall apply with respect to the Deed
unless it is expressly provided otherwise.
229
Design and Construction of Civil Works and Services for the City East
132kV Cable Tunnel
EXHIBITS
EA 0933/09
Exhibit A
Specification
Refer to attached Specification.
Due the substantial size of the
information comprised in this
Exhibit of the contract, the
information has not been
published. Should you wish to be
provided with a copy of this
Exhibit please contact the GIPA
coordinator on 9269 2673.
Exhibit A1
Alternate specification
Refer to attached alternate specification.
Due the substantial size of the
information comprised in this Exhibit
of the contract, the information has
not been published. Should you wish to
be provided with a copy of this Exhibit
please contact the GIPA coordinator on
9269 2673.
Exhibit B
Environmental Assessment
Refer to attached Environmental Assessment.
Due the substantial size of the
information comprised in this Exhibit of
the contract, the information has not
been published. Should you wish to be
provided with a copy of this Exhibit
please contact the GIPA coordinator on
9269 2673.
Exhibit C
Geotechnical Baseline Report
Refer to attached Geotechnical Baseline Report.
Due the substantial size of the
information comprised in this Exhibit of
the contract, the information has not
been published. Should you wish to be
provided with a copy of this Exhibit
please contact the GIPA coordinator on
9269 2673.
Exhibit D
Interface Agreements and
Draft Interface Agreements
Refer to the following attached Interface Agreements:
Item 1 - Draft Interface Agreement between the Principal and Sydney Water;
Item 2 - Draft Interface Agreement between the Principal and State Library;
Item 3 - Draft Interface Agreement between the Principal and Domain Trust;
Item 4 - Draft Interface Agreement between the Principal and RailCorp; and
Item 5 - Draft Interface Agreement between the Principal, RTA and CCM.
Exhibit D, Item 1: Draft Interface Agreement between the Principal and Sydney Water
Due the substantial size of the
information comprised in this
Exhibit of the contract, the
information has not been
published. Should you wish to
be provided with a copy of this
Exhibit please contact the GIPA
coordinator on 9269 2673.
Exhibit D, Item 2: Draft Interface Agreement between the Principal and State Library
Masked for Confidentiality
Masked for Confidentiality
Masked for Confidentiality
Masked for Confidentiality
Exhibit D, Item 4: Draft Interface Agreement between the Principal and RailCorp
Due the substantial size of the
information comprised in this
Exhibit of the contract, the
information has not been published.
Should you wish to be provided with
a copy of this Exhibit please
contact the GIPA coordinator on
9269 2673.
Exhibit D, Item 5: Draft Interface Agreement between the Principal, RTA and CCM
Due the substantial size of the
information comprised in this
Exhibit of the contract, the
information has not been published.
Should you wish to be provided with
a copy of this Exhibit please
contact the GIPA coordinator on 9269
2673.