BRISBANE CITY COUNCIL
COUNCIL CONDITIONS OF CONTRACT
FOR THE PROVISION OF MINOR WORKS
version date: 12 September 2012
Dedicated to a better Brisbane
CLAUSE NO.
CLAUSE
1.
DEFINITIONS AND INTERPRETATION
1.1
Definitions
1.2
Interpretation
2.
INCONSISTENCIES AND PRECENDENCE
OF DOCUMENTS and TERM
2.1
Precedence of documents
2.2
No other legal terms and conditions
2.3
Term of the Maintenance Contract
3.
PERFORMANCE OF THE MINOR WORKS
3.1
Time
3.2
Standard of Work
3.3
Legal Requirements
3.4
Protection of Person and Property
3.5
Risk and Reinstatement
3.6
Site
3.7
Condition of Site
3.8
Workplace Health and Safety
3.9
Work Program
3.10
Defective Work
3.11
Liquidated Damages
3.12
Testing
3.13
Approval
3.14
Design Work
3.15
Maintenance Services
3.16
Confidentiality
3.17
Your Representative
3.18
Graffiti Removal
3.19
Personal Information
3.20
The Council-Supplied Information
3.21
Environmental Protection
3.22
Personal Property Security Act
3.23
Accessed Site and Controlled Site
3.24
Default in relation to Safety or Licence
and Competency Requirements
3.25
Separate Contractors
4.
VARIATIONS, EXTENSIONS OF TIME and
DELAY COSTS
4.1
Variation to the Minor Works
4.2
Extension of Time
4.3
Emergency Work
4.4
Changes to progress of the Minor
Works
4.5
Delay costs
5.
BCIPA
5.1
BCIPA
5.2
Payment Schedule issued by the
Council Representative
5.3
Notice of Communications to the
Council Representative
5.4
Limit on Your Remedies
5.5
Suspension by You
5.6
Suspension by Sub-contractors
5.7
Construction of Contract Provisions
6.
PAYMENT
6.1
Contract Sum
6.2
Adjustments to the Contract Sum
6.3
Submission of payment claim
CLAUSE NO.
6.4
6.5
6.6
6.7
6.8
6.9
6.10
CLAUSE
Calculation
Exclusions/deductions from payment
claims
Retention moneys
Payment
Effect of Payment
Correction of Payment
Tax invoice/adjustment note
7.
RISK
8.
9.
INSURANCE
TERMINATION
9.1
Without prior notice
9.2
Show Cause Notice
9.3
Termination
9.4
Mutual Agreement
9.5
Engagement of third parties
10.
CONTRACT MANAGEMENT AND NOTICES
10.1
Amendments to the Contract
10.2
Security
10.3
The Council’s Representative
10.4
Notices
10.5
Assignment
10.6
Novation of this Contract under the
Water Transition Arrangements
10.7
Relationship of the parties
10.8
The Council Approvals
10.9
Set off
10.10 Entire Agreement
10.11 Waiver
10.12 Force Majeure
10.13 Severability
10.14 Applicable law
10.15 Survival
ANNEXURES:
Annexure A:
Unconditional Financial
Undertaking
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THE COUNCIL CONDITIONS OF CONTRACT ARE AS FOLLOWS:
1.
DEFINITIONS AND INTERPRETATION
1.1
(Definitions) For the purpose of the Contract:
(a)
"Accessed Site" means those parts of the site (if any):
(i)
described in the Contract Particulars to be an Accessed Site (if any);
(ii)
directed by the Council or the Council's Representatives to be Accessed Site at any time
before or after they are made available to You under the Contract; or
(iii)
which have previously been handed over to the Council following Practical Completion of the
Works within or upon those parts of the Site;
(b)
“Business Day” means any day between Monday to Friday inclusive (excluding any day which is a
public holiday in Brisbane);
(c)
“claim” means any claim whatever under the Contract, the general law (including in tort), statute or
otherwise and without limitation includes a claim for:
(i)
any change to the time within which an obligation must be performed under the Contract
(including the Date for Completion);
(ii)
any adjustments to any amounts payable under the Contract (including the Contract Sum);
(iii)
relief from any of the obligations under the Contract; or
(iv)
any costs, expenses, damages, liabilities, quantum meruit or other amounts of any nature;
(d)
“Commencement Date” means such period as specified in the Contract Particulars;
(e)
“Contract Particulars” means the document contained in the Instrument of Agreement detailing the
scope and nature of the Minor Works to be undertaken and to which the Council Conditions of
Contract apply;
(f)
“Contract Sum” means the Contract Sum set out in the Contract Particulars as adjusted from time to
time in accordance with the Contract;
(g)
"Controlled Site" means those parts of the site:
(i)
not comprising any Accessed Site; and/or
(ii)
described in the Contract Particulars to be a Controlled Site (if any);
(h)
“Council” means Brisbane City Council and its successors and assigns;
(i)
“Council Conditions of Contract” mean the terms and conditions as contained in this document;
(j)
“Council Representative” means the person specified in the Contract Particulars and any
replacement who is appointed in accordance with clause 10.3. The “Council Representative” may
appoint a representative;
(k)
"Council Supplied Information" has the meaning given to it in clause 3.20;
(l)
"Data" for the purpose of clause 3.21 includes data, information, records, reports, and notices;
(m)
“Date for Completion” means such period as specified in the Contract Particulars;
(n)
"date of acceptance of tender" means the date on which the Council and You execute the
Instrument of Agreement;
(o)
“Defects Liability Period” means such period as specified in the Contract Particulars;
(p)
"Emissions and Energy Data" has the meaning given to it in clause 3.21(c);
(q)
“Equipment” means the equipment and all ancillary item (if any) as described and/or specified in the
Contract Particulars (or any document referred to by the Contract Particulars);
(r)
“Instrument of Agreement” means the document titled “Instrument of Agreement” signed by or on
behalf of the parties in relation to the Minor Works and which expressly applies the Council
Conditions of Contract;
(s)
“Legislative Requirements” means all Commonwealth, State and local laws (including all applicable
regulations, instruments, by-laws issued under such laws), licences, industrial awards, permits and all
other lawful requirements applicable to the proper provision of the Minor Works by You and Your
personnel;
(t)
“Maintenance Services” means the maintenance services (if any) as described and/or specified in
the Contract Particulars (or any document referred to by the Contract Particulars);
(u)
“Minor Works” or “work” means the work to be carried out by You under this Contract and includes
the supply of the Equipment (if required under the Contract Particulars) and all the labour, materials,
work, plant and/or services (including the installation services to be undertaken by You in relation to
the Equipment) to be provided and/or undertaken by You and which is more particularly described in
the MW Specifications and includes:
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(v)
(i)
all Variations as agreed under this Contract;
(ii)
any Design Work (if such work is required under the Contract Particulars); and
(iii)
any work carried out before the Commencement Date;
“MW Specifications” means all documents relevant to the carrying out and completion of the Minor
Works and which are specified in the Contract Particulars. If the document(s) forming the MW
Specifications are comprised (in whole or in part) of:
(i)
specifications, drawings, samples or other descriptions of the Minor Works as provided by the
Council when seeking quotes, tenders or market responses in relation to the Minor Works to
be provided under this Contract (the “Council’s Specifications”);
(ii)
specifications, drawings, samples or other descriptions of the Minor Works as submitted by
You in or in relation to this Contract (“Your Specifications”); and/or
(iii)
any further specifications agreed to by the Council and You in the performance of each party’s
respective obligations under and in accordance with the terms of this Contract (“Additional
Specifications”);
then – subject to clause 1.2(a) – the Council’s Specifications, Your Specifications and the Additional
Specifications will collectively form the “MW Specifications” for the purposes of this Contract;
(w)
"PPSA" means the Personal Property Securities Act 2009 (Cth);
(x)
“Practical Completion” means the Minor Works have been completed in accordance with this
Contract (other than minor or immaterial defects which can be conveniently rectified without
interfering with the normal use of the Minor Works) and that the Minor Works are fit for use;
(y)
"Relevant Documents" means the agreements, licences, approvals or other documents referred to
as Relevant Documents in the Contract Particulars;
(z)
"Reliance Information" means the factual data included in the documents listed under Reliance
Information in the Contract Particulars (and excludes any opinion, recommendation or interpretation
set out in those documents whether or not based on the factual data);
(aa)
“Retention Moneys” means the monetary amount or the percentage amount as specified in the
Contract Particulars (if at all) as Retention Moneys;
(bb)
“Security” means the unconditional undertaking required (if at all) by the Contract Particulars) and
otherwise provided in accordance with clause 10.2;
(cc)
"Security Interest" includes any mortgage, pledge, encumbrance, lien or charge or any security or
preferential interest or arrangement of any kind. It includes:
(i)
anything which gives a creditor priority to other creditors with res pect to any asset;
(ii)
any assignment by way of security, hypothecation, option, lease, trust or assignment;
(iii)
retention of title;
(iv)
any 'security interest' under the PPSA; and
(v)
any agreement to create or give an arrangement to effect any of the above;
(dd)
"Separate Contractors has the meaning in clause 3.26;
(ee)
“Site” is as described or specified in the Contract Particulars;
(ff)
“Term” means in respect of the Maintenance Services, the period determined by clause 2.3;
(gg)
“Variation” is as defined by clause 4;
(hh)
"Work Health and Safety Law" means any legislative requirement, principles of law or equity
established by decisions of Australian Courts or requirements of persons acting in the exercise of
statutory powers relating to health and safety, including the Work Health and Safety Act 2011 (Qld)
and the Work Health and Safety Regulation 2011 (Qld);
(ii)
"Work Health and Safety Requirements" means
(i)
any Work Health and Safety Law; and
(ii)
the requirements of:
A.
Relevant Documents;
B.
Your management plans (including work methodology statements and the like);
C.
any manufacturer's recommendations associated with any equipment or materials to
be used for the purposes of carrying out the work or to be installed as part of the Minor
Works (including, without limitation, the Equipment);
D.
industry standards, codes, practices and guidelines; or
E.
any other provisions of the Contract,
relating to health and safety;
(jj)
“You” means the person(s) specified in the Instrument of Agreement:
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(kk)
(i)
irrespective of whether that person is an individual or a body corporate; and
(ii)
where the persons(s) are either a partnership, an unincorporated consortium, an
unincorporated joint venture or simply two (2) or more persons contracting with the Council
under this Contract, then all references to “You” shall mean all such partners, members, joint
venture partners or persons both jointly and severally;
“Your Representative” means the person appointed under clause 3.17;
and all other terms are as described in the Instrument of Agreement (and in particular, the Contract
Particulars) and the Council Conditions of Contract.
1.2
(Interpretation) In this Contract:
(a)
2.
where the Council’s Specifications, Your Specifications and the Additional Specifications will
collectively form the “MW Specifications” for the purposes of this Contract this will be on the
conditions that:
(i)
the provisions of clause 2 apply to each such specifications; and
(ii)
to the extent that there is any conflict or inconsistency between any or all of the above
specifications, the order of hierarchy from highest to lowest (paragraphs (i) to (iii) of clause
1.1(p)) shall prevail to the extent of any conflict or inconsistency;
(b)
all references to the “Council” shall also include the Council’s successors and assigns;
(c)
the terms “the Contract” and “this Contract” shall each mean the terms, provisions and documents
referred to in clause 2 of the Instrument of Agreement;
(d)
unless the context otherwise requires, the singular includes the plural and vice versa. The clause
headings of this Contract shall not in any way affect their interpretation. Any one gender includes all
genders;
(e)
all references to “dollars” and “$” are to Australian dollars;
(f)
where any provision of this Contract requires an “agreement”, ”approval”, “consent”, “direction”
“notice”, “permission”, “rejection”” or “request” by one or more parties, then any such agreement,
approval, consent, direction “notice”, permission, rejection or request must be in writing;
(g)
all references to any document, information or material in this Contract includes all documents,
information or material that is expressly incorporated in, referred to and/or attached to this Contract
irrespective of how that such material is stored or reproduced; and
(h)
measurements of physical quantity shall be in Australian legal units of measurement as prescribed
under the National Measurement Act 1960, or if any of the Minor Works are imported and do not
conform to such legal units, such other unit of measurement as is agreed by the Council.
INCONSISTENCIES AND PRECEDENCE OF DOCUMENTS and TERM
2.1
(Precedence of documents) The provisions of clause 2 of the Instrument of Agreement cover the order of
precedence of documents forming this Contract.
2.2
(No other legal terms and conditions) Notwithstanding clause 2.1, in the event that either:
(a)
the MW Specifications (or any documents referred to in the MW Specifications); or
(b)
any documents attached to this Contract (or any documents referred to such documents);
contain or seek to apply in any manner legal conditions relating to liability (including, but not limited to,
limitation or exclusion of liability) or which seek to apply or imply any warranties or any other legal conditions
which are:
(i)
not expressly contained in these Council Conditions of Contract; or
(ii)
addressed in the terms and conditions of these Council Conditions of Contract;
then such additional legal terms and conditions are deemed to be void and of no effect whatsoever even
though they are expressed to apply in any of the above documents. It is expressly agreed that the terms
and conditions of contract as contained in these Council Conditions of Contract (as amended (if at all)
pursuant to clause 10.1) are to be the only legal terms and conditions applicable to this Contract. Further,
these conditions can only be changed in accordance with clause 10.1. This clause does not apply to negate
or limit in any way the application of any Australian or international standards which are applicable to the
Minor Works.
2.3
(Term of the Maintenance Contract) Where the Contract Particulars require You to provide Maintenance
Services – the Term of the Maintenance Contract shall commence on the Maintenance Commencement
Date and shall expire upon the Maintenance Expiry Date (as specified in the Contract Particulars) unless the
Term is extended under this clause or is terminated earlier in accordance with the Maintenance Contract.
From and including a Maintenance Renewal Date (as specified in the Contract Particulars), the Term of the
Maintenance Contract can be extended for an Additional Maintenance Period (as specified in the Contract
Particulars) provided that:
(a)
before the relevant Maintenance Renewal Date, both parties have agreed to such extension by
written notice or agreement;
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(b)
any such extension shall be on the same terms and conditions of the Maintenance Contract
(including this clause 2.3(b)); and
(c)
nothing in this clause shall enable the Maintenance Contract to be extended beyond the Maximum
Maintenance Term.
PERFORMANCE OF THE MINOR WORKS
You shall carry out and undertake the Minor Works in accordance with this Contract. Unless this Contract
expressly provides otherwise, You are responsible for the satisfactory completion of the Minor Works. In carrying
out/undertaking the Minor Works, You:
3.1
3.2
(Time) shall in relation to:
(a)
Equipment as required by the Contract Particulars (if at all) – deliver such Equipment at such times
and at such place as prescribed by the MW Specifications; and
(b)
the Minor Works – commence the provision of the Minor Works on or before the Commencement
Date and achieve Practical Completion by the Date for Completion. The Date for Completion can
only be extended as expressly provided in clause 4;
(Standard of work) shall provide all of the labour, materials, plant, services and other things necessary to
complete the Minor Works in accordance with this Contract and further, You shall ensure:
(a)
all materials and other things used or provided in connection with the Minor Works are new. This
obligation shall not apply where either:
(i)
the MW Specifications expressly allow an alternative quality; or
(ii)
the Council has agreed to a Variation to this requirement under clause 4 of these Council
Conditions of Contract;
(b)
all labour is proper and workmanlike and in compliance with any applicable Australian standards and
any other quality standards as prescribed by the MW Specifications; and
(c)
the Minor Works fully comply with the MW Specifications and successfully pass all tests as required
by the MW Specifications;
3.3
(Legal requirements) shall fully comply with all applicable Legislative Requirements This includes, but is
not limited to, paying all fees, obtaining licences and obtaining consents;
3.4
(Protection of person and property) shall take all measures necessary to protect all people from death or
injury and all property (including the Minor Works) from loss or damage;
3.5
(Risk and reinstatement) shall make good any loss or damage to the Minor Works prior to Practical
Completion and do so at Your own cost and expense;
3.6
(Site) shall access the Site in accordance with the MW Specifications and all directions given by the Council
Representative) and ensure that the carrying out of the Minor Works does not interfere with others or cause
any unreasonable noise and disturbance;
3.7
(Condition of Site) shall keep the Site safe, clean and tidy and before Practical Completion, clean up and
make good fencing, roads, footpaths and surfaces on or adjacent to the Site and do so to the satisfaction of
the Council Representative;
3.8
(Work Health and Safety)
(a)
ensure that all work is carried out in accordance with Work Health and Safety Law and Work Health
and Safety Requirements;
(b)
Without limiting paragraph (a), at all times:
(i)
shall discharge Your duties under Work Health and Safety Law; and
(ii)
shall ensure Your officers, employees and agents, subcontractors and its subcontractors'
officers, employees and agents ("Your Personnel") discharge their respective duties under
Work Health and Safety Law,
in connection with the work.
(c)
agree:
(i)
subject to sub-paragraph (iii), that the Council appoints you as the 'principal contractor' (as
defined by Work Health and Safety Law) in respect of the construction project;
(ii)
to accept this appointment under sub-paragraph (i);
(iii)
the construction project in respect of which you are appointed 'principal contractor' under subparagraph (i) includes:
(iv)
(A)
all work (other than work carried out upon Accessed Site); and
(B)
all work (whether or not Minor Works) carried out or to be carried out upon Controlled
Site (including work carried out by Separate Contractors); and
that the Council authorises You to:
(A)
assume management and control of the Controlled Site; and
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(B)
carry out and discharge the duties given to the 'principal contractor' under Chapter 6 of
the Work Health and Safety Regulation,
for the period during which You are the 'person in control' of the Controlled Site (as referred to
in paragraph (j) below), unless and to the extent that such authorisation is withdrawn by the
Council in writing prior to the end of that period;
(d)
(e)
(f)
(g)
(h)
must ensure that You and Your Personnel:
(i)
subject to sub-paragraph (c), comply with the directions of the Council, the Council's
Representative (or any other person nominated by the Council as having the authority to give
directions (the "Council's Nominee")) in connection with health and safety;
(ii)
consult fully with the Council, the Council's Representative and the Council's Nominee in
respect of:
(A)
any matter relevant to health and safety; and
(B)
without limiting sub-paragraph (A), how the work can be undertaken in a way which
prevents or minimises all risks to health and safety of all persons including identifying
potential hazards associated with the work;
(iii)
comply strictly with the Work Health and Safety Requirements;
(iv)
throughout the period of the Contract maintain all qualifications, competencies and licences:
(A)
held at the commencement of the work; or
(B)
required by Work Health and Safety Requirements;
(v)
consult fully with the Council, the Council's Representative and the Council's Nominee in
respect of, and demonstrate to the Council or the Council's Nominee, compliance by You and
Your Personnel with the requirements of this clause 3.8 and Work Health and Safety
Requirements;
(vi)
maintain adequate records of all health and safety matters (including in accordance with Work
Health and Safety Requirements);
(vii)
audit Your health and safety records and compliance with Work Health and Safety
Requirements regularly and whenever requested by the Council or the Council's
Representative and provide to the Council or the Council's Representative a copy of the
findings of that audit; and
(viii)
satisfy themselves as to, and only treat as minimum requirements, those Work Health and
Safety Requirements prepared or provided by or on behalf of the Council or the Council's
Representative;
agree that the Council or the Council's Representative may at any time conduct its own audit of the
Contractor's health and safety records and compliance with Work Health and Safety Requirements
(including any safety management systems of the Contractor) and You shall:
(i)
co-operate fully with the Council or the Council's Representative in connection with that audit
(including by providing all necessary access, relevant documents or other information); and
(ii)
immediately address and ensure the Your Personnel address any issues identified by the
Council or the Council's Representative from its audit and notified to You;
shall immediately notify the Council and the Council's Representative of:
(i)
any breach or potential breach by You or any of Your Personnel of Work Health and Safety
Requirements; or
(ii)
any notice or direction received by You or any of Your Personnel under or in connection with
Work Health and Safety Law (including by providing a copy of the notice or direction to the
Council and the Council's Representative);
despite any other provision of the Contract (including this clause 3.8), agree that the Council's or the
Council's Representative's rights under the Contract relating to health and safety (including without
limitation the rights under this clause 3.8, to give directions to You, carry out an audit of Your records
or practices, provide, approve or review any plan or other document to be implemented or relied upon
by You (including any Work Health and Safety Requirements) or exercise rights of suspension or
termination under the Contract) ("Safety Enforcement Rights"):
(i)
are for the benefit of the Council and the Council's Representative;
(ii)
may be exercised by the Council or the Council's Representative in its absolute discretion
(without the Council or the Council's Representative being under any obligation to do so); and
(iii)
do not prejudice or otherwise affect Your full responsibility for ensuring strict compliance with
all of the Contractor's obligations under the Contract and under Work Health and Safety
Requirements;
shall provide to the Council and also to any person who You are aware has been or will be engaged
by the Council to undertake any activities relating to the Minor Works ("Relevant Contractors"), all
information relevant to Minor Works:
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(i)
(j)
3.9
(i)
required to be disclosed by You in the discharge of its duties under Work Health and Safety
Law; or
(ii)
received (or which should have been received) by You or any of Your subcontractor's from
any other person required to disclose the information to You or any subcontractor in the
discharge of that person's duties under Work Health and Safety Law;
shall indemnify and keep indemnified the Council and the Council's Representative and their officers,
employees and agents against all claims, demands, actions, costs (including legal costs), charges,
expenses, damages, loss, penalty, fine or other liability (including without limitation in tort, under any
law), arising from or in connection with:
(i)
any breach by You of Your obligations under this clause 3.8;
(ii)
any injury, accident or safety related incident on or adjacent to the Site arising out of or as a
consequence of carrying out work, shall not apply to the extent that the injury, accident or
safety related incident on or adjacent to the Site arises due to the negligent act or omission of
the Council or the Council's officers, employees or agents; and
are for the purposes of the Work Health and Safety Law the 'person in control' of the Site and all
things on the Site:
(i)
from the Commencement Date until the date of Practical Completion; and
(ii)
during the time of, and for so long as that part of the Site is affected by, the carrying out of
Works during the Defects Liability Period.
(Work Program) shall prepare and obtain the Council Representative's approval to a work program before
commencing the Minor Works or any work;
(a)
(Updating Program) promptly update and obtain the Council Representative's further approval to the
work program whenever necessary to ensure the work program remains current; and
(b)
(Compliance with Program) carry out the Minor Work and all other work in accordance with the
approved work program;
but the work program shall not comprise part of the Contract and no approval by the Council Representative
in respect of the work program shall:
3.10
(c)
(Not affect Your obligations) affect Your obligations under the Contract (including the obligation to
achieve Practical Completion by the Date for Completion) or prejudice any right of the Council arising
from Your previous failure to comply with the work program;
(d)
(No other effect) be taken to evidence or constitute a direction to accelerate, delay or suspend the
Minor Works or a Variation under clause 4; or
(e)
(No claim) entitle You to any claim;
(Defective Work) shall promptly comply with every written direction by the Council Representative issued
during:
(a)
the term of this Contract; and/or
(b)
any Defects Liability Period (where a Defects Liability Period is specified in the Contract Particulars)
requiring You to rectify any part of the Minor Works (or part thereof) which the Council Representative finds
to be defective or otherwise not in accordance with the Contract. Such direction will state what is to be
rectified, whether to repair or replace and the time period for such rectification.
If You fail to comply with any such direction, the Council may either engage a third party to undertake the
rectification work or accept the Minor Works at a reduced value. Any such additional rectification costs shall
be a debt due to the Council and may be deducted from payments due to You under this Contract.
If the Council agrees to accept the Minor Works at a reduced value, this will be deemed to be on the basis
that Council is under no obligation to pay You any additional monies whatsoever in relation to the Minor
Works;
3.11
(Liquidated Damages) shall be liable to the Council for liquidated damages where liquidated damages are
specified in the Contract Particulars. If applicable, You shall be liable in the amount stated in the Contract
Particulars if You fail to complete the Minor Works and achieve Practical Completion by the Date for
Completion (as extended in accordance with this Contract). Your liability to pay such liquidated damages
shall continue until Practical Completion has been achieved or this Contract is terminated (whichever first
occurs);
3.12
(Testing) shall successfully undertake such tests and at such times as specified by the MW Specifications
at any time before Practical Completion or the expiry of the last Defects Liability Period (whichever is the last
to occur). However if no form of testing is required under the MW Specifications, this clause shall not apply.
If the MW Specifications require any form of testing, then in addition to the requirements of the MW
Specifications, You shall:
(a)
provide the Council Representative with the test results;
(b)
co-operate with the Council Representative and give such assistance to the Council Representative
as will enable the Council Representative to be satisfied that such tests have been undertaken as
required. This includes giving the Council Representative notice of when such tests are to be
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conducted;
(c)
(d)
(e)
undertake additional tests at Your own cost and expense if directed to do so by the Council
Representative and where the Council Representative is reasonably satisfied that:
(i)
You have not properly undertaken the test(s) as required by the MW Specifications; and/or
(ii)
all or part of the Minor Works does not successfully pass the prescribed tests. The Council
Representative shall also determine the nature and scope of all such additional tests
(including, but not limited to, which part(s) of the Minor Works are to be re-tested);
not cover up or make inaccessible any Minor Works which:
(i)
are to be tested under the MW Specifications; or
(ii)
the Council Representative requires under clause 3.12(c); and
upon completion of the tests as required by this clause, make good any part(s) of the Minor Works
which have failed the test(s) so that it fully complies with this Contract.
If however, You either:
(A)
delay conducting such test(s); or
(B)
fail to conduct such test(s);
then:
3.13
(I)
the Council Representative may conduct such test(s) after giving You reasonable written notice .
Such written notice shall specify the date, time and place of the test;
(II)
You are entitled to attend such test(s) but shall not interfere with or do anything to obstruct or prevent
such test(s) taking place;
(III)
if You do not attend, the Council shall nevertheless be entitled to proceed with the test(s);
(IV)
within a reasonable time after receiving the result(s) of such test(s), the Council Representative shall
give You a copy of such result(s); and
(V)
all costs in connection with testing pursuant to this clause shall be borne by the Council except where
a test reveals a failure by You to comply with the Contract (including this clause) in which case You
shall be liable to pay the Council an amount equivalent to the cost to the Council of conducting such
test(s);
(Approval) shall ensure that any delivery or provision to the Council or the Council Representative of any
documentation, materials or Minor Works and any payment given by or on behalf of the Council under this
Contract shall, in relation to such matters:
(a)
(Not affect obligations) not affect or lessen Your obligations under this Contract including the
obligation to achieve Practical Completion by the Date for Completion;
(b)
(No waiver) not constitute a waiver of Your obligations nor prejudice any right of the Council arising
from Your previous failure to comply;
(c)
(Not acceptance) not constitute evidence of acceptance by the Council or the Council
Representative of all or part of such documentation, materials or Minor Works; or
(d)
(No claim) not entitle You to any claim for additional moneys or extension of time unless otherwise
expressly permitted under another clause.
Nothing in this Contract (including the MW Specifications) or any other agreement (whether oral or in writing)
shall override this clause unless the parties have expressly agreed to the contrary in writing;
3.14
(Design Work) shall be subject to the obligations of this clause where the Contract Particulars specify that
Design Work is applicable to this Contract. If Design Work is applicable, You shall:
(a)
undertake and complete all work specified in the MW Specifications associated with the design of the
Equipment and/or the Minor Works (“Design Work”);
(b)
ensure that such Design Work will enable the Equipment and/or the Minor Works to meet the
requirements of the MW Specifications and this Contract in relation to such Equipment and/or Minor
Works;
(c)
undertake and complete such Design Work so that the Minor Works achieve Practical Completion by
the Date for Completion specified in the Contract Particulars; and
(d)
not infringe the Intellectual property rights of any person when undertaking such Design Work.
Any acceptance by the Council of such Design Work shall not relieve You of Your obligations under this
Contract nor transfer risk in such Design Work to the Council;
3.15
(Maintenance Services) shall be subject to the obligations of this clause where the Contract Particulars
specify that Maintenance Services are applicable to this Contract. If Maintenance Services are applicable,
You shall provide such Maintenance Services on the following conditions:
(a)
the Maintenance Services shall be provided under a contract which commences on the Maintenance
Commencement Date (“the Maintenance Contract”). The terms of that the Maintenance Contract
shall be:
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(i)
the terms of this clause 3.15; and
(ii)
the following provisions of this Contract:
A.
clauses 1 to 2 (inclusive);
B.
clauses 3.16, 3.17, 4.1; 5 and 8 to 10 (inclusive); and
C.
all Contract Schedules as are required to give effect to the above clauses;
are deemed to apply as if references to the “Minor Works” and “works” were references to the
Maintenance Services;
(b)
You shall provide such Maintenance Services for the Term of the Maintenance Contract to the
service levels specified in the Specifications and otherwise carry out any and all Maintenance
Services in a proper and workmanlike manner using all reasonable care and skill; and
(c)
in relation to the calculation of Service Fee(s) for the Maintenance Services under the Maintenance
Contract, You shall provide the Maintenance Services for Service Fee as specified in the Contract
Particulars. It is a condition of the Maintenance Contract that:
(i)
You shall submit invoices for such Maintenance Services at such Service Payment Times
specified in the Contract Particulars;
(ii)
the Service Fee shall either be:
A.
where the Contract Particulars specifies it to be a lump (or fixed) sum – that amount;
B.
where the Contract Particulars specifies it to be a schedule of rates (whether for time
and materials or on some other basis) – the Service Fee shall be calculated using that
schedule of rates;
C.
where the Contract Particulars specifies it to be both:
(I)
a lump (or fixed) sum for certain level(s) of Maintenance Services; and
(II)
a schedule of rates (whether for time and materials or on some other basis) for
any additional Maintenance Services;
the Service Fee shall be calculated in accordingly;
(iii)
the Service Fee (including any component of the Service Fee) can only be adjusted in
accordance with express provisions of Schedule C which deal with adjustments to the Service
Fee (including any component of the Service Fee). In the absence of any such express
provision, the Service Fee (including any component of the Service Fee) shall remain fixed
and unchanged for the full possible Term of the Maintenance Contract;
(iv)
You will only be entitled to payment where You have:
(v)
3.16
A.
provided the Council’s Representative with a properly rendered invoice and all the
information or evidence reasonably required by the Council’s Representative to verify
the Maintenance Services claimed under the invoice.For the purposes of this clause, a
"properly rendered invoice" is a invoice that:
B.
specifies the title and contract number of this Contract and is sent to the Council’s
Representative;
C.
provides such details of the Service Fee invoiced as the Council’s Representative may
from time to time require (which may include the attachment of receipts, the number of
hours involved and the amounts of GST (if any) that are applicable to the invoiced
Maintenance Services (or part thereof));
D.
where the Maintenance Services are charged on a time basis - records the number of
hours and days spent by individual persons on the Maintenance Services. Such
records must be verified by a competent officer of Your business;
E.
is a tax invoice as may be required under the GST Laws; and
F.
fully complied with its obligations under the Maintenance Contract in relation to the
provision of the Maintenance Services; and
in relation to the payment of Service Fee(s) due and payable under the Maintenance Contract,
the Council shall pay all such properly rendered invoice within thirty (30) days of receipt.
Notwithstanding any other provision of the Maintenance Contract, if any Maintenance
Services have not been properly performed, the Council will be under no obligation (whether
legal or equitable) to pay for any such Maintenance Services until such time as they have
been properly performed;
(Confidentiality) shall treat and keep all information in relation to this Contract strictly confidential and only
use it to undertake the Minor Works and other works and/or services required by this Contract. Further:
(a)
if You are provided any personal information (as defined in the Information Privacy Act 2009 (Qld)) by
the Council, You must fully comply with all the requirements of the MW Specifications regarding how
such personal information is to be treated and used by You and Your employees, agents and subcontractors; and
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(b)
3.17
(Your Representative) agree that Your Representative is as specified in the Contract Particulars. You may
at any time replace such person with such other person as You may from time to time nominate by written
notice to the Council. Further, You shall:
(a)
(b)
3.18
You shall not make any statement to the media without first obtaining the written consent of the
Council Representative; and
(appointment of Your Representative) ensure that at all times while the Minor Works are being
carried out:
(i)
You have a Representative appointed; and
(ii)
Your Representative is present at such site(s) to personally supervise the Minor Works being
carried out; and
(authority of Your Representative) be taken to have authorised Your Representative to:
(i)
receive any directions or notices;
(ii)
give any notices; and
(iii)
negotiate and agree any matter or thing;
(iv)
under or in connection with the Contract on Your behalf.
(Graffiti Removal)
(a)
You must remove all graffiti from all construction plant, buildings, edifice or any structures, including
fencing, located on Site and do so in accordance with this clause.
(b)
You must remove:
(i)
all offensive graffiti; and
(ii)
all graffiti which is not offensive graffiti;
within twenty-four (24) hours of You becoming aware of the graffiti or offensive graffiti and further, do
so at Your own cost.
(c)
3.19
Where You have failed to comply with this clause 3.18, then the Council may, without notice to You
(and at Your cost):
(i)
enter the Site to remove the graffiti; or
(ii)
engage a third party to enter the Site to remove the graffiti.
(d)
You must not hinder or obstruct the removal of the graffiti by the Council or any third party engaged
by the Council.
(e)
You shall be liable for all reasonable costs incurred by the Council in having the graffiti removed and
further, such cost shall be deemed to be moneys due from You to the Council and capable of either
recovery in full or set off against other moneys the Council may owe You under this Contract.
(f)
For the purposes of this clause:
(i)
the term “construction plant” means all appliances and things used in the carrying out of the
Minor Works but not forming part of such Minor Works;
(ii)
the term “graffiti” includes illegal or unauthorised paintings, words, figures or other
disfigurement that is written, sprayed, etched, pasted or otherwise affixed to any surface of
public or private property; and
(iii)
the term “offensive graffiti” is graffiti which contains, but is not limited to, racist, sexist,
sexual, political or explicit language or symbols.
(Personal Information) agree that if at any time during the Term of this Contract, You collect or have
access to Personal Information in order to provide the Minor Works, You must:
(a)
fully comply with Parts 1 and 3 of Chapter 2 of the Information Privacy Act 2009 (Qld) (“the Act”) as if
references to “agency” in those Parts of the Act were references to You;
(b)
not use any Personal Information other than for the purposes of providing the Services unless
otherwise required or authorised by law;
(c)
not disclose Personal Information without the prior written consent of the Council Representative
unless required or authorised by law;
(d)
not transfer Personal Information outside of Australia without the prior written consent of the Council
Representative;
(e)
ensure that access to Personal Information is restricted to those of Your Staff who require access in
order to perform their duties;
(f)
ensure that the members of Your Staff who have access to Personal Information comply with the
obligations imposed on You under this clause;
(g)
fully co-operate with the Council to enable the Council to respond to applications for access to or
amendment of a document containing an individual’s Personal Information and to privacy complaints;
(h)
comply with such other privacy and security measures in relation to Personal Information as the
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Council reasonably advises You from time to time; and
(i)
if requested by the Council Representative, obtain from those members of the Your Staff, an
executed deed of privacy in a form acceptable to the Council; and
(j)
immediately notify the Council on becoming aware of any breach of this clause 3.19.
For the purposes of this clause, the term “Personal Information” has the meaning given in the Information
Privacy Act 2009 (Qld) and, where the context requires, means Personal Information in connection with this
Contract.
3.20
(Council-Supplied Information) in this clause “Council-Supplied Information” means any information
(whether documented or otherwise) supplied or made available to You by or on behalf of the Council before
or after the date of acceptance of tender. It does not include information in documents forming part of the
Contract.
You agree:
(a)
unless the Council expressly agrees otherwise in writing, or in respect of Reliance Information, any
Council-Supplied Information:
(i)
has been or will be provided to You only for Your convenience; and
(ii)
has not been and will not be relied upon by You for any purpose,
(including subject to paragraph (b), entering into the Contract or performing its obligations under the
Contract);
(b)
that You may rely on the Reliance Information only to the extent and for the purposes expressly
stated in the Contract Particulars;
(c)
the Council does not:
(i)
assume any responsibility or duty of care in respect of; or
(ii)
warrant, guarantee or make any representation as to,
the Council-Supplied Information (including its accuracy, completeness or adequacy for the purposes
of the Contract);
(d)
the Council shall not be liable to You in contract, tort, equity, under statute or otherwise arising from
or in connection with the Council-Supplied Information, the provision of the Council-Supplied
Information or the non-provision of any other information by the Council;
(e)
except as expressly provided by the Contract, You shall not be entitled to any Extension of Time,
adjustment to the contract sum or other claim arising from or in connection with the inaccuracy,
incompleteness or inadequacy of the Council-Supplied Information; and
(f)
if You have relied on the Reliance Information to the extent and for the purposes stated in the
Contract Particulars and such documents were factually inaccurate for satisfying that purpose, then:
(i)
You shall promptly (and within 5 days) after it becomes aware of the inaccuracy notify the
Council's Representative of the inaccuracy;
(ii)
the Council's Representative shall direct You as to what work (if any) it requires You to carry
out to overcome the inaccuracy; and
(iii)
if compliance with any such direction causes You to incur more or less cost than would
otherwise have been incurred had the direction not been given, the difference shall be
assessed by the Council's Representative and added to or deducted from the contract sum,
but You shall have no other claim, and the Council shall not be liable to You, in contract, tort, equity,
under statute or otherwise, arising from or in connection with the Reliance Information.
3.21
(Environmental Protection)
You:
(a)
shall take all action necessary to protect and preserve the environment from harm or damage arising
from or in connection with the carrying out of the work;
(b)
shall comply with all:
(c)
(i)
Legislative Requirements relating to the protection or preservation of the environment; and
(ii)
environmental management plans provided by or on behalf of the Council to You or provided
by You and approved by the Council;
shall promptly provide to the Council any Data in relation to emissions (including greenhouse gas or
other environmental emissions, concentrations, pollutants or contaminants) or energy production,
use, consumption or efficiency in connection with the work or the Minor Works (collectively
"Emissions and Energy Data") which:
(i)
any person (whether or not You) may be required to keep or to provide as part of any
Legislative Requirement (which is to be provided by You within 10 Business Days after it is
prepared or provided); or
(ii)
is requested by the Council or the Council's Representative so that the Council may:
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3.22
(A)
comply with its obligations under any Legislative Requirement or to enable the Council
to obtain the benefit of any rights, protections or other interests under any Legislative
Requirement; or
(B)
determine whether You are complying with Your obligations under the Contract;
(d)
agree that the Council may use your Emissions and Energy Data for any purpose as it sees fit;
(e)
shall obtain all approvals or licences required and pay and indemnify the Council against all fees,
fines or other amounts payable under all environmental protection or preservation Legislative
Requirements (including in connection with any applicable approvals or licences); and
(f)
shall, to the maximum extent permitted by law, indemnify and keep indemnified the Council and its
officers, employees and agents against all claims, demands, actions, costs (including legal costs),
charges, expenses, damages, loss or other liability (including without limitation in tort, under any law,
in respect of making good environmental damage or in defending claims) arising from or contributed
to by:
(i)
Your acts or omissions or acts or omissions of Your employees, its subcontractors or their
employees (whether wilful, negligent or otherwise);
(ii)
breach by You of Your obligations under this clause 3.21; or
(iii)
the carrying out of the work.
(Personal Property Securities Act)
(a)
If the Council or the Council's Representative determines that this Contract (or a transaction in
connection with it) is or contains a Security Interest, You agree to do anything (including obtaining
consents, signing and producing documents, getting documents completed and signed and supplying
information) as the Council may reasonably require for the purposes of:
(i)
ensuring that the Security Interest is enforceable, perfected and otherwise effective and ranks
ahead of other Security Interests;
(ii)
enabling the Council to apply for, and obtain, any registration or providing any notification in
accordance with the PPSA; and
(iii)
enabling the Council to exercise any right in connection with the Security Interest or the
property the subject of the Security Interest.
(b)
You waive each right to receive any notice from the Council under the PPSA (including notice of a
verification statement) that can be waived.
(c)
Except as expressly agreed in writing to the contrary, You:
(d)
(i)
acknowledge that neither this Contract nor a transaction in connection with it is intended to
provide for a Security Interest in favour of You; and
(ii)
accordingly, agree that You will not register or otherwise perfect or seek to perfect any
Security Interest, and will remove any registration, in respect of this Contract or a transaction
in connection with it.
You shall:
(i)
promptly notify the Council and the Council's Representative if You know or become aware
(whether by receipt of a notice under the PPSA or otherwise) that a third party has or claims a
Security Interest in any goods or materials:
(A)
owned by the Council; or
(B)
supplied or to be supplied by You to the Council; or
(C)
in which the Council has an interest;
(ii)
give the Council and the Council's Representative any information reasonably required by the
Council or the Council's Representative in relation to any such Security Interest or claim; and
(iii)
on request by the Council or the Council's Representative, use best endeavours to ensure that
the third party:
(A)
discharges any such Security Interest, and does not register or otherwise perfect or
seek to perfect, and removes any registration, in respect of any such Security Interest;
or
(B)
subordinates any such Security Interest to the interest of the Council, by an agreement
in form and substance satisfactory to the Council.
(e)
Without limiting paragraphs (c) and (d), at any time when title to or ownership of any plant, goods or
materials is passed to the Council, You must ensure that title or ownership is passed free of any
Security Interest held by You or any other person.
(f)
You must ensure that each subcontract has, for the benefit of the Council, a clause that reflects this
clause 3.22.
(g)
Without limiting clause 3.16 of the Contract, neither the Council nor You will disclose information of
the kind mentioned in section 275(1) of the PPSA and You will not authorize, and will ensure that no
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other party authorises, the disclosure of such information. However this does not prevent disclosure
where required under section 275 of the PPSA because of the operation of section 275(7) of the
PPSA.
3.23
(Accessed Site and Controlled Site)
(a)
(b)
3.24
Where You are given access to or possession of the Controlled Site under the Contract, You must:
(i)
assume full responsibility for and full management and control of the Controlled Site while You
are the 'person in control' of the Controlled Site in accordance with clause 3.8(j) ; and
(ii)
without limiting paragraph (a)(i):
A.
ensure the Controlled Site is kept secure at all times (including against entry by any
unauthorised person); and
B.
ensure that any person entering the Controlled Site completes adequate safety or other
training or induction before entering the Controlled Site; and
C.
ensure that any person entering the Controlled Site complies with all requirements that
may arise in connection with You ensuring Your full compliance with the Contract.
Where You are given access to Accessed Site, or are no longer the 'person in control' of the
Controlled Site in accordance with clause 3.8(j), You must:
(i)
allow the Council or other person in possession or management and control of the Accessed
Site ("Accessed Site Occupant") to maintain its possession or management and control of
the Accessed Site while You are carrying out the work within the Accessed Site; and
(ii)
without limiting paragraph (b)(i):
A.
comply with the directions of the Accessed Site Occupant regarding the timing and
conditions of Your access to the Accessed Site; and
B.
complete any safety or other training or induction required by the Accessed Site
Occupant before entering upon the Accessed Site.
(Default by You in Relation to Safety or Licence and Competency Requirements) not withstanding any
provision of the Contract (including clause 9) to the contrary, if You commit a breach of:
(a)
any of Your obligations relating to safety including without limitation the obligations contained in
clause 3.8 or any Relevant Documents relating to safety; or
(b)
any Work Health and Safety Requirements,
the Council may, at any time after the breach and without giving a Show Cause Notice, exercise its rights
under clause 9.1. The rights given by this clause 3.24 are in addition to any other rights of the Council.
3.25
4.
(Separate Contractors) You agree that the Council shall be entitled to arrange for separate contractors to
carry out works (other than Minor Works) on the Site on behalf of the Council ("Separate Contractors")
concurrently with the execution by You of the Minor Works.
VARIATIONS, EXTENSIONS OF TIME and DELAY COSTS
4.1
(Variation to the Minor Works) Any variation to the nature and scope of the Minor Works can only be
made by written direction from the Council Representative (“the Variation”). Within 2 Business Days of
receipt of such a direction (or such longer period as stated in the direction), You must submit a written
proposal of the additional costs (if any) to carry out such Variation. You shall take all reasonable steps to
minimise such additional costs.
No Variation shall be legally binding unless both You and the Council Representative have agreed in writing
as to the change to nature or scope of the Minor Works, the Date for Completion (if applicable) and the
additional cost(s) (if any).
4.2
(Extension of Time) You are only entitled to an extension of time where:
(a)
such extension is agreed by the parties as part of a Variation pursuant to clause 4.1; or
(b)
the delay is due to a cause which is beyond Your reasonable control and further, You have:
(i)
not contributed to the cause and have used all endeavours to minimise the effect of the cause;
and
(ii)
You have given the Council Representative both written notice of the existence of the cause
and the period of delay You are seeking and You have done so within 2 Business Days after
You first became aware of the cause.
In relation to an extension sought under clause 4.2(b), the Council Representative shall grant You a
reasonable extension of the Date for Completion and do so within a reasonable period after receiving Your
claim.
However, any such extension of time does not entitle You to any delay or disruption costs nor to any change
to the Contract Sum unless the conditions of clause 4.5 are met.
Further, any failure by the Council to agree to any such extension of time shall not set time at large.
4.3
(Emergency work) If:
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(a)
the Council Representative is of the reasonable opinion that urgent action is required to ensure that:
(i)
(Property and People) the Minor Works, other property (including the Council’s property) or
people are protected; or
(ii)
(Environment) any harm or damage to the environment is avoided or minimised;
the Council may take necessary action including the engagement of third parties without being
obliged to give You any notice. Any such action by the Council shall not entitle You to claim for
either:
(b)
4.4
(A)
any adjustment to the Contract Sum;
(B)
any adjustment to the Date for Completion; or
(C)
any claim from the Council in relation to any other costs and/or expenses of any nature; and
the action taken by the Council was action You should have taken under this Contract:
(i)
(Costs) the costs incurred by the Council shall be a debt due and owing by You to the
Council; and
(ii)
(Preservation of Your obligations) the Council’s actions shall not derogate from or lessen in
any way, Your obligations or liability (whether under law, this Contract) in connection with the
required action.
(Changes to progress of the Minor Works) The Council Representative may at any time give You a
written direction to:
(a)
(Acceleration) accelerate or delay the progress of the Minor Works;
(b)
(Suspension) suspend the Minor Works for any period;
(c)
(Sequence of Work) change the order or sequence in which the Minor Works are to be carried out;
or
(d)
(Working Times) change the days or hours during which the Minor Works are to be carried out,
in which case:
(e)
(f)
(Your Ability to Comply) You shall comply with the Council Representative's direction to the extent
that You can do so. If You cannot comply, You must give the Council Representative written
notification:
(i)
within seven (7) days after the Council Representative's direction; and
(ii)
stating that You cannot comply and provide all reasonable reasons why not; and
(Your Claims) You shall not be able to claim any extension of time, any delay costs, any other
adjustment to the Contract Sum nor have any other claim as a result of any such direction from the
Council Representative if
(i)
the Council Representative's direction has been requested by You;
(ii)
the Council Representative's direction is required because of any breach of the Contract by
You; or
(iii)
the direction involves or constitutes a Variation for which You have a claim for adjustment to
the Contract Sum elsewhere in the Contract.
If none of the circumstances in paragraphs (i) to (iii) apply, You may be entitled to claim an extension
to the Date for Completion (subject to the terms of the Contract) and if You incur extra costs, You
may claim an adjustment to the Contract Sum (subject to the terms of the Contract).
4.5
5.
(Delay Costs) You shall only be entitled to claim delay costs (whether through a claim for damages or costs
resulting from delay from any cause including breach by the Council) where:
(a)
(Extension Granted) the Council Representative has granted You an extension of the Date for
Completion for a period of delay caused by an act or omission of the Council or the Council’s
Representative (or their agents or employees);
(b)
(Additional Costs) as a direct result of the delay during that period You have incurred additional
costs (other than loss of profit); and
(c)
(Not Variation) You are not entitled to claim the costs under any other provision of the Contract
(including the provision for adjustment to the Contract Sum resulting from Variations).
BCIPA
5.1
(BCIPA) Notwithstanding any other provision of the Contract and subject to section 103 of the Building and
Construction Industry Payments Act 2004 (“BCIPA”), it is agreed that in the event You are seeking to serve
any claims, notices and other documents upon the Council under the BCIPA, You shall only do so by serving
such claim, notice or other document upon the Council Representative. For the purposes of the BCIPA, the
Council Representative is authorised to receive payment claims and to issue payment schedules on behalf
of the Council.
5.2
(Payment Schedule issued by the Council Representative) It is agreed that:
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(a)
if within the time allowed by the BCIPA for the service of a payment schedule by the Council, the
Council does not:
(i)
serve the payment schedule itself; or
(ii)
notify You that the Council Representative does not have authority from the Council to issue
the payment schedule on its behalf;
then a progress certificate issued by the Council Representative under the Contract which:
(A)
relates to the period relevant to the payment schedule;
(B)
provides such details as required by the BCIPA as to why You are not to be paid for work You
have claimed; and
(C)
is served on You within the requisite time frames and in such manner required by BCIPA;
shall be taken to be the payment schedule for the purposes of the BCIPA (whether or not it is
expressly stated to be a payment schedule);
The Council authorises the Council Representative to issue payment schedules on its behalf (without
affecting the Council’s right to issue a payment schedule itself); and
(c)
nothing in paragraphs (a) or (b) shall prejudice the obligations of the Council relating to the manner in
which the Council Representative is to exercise its function of issuing a payment certificate, whether
or not the payment certificate is or may also be a payment schedule.
5.3
(Notice of Communications to the Council Representative) Whenever You receive a claim or notice
under the BCIPA from any third party (including any subcontractor or supplier), You must give a copy of that
claim or notice to both the Council and the Council Representative.
5.4
(Limit on Your Remedies) Nothing in the Contract shall be construed to:
5.5
5.6
5.7
6.
(b)
(a)
make any act or omission of the Council in contravention of the BCIPA (including failure to pay an
amount becoming due under the BCIPA), a breach of the Contract (unless the Council could have
been in breach of the Contract had the BCIPA had no application); or
(b)
give You rights or remedies under the Contract which extend (or are in addition to) rights or remedies
given to You by the BCIPA in respect of any act or omission of the Council in contravention of the
BCIPA.
(Suspension by You) If You at any time suspend the whole or any part of the Minor Works pursuant to the
BCIPA then, despite any other provision of the Contract:
(a)
the Date for Completion shall not be affected but the suspension shall be a cause of delay for which
You may claim an extension of time in accordance with the Contract;
(b)
except as expressly provided in paragraph (a), clause 5.4 shall apply; and
(c)
except to the extent as expressly provided under the BCIPA, the Council shall not be liable for any
costs, expenses, damages, losses or other liability whatsoever suffered or incurred by You as a result
of the suspension.
(Suspension by Subcontractors) If any subcontractor at any time suspends the provision by it of work,
services, materials or other things (which form part of the Minor Works) pursuant to the BCIPA, despite any
other provision of the Contract:
(a)
You shall not be relieved of any of its obligations under the Contract and the suspension by the
subcontractor shall not entitle You to any claim (including without limitation, for an extension of time
under clause 4 or delay costs under clause 4.5); and
(b)
You shall immediately provide to the Council full details of the circumstances giving rise to the
subcontractor’s right or alleged right to suspend or take any other action.
(Construction of Contract Provisions) To the extent any provision of the Contract is (or, if not for the
operation of this clause, may be) found to be void under the BCIPA, the provision shall be construed or
severed from the Contract in a manner which:
(a)
avoids the provision of any other provision of the Contract being void; and
(b)
subject to paragraph (a), preserves to the maximum possible extent:
(i)
the enforceability of the provision and the other provisions of the Contract; and
(ii)
the original effect and intent of the Contract.
PAYMENT
6.1
(Contract Sum) Subject to other provisions of this Contract, the Council shall pay You the Contract Sum
which is:
(a)
the lump sum specified in the Contract Particulars for the whole of the Minor Works or, to the extent
that the Contract Sum is to be calculated using a schedule of rates, the amount calculated in
accordance with clause 6.4(b); and
(b)
not subject to any rise and fall or other adjustment for any reason, except as expressly provided in
the Contract.
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6.2
(Adjustments to the Contract Sum) The Contract Sum cannot be increased unless either:
(a)
the Contract Particulars specifically contains the means by which additional costs and expenses
(including, but not limited to, import duty, foreign exchange fluctuations, labour and/or commodity
price rises, compliance costs or delivery price rises) are to be imposed;
(b)
You have obtained written agreement from the Council Representative and done so prior to incurring
such additional costs and expenses; or
(c)
You are entitled to claim an adjustment to the Contract Sum (including for delay costs or as a result
of a Variation).
Nothing in this clause or this Contract in any way prevents You or the Council agreeing to reduce all or part
of the Contract Sum in any way – even if such reduction is only temporary.
6.3
(Submission of payment claim) You shall provide the Council Representative with a payment claim. For
a payment claim to be a valid payment claim under this Contract, it must:
(a)
be a valid tax invoice and specifies both Your ABN and the amount of GST payable; and
(b)
detail such other information and evidence as the Council Representative reasonably requires to
verify the payment claim;
and be supplied as often as is prescribed by the Contract Particulars.
6.4
(Calculation) Despite any other provision of the Contract, a payment claim to which You are entitled to paid
shall be calculated as being the value of all or part of the Minor Works completed in accordance with the
Contract less the aggregate of those amounts specified in clause 6.5 provided always that:
(a)
where the Contract Sum is a fixed or lump sum, such payment claims do not exceed that fixed or
lump sum save and except where permitted under clause 6.2; and
(b)
the Contract Particulars provide for all or part of the Contract Sum to be calculated by applying a
schedule of rates:
(i)
the amount payable shall be the actual quantity of an item multiplied by the rate applying to
that item;
(ii)
those rates:
(iii)
A.
as specified in the Contract Particulars shall apply except where adjustments to such
rates are permitted under clause 6.2; and
B.
shall apply despite there being any difference between actual quantities required to
complete the Minor Works and any quantities set out in a schedule of rates or
elsewhere in the Contract (including differences arising from Variations); and
if there is no rate applying to any item of work, the item shall be taken to be included in the
items for which rates have been included.
Further, if the amount to be deducted is insufficient to cover and discharge Your liability, the Council may
have recourse to the Retention Moneys.
6.5
(Exclusions/deductions from payment claims) The:
(a)
(b)
following amounts will not be included in the calculation of any payment claim:
(i)
any amount which the Contract provides is not payable until certain events have occurred or
conditions have been satisfied; and
(ii)
any amount in respect of which the Council’s obligations to pay has been suspended under
the Contract; and
following amounts will be deducted from any amount calculated under clause 6.4:
(i)
any amounts already paid to You;
(ii)
any amounts which the Council is entitled to deduct, withhold or retain under the Contract;
(iii)
any amounts which the Council is entitled under the Contract to set off against any payment
claim;
(iv)
the costs incurred by the Council of rectifying any defective work;
(v)
to the extent that the value of work includes them, the value of unfixed plant or materials
unless:
(vi)
6.6
A.
You have provided the Council with a certificate of ownership (in a form satisfactory to
the Council) from the supplier of the plant or material confirming that property in the
plant or materials has passed to You; and
B.
the plant or material has been delivered to the Site or if not delivered has been clearly
marked as the property of You or the Council and properly insured and stored to the
satisfaction of the Council’s Representative; and
any other amount which is due and payable by You to the Council under this Contract.
(Retention Moneys) If the Contract Particulars require the retention of moneys, the Council may retain
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such Retention Moneys and hold them for its own benefit and use until such time as You are able to claim
those moneys under this Contract. You will be able to claim:
6.7
(a)
after Practical Completion – such percentage or amount of the Retention Moneys held by the Council
as specified in the Contract Particulars; and
(b)
after the end of the Defects Liability Period – the balance of such Retention Moneys held by the
Council.
(Payment) Subject to You having:
(a)
provided the Security (if any required under the Contract Particulars);
(b)
effected and provided the Council with evidence of all insurances You are obliged to take out and
maintain under the Contract;
(c)
provided the Council Representative with information or evidence reasonably required by the Council
Representative to verify the payment claim; and
(d)
undertaken and/or provided the Minor Works in accordance with the Contract;
The Council will pay such payment claim within 30 days of receipt of an invoice by the Council
Representative (or, if the Building Construction Industry Payments Act 2004 (Qld) or any other legislation
impose a shorter payment period – such payment period as prescribed by such legislation).
6.8
7.
(Effect of Payment) Payment is only payment on account of the Contract Sum. No payment shall be taken
to evidence:
(a)
acceptance by the Council as to the value of work done;
(b)
approval by the Council that You have satisfactorily performed Your obligations under the Contract;
or
(c)
an admission of liability by the Council for the amount claimed.
6.9
(Correction of Payment) The Council shall be entitled to notify You of the Council's correction of any
payment made by it at any time and either party shall pay to the other the amount necessary to correct the
error within fourteen (14) days of the Council's notice.
6.10
(Tax invoice/adjustment note) You must issue to the Council either a tax invoice or adjustment note
(whichever is required by the Council) within two (2) Business Days of being required to do so by the
Council.
RISK
You accept the whole risk of executing the Minor Works in accordance with the MW Requirements. This means
that You:
7.1
are responsible for the acts and omissions of all persons working for You or on Your behalf; and
7.2
shall be solely liable for:
(a)
loss of or damage to the Minor Works (from any cause whatsoever); and
(b)
claims by any person in respect of either injury or death to any person and/or loss of or damage to
any property (including the Council’s property);
which arises or results from or You carrying out the Minor Works except to the extent that such loss or
damage, injury or death is caused by the negligence, omission or default of the Council, its servants or
agents. Your liability in relation to the Minor Works shall continue until such time as the Council
Representative has certified that the whole of the Minor Works has been satisfactorily completed by You;
and
shall fully indemnify the Council against any such loss, damage or claims.
8.
INSURANCE
You must:
9.
8.1
insure the Equipment for its replacement value against all loss or damage (irrespective of the cause)
occurring before delivery of the Equipment in accordance with the MW Specifications;
8.2
at all times during the Contract, keep and maintain appropriate insurance policies of the types and to the
values as stated in the Contract Particulars and otherwise ensure that such insurance policies will insure all
of Your obligations under this Contract; and
8.3
promptly provide the Council with evidence of such insurance if and when requested by the Council
Representative. Failure to do so may result in the Council taking out insurance on Your behalf and charging
You for such insurance.
TERMINATION
9.1
(Without prior notice) At any time, the Council may in its sole and absolute discretion, determine to
terminate all or part of this Contract immediately and without prior notice to You if during the term of this
Contract:
(a)
You enter into any form of insolvency administration;
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(b)
You (or any member of Your staff):
(i)
have breached any Legislative Requirements applicable to the provision of the Minor Works or
have infringed the intellectual property rights of any third party;
(ii)
have engaged in any conduct or practice that is detrimental or harmful to the good name,
reputation or interests of the Council;
(iii)
are found to have offered or given any gratuity, bonus, discount or bribe of any sort to any
member of the Council or any officer, employee or agent of the Council (whether in relation to
this Contract or not); or
(iv)
have breached the provisions of clause 3.14;
(c)
You have failed to comply with any condition precedent to this Contract (such as clause 10.2 if the
Contract Particulars require a Security);
(d)
You have breached either clause 10.1 or clause 10.5;
(e)
You have failed to rectify a default within the time period specified in a Show Cause Notice; or
(f)
The Council is of the opinion that the Contract either no longer satisfactorily meets the Council’s
current or future business requirements in relation to the Minor Works or no longer provides the
Council with value for money in relation to the provision of the Minor Works. In forming such an
opinion, the Council will have regard to:
(i)
whether there have been changes in the market for the provision of the Minor Works; and/or
(ii)
any other factors or issues which the Council believes causes the Contract to no longer
delivers value for money to the Council in relation to the provision of the Minor Works.
Such termination shall be effected by the Council giving You a written notice terminating this Contract (a
Termination Notice) and specifying the date of termination (the Termination Date). For paragraph (f)
above, the Termination Date shall be 30 days from the date of the Termination Notice.
The effect of a Termination Notice is that:
9.2
9.3
(1)
those parts of the Contract to which the Termination Notice relates shall terminate on the Termination
Date; and
(2)
the Council will only be liable to pay You for such parts of the Minor Works which have been properly
performed/delivered up to the Termination Date. If You continue to undertake the Minor Works after
that date, You are only entitled to payment if such supply is not affected by the Termination Notice.
(Show Cause Notice) If You have breached any of Your obligations under this Contract (including those
specified in clause 9.1), the Council may give You written notice (“Show Cause Notice”) stating:
(a)
the alleged breach;
(b)
that You are required to show cause as to why the Council should not exercise its rights under clause
9.3;
(c)
the date and time by which You must show cause (which shall not be less than 7 days after the Show
Cause Notice is received by You); and
(d)
the place and/or to whom You are to respond.
(Termination) If You fail to show reasonable cause by the date specified in a Show Cause Notice, then the
Council can by written notice to You:
(a)
terminate this Contract under clause 9.1(e); and/or
(b)
exercise its rights under clause 9.5.
9.4
(Mutual Agreement) The parties may otherwise terminate this Contract by mutual agreement provided
that the Council is only liable to pay You for such Minor Works which have been properly
performed/delivered up to the agreed termination date.
9.5
(Engagement of third parties) In the event that You fail to comply with Your obligations under the
Contract, and have failed to rectify such breach as and when required by the Council, the Council has the
right to either:
(a)
complete the whole or remaining part of the Minor Works; and/or
(b)
engage a third party to so;
and may (without payment of compensation to You) take possession of any constructional plant and other
things on or in the vicinity of the Site as are owned by You.
Further, where the reasonable costs incurred by the Council of either completing the Minor Works or
engaging a third party to do so exceeds the amount which would have been payable to You had You
properly completed the Minor Works, such difference shall be a debt due and owing to the Council. This
amount can be set off against moneys the Council otherwise owes You under this Contract.
10. MISCELLANEOUS
10.1
(Amendments to the Contract) An alteration, change, substitution or deletion of any legal term and/or
condition of the terms and conditions of this Contact can only be undertaken with the prior written approval
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of the Council’s Chief Procurement Officer or an Authorised Delegate. An Authorised Delegate is any
person who is authorised in writing by the Chief Procurement Officer to exercise the powers of the Chief
Procurement Officer under this clause. Any alteration, change, substitution or deletion of any legal term
and/or condition of the terms and conditions of this Contact which is not in accordance with this clause shall
be deemed to be void and of no effect.
10.2
(Security) Where an unconditional undertaking is specified as being required by the Contract Particulars, it
is a condition precedent of this Contract that within 14 days of the Commencement Date of this Contract,
You shall lodge with the Council Representative a Security that is:
(a)
unconditional in nature and otherwise in the format attached to this Contract at Annexure A (or such
other format as is acceptable to the Council Representative) and which enables the Council to
recover the amount of the Security in the event that:
(i)
this Contract is terminated pursuant to clause 9; or
(ii)
You breach any provision of this Contract thereby causing financial loss, damage or liability to
the Council;
(b)
for the amount specified in the Contract Particulars; and
(c)
effective until the expiration of the Defects Liability Period under this Contract.
10.3
(The Council's Representative) At any time during this Contract, the Council may replace the nominated
Council Representative with another person and shall advise You of such change (including all relevant
contact details) by written notice. The replacement shall be effective as of the date of such written notice.
10.4
(Notices) Notices to each party may be delivered either by prepaid post, hand or facsimile transmission to
our respective addresses. In the case of the Council, they must be directed and sent to the Council's
Representative and in Your case, to Your Representative as specified in the Contract Particulars. Notices
are deemed to have been given:
(a)
2 days after deposit in the mail with postage prepaid;
(b)
when delivered by hand; or
(c)
if sent by facsimile – upon an apparently successful transmission being noted by the sender’s
facsimile machine.
10.5
(Assignment) You must not assign or sub-contract any of Your rights under this Contract without the prior
written consent of the Council. The Council may reject any request or impose such conditions as it deems
appropriate (in its sole and absolute discretion) to protect its interests.
10.6
(Relationship of the parties) Nothing in this Contract shall be construed as creating a relationship of
employer and employee or principal and agent or partnership as between the parties nor shall You represent
yourself as being in any such relationship with the Council.
10.7
(Council approvals) Where this Contract requires the approval of the Council to be given, the giving of any
such approval is within the sole and absolute discretion of the Council (unless stated to the contrary by this
Contract) and the Council can impose whatever conditions it deems appropriate in order to grant such
approval.
10.8
(Set off) The Council shall have the right at any time to set off any amounts You owe the Council under this
Contract against any moneys the Council may owe You under this Contract.
10.9
(Entire Agreement) This Contract is the entire agreement in relation to the Minor Works.
10.10 (Waiver) A waiver by a party of any default under this Contract shall not in any way prejudice the rights of
that party and shall not be deemed to be a continuing waiver or a waiver of any other default under this
Contract.
10.11 (Force Majeure) Neither You or the Council will be in default of this Contract where such default:
(a)
is caused by an act or event beyond the reasonable control of the defaulting party and the defaulting
party did not in any way directly contribute to such default; or
(b)
was not reasonably foreseeable at the time this Contract was entered into.
10.12 (Severability) If any terms of this Contract are invalid or unenforceable to any extent, they shall be severed
from this Contract which shall then continue to be valid and enforceable to the fullest extent permitted by
law.
10.13 (Applicable Law) The applicable law of this Contract is the law of Queensland.
10.14 (Survival) The obligations contained in clauses 7, 8, 10.1 and 10.7 inclusive shall survive the expiration or
early termination of this Contract.
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ANNEXURE A – FORM OF UNCONDITIONAL FINANCIAL UNDERTAKING
At the request of ………………………………………………………………………….
(“the Contractor”), and in
consideration of the Brisbane City Council (“the Councill”) accepting this unconditional undertaking in respect of the
Contract between the Council and the Contractor under Contract No.{insert the Council Contract Number allocated to
the Contract} (“the Contract”), the ……………………………………………………. ABN ……………………………………
(“the Financial Institution”) unconditionally undertakes to pay on demand any sum or sums which may from time to
time be demanded by the Council to a maximum aggregate sum of {insert amount in words} ($insert amount in figures)
(“the Guaranteed Sum”).
This undertaking is not revocable by the Financial Institution and shall continue in force until one of the following events
occurs:
(a)
notification has been received by the Financial Institution from the Council that the Guaranteed Sum is no longer
required by the Council; or
(b)
such time as this undertaking is returned to the Financial Institution; or
(c)
payment to the Council by the Financial Institution of the whole of the Guaranteed Sum or such part as the
Council may require.
Further:
(i)
any extensions of time granted by the Council to the Contractor for the due performance of the Contract; or
(ii)
any Variation or alteration of the terms and conditions of the Contract; or
(iii)
any other forbearance by the Council or the Contractor (including, but not limited to, the Council giving the
Contractor permission to proceed under the Contract after default by the Contractor);
made or given with or without the consent or knowledge of the Financial Institution will not impair or discharge the
Financial Institution’s liability under this undertaking.
Upon notification in writing by or on behalf of the Council to the Financial Institution that the Council desires payment to
be made of the whole or any part or parts of the Guaranteed Sum, it is unconditionally agreed that the Financial
Institution will make the payment or payments to the Council 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 nonperformance of the Contractor or the Council under the terms of the Contract or any Contract terms substituted for it.
Provided always that the Financial Institution may at any time without being required so to do pay to the Council the sum
of {insert amount in words} ($ insert amount in figures) less any amount or amounts it may previously have paid under
this undertaking or such lesser sum as may be required and specified by the Council and thereupon the liability of the
Financial Institution hereunder shall immediately cease.
The applicable law of this Undertaking is agreed to be the law of Queensland.
Dated at ………………………….. this ……… day of ………………………….. 200
.
{execution clause of the Financial Institution to be inserted}
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