Final Version
Monash Children's
Hospital Project
Managing Contractor – Design and
Construction Management
Stage One with option for Stage Two (Guaranteed
Construction Sum)
(This is an amended form of the Queensland Government Department of
Public Works 'Managing Contractor – Design and Construction
Management (February 2011)' Contract)
Monash Children's Hospital
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Managing Contractor - Design and Construction Management
Stage One with option for Stage Two (Guaranteed Construction
Sum
Details
11
Agreed terms
12
1.
Interpretation
12
2.
Obligation of the Managing Contractor
12
3.
Obligation of the Principal
12
4.
Stage Two Works
12
5.
Contract documents
12
6.
Administrative Provisions
13
6.1
6.2
Entire Agreement
Power of attorney
13
13
Conditions of contract
15
1.
Construction of contract
15
2.
Defined terms & interpretation
15
2.1
2.2
Defined terms
General
15
31
3.
Nature and scope of Contract
33
4.
Evidence of Contract
34
5.
Contract documents
35
5.1
5.2
Discrepancies
Dimensions
35
36
6.
Collusive arrangements
36
7.
Commitment and good faith
37
7.1
7.2
7.3
Commitment
Good faith
Role of the Principal
37
37
38
8.
Quality assurance
38
9.
Security, retention moneys and performance undertakings
39
9.1
9.2
9.3
9.4
Purpose
Provision of security
Form of security
Time for lodgement of security
39
39
40
40
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9.5
9.6
9.7
9.8
9.9
9.10
9.11
9.12
9.13
Not used
Subcontract retentions
Substitution of security for retention moneys
Additional security - unfixed plant and materials
Conversion of security and recourse to retention moneys
Adjustment of security and retention moneys
Release of security
Interest on security and retention moneys
Deed of guarantee and indemnity
40
40
40
40
40
41
41
42
42
10.
Service of notices
42
10.1
10.2
Address
Service
42
42
11.
GCS offer
45
11.1A
11.2
11.3
11.4
Confirmation of Total Construction Cost
Managing Contractor's GCS offer
Principal's options
Adjustment of fees at time of GCS Offer / Alternative GCS Offer
45
45
46
47
12.
Warranties
48
12.1
12.2
12.3
12.4
Managing Contractor's warranties
Warranties and indemnities unaffected
Principal's reliance on warranties
Manufacturers' Performance Warranties
48
52
52
52
13.
Project Operations Group
54
13.1
13.2
13.3
13.4
13.5
13.6
Establishment, duration and purpose
Membership
Meetings
Decisions of the POG
Managing Contractor's reports
Project partnership group meetings
54
54
55
55
55
56
14.
Design Work
56
15.
Documentation Work
57
16.
Construction Work
57
16.1
16.2
Completion of the Works
Commissioning work
57
58
17.
Early works
58
17.1A Enabling Works
17.1 Early Works direction
17.2 Early Works Subcontracts
58
59
59
18.
Consultants
60
18.1
18.2
18.3
18.4
18.5
Engagement of other consultants
Other consultancy services required by the Principal
Responsibility for Nominated Consultants
Co-ordination of Nominated Consultants
Termination of a Consultancy Agreement
60
61
61
61
62
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18.6
18.7
18.8
Changes in Nominated Consultant's staff
Not used
Quantity surveyor
62
62
62
19.
Design change variations during Stage One
62
19.1
19.2
Changes at the direction of the Principal's Representative
Changes for the convenience of the Managing Contractor
62
63
20.
Supply of documents
63
20.1
20.2
20.3
20.4
20.5
20.6
Supply of documents by Principal
Supply of documents by Managing Contractor
Supply of documentation
Availability of documents
Confidential information
Media releases
63
64
64
65
65
65
21.
Assignment and subcontracting
65
21.1
21.1A
21.2
21.3
21.4
Assignment
Change in Control
Construction Work
Requirements of subcontracts
Responsibility for Subcontractors
65
66
66
70
71
22.
Latent Conditions
71
22.1
22.2
22.3
22.4
Definition
Notification
Cost of dealing with Latent Condition
Extension of time
71
72
72
72
23.
Patents, copyright and other intellectual property rights
72
23.1
23.2
23.3
Warranty and indemnity
Intellectual property rights granted to Principal
Moral Rights
72
72
73
24.
Statutory Requirements and Policies
73
24.1
24.2
24.3
24.4
24.5
24.5A
24.5B
24.5C
24.5D
24.5E
24.5F
24.5G
24.6
24.7
24.8
Variance with the Contract
Changes in Statutory Requirements
Managing Contractor's declaration and indemnity
Documents evidencing approvals of Authorities
Not used
OHS to be paramount consideration
Occupational Health and Safety
Appointment as Principal Contractor
Induction
Breach of OHS Law
Managing Contractor and Subcontractor obligations
Managing Contractor to give risk assessment
Compliance with government policy
Australian Government Building and Construction OHS Accreditation Scheme
Project Plans
73
74
74
74
75
75
75
75
76
76
77
77
78
78
78
24A
Victorian Code and Victorian Guidelines
78
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24A.1
24A.2
24A.3
24A.4
24A.5
Defined Terms
Primary Obligation
Access and Information
Sanctions
Compliance
78
78
79
79
80
25.
Site Access Protocol, noise, disturbance and nuisance control
80
26.
Protection of people and property
81
26.1
26.2
26.3
Protection measures
Traffic Management
Not used
81
82
82
27.
Urgent protection
82
28.
Care of the work under the Contract and reinstatement of damage
82
28.1
28.2
28.3
Care of the work under the Contract
Reinstatement
Excepted Risks
82
83
83
29.
Damage to persons and property other than the work under the Contract
84
29.1
Indemnity by the Managing Contractor
84
30.
Insurance of the work under the Contract
86
31.
Public liability insurance
87
32.
Insurance of employees
87
33.
Professional indemnity insurance
87
33.1
33.2
Managing Contractor to effect insurance
Period of insurance
87
88
33A
Other insurances
88
34.
Inspection and provision of insurance policies
88
34.1
34.2
34.3
34.4
34.5
34.6
Proof of insurance
Failure to produce proof of insurance
Notices from or to the insurer
Notices of potential claims
Settlement of claims
Cross liability
88
88
89
89
89
90
35.
Principal's Representative
90
35.1
35.2
General
Site accommodation
90
90
36.
Site representative
90
36.1
General
90
37.
Managing Contractor's representative, management structure and personnel91
37.1
37.2
37.3
Personnel
Managing Contractor's Representative
Management structure
91
91
92
38.
Control of Managing Contractor's employees and Subcontractors
92
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38.1
38.2
38.3
Removal of personnel
Probity Events and Probity Investigations
National Police Checks
92
92
93
39.
Site
94
39.1
39.2
39.3
39.4
39.5
39.6
39.7
Access to and possession of Site
Access for the Principal and others
Delivery of materials to and work on Site before access
Use of Site by the Managing Contractor
Finding of minerals, fossils and relics
Extra land required by the Managing Contractor
Continuing Hospital Functions
94
96
96
96
96
97
97
40.
Setting out the Works
97
40.1
40.2
40.3
Setting out
Care of survey marks
Errors in setting out
97
98
98
41.
Materials, labour and constructional plant
98
41.1
41.2
41.3
41.4
41.5
41.6
41.7
Provision of materials, labour and constructional plant
Removal of materials and constructional plant
Manufacture and supply of materials
Not used
Victorian Industry Participation Policy
Not used
Not used
98
98
98
98
99
99
99
42.
Materials and Work
99
42.1
42.1A
42.2
42.3
42.4
42.5
Quality of materials and Work
Samples or prototypes
Defective materials or Work
Variations due to defective materials or Work
Acceptance of defective material or Work
Generally
99
99
100
101
101
101
43.
Examination and testing
101
43.1
43.2
43.3
43.4
43.5
43.6
43.7
43.8
Principal's Representative may order tests
Covering up of Work
Who conducts tests
Notice of tests
Procedure if tests delayed
Results of tests
Costs of testing
Access for testing
101
102
102
102
102
102
102
103
44.
Working hours and Working Days
103
45.
Programming
103
45.1
45.2
Submission and approval of program
Rights not affected
103
104
46.
Progress
104
46.1
Rate of progress
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47.
Acceleration
105
47.1
47.2
47.3
Acceleration proposal
Acceptance of acceleration proposal
Direction to accelerate
105
105
106
48.
Suspension of the Works
107
48.1
48.2
48.3
48.4
48.5
Suspension by Principal's Representative
Suspension by the Managing Contractor
Recommencement of Work
Cost of suspension
Effect of suspension
107
107
107
107
108
49.
Times for commencement and completion
108
49.1
49.2
49.3
49.4
49.5
49.6
Time for commencement
Time for completion
Extension of time
Liquidated damages
Separable portions
Use of partly completed Works
108
108
108
110
111
111
50.
Delay or disruption costs
112
50.1
50.2
50.3
Principal's obligation and liability
Costs for delay or disruption
Provisional delay allowance
112
112
113
51.
Defects liability
113
52.
Cleaning up
114
53.
Variations
114
53.1
53.2
53.3
53.4
53.5
53.6
Variations to the work under the Contract
Proposed variations
Variations for the convenience of the Managing Contractor
Valuation of Variations
Omissions
Notice of Variations
114
115
116
116
118
118
54.
Not used
119
55.
Rates of exchange and duty
119
55.1
55.2
Custom tariff (anti dumping) legislation
Variations in rates of exchange and duty
119
119
56.
Not used
119
57.
Claims, certificates and payments
119
57.1
57.2
57.3
57.4
57.5
57.6
57.7
57.8
GST and PAYG
Payment claims
Payment certificates
Payment
Amount properly due
Audit of Actual Construction Sum
Unfixed plant and material
Provisional Sums
119
121
123
124
124
124
124
125
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57.9
57.10
57.11
57.12
57.13
57.14
57.15
57.16
57.17
57.18
57.19
Certificate of Practical Completion
Effect of certificates
Final Payment Claim
Final Certificate
Interest on overdue payments
General right of set off by the Principal
Security of Payment Act - Notices
Security of Payment - suspension
Security of Payment - Miscellaneous
Security of Payment - Disputes
Security of Payment
125
126
126
126
127
128
128
128
129
129
129
58.
Payment of workers and Subcontractors
130
58.1
58.2
58.3
58.4
Payment direct to worker or Subcontractor
Statutory declaration
Details of payments
Court order
130
130
131
131
59.
Default or insolvency
131
59.1
59.2
59.3
59.4
59.5
59.6
59.7
59.8
59.9
59.10
59.11
59.12
59.13
59.14
59.15
59.16
59.17
59.18
59.19
Preservation of other rights
131
Default by the Managing Contractor
131
Requirements of a notice by the Principal to show cause
133
Rights of the Principal
133
Procedure when the Principal takes over Work
134
Adjustment on completion of the Work taken out of the hands of the Managing Contractor134
Default of the Principal
135
Requirements of a notice by the Managing Contractor to show cause
135
Rights of the Managing Contractor
135
Rights of the parties on termination
136
Insolvency
136
Personal Property Security Act 2009 (Cth)
138
No requirement for PPS Act notices
138
Priority of Principal’s interest
139
Notices to be given to the Principal
139
Negative undertakings
139
Principal’s interest remains unaffected
139
Confidentiality for the purposes of the PPS Act
139
Costs and expenses relating to PPS Act and registration
139
60.
Termination
140
60.1
60.2
Termination by frustration
Principal's rights of termination
140
140
61.
Notification of Claims
142
61.1
61.2
61.3
61.4
Notice of Intention to Claim
Liability for failure to give Notice of Intention to Claim
Notice of Claim
Liability for failure to give notice of Claim
142
142
142
143
62.
Dispute resolution
143
62.1
Notice of dispute
143
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62.2
62.3
62.4
62.5
62.6
62.7
Further steps required before mediation
Mediation notice
Mediation
Arbitrator
Arbitration
Proportionate liability
143
143
143
144
144
145
63.
Waiver of conditions
145
64.
Records and access to records
145
65.
Not used
146
66.
Disclosure of information
146
66.1
66.2
Information privacy act
Principal may disclose
146
147
67.
No signage
147
68.
Limit on liability
147
Schedule 1 - Managing Contractor's Fee Breakdown
153
Schedule 2 - Approved form of undertakings
201
Schedule 3 - Performance warranty from suppliers or manufacturers
203
Schedule 4 – Form of Consultancy Agreement
211
Schedule 5 – Existing Facility plan
337
Schedule 6 – Notice of acceptance of a subcontract tender including warranties and
indemnity
345
Schedule 7 - Statutory declaration of Managing Contractor, statutory declaration of
Subcontractor
347
Schedule 8 - Key Personnel
351
Schedule 9 - Not used
353
Schedule 10 - Deed of guarantee and indemnity
355
Schedule 11 - Not used
363
Schedule 12 - Not used
365
Schedule 13 - Not used
367
Schedule 14 - Not used
369
Schedule 15 - Requirements for GCS offer
371
Schedule 16 - Specification and Duties of the Managing Contractor
373
Schedule 17 - VIPP Plan
375
Schedule 18 - Refurbishment Works
411
Schedule 19 - Site Licence
418
Schedule 20 - Principal Controlled Insurance
428
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Schedule 21 - Project Methodology Plan
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Details
Date
Parties
Name
Short form name
Notice details
Name
Short form name
Notice details
The Secretary to the Department of Health, a body corporate established under
the Public Health and Wellbeing Act 2008.
Principal
50 Lonsdale Street, Melbourne, VIC 3001
Lend Lease Building Contractors Pty Limited (formerly Baulderstone) (ABN 56
002 625 130)
Managing Contractor
The Gauge, 825 Bourke Street, Docklands VIC 3008
Background
A
The Principal requires the provision of design management services, subcontract construction
documentation management services, construction management services, information and
communication technology management services and refurbishment works in relation to the
Monash Children's Hospital Project ('the Project').
B
The Managing Contractor represents that it has the necessary experience, skill and expertise to
perform and complete the work under the Contract.
C
The parties wish to enter into this Contract to accurately record the terms of their agreement.
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Agreed terms
1.
Interpretation
The particular terms which are used in this Contract are defined in the Conditions of Contract.
2.
Obligation of the Managing Contractor
In consideration of the promises on the part of the Principal in this Contract the Managing
Contractor:
3.
(a)
shall provide the materials and perform the work required to complete Stage One in
accordance with the Conditions of Contract;
(b)
acknowledges that if the Principal accepts the Managing Contractor's GCS Offer or
Alternative GCS Offer, the Contract will include both Stage One and Stage Two and the
Managing Contractor shall provide the materials and perform the work required to
complete Stage Two;
(c)
will otherwise perform, fulfil, comply with, submit to and observe all provisions of the
Contract which are to be performed, fulfilled, complied with, submitted to or observed by
or on the part of the Managing Contractor; and
(d)
accepts all risks and costs of performing the Works and the work under Contract except
those expressly stated to be the responsibility of the Principal.
Obligation of the Principal
In consideration of the promises on the part of the Managing Contractor in this Contract the
Principal shall make payments to the Managing Contractor in accordance with the Contract and
will otherwise perform, fulfil, comply with, submit to and observe all provisions of the Contract
which are to be performed, fulfilled, complied with, submitted to and observed by or on the part
of the Principal.
4.
Stage Two Works
The Managing Contractor acknowledges that, unless and until, the Principal accepts the Managing
Contractor's GCS Offer or Alternative GCS Offer, the Contract is for the performance of Stage
One only, and there is no guarantee of any kind that Stage Two will proceed (either at all or on
any particular basis).
Despite any other provision in the Contract, if Stage Two proceeds, the Managing Contractor will
not be entitled to be paid and the Principal will not be liable to pay an amount that exceeds the
sum of the Guaranteed Construction Sum, the Nominated Consultant's Fees and any delay
damages payable pursuant to the Contract.
5.
Contract documents
The Contract between the Principal and the Managing Contractor comprises:
(a)
this Agreement;
(b)
the Conditions of Contract; and
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(c)
the Schedules to the Conditions of Contract.
6.
Administrative Provisions
6.1
Entire Agreement
This Agreement and the documents to which it refers contains the entire understanding of the
subject matter of this Agreement.
6.2
Power of attorney
Where this document is to be executed by any party under a power of attorney, each attorney
signing this document warrants that, at the time of signing, he or she has not had any notice of the
revocation of that power of attorney
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EXECUTED AS AN AGREEMENT
The Corporate Seal of the Secretary to the
Department of Health (ABN 74 410 330
756), a body corporate established under
the Public Health and Wellbeing Act 2008,
was affixed by:
←
Fran Thorn
←
Corporate Seal
Date
Executed
by Lend Lease Building Contractors Pty
Limited (ABN 56 002 625 130) (formerly
Baulderstone) in accordance with Section
127 of the Corporations Act 2001
←
←
Signature of director
Signature of director/company secretary
(Please delete as applicable)
Name of director in full
Name of director/company secretary in full
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Conditions of contract
1.
Construction of contract
(a)
This Contract is governed by the laws of Victoria. The parties submit to the non-exclusive
jurisdiction of the courts of Victoria.
(b)
Unless otherwise provided, prices are in Australian currency and payments shall be made
in Australian currency at Melbourne, Victoria.
(c)
Measurements of physical quantities shall be in Australian legal units of measurement
within the meaning of the National Measurement Act 1960 (Cth).
(d)
This Contract is not subject to escalation unless expressly stated otherwise.
2.
Defined terms & interpretation
2.1
Defined terms
In this document:
Acceleration Proposal has the meaning given in clause 47.1.
Actual Construction Sum means all costs of the Managing Contractor properly and actually
incurred by the Managing Contractor, comprising a total of:
(a)
the tendered cost of Subcontracts, exclusive of GST, in respect of Construction Work
(which includes Early Works), plus valid adjustments pursuant to the terms of the
Subcontracts, but excluding:
(i)
the cost of rectifying non-complying and defective work;
(ii)
any other costs not properly incurred in respect of Construction Work pursuant to
this Contract (including for the carrying out of any variations which are not the
subject of a Variation or acceleration other than where the Principal has provided a
direction to accelerate in accordance with clause 47); and
(iii)
any costs attributable to a termination of a Nominated Consultant or Subcontract
and the engagement of another Subcontractor or Consultant;
(b)
Subcontractor delay or disruption costs not otherwise paid pursuant to the Contract and
payable pursuant to the terms of a Subcontract, except in respect of a breach of the
Subcontract or act of prevention by the Managing Contractor (to the extent not caused by
a breach of this Contract by the Principal); and
(c)
valid claims by the Managing Contractor in respect of Construction Work performed by,
and in accordance with the conditions imposed by the Principal's Representative upon,
the Managing Contractor pursuant to clause 21.2(a)(ii),
but shall not include Excluded Costs, and the Actual Construction Sum shall in aggregate with the
Preliminaries, Design/Buildability Advisor Fee, ICT Management Fee and Off Site Overheads
and Profit Fee in no circumstances exceed the Guaranteed Construction Sum.
Alternative GCS Offer means:
(a)
an offer by the Managing Contractor under clause 11.2(c) that offers Value for Money to
the State and materially meets the requirements of this Contract for a GCS Offer but
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which differs in its price, timing or scope such that it does not meet all of the requirements
of a GCS Offer; or
(b)
a Modified GCS Offer that is deemed to be an Alternative GCS Offer under clause
11.3(f).
Approval means all consents, notices, determinations, authorisations (including planning),
registrations, certificates, permissions, licences, permits approvals or exemptions required from an
Authority.
Asset Management and Maintenance Database means the asset management and maintenance
database required by the GCS Offer Project Brief.
Authorised Nominating Authority means the person authorised by the Building Commission
pursuant to section 42 of the Security of Payment Act to nominate persons to determine
adjudication applications.
Authority means any Federal, State, government or semi-governmental or local agency, authority
or body or a utility with jurisdiction over the Site, the Works or the Project.
Bank Guarantee means an irrevocable and unconditional bank guarantee:
(a)
in the form set out in Schedule 2;
(b)
issued by:
(i)
an Australian trading bank registered pursuant to the Banking Act 1959 (Cth); or
(ii)
another bank,
approved in writing by the Principal.
Building Act means the Building Act 1993 (Vic).
Building Services Engineers means Waterman AHW (Vic) Pty Ltd.
Buildability Input includes input of the kind reasonably to be expected of a Relevant Managing
Contractor, and which input:
(a)
identifies and resolves Buildability Issues;
(b)
identifies whether the Developed Design is, and how it can be made, consistent with the
proposed methods, techniques and staging of construction to be used by the Managing
Contractor;
(c)
identifies whether and how, if the Works were to be built by the Developed Design they
would enable the use of sound construction techniques and otherwise enable construction
in a manner consistent with achieving the outcomes required by the Contract.
Buildability Issue means any ambiguity, discrepancy, inconsistency or lack of co-ordination or
integration of, between or in any documents comprising the Contract, the Design Documents or
the Design Documents (MC) which are likely to increase the cost, reduce or adversely affect the
Quality or delay the completion of the Works.
business day has the meaning given in the Security of Payment Act.
Certificate of Practical Completion means the certificate referred to in clause 57.9.
Certification Functions means those powers, discretions, rules and functions of the Principal's
Representative as set out in clauses 11.4(b), 11.4(c), 11.4(e), 11.4(f), 19.1(b), 22.3, 34.5, 47.3(c),
48.4, 49.3(g), 53.4, 57.2, 57.3, 57.9 and 57.12.
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Change in Control of a party means where, at any time any person alone or together with any
associates ceases to or commences to, directly or indirectly, have Control of the party other than
as a result of a Permitted Change in Control.
Claim includes any claim, demand, action, proceeding or suit of any kind whatsoever which a
party may make or bring against the other party or any of the other party's agents or employees
relating to the construction of the Contract or as to any fact, matter or thing arising out of or in
connection with the Contract or the work under the Contract including any claim, demand,
action, proceeding or suit seeking an extension of time or the payment of money, or any costs,
expenses, loss or damages on any ground whatsoever including pursuant to the Contract, on a
quantum meruit, in quasi-contract, for unjust enrichment and insofar as is permitted by law,
pursuant to any other principle of law.
Completion of Stage One means the stage in the execution of the work under the Contract when
the Managing Contractor has provided to the Principal a GCS Offer and, if applicable, an
Alternative GCS Offer, in accordance with Schedule 15, one of which has been either accepted or
rejected by the Principal pursuant to clause 11.3.
Construction Work comprises work under the Contract including Early Works and the
administration, supervision, inspection and coordination of Works being executed by the
Subcontractors, but excluding:
(a)
On Site Overheads;
(b)
Design Work; and
(c)
Documentation Work.
Consultancy Agreements means the agreements between the Principal and the following
Consultants for developing the design of the Project:
(a)
the Lead Consultant (which includes subconsultancies with the structural engineer –
Irwinconsult Pty Ltd, and the building surveyor– PLP Building Surveyors & Consultants
Pty Ltd);
(b)
the Building Services Engineers; and
(c)
the Environmentally Sustainable Development consultant – AECOM Australia Pty Ltd.
Consultants means the consultants engaged initially by the Principal in connection with
designing the work under the Contract.
Contract has the meaning in clause 4.
Contract Materials means any work produced or required to be produced in the course of
performing the work under the Contract and provided or required to be provided to the Principal,
including the Works, Design Documents (MC) and the Subcontract Construction Documentation.
Control means:
(a)
control or influence of, or having the capacity to control or influence the composition of
the board, or decision making, directly or indirectly, in relation to the financial and
operating policies;
(b)
being in a position to cast, or control the casting of, more than 20% of the maximum
number of votes that may be cast at a general meeting; or
(c)
having a relevant interest (as defined in section 608 of the Corporations Act) in more than
20% of the securities (as defined in the Corporations Act),
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of the Managing Contractor (whether alone or together with any associates).
Controller means in relation to a change in control, the person or body corporate to whom
Control will pass.
Corporation Act means the Corporations Act 2001 (Cth).
Date of Commencement of Stage Two means the date of acceptance, if any, of the Managing
Contractor's GCS Offer or Alternative GCS Offer by the Principal pursuant to clause 11.3.
Date for GCS Offer means the date (specified in the Annexure) by which the Managing
Contractor must make its GCS Offer, but if any extension of time for this Milestone is granted by
the Principal's Representative it means the resulting date.
Date for Practical Completion means the last day of the period of time for Practical Completion
of the Works provided in the Managing Contractor's GCS Offer or Alternative GCS Offer (as
applicable) accepted by the Principal as the Date for Practical Completion, or the Date for
Practical Completion for the Works specified in the Annexure, whichever is applicable, but if any
extension of time for Practical Completion is granted by the Principal's Representative it means
the resulting date.
Date of Practical Completion means the date certified by the Principal's Representative in a
Certificate of Practical Completion issued pursuant to clause 57.9, as the date upon which
Practical Completion of the Works was reached.
day means calendar day except where the context otherwise indicates.
Defect means:
(a)
any error, deficiency, omission, failure or other defect in the Works or the work under the
Contract; or
(b)
any aspect of the Works or the work under the Contract which is not in accordance with
the requirements of this Contract, including the Project Brief or the GCS Offer Project
Brief.
Defects Liability Period means:
(a)
where the Principal's Representative has, during Stage One, specified a period for specific
components of the Works, the period so specified; or
(b)
otherwise, the period specified in the Annexure.
Defects Liability Work means the work required by clause 51.
Delay Event means:
(a)
a Latent Condition to which clause 22.4 applies;
(b)
a change to a Statutory Requirement to which clause 24.2 applies;
(c)
the Excepted Risks in clause 28.3(a), (c) and (d);
(d)
statewide or nationwide industrial action which prevents any Construction Work for a
period (per event) of not less than one Working Day;
(e)
in respect of the Date for GCS Offer only, any other event beyond the reasonable control
of the Managing Contractor, having exercised the degree of skill, care and diligence
reasonably to be expected of a Relevant Managing Contractor; and
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(f)
fire, flood (which might, at the date of this Contract, be expected to occur less frequently
than once in every 100 years) natural disaster, or storm (being a category 10 storm on the
Beaufort Wind Scale published on the Australian Bureau of Meteorology website),
in each case except to the extent caused by an act or omission of the Managing Contractor.
Department of Health Guidelines means the design guidelines for hospitals and day procedure
centres, as published at http://www.healthdesign.com.au/vic.dghdp/guidelines.htm.
Design/Buildability Advisor Fee means the lump sum amount, exclusive of GST, contained in
Schedule 1 as the fee for all costs of any nature related to the Managing Contractor's obligations
under the Contract during Stage One, as adjusted in accordance with the provisions of the
Contract expressly allowing for an adjustment to the Design/Buildability Advisor Fee, and does
not include a cost or expense included in the Actual Construction Sum, Preliminaries, ICT
Management Fee or Off Site Overheads and Profit Fee.
Design Documents means the documents prepared or required to be prepared in the performance
of the Design Work but excluding Design Documents (MC).
Design Documents (MC) means the documents prepared or required to be prepared by the
Managing Contractor in the execution of the work under the Contract or by a Subcontractor in the
performance of a Nominated D&C Package.
Design Milestones means the stages of the Design Work described in the Consultancy
Agreements.
Design Milestones Dates means the timing requirements for completion of the Design Milestones
set out in the Consultancy Agreements.
Design Work means all work undertaken or required to be undertaken or managed by the
Managing Contractor to assist the Consultants to achieve the Developed Design.
Developed Design means the stage when, in the opinion of the Principal's Representative, the
scope, functionality and quality standards of the Works are specified with sufficient particularity
(including the room data sheets and layout sheets) to enable a Relevant Managing Contractor to
undertake and complete the Documentation Work and lawfully commence and complete the
Construction Work by the Date for Practical Completion. For the avoidance of doubt the
Developed Design will include all design work up to the submission of the Managing Contractor's
GCS Offer in accordance with clause 11.2.
Documentation Work means all work required to be undertaken or managed by the Managing
Contractor to achieve the Subcontract Construction Documentation.
Early Works means (as applicable) a Nominated D&C Package, Documentation Work or
Construction Work the subject of a direction by the Principal's Representative pursuant to clause
17, including the Initial Early Works set described as early works in Part C of the Tender
Documents.
Early Works Subcontracts means the Subcontracts entered into by the Managing Contractor for
Early Works.
EDMS means Aconex, being an electronic document management system for the Project.
Enabling Works means the council stormwater works and construction of the northern multi
deck car park completed on or nearby the Site prior to the date of Site Access being granted.
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Environment means all:
(a)
physical factors including the land (and subsurface), weather, waters, atmosphere, climate
(including wind), sounds, odours and tastes;
(b)
biological factors or animals and plants;
(c)
social factors of aesthetics; and
(d)
properties and occupants of those properties,
at, around, nearby or affecting the Site.
Environmental Law means any law regulating or relating to the Environment.
Excluded Costs means any of the following amounts paid or payable by the Managing Contractor
or incurred by the Managing Contractor:
(a)
amounts in respect of which the Design/Buildability Advisor Fee or ICT Management Fee
are paid;
(b)
amounts in respect of which the Preliminaries, Off Site Overheads and Profit Fee or On
Site Overheads are paid;
(c)
liquidated damages;
(d)
amounts which are recovered or but for the Managing Contractor's failure to comply with
the relevant insurance policy would have been reimbursed under insurance policies;
(e)
amounts which are in respect of remedial work, or repairing damage, to the Works;
(f)
amounts which are, pursuant to an express provision of the Contract, to be borne or paid
by the Managing Contractor or are due by the Managing Contractor to the Principal
(including under an indemnity);
(g)
costs not actually and properly and reasonably incurred or which the Managing Contractor
cannot substantiate on an Open Book Basis;
(h)
amounts not incurred on an arm's length basis;
(i)
any costs attributable to a termination of a Nominated Consultant or a Subcontract and the
engagement of another Subcontractor or Consultant;
(j)
payments to Subcontractors or Nominated Consultants in relation to work or costs for
which the Managing Contractor is not entitled to receive payment from the Principal
under this Contract including any amounts for the carrying out of any variations which are
not referrable to the works the subject of a Variation directed to be performed in
accordance this Contract;
(k)
amounts incurred due to the Managing Contractor's unlawful or negligent acts or
omissions, breach or default;
(l)
any amount payable by the Managing Contractor under clause 62; and
(m)
any DIC insurance effected by the Managing Contractor in relation to the Project.
Existing Facility means the Monash Medical Centre, Clayton, shown in grey on the plan in
Schedule 5.
Extra Land has the meaning given in clause 39.6.
FF&E means furniture, fittings and equipment.
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FF&E Works means the purchase, supply and installation of all FF&E required for the Project as
further described in Annexure J to Part C of the Tender Documents, except for:
(a)
the purchase and supply of Group 2b FF&E;
(b)
the purchase, supply and installation of Group 3 FF&E; and
(c)
any other works expressly excluded by the terms of the Contract.
Final Certificate means a certificate issued by the Principal's Representative to the Principal and
to the Managing Contractor pursuant to clause 57.12.
Final Payment Claim means the final payment claim referred to in clause 57.11.
Formal Instrument of Agreement means the formal instrument of agreement to which the
Conditions of Contract are attached.
GCS Offer means the Guaranteed Construction Sum offer to be submitted by the Managing
Contractor, by the Date for GCS Offer, in accordance with the requirements set out in
Schedule 15.
GCS Offer Project Brief means the revised Project Brief that is compliant with the requirements
of this Contract to be submitted as part of the GCS Offer and, where the GCS Offer or Alternative
GCS Offer is accepted and Stage Two proceeds, means the GCS Offer Project Brief that is
accepted by the Principal.
Government Entity means:
(a)
department or part of a department of the State of Victoria;
(b)
an executive agency, statutory agency or public service office;
(c)
an authority, commission, corporation, instrumentality, office, or other entity, established
under an Act or under State authorisation for a public or State purpose;
(d)
another entity, or part of another entity, declared under a regulation to be a government
entity; or
(e)
an organisation that:
(i)
is not an entity, and
(ii)
is either established by the State (whether under a law or not) to carry on an
enterprise or established for a public purpose by an Australian law, and
(iii)
can be separately identified by reference to the nature of the activities carried on
through the organisation or the location of the organisation,
and for the avoidance of doubt, includes Monash Health.
Group 2 FF&E means the indicative list of group 2 FF&E described as such in the Project Brief.
Group 2b FF&E means the indicative list of group 2b FF&E described as such in the Project
Brief.
Group 3 FF&E means the indicative list of group 3 FF&E described as such in the Project Brief.
GST has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Guaranteed Construction Sum means the sum, exclusive of GST, contained in the Managing
Contractor's GCS Offer and accepted in writing by the Principal as the maximum price that may
be payable by the Principal to the Managing Contractor for all work under the Contract, including
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Construction Work, Preliminaries, Design/Buildability Advisor Fee, ICT Management Fee and
Off Site Overheads and Profit Fee, Included Matters and Refurbishment Works adjusted in
accordance with the provisions of the Contract expressly allowing for an adjustment to the
Guaranteed Construction Sum.
Guarantor means Lend Lease Construction Australia Holdings Pty Limited (ABN 50 147 880
966) Level 4, The Bond, 30 Hickson Road Millers Point NSW 2000 or such alternative guarantor
as may be agreed to by the Principal.
Hospital Functions means all clinical, medical imaging, research, education, clinical support,
non-clinical support maintenance and administration functions undertaken at, or in the immediate
vicinity of, the Existing Facility or which are incidental to such functions or activities, or which
are incidental to the care, treatment and rehabilitation of patients, accommodation of patients and
visitors.
Hospital Users means:
(a)
any patient being treated at the Existing Facility or visitors to the Existing Facility;
(b)
Monash Health, and its employees, volunteers and students;
(c)
members of professional groups, medical practitioners and researchers having business at
the Existing Facility; and
(d)
any person who has dealings with Monash Health in relation to the Existing Facility.
ICT Management Fee means the lump sum amount, exclusive of GST, contained in Schedule 1
as the fee for all costs of any nature related to the Managing Contractor's obligations under the
Contract in relation to the ICT Works, as adjusted in accordance with the provisions of the
Contract expressly allowing for an adjustment to the ICT Management Fee, and does not include
a cost or expense included in the Actual Construction Sum, Preliminaries, Design/Buildability Fee
or Off Site Overheads and Profit Fee.
ICT Works means the design, procurement, supply, delivery, installation, configuration,
integration with or transition of existing systems where required, testing, commissioning,
labelling, recording, documentation, training, support, maintenance, warranty and any other
services necessary to ready the information and communication technology systems solution for
operations, as further described in Annexure K to Part C of the Tender Documents.
Included Matter means any work or activity necessary or incidental to the performance of the
Works, to comply with the Contract, correct a Defect or address a Buildability Issue.
Initial Early Works means those works described as early works in Schedule 1 and Part C of the
Tender Documents.
IPA Code of Practice means a code of practice as defined in, and approved under, the
Information Privacy Act 2000.
Key Personnel means the people listed in 0.
Latent Condition means any of the conditions referred to in clause 22.1.
Lead Consultant means Silver Thomas Hanley (Aus) Pty Ltd.
Liquidated Damages Cap means the amount of $30,000,000.
Managing Contractor means the party bound to execute the work under the Contract and
includes that party's heirs, executors and permitted assigns and in the case of a body corporate its
successors and permitted assigns.
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Managing Contractor's Representative means a person appointed in writing by the Managing
Contractor under clause 37.2.
Managing Contractor's Tender means the tender submitted by the Managing Contractor.
Milestone means any milestone for the work under the Contract, including the Date for GCS
Offer and the Date for Practical Completion.
Milestone Date means the date specified in the Annexure of the Contract by which the Managing
Contractor must achieve a Milestone, but if any extension of time for this Milestone is granted by
the Principal's Representative it means the resulting date.
Ministerial Direction means all Ministerial Directions issued under section 30 of the Project
Development and Construction Management Act 1994.
Modified GCS Offer has the meaning given in clause 11.3(c).
Monash Health means the public health service established under the Health Services Act 1988
(Vic).
Moral Rights are the moral rights granted to creators under the Copyright Act 1968 (Cth) and any
similar rights existing under foreign laws.
Nominated Consultants means the following Consultants:
(a)
Lead Consultant; and
(b)
Building Services Engineers.
Nominated Consultant's Fee means:
NCF = CF - AP where:
NCF is the Nominated Consultant's Fee;
CF is the fee expressed to be payable to a Nominated Consultant under its Consultancy
Agreement with the Principal; and
AP is the amount paid or otherwise due to the Nominated Consultant by the Principal as at the
date of the GCS Offer.
Nominated D&C Package means the work required to complete the existing partial design and
then construct a part of the Works as directed by the Principal's Representative under clause 17.1
to a standard consistent with the Project Brief and the then current Design Documents.
Nomination Date means the date of the agreement between the Managing Contractor and the
Nominated Consultants to perform the balance of the Subcontract Construction Documentation
executed in accordance with clause 18.1A, which must not be before the commencement of Stage
Two.
notice has the meaning given to it by clause 10.
Notice of Claim means a notice given under clause 61.3.
Notice of Intention to Claim means a notice given under clause 61.1.
OHS means occupational health and safety.
OHS Law means all applicable OHS, environment protection, dangerous goods and electricity
safety legislation and regulations made thereunder together with any directions on safety or
notices issued by any relevant authority or any code of practice or compliance code which may be
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relevant to the Works, and includes the Occupational Health and Safety Act 2004 (Vic) and the
Occupational Health and Safety Regulations 2007 (Vic).
Off Site Overheads and Profit Fee means:
(a)
for Stage One, the fixed lump sum amount, exclusive of GST, set out in Schedule 1; and
(b)
for Stage Two, and in relation to any Early Works directed by the Principal's
Representative pursuant to clause 17, the fixed lump sum amount, exclusive of GST set
out in Schedule 1,
as the Managing Contractor's fee for all costs associated with off site overheads and the Managing
Contractor's profit margin.
On Site Overheads means work, resources, personnel and items required for the construction of
the Works, including the items listed in Schedule 1, but excluding any items or work the subject
of the Design/Buildability Advisor Fee, ICT Management Fee, Nominated Consultant's Fee and
Off Site Overheads and Profit Fee. For clarification, the following items are On Site Overheads:
(a)
cranage, hoisting and scaffolding;
(b)
waste removal;
(c)
temporary roads and access, temporary fencing, site reinstatement and temporary services
such as temporary power, sewerage, water and stormwater,
however items (a) to (c) above are to be included in the Guaranteed Construction Sum.
Open Book Basis means the provision of pricing, costing and other information on an open book
basis to enable an assessment of actual costs and profit margins, including a breakdown of all
relevant:
(a)
preliminaries;
(b)
insurances;
(c)
labour;
(d)
equipment;
(e)
materials;
(f)
Subcontract costs;
(g)
overheads and margins; and
(h)
discount rates used to calculate net present values,
in a clear, transparent and fully auditable manner.
Payment Deferral Event means any of the following failures by the Managing Contractor:
(i)
failure to provide Security or any increase to the security or retention in accordance with
clause 9:
(j)
failure to provide a Deed of Guarantee and Indemnity in accordance with clause 9.13;
(k)
failing to comply with clause 11.1(a);
(l)
failure to enter into agreements with the Nominated Consultants in accordance with clause
18.1A(c);
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(m)
failure to provide the evidence of compliance with occupational health and safety required
by clause 24.5B, or execute the documents required to perfect the Managing Contractor's
appointment as the principal contractor in accordance with clause 24.5C(a);
(n)
failure to provide evidence of the insurances in accordance with clause 34.1(a); and
(o)
failure to deliver a statutory declaration in accordance with clause 58.2.
Permitted Change in Control means a Change in Control which occurs due to:
(a)
a corporate restructure or reorganisation whereby the Managing Contractor continues to
be a subsidiary (within the meaning given by Division 6 of Part 1.2 of the Corporations
Act 2001 (Cth)) of Lend Lease Construction Australia Holdings Pty Limited (ABN 50 147
880 966); or
(b)
the acquisition of a relevant interest (as defined in section 608 of the Corporations Act) in
Lend Lease Corporation (ABN 32 000 226228) securities on a stock exchange.
person includes an individual and a corporation.
Personal Property Securities Register means the register maintained pursuant to the PPS Act.
PPS Act means Personal Properties Securities Act 2009 (Cth), and any amendment made at any
time to the Corporations Act or any other legislation as a consequence of such legislation.
Practical Completion is that stage in the execution of the work under the Contract when:
(a)
the Works (including each discrete component of them) are complete except for minor
omissions and minor defects:
(i)
which do not prevent the Works (including any discrete component of them) from
being reasonably capable of being used for its or their intended purpose;
(ii)
which the Principal's Representative determines the Managing Contractor has
reasonable grounds for not promptly rectifying; and
(iii)
rectification of which will not prejudice the convenient use of the Works
(including any discrete component of them) for its or their intended purpose;
(b)
those tests which are required by the Contract to be carried out and passed or satisfied or
which a Relevant Managing Contractor could reasonably be expected to have carried out
or satisfied before the Works can be regarded as having reached the stage of Practical
Completion, have been carried out and passed or satisfied;
(c)
all specific requirements for Practical Completion set out in the Project Brief or the GCS
Offer Project Brief, have been fully satisfied;
(d)
documents and other information required under the Contract which, in the reasonable
opinion of the Principal's Representative, are essential for the use, operation and
maintenance of the Works have been supplied to the Principal's Representative. As a
minimum, the Managing Contractor shall provide:
(i)
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one (1) hard and one (1) electronic copy of shop drawings and as built drawings in
the format required by the Contract showing for each relevant design discipline,
the Works as constructed, the location of all services infrastructure within the
limits of the Works, and variations to design layouts, levels, coordinates, contours
or sections;
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December 2013
(ii)
one original and one electronic copy of the final Asset Management and
Maintenance Database and all final operating and maintenance manuals for all
plant and equipment forming part of the Works; and
(iii)
all original warranties required by the Contract or otherwise obtained by the
Managing Contractor;
(e)
an occupancy permit for the Works has been issued under the Building Act (with no
conditions which, in the Principal's Representative's reasonable opinion, prevent the
Works (including any discrete component of them) from being reasonably capable of
being used for its or their intended purpose) and all other necessary Approvals have been
provided to the Principal's Representative;
(f)
the Managing Contractor has provided to the Principal's Representative all keys, properly
labelled, for the Works;
(g)
all debris, rubbish, building materials, construction plant and equipment has been removed
from the Site, and the Site and the Works have been professionally cleaned not earlier than
ten (10) business days prior to Practical Completion;
(h)
the Managing Contractor has demonstrated to the satisfaction of the Principal's
Representative (including by testing required by the Principal's Representative) that:
(i)
all new services and installations, or services which existed prior to the
commencement of the Works and which the Managing Contractor has performed
work on or which have been damaged by the Works, perform as required by the
Contract under the maximum operating conditions (including emergency operating
conditions) for the Works provided for in the Contract or, if none are expressed,
which could reasonably have been anticipated by a Relevant Managing
Contractor; and
(ii)
all existing services and installations which interface with or interact with the
Works but in respect of which the Managing Contractor has not (and ought
reasonably have not) performed work, perform to no worse condition (fair wear
and tear excluded) than they did prior to performance of the Works;
(i)
all Approvals in relation to access to or remediation of the Site have been obtained to the
satisfaction of the applicable Authority;
(j)
the Managing Contractor has provided to the Principal's Representative a certificate from
a licensed surveyor certifying that the Works are located within the boundaries (including
vertical boundaries) of the Site in the place and position required by the terms of the
Contract;
(k)
an independent consultant has provided a certificate that the fire services function under
normal and simulated emergency operating conditions in accordance with Department of
Health Guidelines;
(l)
the Managing Contractor has provided the Principal with a certificate from the Lead
Consultant and the Building Services Engineer that the Construction Work has been
completed in accordance with the Developed Design and the GCS Offer Project Brief; and
(m)
any other conditions which the Contract expressly requires to be satisfied prior to Practical
Completion have been satisfied.
Preliminaries means the lump sum amounts, exclusive of GST, set out in Schedule 1 as the
Managing Contractor's fee for all costs associated with the On Site Overheads as adjusted in
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accordance with the provisions of the Contract expressly allowing for an adjustment to the
Preliminaries.
Principal means the person stated in the Annexure as the Principal.
Principal Contractor means 'principal contractor' within the meaning of the Occupational Health
and Safety Law.
Principal Controlled Insurance Policy means the insurance taken out by the Crown in right of
the State of Victoria for and on behalf of, the Department of Health (amongst others) to cover
certain risks, substantially in accordance with the terms set out in Schedule 20.
Principal's Public Disclosure Obligations has the meaning given in clause 66.2.
Principal's Representative means the person stated in the Annexure as the Principal's
Representative or other person from time to time appointed in writing by the Principal to be the
Principal's Representative and notified as such in writing to the Managing Contractor by the
Principal and, so far as concerns the functions exercisable by a Site Representative, includes a Site
Representative.
Principal Supplied Information means any information or documents (including site
information) supplied by or on behalf of the Principal to or for the benefit of the Managing
Contractor other than the documents forming part of the Contract.
Probity Event means an event, matter or thing which:
(a)
has a material adverse effect upon the character, honesty and integrity of a person
associated with the management of the Managing Contractor;
(b)
relates to the Managing Contractor or its management and has a material adverse effect
upon the public interest (having regard to the policy objectives of the Principal, Monash
Health and the State of Victoria) and public confidence in the Existing Facility or the
Project; or
(c)
in relation to the Managing Contractor, involves a material failure to achieve or maintain:
(i)
reasonable standards of ethical behaviour;
(ii)
the avoidance of conflicts of interest which will have a material adverse effect on
the ability of the Managing Contractor to perform and observe its obligations in
respect of the Project; and
(iii)
standards of behaviour of a person or entity engaged in a State project.
Probity Investigation means such probity and criminal investigations to report on the character,
honesty and integrity of persons as are required by Statutory Requirements or by the Principal or
Monash Health to ensure that a person or entity is fit and proper for its proposal or continued
involvement in the Project.
Procurement Plan has the meaning given to it in Schedule 16.
Program means a program for the purposes of clause 45.1.
Project has the meaning given in Recital A.
Project Methodology Plan means the plan of such name included in Schedule 21 as updated in
accordance with this Agreement.
Project Brief means the documents provided by the Principal in the Tender Documents
comprising the initial design undertaken by the Principal and the Consultants including pre-design
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and project definition plans necessary for Design Work, and all other such documentation,
technical schedules, drawings, diagrams, maps and plans.
Project Operations Group and POG has the meaning given to it in clause 13.
Project Plans means:
(a)
the site management plan;
(b)
the construction environment management plan;
(c)
the inspection and test plan;
(d)
the interface management plan;
(e)
traffic management plan;
(f)
the project OH&S management plan;
(g)
the site-specific safety management plan;
(h)
the procurement plan;
(i)
the project design plan;
(j)
the documentation plan;
(k)
the commissioning plan;
(l)
the Project Methodology Plan;
(m)
the quality plan; and
(n)
the risk assessment plan,
each as bid by the Managing Contractor in satisfaction of the requirements set out in the Tender
Documents and Schedule 16 or as otherwise required by the terms of this Contract and, as further
updated by the Managing Contractor during the course of the Works in accordance with this
Contract.
Proposed Subcontract Construction Documentation has the meaning given in clause 21.2(c).
Prototype means the protoypes of various components or areas of the Works required by the
Project Brief.
Provisional Delay Allowance means the allowance provided for in clause 50.
Provisional Sum has the meaning given to it in clause 57.8 and includes a prime cost sum, a
monetary sum and a contingency sum.
Purchasing Policy means the policies of the Victorian Government procurement board, a copy of
which can be accessed at www.procurement.vic.gov.au.
Quality includes whole of life performance, specification, capacity, durability, maintainability,
aesthetics of visible features, user benefits, safety, design life, finish, scope, functionality and
fitness for purpose.
Refurbishment Works means the work to be executed in accordance with Contract to re-develop
certain discrete aspects of the Existing Facility as more fully described in Schedule 18.
Relevant Managing Contractor means an experienced and professional Managing Contractor of
high skill and quality undertaking work of the same or substantially similar scope, complexity and
standard as the Works.
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Security of Payment Act means the Building and Construction Industry Security of a Payment
Act 2002 (Vic).
Site means the land or places to be made available to the Managing Contractor and any other land
or places made available by the Principal for the purpose of the Contract.
Site Access Protocol means the procedures and restrictions for access to the Site, as set out in
Schedule 16.
Site Licence means a construction site licence in the form set out in Schedule 19.
Site Representative means a person appointed in writing by the Principal's Representative under
clause 36.
Stage One means the stage during which the Managing Contractor produces a GCS Offer
pursuant to clause 11 and Schedule 15, and during which the Managing Contractor may undertake
Design Work, Documentation Work, tendering of packages of Work using the Subcontractor
Construction Documentation and Early Works in accordance with the Contract, including the
activities specified in Schedule 16.
Stage Two means, if a notice is given under clauses 11.3(a)(i) or 11.3(a)(ii), the stage
commencing on the date notice is given under clause 11.2(e), during which Construction Work
and all remaining Design Work, Documentation Work and any other work under the Contract not
completed during Stage One is performed by the Managing Contractor.
Statutory Requirements includes:
(a)
Acts of the Commonwealth;
(b)
Acts of the State or Territory in which the work under the Contract or any part thereof is
carried out;
(c)
ordinances, regulations, by-laws, orders and proclamations under the Acts referred to in
paragraphs (a) and (b) above; and
(d)
directions affecting the work under the Contract given by persons acting in the exercise of
statutory powers enabling them to give such directions.
Subcontract means a subcontract under clause 21.2.
Subcontract Construction Documentation means the detailed documentation prepared or
required to be prepared or verified by the Managing Contractor to enable the Managing
Contractor to call tenders and enter into Subcontracts with proposed Subcontractors to construct
and complete the Works including preparing the Design Documents (MC).
Subcontractor means a person engaged by the Managing Contractor to perform any part of the
Construction Work.
Subcontractors' Charge means a charge, lien or Claim by a Subcontractor on moneys payable
by the Principal to the Managing Contractor under the Contract arising by operation of the
Security of Payment Act.
Survey Mark means a survey peg, bench mark, reference mark, signal, alignment, level mark or
any other mark for the purpose of setting out, checking or measuring work under the Contract.
Tax means any income, land, indirect and other taxes, levies, imposts, deductions, charges, duties,
compulsory loans and withholdings, including financial institutions duty, debits tax or other taxes
whether incurred by, payable by return or passed on to another person and includes any interest,
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penalties, charges, fees, fines or other amounts imposed in respect of any of the above, but does
not include GST or stamp duty.
Temporary Works means works used in the execution of the work under the Contract but not
forming part of the Works.
Tender Documents means:
(a)
Part A - General Information;
(b)
Part B - the Conditions of Tender;
(c)
Part C - Tender Specification including Duties of the Managing Contractor
(d)
Part D - the Conditions of Contract;
(e)
Part E - Tender Schedule; and
(f)
any other document provided to the Managing Contractor by or on behalf of the Principal
for the purpose of tendering, including the Tender Addenda.
Total Construction Cost means the Principal's construction cost budget of $179,000,000
included in the Project Brief as updated from time to time.
Value for Money means an approach that balances quality levels, performance standards, risk,
price and whole of life costs, having regard to the requirements of the Contract.
Variation means any of the matters specified in clauses 19.1(a) or 53.1, which the Principal's
Representative may direct the Managing Contractor to do pursuant to clauses 19 or 53 but
excludes an Included Matter.
Victorian Code of Practice means the Victorian Code of Practice for the Building and
Construction Industry.
VIPP means the Victorian Industry Participation Policy issued by the Victorian government, as
amended from time to time.
VIPP Plan means the plan submitted by the Managing Contractor to the Principal in connection
with the tender evaluation process conducted prior to the entry into the Contract.
VIPP Statement and Implementation Plan means the VIPP statement and implementation plan
which appears in Schedule 17.
work under the Contract means all work which the Managing Contractor is or may be required
to undertake or manage under the Contract.
Wilful Misconduct means any intentional act or omission of any person done or omitted to be
done after having had regard to, or with conscious or reckless indifference to, the foreseeable
harmful consequences arising from the act or omission, excluding acts or omissions done in good
faith.
Working Day and Working Hours shall have the meaning given to them by clause 44.
Works means the whole of the work to be executed in accordance with the Contract, including
FF&E Works, ICT Works, Refurbishment Works, Included Matters, and Variations provided for
by the Contract, which by the Contract is to be handed over to the Principal or a nominee of the
Principal.
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2.2
General
(a)
In addition to these definitions, some terms, specific to a clause, are defined in that clause.
(b)
The clause headings in the Contract shall not form part of the Contract and shall not be
used in the interpretation of the Contract.
(c)
Words in the singular include the plural and words in the plural include the singular,
according to the requirements of the context. Words importing a gender include every
gender.
(d)
A reference to a Statutory Requirement or any section or provision of a Statutory
Requirement includes all modification, re-enactment or substitution of such Statutory
Requirement;
(e)
If any part of this Contract is or becomes illegal, invalid or unenforceable, the legality,
validity or enforceability of the remainder of the Contract will not be affected and the
Contract will read as if the part had been deleted.
(f)
Except where the context otherwise requires, references to the Annexure shall be read as
reference to the Annexure to these Conditions of Contract and references to Schedules
shall be read as a reference to the Schedules to the Conditions of Contract.
(g)
When the Principal 'may' exercise a right or remedy, the Principal has an absolute
discretion whether or not to do so, and is not required to exercise the discretion in good
faith or having regard to, or for the benefit of, the Managing Contractor.
(h)
Where under the Contract the Managing Contractor is entitled to have valued extra costs
incurred (for example, clause 24.2) the Managing Contractor is only entitled to the
auditable direct costs reasonably and necessarily incurred and is not entitled to any double
recovery for the same amount.
(i)
Unless stated otherwise, the word 'loss' means all loss, cost or damage of any nature
whatsoever and however arising, and the word 'liability' means all liability of any nature
whatsoever (including negligence) and however arising.
(j)
All obligations to indemnify under this Contract are independent and survive termination
of the Contract, and crystallise immediately on the occurrence of the event the subject of
the indemnity, whether or not the Principal has yet incurred any loss or liability.
(k)
The rights and remedies conferred on the Principal under the Contract are in addition to
and not in substitution or limitation of its rights and remedies elsewhere under the
Contract or otherwise at law.
(l)
Where, in this Contract, it is stated that the Managing Contractor does not have any Claim
against the Principal or words to this effect, then the Managing Contractor releases
absolutely the Principal from any Claim whatsoever and however arising (including in
negligence) which the Managing Contractor had or, but for this Contract, might have had
in connection with the subject matter for which the Contract states that the Managing
Contractor has no Claim.
(m)
The Managing Contractor is not entitled to be paid or reimbursed for payments which the
Managing Contractor may be obliged to make on behalf of its employees in respect of any
superannuation fund, scheme or arrangement for the benefit of workers or any other
similar employee fund which is in existence at the effective date or which comes into
existence after the effective date.
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(n)
Nothing in, or contemplated by, this Contract will be construed or interpreted as:
(i)
constituting a relationship between the Principal, Department of Health, Monash
Health, or any other associate and the Managing Contractor and any of its related
companies, of partners, joint venturers, fiduciaries, employer and employee or
principal and agent;
(ii)
imposing any general duty of good faith on the Principal to the Managing
Contractor in relation to or arising out of the Project, other than to comply with the
obligations (if any) expressly stated to be assumed by the Principal under the
Contract on a good faith basis; or
(iii)
unlawfully restricting or otherwise unlawfully affecting the unfettered discretion
of the Principal, the Department of Health, Monash Health and the State of
Victoria to exercise any of its executive or statutory powers or functions under any
law.
(o)
The expressions 'includes', 'including' and 'include' have the same meaning as if followed
by 'without limitation';
(p)
References to the Managing Contractor are to include its officers, employees, agents and
contractors (including Subcontractors).
(q)
References to a 'related party' or 'related parties' has the same meaning as given to that
term in the Corporation Act.
(r)
References to a 'claim' include any suit, action, demand, proceeding, penalty, cost, charge
or expense.
(s)
References to Standards Australia standards, international standards or similar is to the
edition of the standard last published prior to the performance of the last component of the
work applicable to the standard.
(t)
All pricing information required or costs claimed by the Managing Contractor in relation
to this Contract must be provided on an Open Book Basis.
(u)
Neither the Principal's, nor the Principal's Representative's review of, comments upon,
rejection of, failure to review or comment upon or reject, acknowledgement of, approval
of, any designs, drawings, documents, information, samples or Prototypes prepared by the
Managing Contractor or any other direction by the Principal or Principal's Representative
regarding such will:
(v)
(i)
impose any obligation or duty upon the Principal or Principal's Representative;
(ii)
give rise to any Claim against the Principal or Principal's Representative including
for an increase in the Guaranteed Construction Sum, payment of money (including
damages) or an extension of time or relieve the Managing Contractor from, or alter
or affect, the Managing Contractor's liabilities or responsibilities whether under
the Contract or otherwise according to law; or
(iii)
prejudice the Principal’s rights against the Managing Contractor whether under the
Contract or otherwise according to law;
(iv)
relieve the Managing Contractor from responsibility to carry out the work under
the Contract in accordance with the Contract.
All pricing information required or costs claimed by the Managing Contractor in relation
to this Contract must be provided on an Open Book Basis.
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3.
Nature and scope of Contract
(a)
(b)
The Principal engages the Managing Contractor to execute and complete the work
required during Stage One. The Managing Contractor acknowledges that Stage One may
comprise some or all of the following activities:
(i)
management of the Design Work performed by the Consultants in the production
of the Design Documents to produce the Developed Design;
(ii)
production by the Managing Contractor of Design Documents (MC) for discrete
packages of Works agreed with the Principal;
(iii)
performance of Early Works by the Managing Contractor, in the form of discrete
Design Work as contemplated in paragraph 3(a)(ii), or Construction Work for
discrete packages of the Works agreed with the Principal;
(iv)
performance of Documentation Work and the production or verification of
Subcontract Construction Documentation for the Early Works for discrete
packages of the Works agreed with the Principal;
(v)
submission of a GCS Offer and (if applicable) an Alternative GCS Offer by the
Date for GCS Offer; and
(vi)
such other incidental activities as the Principal's Representative may reasonably
require.
If the Principal accepts the Managing Contractor's GCS Offer or Alternative GCS Offer
pursuant to clause 11.3(a)(i) or negotiates an acceptable GCS Offer pursuant to clause
11.3(a)(ii) of this Contract, the Principal shall engage the Managing Contractor to execute
and complete the work required during Stage Two. The Managing Contractor
acknowledges that Stage Two may comprise some or all of the following activities:
(i)
completion of any Design Work required to be undertaken or managed (as
applicable) by the Managing Contractor;
(ii)
completion of Documentation Work and the production and verification of
Subcontract Construction Documentation for the balance of the Works; and
(iii)
performance of the Construction Work, including the Refurbishment Works,
FF&E Works and ICT Works.
(c)
For the avoidance of doubt and notwithstanding any other provision of this Contract, there
shall be no contract in existence between the parties in respect of Stage Two unless and
until the Principal accepts the Managing Contractor's GCS Offer or Alternative GCS Offer
pursuant to clause 11.3 or negotiates an acceptable GCS Offer pursuant to clause
11.3(a)(ii) of the Contract.
(d)
The Managing Contractor shall execute and complete the work under the Contract.
(e)
Without limiting the generality of the Managing Contractor's responsibilities, the
Managing Contractor shall:
(i)
ensure that the work under the Contract progresses to completion in accordance
with the Contract; and
(ii)
be responsible for, and shall control, coordinate, administer and direct, all
activities for the planning and implementation of the work under the Contract with
proper skill, care and diligence.
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(f)
Subject to the provisions of this Contract, the Principal shall pay the Managing
Contractor:
(i)
the Design/Buildability Advisor Fee;
(ii)
the Preliminaries;
(iii)
the ICT Management Fee;
(iv)
the Off Site Overheads and Profit Fee; and
(v)
the Actual Construction Sum,
to the limit of the Guaranteed Construction Sum, as adjusted by all additions and
deductions made pursuant to the provisions of the Contract, plus:
(g)
4.
(vi)
the Nominated Consultant's Fee; and
(vii)
any delay damages payable pursuant to clause 50.
The parties agree that:
(i)
the primary responsibility for the design development of the Works lies with the
Principal; and
(ii)
any obligations imposed on the Managing Contractor under this Contract
regarding the design of the Works are subject to the following:
(A)
except in respect of Nominated D&C Packages and Design Documents
(MC), the Managing Contractor is not responsible for the scope and
functionality of the Developed Design;
(B)
the Managing Contractor is responsible for Buildability Input and for the
management of design coordination and interfaces as between each
Consultant and as between each Consultant and each Subcontractor;
(C)
the Managing Contractor is fully responsible for the management of the
Consultants so that they efficiently and effectively perform their design
services in Stages One and Two in accordance with their Consultancy
Agreements;
(D)
the Managing Contractor is fully responsible for the Nominated D&C
Packages, Design Documents (MC), Documentation Works and subject
only to sub-paragraph 3(g)(ii)(A), warrants the suitability and
completeness of the Subcontract Construction Documentation and for
ensuring that it is consistent with the Developed Design; and
(E)
the Managing Contractor is fully responsible for coordinating and
managing the interface between the design of the Works and the
construction of the Works.
Evidence of Contract
If any party to the Contract consists of one or more persons and/or one or more corporations the
Contract shall bind such person or persons and/or such corporation or corporations (as the case
may be) and their respective executors, administrators, successors (in the case of the Managing
Contractor) and permitted assigns (in the case of the Principal) jointly and severally and the
person or persons and/or corporation or corporations included in the term 'Managing Contractor'
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or the term 'the Principal' in the Contract shall jointly be entitled to the benefit of the Contract and
the Contract shall be read and construed accordingly.
5.
Contract documents
5.1
Discrepancies
(a)
The several documents forming the Contract are to be taken as mutually explanatory of
one another.
(b)
If there is any ambiguity, discrepancy or inconsistency in or between the documents
comprising the Contract, the higher or more onerous standard or quality shall apply and
figures shall prevail over scaled dimensions in a discrepancy. Otherwise, if either party
discovers any ambiguity, discrepancy or inconsistency, in any document prepared for the
purpose of carrying out works under the Contract, that party shall give the Principal's
Representative written notice of it. The Principal's Representative, thereupon, and upon
otherwise becoming aware, shall direct the Managing Contractor as to the interpretation
and construction to be followed and the Managing Contractor shall bear the cost of
compliance with a direction under this subclause.
(c)
Not used.
(d)
The Managing Contractor must ensure that the Subcontract Construction Documentation
complies in all respects with the Developed Design as varied from time to time pursuant
to the terms of the Contract, provided that:
(e)
(i)
if there is an ambiguity, discrepancy or inconsistency between any standard
required by the Developed Design, then the standard to be achieved shall be the
higher or more onerous of the standards prescribed unless the Principal expressly
directs otherwise; and
(ii)
subject to clauses 3(g)(i) and 3(g)(ii)(A), if the Developed Design does not specify
the standard of workmanship, material, finish or any other aspect of the Works
then the standard of such workmanship, material, finish, or other aspect shall be fit
the purpose stated in or reasonably ascertainable from the GCS Offer Project
Brief.
The Managing Contractor must ensure that the Construction Work complies in all respects
with the Subcontract Construction Documentation as varied from time to time pursuant to
the terms of the Contract, provided that:
(i)
if there is an ambiguity, discrepancy or inconsistency between any standard
required by the Subcontract Construction Documentation, then the standard to be
achieved shall be prescribed in the Developed Design; and
(ii)
subject to clauses 3(g)(i) and 3(g)(ii)(A), if the Subcontract Construction
Documentation does not specify the standard of workmanship, material, finish or
any other aspect of the Works then the standard of such workmanship, material,
finish, or other aspect shall be fit for the purpose stated in or reasonably
ascertainable from the GCS Offer Project Brief.
(f)
No rule of construction shall apply to the disadvantage of one party on the basis that that
party put forward the documents comprising the Contract or any of them.
(g)
The party discovering an alleged ambiguity, discrepancy or inconsistency shall notify the
Principal's Representative in writing of the ambiguity, discrepancy or inconsistency, who
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shall then direct the Managing Contractor in writing as to the interpretation to be followed
by the Managing Contractor in carrying out the work.
(h)
Subject to paragraph (j), the Managing Contractor shall, at the Managing Contractor's own
cost and expense comply with any direction given to the Managing Contractor by the
Principal's Representative under this clause 5.1.
(i)
Subject to paragraph (j), the Managing Contractor acknowledges that it assumes the risk
of all delays and increased costs, losses and expenses caused or resulting from any such
ambiguity, discrepancy or inconsistency and that any direction given pursuant to this
clause 5.1 shall in no event, constitute an approved Variation and the Managing
Contractor shall not be entitled to:
(j)
5.2
(i)
make any Claim including for reimbursement or monetary compensation whether
for damages for breach of contract or otherwise in respect of the direction or any
such ambiguity, discrepancy and inconsistency; or
(ii)
adjustment to:
(A)
the Design/Buildability Advisor Fee;
(B)
the ICT Management Fee;
(C)
the Nominated Consultants' Fee;
(D)
the Preliminaries;
(E)
the Off Site Overheads and Profit Fee; or
(F)
the Guaranteed Construction Sum.
To the extent that any ambiguity, discrepancy or inconsistency to which this clause 5.1
applies is caused solely by an error in the Developed Design, the Managing Contractor
must, within two (2) business days of discovering the error, notify the Principal's
Representative that it considers this paragraph (j) applies. To the extent that the error is
not in relation to a Buildability Issue or could not have been avoided by a Relevant
Managing Contractor complying with all of its obligations under this Contract, and the
Managing Contractor incurs extra cost in complying with any direction given to the
Managing Contractor by the Principal's Representative under paragraph (h) in relation to
the error, a valuation shall be made by the Principal's Representative in accordance with
clause 53.4 (as if the valuation were a Variation).
Dimensions
Where any discrepancy exists between figured and scaled dimensions, the figured dimensions
shall prevail.
6.
Collusive arrangements
(a)
The Managing Contractor warrants and represents to the Principal that:
(i)
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it had no knowledge of the tender price of any other tenderer, nor did it
communicate with any other tenderer in relation to its tender price, or a price
above or below which a tenderer may tender (excluding any pricing advised by the
Principal), nor had it entered into any contract, arrangement or understanding with
another tenderer to the effect that the Managing Contractor or another tenderer
would tender a non-competitive price, for the work under the Contract, at the time
of submission of its tender;
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(ii)
it has not entered into any contract, arrangement or understanding to pay or allow
any money directly or indirectly to a trade, industry or other association (above the
published standard fee) relating in any way to its tender or this Contract, nor paid
or allowed any such money, nor will it pay or allow any such money;
(iii)
it has not paid or allowed any money or entered into any contract, arrangement or
understanding to pay or allow any money directly or indirectly to or on behalf of
any other tenderer for the work under the Contract, nor received any money or
allowance from or on behalf of any other tenderer relating in any way to its tender
or this Contract, nor will it pay or allow or receive any money as aforesaid.
(b)
In the event of the Managing Contractor paying or allowing any money in breach of this
clause 6, the Principal may deduct from payments to the Managing Contractor an
equivalent sum as an amount due from the Managing Contractor to the Principal, in
addition to any other claim, demand, action or proceeding the Principal may have against
the Managing Contractor (whether for damages or otherwise).
(c)
Without limitation, if the Managing Contractor commits a breach of this clause 6, the
Principal may terminate the Contract immediately and claim damages for breach of
contract.
7.
Commitment and good faith
7.1
Commitment
The parties are committed to working together in a cooperative and collaborative manner with a
view to:
7.2
(a)
encouraging cooperation and innovation;
(b)
establishing and maintaining an environment which encourages honest, open and timely
sharing of information;
(c)
sharing and transferring such behavioural aspects to all persons associated with the work
under the Contract to achieve a successful outcome in all respects; and
(d)
achieving Value for Money for the Principal.
Good faith
(a)
The Managing Contractor warrants that it shall perform all duties and act in good faith.
(b)
Acting in good faith means:
(i)
being honest and not seeking to double recover amounts under the Contract;
(ii)
doing all things reasonably expected by the Principal and by the Contract;
(iii)
not impeding or restricting the Principal's performance;
(iv)
promptly and fully responding to any questions which the Principal asks in
relation to the Project;
(v)
if it requires instructions from the Principal, requesting these promptly from the
Principal and making all necessary recommendations to the Principal to enable the
Principal to give an informed instruction;
(vi)
using best endeavours to maximise Value for Money for the Principal; and
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(vii)
7.3
8.
not recommending or implementing changes to the design or construction of the
Works (including the Developed Design) which are likely to reduce or adversely
affect Quality, other than under clause 53.3 or pursuant to a Variation ordered by
the Principal, or otherwise with the prior informed consent in writing of the
Principal.
Role of the Principal
(a)
Anything the Principal, Monash Health or any Authority does, fails to do or purports to do
pursuant to its executive or statutory functions and powers will be deemed not to be or
cause an act or omission by the Principal under the Contract and will not entitle the
Managing Contractor to make any Claim against the Principal under the Contract, subject
only to paragraph (b).
(b)
The Principal is not relieved from any Claim that the Managing Contractor may have
against the Principal if it exercises any of its executive or statutory functions or powers
under any Statutory Requirement in a manner contrary to an express obligation of the
Principal under the Contract and the existence of such obligations, and the existence and
amount of such Claim is to be assessed in accordance with the terms of the Contract
assuming paragraphs (a) and (c) do not apply.
(c)
Notwithstanding anything contained or implied in the Contract to the contrary, the parties
expressly acknowledge and agree that the Principal is not obliged in performing any of the
duties and obligations of the Principal to exercise a power, function or duty which is
granted to or within the responsibility of any other Authority, or to influence, over-ride or
direct any Authority in the proper exercise and performance of its legal duties and
functions.
(d)
If there is any statement in the Contract that the Principal will use 'reasonable endeavours'
or 'best endeavours' or act in 'good faith' in relation to an outcome then it means that the
Principal will take steps to bring about the relevant outcome so far as it is reasonably able
to do so having regard to its resources and other responsibilities but the Principal cannot
guarantee the relevant outcome, and the Principal, by undertaking to exercise reasonable
endeavours, does not agree to:
(i)
interfere with or influence the exercise of any statutory power or discretion by any
body, including Monash Health or any Authority;
(ii)
exercise a power or discretion in a manner that promotes the objectives and
expected outcomes of the Project if the Principal regards that exercise as not in the
public interest;
(iii)
develop or implement new policy in a manner that is only consistent with the
objectives and expected outcomes of the Project;
(iv)
procure legislation in the future in a manner that is only consistent with the
objectives and expected outcomes of the Project; or
(v)
act in any other way that the Principal regards as not in the public interest.
Quality assurance
(a)
The Managing Contractor shall establish, implement and maintain a quality plan to the
satisfaction of the Principal which shall comply with ISO 9001:2008.
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(b)
The Managing Contractor shall ensure that all provisions for quality assurance apply
equally to all Nominated Consultants and Subcontractors engaged by the Managing
Contractor.
(c)
Within fourteen (14) days after the date of executing the Contract, the Managing
Contractor shall submit to the Principal's Representative for approval the Managing
Contractor's quality plan including as minimum:
(i)
identification and definition of the key activities and deliverables from the
Managing Contractor's Tender;
(ii)
identification of how the Managing Contractor proposes to deliver the
activities/deliverables in clause 8(c)(i) including what internal controls,
methodology and procedures the Managing Contractor is to utilise to complete the
deliverables in clause 8(c)(i) and a sample of the Managing Contractor's
procedures;
(iii)
systems of cost control which requires the Principal to be notified when:
(A)
actual tender subcontract sums exceed the amount budgeted for such
component of the Works;
(B)
actual costs are greater than the tendered subcontract sums; and
(C)
Subcontractors fail to comply with the terms of the relevant Subcontract;
(iv)
identification of how the Managing Contractor is to verify its deliverables in
clause 8(c)(i) and a sample of the Managing Contractor's verification plan; and
(v)
identification of review and agreement of quality assurance records that the
Managing Contractor is to provide to the Principal confirming compliance to the
Managing Contractor's Tender.
(d)
The Managing Contractor shall comply with directions by the Principal's Representative
to change the Managing Contractor's quality assurance system and quality plan to provide
assurance of satisfactory compliance to the documents.
(e)
The Managing Contractor shall participate in and allow reasonable access to the
Principal's agents to audit the Managing Contractor's quality assurance program and
quality plan. Verification by the Principal's agents shall not relieve the Managing
Contractor of any of the Managing Contractor's liabilities and obligations under the
Contract.
9.
Security, retention moneys and performance undertakings
9.1
Purpose
Security, retention moneys and performance undertakings are for the purpose of ensuring the due
and proper performance of the Contract.
9.2
Provision of security
The Managing Contractor shall provide security to the Principal in the amount stated in the
Annexure. The Managing Contractor must ensure that the Security remains valid and enforceable
until the date of its return in accordance with this Contract.
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9.3
Form of security
All security provided by the Managing Contractor shall be in the form of either cash or Bank
Guarantee.
9.4
Time for lodgement of security
Security provided pursuant to clause 9.2 shall be lodged with the Principal by the Managing
Contractor within 14 days of:
(a)
the execution of this Contract in relation to the Security for Stage One; and
(b)
the Date of Commencement of Stage Two, in relation to each of the Securities for Stage
Two.
Failure to do so in relation to any Security is a Payment Deferral Event.
9.5
9.6
Not used
Subcontract retentions
Where pursuant to a term in a subcontract the Managing Contractor withholds any retention
money from a payment to a Subcontractor, the Managing Contractor will hold those moneys for
the benefit of the Subcontractor, until the retention moneys become payable, in accordance with
the terms of the Subcontract, to either:
9.7
(a)
the Subcontractor, in which case the moneys shall be paid to the Subcontractor; or
(b)
the Managing Contractor.
Substitution of security for retention moneys
The Managing Contractor shall be at liberty at any time to provide in lieu of retention moneys,
security in any of the forms permitted in clause 9.3. To the extent that such security is provided,
the Principal shall not deduct retention moneys and shall forthwith release retention moneys.
9.8
Additional security - unfixed plant and materials
Security provided by the Managing Contractor for unfixed plant and materials pursuant to clause
57.7 shall be:
9.9
(a)
subject to the terms of clauses 9.3 and 9.9; and
(b)
in an amount equal to the payment claimed for the plant or materials.
Conversion of security and recourse to retention moneys
(a)
(b)
Security or retention moneys shall be subject to recourse by the Principal:
(i)
an amount due (including under an indemnity) to the Principal remains unpaid
after the time for payment; or
(ii)
the Principal considers acting in good faith that the Contractor is in breach of its
payment or other obligations under this Contract and the demand is for an amount
that the Principal in good faith considers is payable (including under any
indemnity) by the Managing Contractor in connection with the Contract.
If:
(i)
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after the Principal has exercised all or any of the Principal's rights under the
Contract in respect of the security and retention moneys (except for those set out
in this clause); and
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December 2013
(ii)
the security and retention moneys or any part or parts thereof then remaining is,
but for this clause, releasable to the Managing Contractor pursuant to clause 9.10
or 9.11;
then, before releasing any security and retention moneys or any part or parts thereof then
remaining:
(c)
(iii)
the Principal may ascertain the existence and amount of any Subcontractors'
Charge;
(iv)
in the event that any such Subcontractors' Charge is found to exist, then the
Principal may convert into money any security or any part thereof then remaining
that does not consist of money. Any money so obtained shall be regarded as due,
creditable, allowable or payable to the Managing Contractor pursuant to the
Contract in complete or partial satisfaction of the contract price (for the purposes
of the Security of Payment Act); and
(v)
the Principal may pay into court or otherwise secure the money for the benefit of
the chargee from such moneys so due, creditable or allowable the total amount set
out in the said Subcontractors' Charge and account to the Managing Contractor as
to the balance, if any.
The Managing Contractor must not take any steps to injunct or otherwise restrain:
(i)
any issuer of any security from paying the Principal under the security;
(ii)
the Principal from taking any steps for the purpose of making a demand under any
security or receiving payment under any security; or
(iii)
the Principal from using any money received under any security.
9.10 Adjustment of security and retention moneys
(a)
Subject to 9.9(b), upon issue of the Certificate of Practical Completion, the Principal's
entitlement to security and retention moneys shall be reduced to the amount or percentage
thereof stated in the Annexure or, if no amount or percentage is stated, to 50% thereof.
(b)
If the Principal's Representative issues a direction pursuant to clause 51 which provides
for a separate defects liability period of a stated duration in respect of the work of
rectification, the Principal's Representative may determine that from the end of the initial
Defects Liability Period, the Principal's entitlement to security and retention moneys shall
be further reduced to such amount or percentage as the Principal's Representative
determines.
(c)
If the aggregate value of Variations is at any time greater than 20% of the GCS, the
Principal may by notice in writing require the Managing Contractor to provide further
security or retention equivalent to 5% of the aggregate value of the Variations. Failure to
comply is a Payment Deferral Event.
9.11 Release of security
(a)
Where the Managing Contractor has provided additional security pursuant to clause 57.7,
the Principal shall release that additional security within 14 days of the certification by the
Principal's Representative of:
(i)
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title passing to the Principal, or the incorporation into the Works (so as to
constitute a fixture), of the unfixed plant or materials in respect of which the
additional security was furnished; and
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December 2013
(ii)
(b)
that such unfixed plant or materials are in accordance with the terms of the
Contract.
Subject to the Principal's rights to set-off under clause 57.14 and to have recourse to cash
security or retention moneys under clause 9.9, and subject to clause 9.11(c), the Principal
shall release security or retention moneys provided by the Managing Contractor pursuant
to clause 9.2 or 9.7 or so much as may remain after the application of clause 9.10 within
28 days of the later of:
(i)
the requirement to do so by clauses 60.1 and 60.2; or
(ii)
the issue of the Final Certificate under clause 57.12,
provided however that if there are any disputes the subject of clause 62 outstanding with
respect to this Contract at such date, then the security will reduce to the value of any claim
by the Principal against the Managing Contractor the subject of such dispute, and the date
for release by the Principal of any security will be the earlier of:
(c)
(iii)
5 business days after the date on which the last of those Disputes to be resolved is
finally resolved; and
(iv)
six months after the requirements of sub-paragraph (i) and (ii) has been satisfied.
Where there is any Claim, adjudication or proceeding commenced pursuant to or in
connection with the Security of Payment Act, including proceedings commenced by the
Principal to recover an amount the subject of a payment claim pursuant to the Security of
Payment Act or a Subcontractor's Charge, the Principal is not obliged to release security
or retention moneys until 28 days after the finalisation of such claim, adjudication or
proceeding.
9.12 Interest on security and retention moneys
The Principal shall own any interest earned on retention moneys and security provided pursuant to
this Contract.
9.13 Deed of guarantee and indemnity
The Managing Contractor shall, within 10 Business Days after the date of this Contract, provide a
Deed of Guarantee and Indemnity by the Guarantor duly executed and enforceable. The form of
such Deed of Guarantee and Indemnity shall be that in Schedule 10. Failure to do so is a Payment
Deferral Event.
10. Service of notices
10.1 Address
The Principal, the Managing Contractor and the Principal's Representative and the Managing
Contractor's Representative shall each notify the others of a change of address and change of
facsimile number.
10.2 Service
(a)
A notice in connection with the Contract:
(i)
must be signed by a duly authorised representative of the party giving the notice;
(ii)
must be in writing; and
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(iii)
(iv)
must be:
(A)
delivered by hand to the address of the addressee contained in the Contract
or which is subsequently notified under 10.1; or
(B)
sent by prepaid ordinary post to the address of the addressee contained in
the Contract or which is subsequently notified under clause 10.1;
(C)
sent by facsimile to the facsimile number of the addressee stated in the
Contract or which is subsequently notified under clause 10.1; or
(D)
sent by email including a formal statement that the email is a formal notice
under the applicable clause of this Contract; or
(E)
if permitted to be given through the EDMS and if so given, then when:
(I)
the communication has been uploaded on the EDMS by the party
making the communication; and
(II)
the party making the communication has sent an email to the other
party notifying it that the communication has been uploaded onto
the EDMS; and
is deemed to be received:
(A)
in the case of a notice delivered by hand, upon delivery, except if delivery
occurs:
(I)
after 5pm on a Working Day; or
(II)
on a day which is a Saturday, Sunday or public holiday,
in which case delivery will be deemed to have occurred at 9am on the next
Working Day which is not a Saturday, Sunday or public holiday;
(B)
in the case of a notice forwarded under clause 10.2(a)(iii)(B), within two
(2) business days of its posting;
(C)
in the case of a notice delivered under clause 10.2(a)(iii)(C), on the
production of a facsimile transmission report which indicates that the
notice in its entirety was forwarded to the recipients facsimile number,
except if the transmission is completed and confirmed to have occurred:
(I)
after 5pm on a Working Day; or
(II)
on a day which is a Saturday, Sunday or public holiday,
in which case the transmission will be deemed to have been completed and
confirmed at 9.00am on the next Working Day which is not a Saturday,
Sunday or public holiday; and
(D)
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in the case of a notice delivered under clauses 10.2(a)(iii)(D) or
10.2(a)(iii)(E), when the email (including any attachment) comes to the
attention of the addressee or a person acting on its behalf, except if the
transmission is completed and confirmed to have occurred:
(I)
after 5pm on a Working Day; or
(II)
on a day which is a Saturday, Sunday or public holiday,
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in which case the transmission will be deemed to have been completed and
confirmed at 9.00am on the next Working Day which is not a Saturday,
Sunday or public holiday.
(b)
Unless a later time is specified in it a notice, approval, consent or other communication
takes effect from the time it is received.
(c)
Unless the Principal directs otherwise, and subject to clause 10.2(e), the parties must
communicate through the EDMS. A direction by the Principal may apply for a period of
time and to certain types of communications.
(d)
Where a party must communicate through the EDMS then, subject to clause 10.2(e):
(e)
(i)
a communication delivered through the EDMS will be regarded as being delivered
for the purposes of clause 10.2; and
(ii)
a communication delivered other than through the EDMS will not be regarded as
being delivered for the purposes of clause 10.2.
Notwithstanding clauses 10.2(c) and 10.2(d):
(i)
communications pursuant to clauses 57, 59, and 62 must be given through the
EDMS and as provided for in the relevant clauses and the contractual effectiveness
of such communications will be determined by reference to the provisions of the
communication in accordance with the relevant clauses rather than through the
EDMS; and
(ii)
communications made in reliance upon a Statutory Requirement may be made in
the manner, if any, which is permitted by that Statutory Requirement.
(f)
The Managing Contractor must maintain an email address throughout the performance of
the work under the Contract and notify the Principal of any change in its email address.
(g)
The Managing Contractor must register itself on the EDMS and comply with any
requirements for the use of the EDMS. The Managing Contractor warrants that it has, and
will maintain, the minimum required software, hardware and other infrastructure required
for the use of the EDMS.
(h)
The Managing Contractor is not entitled to make, and waives any right to any Claim
against the Principal arising out of or in connection with its access to or use of the EDMS
or any failure of the EDMS.
(i)
Despite anything to the contrary, a notice or Claim under the Security of Payment Act will
only be deemed to have been validly served on the Principal if:
(i)
it is in writing; and
(ii)
delivered to the Principal's Representative in hard copy form addressed to:
Project Director – Monash Children's Hospital
Department of Health
50 Lonsdale Street
Melbourne VIC 3001
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11. GCS offer
11.1A Confirmation of Total Construction Cost
(a)
During Stage One of the Contract, and by the date 4 months after execution of the
Contract, the Managing Contractor shall provide written notice to the Principal confirming
whether it will provide a GCS Offer that is less than the Total Construction Cost by the
Date for GCS Offer.
(b)
Failure to provide the written notice in accordance with clause 11.1A(a) will be deemed to
be confirmation that the Managing Contractor agrees and acknowledges that it will
provide a GCS Offer in accordance with clause 11.2(a).
(c)
If the Managing Contractor's written notice does not confirm that it will provide a GCS
Offer in accordance with clause 11.2(a), then the parties agree to meet within 10 business
days of such notice (or such longer period as may be agreed between the parties) to
discuss what changes can be made to the Project that would allow the Managing
Contractor to provide the GCS Offer in accordance with clause 11.2(a), including revising
the Total Construction Cost, the scope of the Project and any changes to the Contract.
(d)
The Principal shall not (in its absolute discretion) be bound to accept any suggestions of
the Managing Contractor in relation to any changes to the Project, but shall, and without
obligation to act reasonably or in good faith, be free to accept, reject or negotiate any
suggested changes made by the Managing Contractor.
(e)
If the meeting referred to in clause 11.1A(c) does not occur within the required time, or no
agreement can be reached on changes to the Project that are acceptable to the Principal
within 20 business days, then at any time prior to commencement of Stage Two, the
Principal may give the Managing Contractor notice under this clause that the Principal is
terminating the Contract, in which case clause 60.2 will apply and the Managing
Contractor will have no Claim, entitlement or remedy, other than for payment of any
outstanding amount by the Principal for the work under the Contract in respect of Stage
One, including payment of any amounts in respect of any Early Works carried out.
(f)
Where the Managing Contractor provides (or is deemed to have provided) written notice
that it will submit a GCS Offer less than the Total Construction Cost, then the Managing
Contractor will have no Claim, entitlement or remedy, in relation to the value,
completeness or adequacy of the Total Construction Cost and agrees and acknowledges
that it will be bound to comply with the balance of the Contract provisions in relation to
the GCS Offer, including the requirements of clause 11.
11.2 Managing Contractor's GCS offer
(a)
Unless the Managing Contractor provides written notice in accordance with clauses
11.1A(a) and (c) confirming it will not provide a GCS Offer that is less than the Total
Construction Cost, the Managing Contractor represents and warrants that during Stage
One of the Contract, after the completion of the Developed Design but in any event by the
Date for GCS Offer, it shall provide a GCS Offer that is less than the Total Construction
Cost.
(b)
Failure to comply with clause 11.2(a) will constitute a substantial breach of contract and a
Payment Deferral Event.
(c)
The Managing Contractor acknowledges and agrees that the Principal is relying on the
Managing Contractor's representation in clause 11.2(a) in electing to proceed with this
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Contract, and the Principal will incur additional costs, wasted expenses and be delayed in
completing the Project if the Managing Contractor does not comply with this clause.
(d)
If the Managing Contractor has provided a GCS Offer in accordance with clause 11.2(a),
the Managing Contractor may also provide to the Principal an Alternative GCS Offer for
its consideration in parallel with the compliant GCS Offer.
(e)
The Managing Contractor's GCS Offer and Alternative GCS Offer (if any) shall remain
open for acceptance until the Principal notifies the Managing Contractor in writing of the
Principal's acceptance or rejection of the GCS Offer and/or Alternative GCS Offer (if any)
in accordance with clause 11.3, which shall be given within a reasonable time (being not
less than 8 weeks from the date of receipt).
11.3 Principal's options
(a)
The Principal shall not be bound to accept the Managing Contractor's GCS Offer or
Alternative GCS Offer (if any) but may:
(i)
accept the Managing Contractor's GCS Offer or Alternative GCS Offer (if any); or
(ii)
reject the Managing Contractor's GCS Offer and Alternative GCS Offer (if any)
and negotiate a GCS Offer acceptable to the Principal and the Managing
Contractor must immediately engage in genuine and good faith negotiations with
the Principal for this purpose, in which case:
(iii)
(A)
the guaranteed construction sum accepted or negotiated (as applicable)
shall become the Guaranteed Construction Sum under the Contract; and
(B)
the Managing Contractor's fees may be adjusted pursuant to 11.4; or
reject the Managing Contractor's GCS Offer and Alternative GCS Offer (if any).
(b)
If both the Managing Contractor's GCS Offer and Alternative GCS Offer (if any) is
rejected by the Principal, subject to clause 11.3(c), the Managing Contractor will have no
further Claim, entitlement or remedy, other than for payment of any outstanding amount
by the Principal for the work under the Contract in respect of Stage One including
payment of any amounts in respect of any Early Works carried out.
(c)
If the Principal rejects the Managing Contractor's GCS Offer and Alternative GCS Offer
and the parties are unable to negotiate a GCS Offer acceptable to the Principal, the
Principal may give the Managing Contractor written notice of the modifications it requires
to the GCS Offer or Alternative GCS Offer (as applicable) for such to be acceptable to the
Principal (Modified GCS Offer).
(d)
Unless the Modified GCS Offer cannot be effected by a party exercising the degree of
skill, care and diligence expected of a Relevant Managing Contractor, the Managing
Contractor must:
(i)
advise the Principal's Representative of the effect (if any) which the Managing
Contractor anticipates that the Modified GCS Offer will have on the Program and
Date for Practical Completion; and
(ii)
provide:
(A)
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a detailed quotation of the cost of the proposed Modified GCS Offer,
exclusive of GST and any additional amount for profit or margin on an
Open Book Basis; and
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(B)
(e)
(f)
advice as to the effect of the Modified GCS Offer on any applicable
warranty, quality of the Works and any other impact upon the execution of
the Works.
Following receipt of the Managing Contractor's quotation pursuant to clause 11.3(d), the
Principal's Representative may give notice to the Managing Contractor that it:
(i)
accepts the quotation provided by the Managing Contractor and directs that Stage
Two proceed; or
(ii)
rejects the quotation and requires the modifications proposed by the Principal in
the Modified GCS Offer be valued in accordance with clause 53.4(b) as if it was a
Variation, and that Stage Two proceed on the basis of the Modified GCS Offer;
(iii)
rejects the quotation and terminates the Contract.
If either the Principal's Representative accepts the Managing Contractor's quotation under
clause 11.3(e)(i) or requires the valuation to occur under clause 11.3(e)(ii), then the
Modified GCS Offer will be deemed to be an Alternative GCS Offer that the Principal has
accepted and the Managing Contractor will be bound to perform the Modified GCS Offer
and Stage Two will be deemed to have commenced.
11.4 Adjustment of fees at time of GCS Offer / Alternative GCS Offer
(a)
Where the Principal elects to accept either the GCS Offer or an Alternative GCS Offer (if
any), the Design/Buildability Advisor Fee, ICT Management Fee, Preliminaries and
Provisional Delay Allowance are subject to adjustment in accordance with this clause 11.4
at the time of acceptance of the GCS Offer or Alternative GCS Offer (if any).
(b)
(Adjustment to Design/Buildability Advisor Fee): To the extent that there are material
changes:
(i)
between the scope of Works contained in the Project Brief and the scope of Works
in the GCS Offer Project Brief (being material changes to the building envelope or
fundamental changes to the proposed uses of the Works) as directed under clause
19.1(a);
(ii)
in the scope of the Works caused by a Latent Condition encountered on the Site
during Stage One; or
(iii)
between the Principal's preliminary completion time contained in the Project Brief
and the Managing Contractor's time for Practical Completion contained in the
GCS Offer and Alternative GCS Offer (as applicable) accepted by the Principal,
which result in a material effect on the tendered resources included in the
Design/Buildability Advisor Fee, then the Principal's Representative shall determine a
reasonable adjustment to the tendered Design/Buildability Advisor Fee, having regard to
any applicable rates or prices provided in the costed methodology statement provided in
Schedule 1.
(c)
(Adjustment to ICT Management Fee): To the extent that there are material changes
between the scope of Works contained in the Project Brief and the scope of Works in the
GCS Offer Project Brief (being material changes to the building envelope or fundamental
changes to the proposed uses of the Works to include uses such as animal research
facilities or radioactive bunkers) as directed under clause 19.1(a) which result in a material
effect on the tendered resources included in the ICT Management Fee, then the Principal's
Representative shall determine a reasonable adjustment to the tendered ICT Management
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Fee, having regard to any applicable rates or prices provided in the costed methodology
statement provided in Schedule 1.
(d)
(Adjustment to Preliminaries): To the extent that there are material changes:
(i)
between the scope of Works contained in the Project Brief and the scope of Works
in the GCS Offer Project Brief (being material changes to the building envelope or
fundamental changes to the proposed uses of the Works to include uses such as
animal research facilities or radioactive bunkers) as directed under clause 19.1(a);
or
(ii)
between the Principal's preliminary completion time contained in the Project Brief
and the Managing Contractor's time for Practical Completion contained in the
GCS Offer and Alternative GCS Offer (as applicable) accepted by the Principal;
which result in a material effect on the On Site Overheads, then the Principal's
Representative shall determine a reasonable adjustment to the Preliminaries, having regard
to any applicable rates or prices provided in Schedule 1.
(e)
(Adjustment to Nominated Consultants' Fee): If there are changes between the scope of
Works contained in the Project Brief and the scope of Works in the GCS Offer Project
Brief (being material changes to the building envelope or fundamental changes to the
proposed uses of the Works to include uses such as animal research facilities or
radioactive bunkers), which result in an increase or decrease to the work to be performed
by, and fees payable to, one or more Nominated Consultants for work for which the
Nominated Consultant will be retained by the Managing Contractor, then the Principal's
Representative shall determine a reasonable adjustment to the Nominated Consultants'
Fee. The Principal's Representative may have regard to terms of the Consultancy
Agreement when determining the amount of a reasonable adjustment pursuant to this
clause 11.4(e).
(f)
(Adjustment to Provisional Delay Allowance): If there are material changes between the
scope of Works contained in the Project Brief and the scope of Works in the GCS Offer
Project Brief (being material changes to the building envelope or fundamental changes to
the proposed uses of the Works to include uses such as animal research facilities or
radioactive bunkers) as directed under clause 19.1(a) which result in a material effect on
the Provisional Delay Allowance, then the Principal's Representative shall determine a
reasonable adjustment to the applicable rate or rates contained in the Managing
Contractor's Tender in relation to the Provisional Delay Allowance. Any such adjustment
is limited only to adjustments as a direct result of an increase or decrease in the scope of
Works between the Project Brief and the GCS Offer Project Brief.
12. Warranties
12.1 Managing Contractor's warranties
The Managing Contractor warrants that at all times the Managing Contractor shall be suitably
qualified and experienced and shall exercise the degree of skill, care and diligence in the
execution and completion of the work under the Contract expected of a Relevant Managing
Contractor. The Managing Contractor further warrants to the Principal the following:
(a)
(Adequacy of GCS Offer Project Brief): In submitting the GCS Offer, it has
investigated and satisfied itself of the adequacy and suitability of the GCS Offer Project
Brief and the Contract to enable the Managing Contractor to perform all the work under
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the Contract in accordance with the Contract. In particular, the Managing Contractor
warrants the sufficiency of the Guaranteed Construction Sum;
(b)
(Consultancy Agreements): The Managing Contractor has not relied at all on any
representation or conduct by the Principal, and has relied exclusively and entirely on its
own assessment of the adequacy of the terms, scope and fees specified in the Consultancy
Agreements in so far as they impact the Managing Contractor's obligations under the
Contract;
(c)
(No collusion): Those things referred to in clause 6;
(d)
(Subcontracting): The warranties pursuant to clause 21.2(p);
(e)
(Noise, vibration, dust and nuisances): The Managing Contractor has assessed the
potential for delays, disruption, suspension and extra costs in the performance of the work
under the Contract from any cause associated with noise, vibration, dust and other
nuisances, the presence of other contracts that are notified by the Principal to the
Managing Contractor before the time of submission of the GCS Offer, and the use of the
premises in which the Site is located and has made due allowance in its GCS Offer and
will not Claim any extra amount or extension of time from the Principal due to
compliance with clause 25(b);
(f)
(Good faith): The Managing Contractor shall perform all duties and act in good faith;
(g)
(Design Work): During Stage One, the Managing Contractor will:
(i)
(ii)
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use its best endeavours to manage all aspects of the Design Work so that:
(A)
the Works can be completed within the Total Construction Cost; and
(B)
the Design Milestones are achieved by the Design Milestone Dates,
including:
(I)
evaluating and commenting on and, where necessary,
recommending changes to any Design Milestones;
(II)
identifying opportunities to re-sequence or re-order the design
development process to maximise efficiency;
(III)
identifying any delays or bottlenecks (whether caused by design
issues, individuals or otherwise) in the design development process
and recommending alternatives to overcome them; and
(IV)
regularly reporting to the Principal regarding progress of the
Design Work;
assume primary responsibility for managing and co-ordinating the services
performed by the Consultants, including:
(A)
assisting the Principal to ensure compliance by the Consultants with their
Consultancy Agreements;
(B)
consulting with the Consultants as frequently as is necessary to ensure that
the design development process is co-ordinated in a logical, integrated and
efficient manner; and
(C)
where a Consultant is not performing its services in accordance with its
Consultancy Agreement, notifying the Principal and recommending
measures to overcome or mitigate this non compliance;
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(iii)
(iv)
(h)
proactively participate in the design development process in a way sufficient to
enable the Managing Contractor to provide expert advice on buildability and
staging issues including:
(A)
methods of construction;
(B)
maintaining or improving Quality;
(C)
avoiding Buildability Issues;
(D)
opportunities for cost savings, or value engineering;
(E)
coordination of Design Documents;
(F)
temporary works requirements;
(G)
safety; and
(H)
sequencing and duration;
(I)
packaging of the Works, including separable portions; and
where the Managing Contractor changes the GCS Offer Project Brief in
accordance with clause 19.2, ensure such changes will not affect the Quality of the
Developed Design;
(Design Documents (MC), Documentation Work and Nominated D&C Packages) the
Managing Contractor will:
(i)
in preparing any Design Documents (MC) or carrying out Documentation Work,
exercise a degree of skill, care and diligence expected of a skilled and competent
design professional who regularly acts in the capacity in which the Managing
Contractor is engaged;
(ii)
where a Subcontract includes a Nominated D&C Package, ensure that design
Subcontractors:
(iii)
(A)
submit all Design Documents (MC) to the Principal's Representative in
sufficient time to allow the Principal at least 21 days to review them before
construction of any affected Works commences;
(B)
adopt any required changes to the Design Documents (MC) directed by the
Principal's Representative; and
(C)
maintain and effect professional indemnity insurance on terms consistent
with the professional indemnity insurance required to be maintained by the
Managing Contractor pursuant to this Contract and with limits
commensurate with the nature of the Works as determined by the Principal
acting reasonably;
complete all Documentation Work in accordance with the Developed Design and
the requirements of the Contract so that the Subcontract Construction
Documentation will be free from errors, ambiguities or discrepancies, consistent
with the Quality required by the Developed Design and suitable, appropriate and
adequate:
(A)
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for the purposes stated in or reasonably ascertainable from the GCS Offer
Project Brief and the Contract; and
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(B)
(i)
to produce an end product that meets the requirements of the GCS Offer
Project Brief and the Contract;
(iv)
not modify the Developed Design except insofar as it is necessary to overcome
any ambiguity, discrepancy or inconsistency in accordance with clause 5.1 (and
having complied with clause 5.1(g)); and
(v)
have sufficient design resources (including Nominated Consultants and other
consultants) to maintain efficient and timely production and verification of all
Subcontract Construction Documentation; and
(vi)
ensure that the Documentation Work, Subcontract Construction Documents and
Design Documents (MC) will:
(A)
be performed and prepared with the skill, care and diligence expected of a
Relevant Managing Contractor;
(B)
(in respect of Design Documents (MC) prepared pursuant to a Nominated
D&C Package only) be fit for the purposes stated in or reasonably
ascertainable from the Developed Design;
(C)
be consistent with the Developed Design and the GCS Offer Project Brief;
(D)
comply with all Statutory Requirements; and
(E)
not affect the Quality of any other part of the Works;
(Construction Work): Subject to Stage Two proceeding:
(i)
Construction Work and the Works when constructed will be in accordance with
the Subcontract Construction Documentation, all other requirements of the
Contract, Statutory Requirements and the requirements of all Authorities;
(ii)
the Construction Work will comply with any relevant standards of Standards
Australia or the Contract, and if more than one, the highest such standard;
(iii)
if the Subcontract Construction Documentation does not specify the standard of
workmanship, material, finish or any other aspect of the Works then the standard
of such workmanship, material, finish, or other aspect will be in accordance with
the Developed Design, and will be fit for their intended purpose as stated in or
reasonably ascertainable from the GCS Offer Project Brief and consistent with the
nature and character of the Works; and
(iv)
all:
(A)
Construction Work and
(B)
subject to clauses 3(g)(i) and 3(g)(ii)(A), the Works,
when completed will be free from Defects and fit for their intended purpose as
stated in or reasonably ascertainable from the GCS Offer Project Brief and the
Contract;
(j)
(Guaranteed Construction Sum): The Principal will not pay as the aggregate of the
Actual Construction Sum, Preliminaries, Design/Buildability Advisor Fee, ICT
Management Fee and Off Site Overheads and Profit Fee any greater amount than the
Guaranteed Construction Sum, and that the Managing Contractor shall meet, pay and
discharge to the satisfaction of the Principal all moneys, payments, obligations and
liabilities whatsoever over and above the Guaranteed Construction Sum;
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(k)
(Actual Construction Sum): The Actual Construction Sum will be exclusive of any
Design/Buildability Advisor Fee, Preliminaries, ICT Management Fee, Off Site
Overheads and Profit Fee or Nominated Consultants' Fee.
12.2 Warranties and indemnities unaffected
The Managing Contractor acknowledges that all warranties and indemnities given under the
Contract will remain unaffected notwithstanding:
(a)
any advice, review, comment, approval or direction by the Principal, the Principal's
Representative or the employees, consultants or agents of the Principal in respect of:
(i)
any matter which the Managing Contractor has an obligation under the Contract to
undertake its own investigations; and
(ii)
Design Work, Documentation Work or Construction Work produced by the
Managing Contractor;
(b)
subject to clause 53.2(e), any Variation under clause 53;
(c)
any modifications to the Project Brief or GCS Offer Project Brief pursuant to clause 19;
and
(d)
that the Managing Contractor engages any Subcontractor or any consultant or Nominated
Consultant in connection with any of the work under the Contract (whether with or
without the consent of the Principal).
12.3 Principal's reliance on warranties
The Managing Contractor acknowledges that the Principal has entered into the Contract in
reliance upon the warranties set out in the Contract.
______________
_____________________
Signed for and on behalf of the Principal
________
___________________________
Signed for and on behalf of the Managing Contractor
12.4 Manufacturers' Performance Warranties
(a)
The Managing Contractor shall procure a warranty for each of the items listed in
Schedule 3 which are to form part of the Works from the supplier or manufacturer of the
materials, goods, plant or equipment and give an executed copy to the Principal's
Representative. The warranty shall be in the form of that contained in Schedule 3.
(b)
If requested by the Managing Contractor, the Principal's Representative may issue a
direction (under clause 53.3) varying the terms of a warranty to be obtained from a
supplier or manufacturer under clause 12.4(a).
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(c)
(d)
When deciding whether a variation should be issued under this clause, the Principal's
Representative may take into account:
(i)
the quantum of any additional amount required by a supplier or manufacturer as
consideration for providing a warranty in terms of Schedule 3;
(ii)
whether an alternative supplier or manufacturer would be prepared to provide a
warranty in those terms;
(iii)
whether the Managing Contractor has used its best endeavours to obtain a
warranty in those terms from the manufacturer or supplier; and
(iv)
whether the supplier or manufacturer is not prepared to provide a warranty in the
form of Schedule 3 but is prepared to provide a warranty which is generally
representative of warranties commercially available for the relevant item.
Without limiting the obligations of the Managing Contractor under the Contract, during
the currency of the warranties referred to in this clause 12.4, the Managing Contractor
must, at its own cost:
(i)
if required by the Principal, arrange and coordinate any necessary inspections,
tests, replacements or rectification work under such warranties; and
(ii)
pursue any warranty claims.
(e)
The Principal's Representative may at any time by notice in writing to the Managing
Contractor direct that a performance trial or trials be carried out to verify that the Works
or any part of the Works (as the case requires) complies with a performance warranty or
specification. Such performance trial or trials shall thereafter be carried out in accordance
with the provisions of clause 43 as soon as practicable.
(f)
Performance trials shall be carried out in accordance with the relevant Standards Australia
Australian Standard or if there is no relevant Australian or overseas standard in
accordance with the recognised industry practice. The Managing Contractor shall supply
all equipment and suitably qualified and experienced technical staff necessary to conduct
the performance trials.
(g)
The cost of all performance trials shall be borne in accordance with the provisions of
clause 43.7.
(h)
In the event that any performance trial shows that the Works or any part of the Works fails
to comply with the performance warranty or specification, the Managing Contractor shall
at the Managing Contractor's own cost arrange for such modifications or additional work
as may be necessary to enable the Works to comply with the performance warranty or
specification, and conduct a further formal performance trial to verify that the Works or
such relevant part of the Works complies with that performance warranty and/or
specification. The cost of this and any subsequent performance trials necessary to verify
that the Works comply with the performance warranty or specification shall be borne by
the Managing Contractor.
(i)
The Managing Contractor shall at the Managing Contractor's own cost arrange for a team
of suitably qualified and equipped personnel to maintain, monitor and adjust the Works or
any part of the Works to comply with the Contract during a period of twelve (12) weeks
commencing on the Date of Practical Completion. The Managing Contractor shall
arrange for the provision of all replacement parts and labour necessary and required for
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the performance of the Works during this period including all consumable maintenance
parts (including filters and lubricants).
(j)
To the extent that the Managing Contractor, in breach of this clause, does not procure
warranties, in the name of the Principal, to the effect stated in the Contract, or in respect of
work carried out by Subcontractors where the Managing Contractor is not obliged to
procure such warranties, the Managing Contractor hereby assigns to the Principal from the
date of the Final Certificate all its right, title and interest in the Managing Contractor's
rights against all Subcontractors in relation to the work under the Contract. To the extent
that the assignment sought to be effected is not effective the Managing Contractor holds
the rights sought to be assigned on trust for the Principal and will exercise those rights as
directed by the Principal.
(k)
The warranties which are required by clause 12.4(a) shall not be construed in any way to
modify or limit any of the rights, powers or remedies of the Principal against the
Managing Contractor whether under the Contract or otherwise in respect of the materials,
goods, plant and equipment the subject of a warranty and the Managing Contractor must
discharge the Managing Contractor's obligations under the Contract in respect of any
defective work in respect of materials or goods for which such a warranty has been
obtained despite the Principal having the benefit of the warranty.
13. Project Operations Group
13.1 Establishment, duration and purpose
(a)
Within seven (7) days after the execution of the Contract, a Project Operations Group
(POG) shall be established.
(b)
The POG shall monitor all aspects of the work under the Contract.
(c)
The first meeting of the POG shall be convened by the Principal's Representative within
fourteen (14) days of the execution of the Contract and thereafter meetings shall be held
once during each month provided that special meetings may be convened by the Principal.
(d)
The POG shall operate until the issue of the Final Certificate under clause 57.12 or such
other time determined by the Principal's Representative.
13.2 Membership
(a)
The POG shall be constituted by the representatives stated in the Annexure.
(b)
The Principal's Representative shall be the Chairperson of the POG.
(c)
The Managing Contractor's Representative shall be one of the Managing Contractor's
attendees.
(d)
Each party shall by notice in writing advise the other party of the names, addresses,
telephone numbers and facsimile numbers of its delegates / attendees.
(e)
The Chairperson may, at the request of either party, include as attendees of POG
meetings, representatives of Consultants and Subcontractors involved as well as other
individuals who may be able to assist the POG in the performance of its functions.
(f)
The Chairperson may, at the request of any delegate to the POG and at the cost of that
delegate, call upon any person for a report or other advice to assist the POG in the POG's
deliberations.
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(g)
The Principal may require each delegate to the POG to execute a warranty that each
delegate to the POG shall perform all duties and act in good faith as defined in clause 7.
13.3 Meetings
(a)
A quorum for the POG shall be the Principal's Representative and the Managing
Contractor's Representative.
(b)
The Principal's Representative shall determine the agenda, chair and take minutes of the
meetings of the POG.
(c)
Agenda items may include reviews of:
(i)
the Managing Contractor's activities;
(ii)
the Principal's duties and the performance of Consultants;
(iii)
programming and in particular programming for the period until the next meeting
of the POG;
(iv)
budgeting and costs;
(v)
Quality;
(vi)
safety;
(vii)
the Design Work and any Design Documents (MC) submitted to the Principal's
Representative for review;
(viii)
Variations which in the opinion of the Managing Contractor require adjustment to
the Guaranteed Construction Sum; and
(ix)
any other items identified by the Principal's Representative.
13.4 Decisions of the POG
All matters arising at a meeting of the POG shall be non-binding on both parties.
13.5 Managing Contractor's reports
(a)
Within seven (7) days of the end of each month, the Managing Contractor shall provide a
monthly POG report to the Principal's Representative.
(b)
This report shall be in a format and to a level of detail agreed to by the Principal's
Representative and contain:
(i)
procedural matters/outstanding action;
(ii)
Consultants' / Nominated Consultants' design and documentation reports including
test results and statements advising of any departures from the Project Brief or
GCS Offer Project Brief;
(iii)
a construction report, which shall include statements from Consultants /
Nominated Consultants advising of any departures from the GCS Offer Project
Brief;
(iv)
a financial report;
(v)
a program report including potential causes of delay;
(vi)
key issues;
(vii)
general business;
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(viii)
instructions or advices given to the Managing Contractor as these relate to non
conformance issues; and
(ix)
Defects lists,
and have appended to it:
(x)
site inspection reports;
(xi)
program detail;
(xii)
the original of all Consultants / Nominated Consultants reports;
(xiii)
non conformance register;
(xiv)
photographs showing the status of Site; and
(xv)
any other matters requested by the Principal's Representative from time to time.
13.6 Project partnership group meetings
(a)
The Managing Contractor’s Representative and the Principal's Representative shall attend
and participate in an informal weekly or fortnightly Project partnership group (PPG)
meeting within 14 days of the execution of the Contract.
(b)
PPG membership will be the Principal’s Representative, Monash Health's representative
and the Managing Contractor's Representative with other project team members attending
as necessary.
(c)
The purpose of the PPG meeting is to establish and maintain a positive and good working
relationship between the Principal and the Managing Contractor with the aim of resolving
the project issues before and as they arise.
14. Design Work
The Managing Contractor shall, with the skill, care and diligence of a Relevant Managing
Contractor:
(a)
in managing the Design Work, provide Buildability Input, construction methodology input
and value engineering advice and consider reasonable options and alternatives which
satisfy the requirements of the GCS Offer Project Brief or, during Stage One of the Project
Brief, present the Managing Contractor's preferred design solution to the Principal's
Representative in a timely manner;
(b)
manage the Consultants in the production of the Developed Design and do everything that
would reasonably be expected of a Relevant Managing Contractor to manage the
production of the Developed Design:
(i)
in accordance with the GCS Offer Project Brief or, during Stage One the Project
Brief;
(ii)
to address the interrelationship between the production of the Developed Design
and the identification and efficient letting of Subcontract packages;
(iii)
to eliminate Buildability Issues and so that the Actual Construction Sum is
minimised as much as possible; and
(iv)
so that work under the Contract can be completed by the Date for Practical
Completion;
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(c)
not recommend changes to the Design Documents or options for value engineering which
are likely to affect Quality without notifying the Principal in writing of those
consequences and the reasons for making the recommendation; and
(d)
take account of stakeholder consultation and input; and
(e)
decide on the manner in which the Construction Work should be divided into packages for
the purpose of facilitating the calling of tenders for subcontracts to achieve the best Value
for Money for the Principal.
15. Documentation Work
The Managing Contractor shall, with the skill, care and diligence of a Relevant Managing
Contractor:
(a)
subject to clauses 3(g)(i) and 3(g)(ii)(A), undertake the Documentation Work and produce
or verify the Subcontract Construction Documentation in accordance with and to (as a
minimum) maintain the Quality required by the Developed Design so that the Subcontract
Construction Documentation will comply with Statutory Requirements and be fit for the
purpose stated in or reasonably ascertainable from the GCS Offer Project Brief in all
respects;
(b)
manage the Nominated Consultants in the production of the Subcontract Construction
Documentation:
(i)
in a logical sequence and, where relevant, in accordance with the Design
Management Plan; and
(ii)
with sufficient time to enable:
(iii)
(A)
amendments required by the Principal to be incorporated into the
Subcontract Construction Documentation;
(B)
Practical Completion to be achieved by the Date for Practical Completion;
and
where this Contract sets out a date for submission, in no event later than that date
(as adjusted, if at all, under this Contract);
(c)
not modify the Subcontract Construction Documentation except insofar as it is necessary
to overcome any ambiguity or discrepancy in accordance with clause 5.1; and
(d)
decide and advise the Principal on the manner in which the Construction Work will be
divided into Subcontract Construction Documentation.
16. Construction Work
16.1 Completion of the Works
The Managing Contractor shall with the skill, care and diligence of a Relevant Managing
Contractor, in constructing and completing the whole of the work under the Contract in
accordance with the Contract:
(a)
construct the Works:
(i)
in accordance with the Developed Design;
(ii)
in accordance with the Subcontract Construction Documentation; and
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(iii)
(b)
so as to be capable of accommodating the FF&E and the ICT Works;
arrange for the supply of all:
(i)
materials;
(ii)
labour;
(iii)
plant and equipment;
(iv)
utilities not readily available on the Site as at the date of this Contract necessary
for the execution of the Works; and
(v)
everything else,
necessary for the execution and completion of the Works and the Managing Contractor's
obligations under the Contract, including the Site establishment, services and facilities;
and
(c)
prepare a comprehensive management plan incorporating the Program and maintain them
current for the duration of the work under the Contract.
16.2 Commissioning work
The Managing Contractor shall, with the skill, care and diligence of a Relevant Managing
Contractor, in accordance with best engineering practice:
(a)
provide the Principal and the Principal's employees assistance with the initial occupation
and operation of the Works;
(b)
assist the Principal or the nominated agents of the Principal in understanding the
performance of the Works;
(c)
ensure the satisfactory operation of all building components, equipment and contents;
(d)
provide to the Principal, at least 30 days prior to the Date for Practical Completion a draft
version of the Asset Management and Maintenance Database, and all operating manuals
and maintenance manuals required by the Principal, sufficient to enable the
commissioning of the Works;
(e)
record and submit to the Principal's Representative details of all test results;
(f)
give the Principal's Representative reasonable prior notice of the carrying out of any part
of the commissioning required by the Program; and
(g)
immediately notify the Principal's Representative if any portion of work under the
Contract fails to pass a commissioning requirement, make good that work and after
completion of the remedial work promptly carry out further commissioning of that work.
17. Early works
17.1A Enabling Works
(a)
The Principal will ensure that prior to the Commencement Date the Managing Contractor
has had a reasonable opportunity to inspect the Enabling Works.
(b)
The obligations of the Managing Contractor under this Contract are not reduced by the
performance or non-performance of the Enabling Works and the Managing Contractor has
no Claim against the Principal in connection with the Enabling Works.
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17.1 Early Works direction
(a)
The Principal's Representative may direct the Managing Contractor to commence to carry
out a Nominated D&C Package, part of the Documentation Work or the Construction
Work as Early Works prior to the Completion of Stage One.
(b)
A direction by the Principal's Representative pursuant to clause 17.1(a) shall not be a
Direction to Accelerate or be a request for an Acceleration Proposal (as those terms are
defined in clause 47.1).
(c)
The Managing Contractor shall not be entitled to an adjustment of:
(i)
the Design/Buildability Advisor Fee;
(ii)
the Preliminaries;
(iii)
ICT Management Fee;
(iv)
the Off Site Overheads and Profit Fee; or
(v)
the Guaranteed Construction Sum,
on account of the Principal's Representative issuing a direction pursuant to clause 17.1(a).
(d)
The Principal shall provide access to the Site at the time specified in the direction of the
Principal's Representative to enable the Managing Contractor to carry out Early Works.
Clause 39 shall apply to any such access given to the Managing Contractor.
(e)
For the purposes of this clause, the execution of this Contract is deemed to be a direction
by the Principal's Representative to the Managing Contractor to commence the Initial
Early Works package as Early Works based on the schedule of rates set out in Schedule 1.
17.2 Early Works Subcontracts
(a)
The Managing Contractor must not let an Early Works Subcontract without the prior
written approval of the Principal's Representative. In all other respects, the Managing
Contractor must fully comply with the provisions of clause 21 in respect of all Early
Works Subcontracts.
(b)
Without limiting any other provision of this Contract, where the Early Works Contract
relates to a Nominated D&C Package, the Managing Contractor must:
(i)
prepare the draft Early Works Subcontract based on the Principal's direction as to
the required scope for the Nominated D&C Package;
(ii)
ensure that the Early Works Subcontract provides for a minimum of 21 calendar
days for the Principal to review, comment and approve the Design Documents
(MC) prior to any construction commencing based on such Design Documents
(MC); and
(iii)
submit the proposed draft Early Works Subcontract to the Principal for review and
approval at least 7 days prior to the proposed date for releasing it to tenderers.
(c)
Early Works Subcontracts shall include a right to terminate for convenience (but not a
right to foregone revenue or profit of the Subcontractor) and a right for the Managing
Contractor to assign or novate the Early Works Subcontracts at no cost to the Principal.
(d)
Amounts paid and payable under Early Works Subcontracts shall be included in the
Guaranteed Construction Sum and the Actual Construction Sum.
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(e)
If the Principal rejects the Managing Contractor's GCS Offer and Alternative GCS Offer
under clause 11.3(a), the Managing Contractor shall continue to carry out and complete all
Early Works pursuant to the terms of the Contract unless the Principal directs the
Managing Contractor to:
(i)
terminate the Early Works Subcontracts; or
(ii)
assign or novate (at no cost to the Principal) all or some of the Early Works
Subcontracts to the Principal by entering into and executing a Deed of Novation
satisfactory to the Principal,
in which case the Managing Contractor shall comply with any such direction.
18. Consultants
18.1A Engagement of Consultants
(a)
The Principal has engaged the Consultants to perform the Design Work for the Project
under the Consultancy Agreements.
(b)
If notified in writing by the Principal prior to the Date for GCS Offer, the Managing
Contractor is required to include in any GCS Offer (and Alternative GCS Offer (if any))
allowance for all costs (including the Nominated Consultants' Fee) for engaging the
Nominated Consultants on terms substantially identical to the Consultancy Agreements to
perform the Managing Contractor's obligations in respect of Documentation Work in
Stage Two should the GCS Offer or Alternative GCS Offer be accepted by the Principal.
(c)
If the Principal has notified the Managing Contractor under clause 18.1A(b) and the GCS
Offer or Alternative GCS Offer is accepted by the Principal pursuant to clause 11, the
Managing Contractor shall enter into agreements with the Nominated Consultants in the
form attached in Schedule 4 within 7 days of such acceptance. Failure to do so is a
Payment Deferral Event unless the failure to enter the agreements is caused by the
Nominated Consultants.
(d)
Notwithstanding the engagement of the Nominated Consultants by the Managing
Contractor pursuant to this clause, the Managing Contractor acknowledges that the
Principal may:
(i)
communicate directly with the Consultants in relation to the Project;
(i)
engage or retain the Nominated Consultants to perform other services in relation
to the Project; and
(ii)
bring a Claim against the Nominated Consultants for any breaches of the
Consultancy Agreements.
18.1 Engagement of other consultants
(a)
The Managing Contractor shall engage any other consultants that the Managing
Contractor considers are required to fulfil its obligations under the Contract.
(b)
The Managing Contractor shall make its own determinations as to the nature, extent and
timing of all consultancy services required by the Managing Contractor.
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18.2 Other consultancy services required by the Principal
(a)
The Principal may direct the Managing Contractor to engage additional consultants or
extend the services of an existing Nominated Consultant engaged by it in accordance with
clause 18.1A. The Principal shall identify:
(i)
the work to be carried out by such consultants;
(ii)
the time for performance of such work; and
(iii)
direct the Managing Contractor to procure from the consultant the consultant's fee
proposal.
(b)
The Managing Contractor shall advise the Principal, within the time stipulated by the
Principal, the terms of the consultant's fee proposal and the Principal may direct the
Managing Contractor to engage the additional consultant or extend the Nominated
Consultant's services.
(c)
If so directed by the Principal, the Managing Contractor shall engage and manage such
consultants as if they and the required services had been identified in the Tender
Documents Design/Buildability Advisor Fee and at no additional cost to the Principal
other than an adjustment to the Nominated Consultants' Fee to take into account the fees
of the additional consultants the subject of the Principal's direction pursuant to this clause
18.2. This clause does not apply where the direction is a Variation.
18.3 Responsibility for Nominated Consultants
(a)
The Managing Contractor by engaging any Nominated Consultant (whether with or
without the consent of the Principal) shall not be relieved from any of the Managing
Contractor's liabilities or obligations under the Contract.
(b)
All Nominated Consultants engaged by the Managing Contractor shall be accountable to
the Managing Contractor on all matters relating to their engagement and the Managing
Contractor shall be responsible to the Principal for any acts, defaults and neglects of the
Nominated Consultants engaged by it.
(c)
Without limiting the Principal's rights under clause 18.1A(d), the Managing Contractor
shall allow the Principal's Representative to communicate directly with any Nominated
Consultant engaged by it including regarding the timing and Quality of Subcontract
Construction Documentation and certification regarding the Quality and completion of
Construction Work and ensure, if requested by the Principal, that a Consultant engaged by
it attends any meeting in connection with the services being provided by the Nominated
Consultant.
(d)
If requested by the Principal's Representative at any time, the Managing Contractor shall
ensure that the Nominated Consultant certifies to the Principal that Documentation Work
carried out by the Nominated Consultant complies with the GCS Offer Project Brief.
18.4 Co-ordination of Nominated Consultants
The Managing Contractor shall be responsible for co-ordinating the work of the Nominated
Consultants and shall provide and direct all necessary personnel to administer, supervise, inspect,
co-ordinate and control the Nominated Consultants so as to ensure the completion of the work
undertaken by the Nominated Consultants in a manner and at a rate of progress in accordance with
and consistent with the completion of the Works in accordance with the Program.
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18.5 Termination of a Consultancy Agreement
The Managing Contractor agrees that if a contract or agreement it has with a Nominated
Consultant is terminated for any reason, the Managing Contractor remains fully responsible in all
respects for the proper completion in accordance with the Contract of the Design Work, the
Documentation Work and the Construction Work being carried out by the Nominated Consultant.
All costs, expenses or losses of any kind in relation to such termination shall be the responsibility
of the Managing Contractor. Neither the Principal nor the Principal's Representative shall be
under any obligation to nominate a replacement Nominated Consultant.
18.6 Changes in Nominated Consultant's staff
(a)
The Managing Contractor shall immediately notify the Principal's Representative upon the
Managing Contractor receiving any notice from a Nominated Consultant that the effective
control of the Nominated Consultant has changed or upon the Managing Contractor being
aware that the Nominated Consultant has engaged or dismissed or removed key staff.
(b)
Upon receipt of such notice the Principal's Representative may direct the Managing
Contractor to terminate the engagement of the relevant Nominated Consultant.
18.7 Not used
18.8 Quantity surveyor
Subcontract bills of quantities shall be prepared by a consultant quantity surveyor engaged by the
Principal. The Managing Contractor is required to verify the subcontract bill of quantities and
satisfy itself of the completeness, accuracy and sufficiency of the bill of quantities and will have
no Claim against the Principal and will not be relieved of any obligation or liability in relation to
the preparation and verification of the bill of quantities. The bills of quantities are generally
measured in accordance with Australian Standard Method of Measurement Fifth Edition
published by the Australian Institute of Quantity Surveyors and the Master Builders Australia
Incorporated as modified and amended by the "Modifications to Australian Standard Method of
Measurement of Building Works Fifth Edition (Non Contract Bills Version)".
19. Design change variations during Stage One
19.1 Changes at the direction of the Principal's Representative
(aa)
The Managing Contractor acknowledges that the process of developing the Design
Documents may result in changes to the design set out in the Project Brief. The Managing
Contractor must regularly consult with the Principal and any user groups established by
the Principal in connection with the development of the Project Brief. The development
of the Project Brief does not constitute a Variation other than to the extent that the
Principal directs an amendment to the Project Brief pursuant to clause 19.1(a) the
Contract.
(a)
The Principal's Representative may during Stage One:
(i)
change the Project Brief; or
(ii)
incorporate an alternative design solution into the Developed Design.
If the change or alternative is in the nature of material changes to the building envelope or
fundamental changes to the proposed uses of the Works to include uses such as animal
research facilities or radioactive bunkers, the Principal's Representative shall provide the
Managing Contractor with a Variation direction in writing.
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(b)
If the Principal's Representative issues a Variation direction pursuant to clauses 19.1(a) or
53, the Principal's Representative shall determine the amount of a reasonable adjustment
(if any) to the Design/Buildability Advisor Fee, ICT Management Fee, Preliminaries, Off
Site Overheads and Profit Fee for Stage One (if applicable) and Guaranteed Construction
Sum (if applicable) and any reasonable adjustment to the Date for Practical Completion (if
applicable). The Managing Contractor shall not be entitled to any damages for delay or
disruption pursuant to clause 50 or otherwise as a result of a direction issued by the
Principal's Representative pursuant to clause 19.1(a).
19.2 Changes for the convenience of the Managing Contractor
(a)
The Managing Contractor may propose a change to the GCS Offer Project Brief or where
the Principal has not accepted a GCS Offer Project Brief then the Project Brief, as a
Variation for the convenience of the Managing Contractor. The Managing Contractor
must provide the Principal's Representative with full details of the proposed Variation,
including the likely effect on Quality, the timing of the Works including any effect on the
Date for Practical Completion and the Actual Construction Sum.
(b)
The Principal's Representative may approve or reject the Managing Contractor's request
pursuant to this clause, by notice in writing. Any approval may be subject to conditions
imposed by the Principal's Representative. The Managing Contractor must not otherwise
change the Project Brief or the GCS Offer Project Brief
(c)
Unless the Principal's Representative otherwise directs in a notice approving the
Variation, the Managing Contractor shall not be entitled to:
(i)
any increase to the Design/Buildability Advisor Fee, ICT Management Fee,
Preliminaries, Off Site Overheads and Profit Fee or Guaranteed Construction Sum;
or
(ii)
any extension of time to the Date for Practical Completion; or
(iii)
damages for delay or disruption pursuant to clause 50 or otherwise,
in respect of the Variation or anything arising out of the Variation pursuant to this clause
19.2 which would not have arisen had the Variation not been approved.
20. Supply of documents
20.1 Supply of documents by Principal
(a)
Unless otherwise stated, the Principal shall supply to the Managing Contractor an
electronic copy of the documents required by the Contract to be supplied to the Managing
Contractor by the Principal.
(b)
Documents supplied to the Managing Contractor by the Principal shall remain the
property of the Principal and shall be returned by the Managing Contractor to the Principal
on demand in writing.
(c)
The documents shall not, without the prior written approval of the Principal, be used,
copied or reproduced for any purpose other than the execution of the work under the
Contract.
(d)
The Managing Contractor agrees and warrants that:
(i)
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the Principal makes no representations, warranties or guarantees as to the
sufficiency or accuracy of the Principal Supplied Information; and
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(ii)
(e)
(f)
it does not have any Claim against the Principal in contract, tort, equity, under
statute or otherwise arising from or in connection with the Principal Supplied
Information, the provision of the Principal Supplied Information or the nonprovision of any other information by the Principal.
The Managing Contractor:
(i)
shall not rely upon (or allow any other person to rely upon) the Principal Supplied
Information for or in connection with the carrying out of the work under the
Contract until it has satisfied itself as to the accuracy, completeness and adequacy
of the Principal Supplied Information; and
(ii)
releases the Principal from any Claims or liability suffered or incurred by the
Managing Contractor arising from or in connection with the Managing Contractor
failing to satisfy itself in accordance with paragraph (e)(i).
The Managing Contractor has entirely by its own independent enquiries satisfied itself
entirely as to and taken into account any matter or thing relevant to the carrying out of the
work under the Contract disclosed by any Principal Supplied Information.
20.2 Supply of documents by Managing Contractor
(a)
If the Contract requires the Managing Contractor to supply documents to the Principal, the
Managing Contractor shall, unless otherwise stated, supply 4 hard copies and an electronic
copy in a format which is acceptable to the Principal.
(b)
The Managing Contractor shall supply to the Principal's Representative the documents and
information as required by the Contract, in a form satisfactory to the Principal's
Representative and at those times stated in the Contract or requested by the Principal's
Representative or, if no times are stated in the Contract or requested by the Principal's
Representative, then in a reasonable time before the work contained in those documents is
commenced.
(c)
If the Contract provides that the Managing Contractor must obtain the Principal's
Representative's direction whether documents are suitable or are not suitable and that the
Principal's Representative must (as distinct from may) give such notification then, within a
reasonable time after receipt of the documents, the Principal's Representative shall notify
the Managing Contractor that the documents are suitable or are not suitable.
(d)
The Principal's Representative's approval to any documentation shall not relieve the
Managing Contractor from responsibility for compliance with the requirements of the
Contract.
(e)
If the Principal's Representative notifies the Managing Contractor that the documents are
not suitable, the Principal's Representative shall give reasons why the documents are not
suitable and the Managing Contractor shall submit new or amended documents for the
Principal's Representative's direction pursuant to this clause 20.2.
20.3 Supply of documentation
(a)
The Managing Contractor must maintain a marked up set of all 'as constructed' installation
drawings and submit these for review to the Principal's Representative within one month
of the completion of the relevant trade work.
(b)
At least three months prior to the Date of Practical Completion, the Managing Contractor
shall provide to the Principal two (2) copies of 'interim' operating manuals and
maintenance manuals for all components of the Works.
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(c)
Not used.
(d)
All drawings required to be provided by the Managing Contractor must be in both hard
copy and electronic format. The hard copy format shall be in accordance with the relevant
standards. The electronic format shall be provided on CD-ROM in a format acceptable to
the Principal for Maintenance Manuals (excluding manufacturer's literature) and in 'Auto
CAD' drawing format for 'as constructed' drawings.
20.4 Availability of documents
(a)
Whilst work under the Contract is being performed, one complete set of written
information supplied by the Principal, the Principal's Representative and the Managing
Contractor shall be kept by the Managing Contractor at the Site or other location approved
in writing by the Principal and shall be available at all times for reference by the Principal,
the Principal's Representative and any persons nominated in writing by either of them.
(b)
During the manufacture or assembly of any significant part of the work under the Contract
away from the part of the Site where the Works are to be constructed, a set of the
drawings and written information relevant to that part of the work shall be kept by the
Managing Contractor at the place of manufacture or assembly and shall be available for
reference by the Principal, the Principal's Representative and any person nominated in
writing by either of them.
20.5 Confidential information
Drawings, specifications, information, samples, models, patterns and other documents, supplied
or produced by either the Managing Contractor, a Consultant or the Principal and which relate in
any way to the Contract or the work under the Contract, shall be regarded as confidential and shall
not be disclosed to a third party, except with the prior agreement of the Principal.
20.6 Media releases
The Managing Contractor, the Managing Contractor's Subcontractors and Nominated Consultants
shall not issue or be involved with the release of any information, publication, statement,
interview, document or article for publication concerning the Works or the Site in any media
without the prior written approval of the Principal. The Managing Contractor shall refer to the
Principal any enquiries concerning the Works from any media and shall advise the Principal of all
approaches by any media.
21. Assignment and subcontracting
21.1 Assignment
(a)
The Principal may, at any time, by notice in writing to the Managing Contractor, assign all
or any of its rights under the Contract to any Government Entity identified in the notice
(assignee) without the consent of the Managing Contractor, and may otherwise assign or
novate all or any of its rights under the Contract with the consent of the Managing
Contractor (which consent will not be unreasonably withheld or delayed).
(b)
The Managing Contractor acknowledges and agrees that from the date of any notice or
consent given by the Principal pursuant to this clause, any assignment by the Principal
takes effect as if the assignee had been originally named as a party to the Contract in place
of the Principal.
(c)
The Managing Contractor must not, without the prior written approval of the Principal,
and except on such terms and conditions as are determined in writing by the Principal,
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assign the Contract or any payment or other right, benefit or interest under or in respect of
the Contract.
21.1A
Change in Control
(d)
A Change in Control of the Managing Contractor must not occur without the prior written
consent of the Principal, which consent must not be unreasonably withheld.
(e)
It will be reasonable for the Principal to withhold its consent to a Change in Control if the
Principal is of the reasonable opinion that:
(i)
the Controller is not solvent or reputable;
(ii)
the Controller has an interest which conflicts in a material way with the interests
of the Principal or is involved in a business or activity which is incompatible or
inappropriate in relation to the Project;
(iii)
the Controller does not have the level of financial, managerial and technical
capacity of the person or entity it is replacing or from whom it is taking Control or
otherwise to deliver the Project;
(iv)
the proposed change or the change is:
(A)
against the public interest;
(B)
could lead to the occurrence of a Probity Event; or
(C)
would increase the level of risk or liabilities of the Principal.
21.2 Construction Work
(a)
Construction Work shall be performed:
(i)
under Subcontracts which shall be made between the Managing Contractor and
Subcontractors; or
(ii)
with the prior written agreement of, and on the conditions imposed by, the
Principal's Representative, by the Managing Contractor.
(b)
Notwithstanding any of the other provisions of this clause 21.2, the Managing Contractor
agrees and acknowledges that all Subcontracts for Construction Work shall be procured
pursuant to the requirements of the Purchasing Policies and the obligations of government
agencies contained in the Purchasing Policy shall apply equally to the Managing
Contractor as though it is a government agency.
(c)
The Managing Contractor shall supply to the Principal's Representative in accordance
with the Procurement Plan the proposed Subcontract Construction Documentation in a
form satisfactory to the Principal's Representative for that part of the Construction Work
the subject of a proposed subcontract (Proposed Subcontract Construction
Documentation). The Principal's Representative may comment on or issue directions to
the Managing Contractor in respect of the Proposed Subcontract Construction
Documentation.
(d)
The Managing Contractor shall not commence tendering of the subcontract in respect of
such Construction Work until the expiration of five working days after the receipt of the
Proposed Subcontract Construction Documentation by the Principal's Representative,
unless otherwise agreed in writing with the Principal's Representative.
(e)
Without limiting clause 2.2(u), the Principal's Representative shall not be bound to review
or comment upon the Proposed Subcontract Construction Documentation or any other
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documents provided to it by the Managing Contractor or to check for errors, omissions or
compliance with the Contract. The Principal's Representative's receipt or review of, or
comment on or direction in respect of the Proposed Subcontract Construction
Documentation or any other documents provided by the Managing Contractor shall not
relieve the Managing Contractor from responsibility for the Managing Contractor's
obligations in respect of Design Work, Documentation Work, Construction Work or other
requirements of the Contract.
(f)
(g)
The Managing Contractor shall prepare and produce (or in the case of sub-clause (ii)
verify the production of) all required copies of the tender documentation for subcontracts
comprising:
(i)
a duly completed subcontract in accordance with clause 21.3;
(ii)
unless otherwise agreed with the Principal's Representative, a professionally
prepared bill of quantities in accordance with clause 18.8 and generally measured
in accordance with the Australian Standard Method of Measurement of Building
Works Fifth Edition (ASMM) published by the Australian Institute of Quantity
Surveyors and the Master Builders Australia Incorporated as modified and
amended by the "Modifications to Australian Standard Method of Measurement of
Building Works Fifth Edition (Non Contract Bills Version)";
(iii)
unless otherwise agreed with the Principal's Representative, the Subcontract
Construction Documentation; and
(iv)
any other documentation necessary for the completion of the work.
Subject to clause 21.2(b), the Managing Contractor shall, unless otherwise agreed in
writing with the Principal's Representative:
(i)
request, and use its best endeavours to obtain, tenders from at least three tenderers
approved by the Principal's Representative for each subcontract on the basis of the
tender documentation prepared pursuant to clause 21.2(f), either by public or
select subcontract tenders, and in accordance with the Purchasing Policy;
(ii)
where the Managing Contractor invites select subcontract tenders including any
preferred subcontractors identified in the Managing Contractor's Tender, GCS
Offer or Alternative GCS Offer (as applicable):
(iii)
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(A)
not used;
(B)
seek approval of the list from the Principal's Representative (which may be
withheld in its discretion (acting reasonably)); and
(C)
invite tenders in sufficient time to avoid delays or disruption to the
progress of the work under the Contract;
if required by the Principal's Representative:
(A)
ensure the sealed bids from the tenderers are lodged in a secure tender box
located at the address of the Managing Contractor as advised to the
Principal's Representative pursuant to clause 10;
(B)
arrange for the Principal's Representative and the Managing Contractor's
Representative or their nominee to be present at and conduct the opening
of the tender box; and
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(C)
(iv)
provide a copy of each tender to the Principal's Representative promptly;
and
examine, analyse and critically evaluate all tenders received and:
(A)
not accept any tender which does not conform with the subcontract tender
documents unless otherwise approved in writing by the Principal's
Representative;
(B)
accept the tender which represents the best Value for Money, unless
otherwise approved in writing by the Principal's Representative;
(C)
prepare and retain a detailed written record of the evaluation process
undertaken, the basis upon which the successful tenderer was selected and
each step in the selection process;
(D)
enter into an agreement with a tenderer on the basis of the tender
documentation prepared pursuant to clause 21.2(f), with only such
amendments as the Principal's Representative may have approved in
writing; and
(E)
ensure all subcontracts are consistent with the Subcontract Construction
Documentation and the Contract and contain all necessary provisions
required by it.
(h)
Where the Managing Contractor has identified preferred subcontractors in the Managing
Contractor's Tender or GCS Offer / Alternative GCS Offer (if any), the Managing
Contractor may involve those preferred subcontractors in the work under the Contract
prior to acceptance, if any, of the GCS Offer but a preferred subcontractor shall not be
engaged as a Subcontractor until after the Date of Commencement of Stage Two, if any,
unless otherwise agreed in writing with the Principal's Representative.
(i)
If the Managing Contractor wishes to involve preferred subcontractors in the work under
the Contract during Stage One the Managing Contractor must comply with the
requirements of clause 21.2(g) in relation to the tendering of such subcontract packages.
(j)
Where the Managing Contractor, with the written agreement of the Principal's
Representative, invites a tender from a single subcontract tenderer, the Managing
Contractor must:
(i)
comply with the requirements of clauses 21.2(b), 21.2(c) and 21.2(p);
(ii)
not enter into a subcontract with that subcontract tenderer until the provisions of
clause 21.2(c) have been complied with, and there will be no adjustment to the
Design/Buildability Advisor Fee, ICT Management Fee or the Guaranteed
Construction Sum as a result of any subcontract price difference as a result of
compliance with this clause 21.2(j)(i);
(iii)
notwithstanding paragraphs (a) and (b) above, tender the subcontract pursuant to
clauses 21.2(c), 21.2(f) and 21.2(g) where the scope of Works for the subcontract
differs significantly from the scope of Works when the Principal's agreement was
obtained to invite a single subcontract tenderer for the relevant subcontract, and
there will be no adjustment to the Design/Buildability Advisor Fee, ICT
Management Fee or the Guaranteed Construction Sum as a result of such
subcontract tender.
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(k)
The Managing Contractor warrants that all Subcontractors engaged by the Managing
Contractor shall not be related parties of the Managing Contractor (unless expressly
agreed in writing by the Principal's Representative) and shall have the necessary
suitability, reliability, expertise and financial standing to execute the work being
subcontracted and the Managing Contractor shall not engage:
(i)
a subcontractor if the Managing Contractor knows of any reason why that
subcontractor's tender should not be accepted; or
(ii)
a related party to the Managing Contractor.
(l)
The Managing Contractor shall by notice in the form in Schedule 6 advise the Principal's
Representative, within five working days of acceptance of the tender, which subcontract
tender was accepted by the Managing Contractor, and will provide any other details or
information which may be required by the Principal's Representative.
(m)
Where the subcontract tender documents include a bill of quantities pursuant to clause
21.2(f), the Managing Contractor shall ensure the successful subcontract tenderer submits
a fully priced and correctly extended bill of quantities which shall be agreed between the
Subcontractor and the Managing Contractor within fourteen days of the date of acceptance
of the tender.
(n)
The rates contained within the successful tenderer's agreed priced bill of quantities shall
be used for:
(i)
the purpose of payments and for the valuation of variations under the subcontract;
and
(ii)
in the event that the Principal's Representative determines that those rates or prices
contained in the bill of quantities are applicable, for the purpose of valuations
pursuant to clause 53.4.
(o)
The Managing Contractor shall provide the Principal's Representative with two (2) copies
of the complete documentation evidencing the agreement and constituting the subcontract
between the Subcontractor and Managing Contractor including the Subcontract
Construction Documentation relevant to that agreement, within 10 days after the date of
acceptance of the Subcontractor's tender.
(p)
The Managing Contractor warrants that in procuring subcontracts the Managing
Contractor will comply with:
(q)
(i)
the requirements of this clause 21 in every respect;
(ii)
the requirements of AS 4120 – 1994 'Code of Tendering'; and
(iii)
the requirements of the Purchasing Policy.
In respect of the procurement of subcontracts, the Managing Contractor indemnifies on
demand and shall keep indemnified on demand the Principal, the Principal's
Representative and the employees, consultants and agents of the Principal against all loss,
liability or claim the Principal may become liable for, suffer or incur including any claim
by a person who may have an interest in a subcontract tender or subcontract, seeking the
payment of money, or any costs, expenses, loss or damages on any ground whatsoever
including in relation to the Purchasing Policy, but the Managing Contractor's liability to
indemnify the Principal shall be reduced proportionally to the extent that the Principal has
contributed to such loss by an unlawful act or omission.
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(r)
The Managing Contractor's warranties and indemnity provided pursuant to this clause
21.2 shall remain unaffected notwithstanding any approval, direction, or advice given by
the Principal, the Principal's Representative or the employees, consultants or agents of the
Principal.
(s)
The Principal may at any time and from time to time prior to the issue of the Final
Certificate, undertake an audit in respect of the Managing Contractor's compliance with
this clause 21 and the Managing Contractor shall comply in all respects with any request
for information or for access to any documents which the Principal may make.
(t)
Where the Principal is of the opinion that the Managing Contractor has not complied with
its obligations pursuant to this clause 21 the Principal may direct the Managing Contractor
to procure a subcontract for the relevant portion of the Works in accordance with this
clause 21, and the Managing Contractor shall promptly comply with the Principal's
direction. Failure by the Managing Contractor to promptly comply with the Principal's
direction shall be a substantial breach of contract.
(u)
The Managing Contractor must not, without the prior approval of the Principal's
Representative, allow a Subcontractor to assign or subcontract any of the work under the
Contract. When seeking approval pursuant to this clause 21.2(u), the Managing
Contractor shall provide to the Principal's Representative such information which the
Principal's Representative may reasonably request. The Principal's Representative may
without giving reasons reject any such request for approval by the Managing Contractor.
(v)
If approval is sought to sub subcontract part of the work under the Contract pursuant to
this clause, the Managing Contractor must ensure the requirements of clauses 21.3(a) and
21.3(b) are met.
21.3 Requirements of subcontracts
(a)
The Managing Contractor shall submit its proposed form of subcontract to the Principal's
Representative for approval which shall not be unreasonably withheld or delayed.
(b)
The Managing Contractor must ensure that all Subcontractors and any sub subcontractors:
(i)
have a personal services business determination in effect from the Australian
Taxation Office under the Income Tax Assessment Act 1997 (Cth);
(ii)
in relation to the work to be performed under the subcontract (or sub subcontract):
(A)
will be paid to achieve a specified result or outcome;
(B)
are required to supply the plant and equipment or tools of trade needed to
perform the work;
(C)
will be liable for the cost of rectifying any defect in the work performed;
(D)
do not include a right to payment of lost profit or the like on termination of
the Subcontract other than for default of the Managing Contractor;
(E)
are not entitled to Claim payment for amounts in the nature of Excluded
Costs;
(F)
contain warranties in favour of the Principal or assignable to the Principal
as required by this Contract; and
(iii)
include a warranty and representation equivalent to that provided by the Managing
Contractor under clause 6; and
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(iv)
(c)
include a right for the Managing Contractor to assign or novate the Subcontract, at
no cost, to the Principal in the event that the Principal exercises its rights under
clause 59.4 or 59.5.
All subcontracts in relation to the Works must not:
(i)
contain provisions that allow the Managing Contractor to 'pay when paid' or 'pay if
paid'; or
(ii)
amend clauses relating to payment timing in subcontracts.
21.4 Responsibility for Subcontractors
(a)
By engaging any Subcontractor (whether or not in accordance with the approval by or
direction of the Principal's Representative), the Managing Contractor shall not be relieved
from any of the Managing Contractor's liabilities or obligations under the Contract and
shall remain entirely responsible to the Principal (and for the purposes of Part IVAA of
the Wrongs Act 1958 (Vic)) for all Subcontractors and for all work which is or may be
subcontracted, whether or not any Subcontractors default or otherwise fail to observe or
comply with the requirements of a Subcontract.
(b)
If a Subcontractor:
(i)
is in breach of the Subcontractor's obligations under a Subcontract; or
(ii)
commits an act of insolvency as defined by clause 59.11 (as if the words
'Managing Contractor' were replaced with 'Subcontractor' in that clause),
then the Managing Contractor shall in writing promptly notify the Principal's
Representative of this fact and take action in accordance with the Subcontract.
(c)
(d)
If a Subcontract is terminated and another Subcontractor engaged:
(i)
the Guaranteed Construction Sum shall not be adjusted; and
(ii)
the Principal shall not be liable to pay more than the Guaranteed Construction Sum
in respect of the Actual Construction Sum.
The Managing Contractor shall not vary the Subcontracts or the Subcontract Works except
pursuant to a Variation Order under this Contract or with the prior written consent of the
Principal's Representative.
22. Latent Conditions
22.1 Definition
Latent Conditions are physical conditions on the Site or the Site's surroundings, including
artificial things, (but excluding weather conditions or the results of such conditions whether on or
off the Site), which differ materially from the physical conditions which the Managing Contractor
knows, or should reasonably have been anticipated by a suitably qualified and experienced
Relevant Managing Contractor at the time of the submission by the Managing Contractor of the
GCS Offer if that suitably qualified and experienced Relevant Managing Contractor had:
(a)
examined all information referred to in the Project Brief or otherwise provided by the
Principal;
(b)
examined all information relevant to the risks, contingencies and other circumstances
having an effect on the work under the Contract and obtainable by the making of
reasonable enquiries; and
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(c)
inspected the Site and the Site's surroundings.
22.2 Notification
If during the execution of the work under the Contract, the Managing Contractor becomes aware
of a Latent Condition, the Managing Contractor shall (as a condition precedent to any entitlement
to Claim) within two (2) business days of becoming aware or should reasonably have become
aware and where possible before the Latent Condition is disturbed, provide to the Principal's
Representative a statement in writing specifying:
(a)
the Latent Condition encountered and in what respects it differs materially;
(b)
the additional work and additional resources which the Managing Contractor estimates to
be necessary to deal with the Latent Condition;
(c)
the time the Managing Contractor anticipates will be required to deal with the Latent
Condition and the expected delay in achieving Practical Completion;
(d)
the Managing Contractor's estimate of the cost of the measures necessary to deal with the
Latent Condition; and
(e)
other details reasonably required by the Principal's Representative.
22.3 Cost of dealing with Latent Condition
If a Latent Condition in relation to the Works (other than the Initial Early Works) directly and
necessarily causes the Managing Contractor to:
(a)
carry out more work; or
(b)
incur extra cost,
which the Managing Contractor could not reasonably have anticipated at the time of submission
of the GCS Offer by the Managing Contractor a valuation shall be made by the Principal's
Representative in accordance with clause 53.4 (as if the valuation were for a Variation), and the
Guaranteed Construction Sum shall be adjusted by the amount of that valuation in accordance
with the Contract.
22.4 Extension of time
Delay caused by a Latent Condition in relation to the Works (other than the Initial Early Works)
may justify an extension of time under clause 49.3 and costs assessed pursuant to the provisions
of clause 53.4(b).
23. Patents, copyright and other intellectual property rights
23.1 Warranty and indemnity
The Managing Contractor warrants to the Principal that the Contract Materials and methods of
working will not infringe any patent, copyright, moral right, registered design, trademark or name,
or other protected right and the Managing Contractor indemnifies the Principal on demand against
all loss, liability or claim the Principal may become liable for, suffer or incur in relation to such
infringement.
23.2 Intellectual property rights granted to Principal
(a)
The ownership of and copyright in all Contract Materials shall vest absolutely in the
Principal upon their creation.
(b)
To the extent that copyright in or relating to the Contract Materials is not capable of being
vested in the Principal because the Managing Contractor does not own the copyright,
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where the Managing Contractor directly engages a consultant preparing and creating
Contract Materials the Managing Contractor shall ensure that the Principal is irrevocably
licensed to use (with a right to sub-license) the relevant Contract Materials on a royalty
free basis.
23.3 Moral Rights
(a)
To the extent the Managing Contractor has Moral Rights in the Contract Materials, the
Managing Contractor consents to:
(i)
the Principal;
(ii)
any third party to whom the Principal expressly or impliedly licenses, or grants
any other right to use or possess, any Contract Materials (licensee); or
(iii)
any third party to whom the Principal assigns copyright in any part of the Contract
Materials (assignee),
doing any of the following for purposes connected with this Contract or the Works:
(iv)
acknowledging in any manner or failing to acknowledge the Managing
Contractor's or any other person's authorship of any Contract Materials;
(v)
modifying, varying or amending any Contract Materials; or
(vi)
altering any Contract Materials by adding to, or removing elements from, any
Contract Materials, including by combining elements of any Contract Materials
with any other material.
(b)
The Managing Contractor must use its best endeavours to obtain a signed, written consent
from all individuals who create or may create any Contract Materials to enable the
Principal or any licensee or assignee to use the Contract Materials as provided for in
clause 23.3(a).
(c)
Upon request by the Principal's Representative, the Managing Contractor will produce to
the Principal's Representative the written consents obtained pursuant to clause 23.3(b).
24. Statutory Requirements and Policies
24.1 Variance with the Contract
(a)
The Managing Contractor shall comply with and satisfy all Statutory Requirements except
those which the Principal's Representative directs are to be satisfied by or on behalf of the
Principal. The Managing Contractor is not obliged to obtain planning approval for the
Works.
(b)
The Managing Contractor must obtain, maintain and comply with and ensure the Works
comply with all Approvals necessary for the implementation of the Project, including all
conditions of such Approvals.
(c)
If a Statutory Requirement is at variance with a provision of the Contract, as soon as the
Managing Contractor discovers the variance, the Managing Contractor shall notify the
Principal's Representative in writing specifying the difference.
(d)
Approvals issued to the Managing Contractor by any Authorities in respect of the work
under the Contract shall be surrendered to the Principal prior to Practical Completion.
Prior to Practical Completion the Managing Contractor shall deliver to the Principal all
Approvals obtained by the Managing Contractor in respect of the Works. This shall
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include all Approvals required from any Authority for the lawful occupation or use of the
Work.
24.2 Changes in Statutory Requirements
If a change to a Statutory Requirement (other than change in the zoning of the Site, a Statutory
Requirement to which paragraph (d) of that definition applies, and subject to paragraph 24.2(a)(v),
other than a Tax):
(a)
directly necessitates:
(i)
a change to the Works;
(ii)
not used;
(iii)
a change, being the provision or expansion of services of a municipal, public or
statutory authority in connection with the Works;
(iv)
an increase or decrease in a fee or charge or payment of a new fee or charge
directly in relation to the Works; or
(v)
an increase or decrease in GST;
(b)
has effect after the 14th day prior to the date of submission of the GCS Offer; and
(c)
was not anticipated by the Managing Contractor, and could not reasonably have been
anticipated by a suitably qualified and experienced Relevant Managing Contractor at the
time of submission of the GCS Offer if that suitably qualified and experienced Managing
Contractor had:
(i)
examined all information referred to in the Project Brief;
(ii)
examined all information relevant to the risks, contingencies and other
circumstances having an effect on the work under the Contract and obtainable by
the making of reasonable enquiries; and
(iii)
inspected the Site and the Site's surroundings.
then to the extent that such change causes the Managing Contractor to incur more or less cost than
otherwise would have been incurred, the difference shall be valued under clause 53.4 (as if the
valuation were for a Variation) and the Design/Buildability Advisor Fee, ICT Management Fee,
Preliminaries and Guaranteed Construction Sum shall be adjusted in accordance with the
Contract.
24.3 Managing Contractor's declaration and indemnity
The Managing Contractor agrees that except insofar as it is expressly provided otherwise by the
Contract:
(a)
the Managing Contractor does not act as agent of the Principal in complying with any
Statutory Requirement; and
(b)
the Managing Contractor indemnifies the Principal on demand against any loss, liability or
claim the Principal may become liable for, suffer or incur as a consequence of the
Managing Contractor failing to comply with any Statutory Requirement.
24.4 Documents evidencing approvals of Authorities
The Managing Contractor shall give the Principal copies of documents issued to the Managing
Contractor by Authorities in respect of the work under the Contract and, in particular, any
approvals of work.
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24.5 Not used
24.5A OHS to be paramount consideration
(a)
The Managing Contractor acknowledges that the health, safety and welfare of:
(i)
the Principal and Monash Health's employees;
(ii)
all Managing Contractor's employees;
(iii)
any other persons engaged or employed to complete the Works;
(iv)
the Hospital Users; and
(v)
the general public,
affected by the Managing Contractor's activities and the Project is the paramount
consideration in the undertaking and completion of the Project.
(b)
The Managing Contractor warrants that it is familiar with and has the capability and
resources to comply with the OHS Law applicable or relevant to the Managing
Contractor's activities and the Works.
24.5B Occupational Health and Safety
The Principal may at any time require the Managing Contractor to provide evidence (at its cost) of
the Managing Contractor's compliance with its obligations under this clause. A failure to provide
such evidence, in a form satisfactory to the Principal (acting reasonably), is a Payment Deferral
Event.
24.5C Appointment as Principal Contractor
(c)
The Managing Contractor will accept appointment as the Principal Contractor in
connection with the work under the Contract at the Site for the purposes of the OHS Law
and will comply with its obligations as Principal Contractor at its own cost and will
execute all documents required to perfect such appointment. Failure to do so will be a
Payment Deferral Event.
(d)
The Principal authorises the Managing Contractor as Principal Contractor to manage,
control and exercise such authority of the Principal to the extent necessary to discharge the
duties imposed on the Managing Contractor as Principal Contractor under Subdivision 2
of Division 2 of Part 5.1 (Construction) of the Regulations.
(e)
During any time that the Managing Contractor is the Principal Contractor, the Managing
Contractor:
(i)
accepts that it is the person solely with control and power over the manner in
which the Works and the work under the Contract is performed;
(ii)
must:
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(A)
complete all forms (if any) and attend to all Statutory Requirements (if
any) to ensure it is appointed as the Principal Contractor;
(B)
pay all fees and charges payable under the OHS Law in connection with
the execution and performance of the Works;
(C)
comply with its obligations as Principal Contractor; and
(D)
discharge the Principal’s obligations under the OHS Law unless the
Principal's Representative directs otherwise.
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(f)
At all times, whether or not the Managing Contractor is the Principal Contractor, the
Managing Contractor must:
(i)
comply with all Statutory Requirements relating to the safety of persons on or
about the site and the carrying out of the work under the Contract, including the
OHS Law;
(ii)
ensure that all Subcontractors and all persons for whom it is responsible or over
whom it is capable of exercising control while upon the Site comply with all
obligations of the Managing Contractor and all obligations of the OHS Law;
(iii)
keep the Principal's Representative fully informed of all occupational health,
safety and rehabilitation matters arising out of, or in any way in connection with,
the work under the Contract as soon as they occur;
(iv)
do all things necessary to assist the Principal and refrain from doing anything that
may impede the Principal in discharging its obligations under the OHS Law;
(v)
immediately comply with directions on safety issued by any relevant Authority or
by the Principal or the Principal's Representative; and
(vi)
to the extent permitted by law, indemnify the Principal on demand against all loss,
liability or claim the Principal may become liable for, suffer or incur relating to the
failure by the Contractor to comply with its obligations.
24.5D Induction
(g)
The Managing Contractor must prepare an induction process for the Site and submit it to
the Principal's Representative for approval. The Managing Contractor has no Claim
against the Principal or Principal's Representative arising out of the Principal's
Representative's approval or rejection of the Managing Contractor's induction process.
(h)
The Managing Contractor must provide the induction process approved by the Principal's
Representative to any person accessing the Site.
(i)
The Managing Contractor shall, before allowing any of its employees or Subcontractors to
commence work on the Site, ensure that the employee or Subcontractor, and any of their
employees, have undergone an induction process approved by the Principal's
Representative.
(j)
Failure by employees or subcontractors of the Managing Contractor to attend induction in
accordance with this clause may result in the removal of those persons from the Site by
the Principal or the Principal's Representative, at the Managing Contractor's expense.
(k)
The cost of providing the induction process shall be borne by the Managing Contractor.
24.5E Breach of OHS Law
Where there is any breach by the Managing Contractor of OHS Law which:
(l)
gives rise to circumstances which present actual or potential risk to life or serious injury;
or
(m)
is otherwise required to be notified under the OHS Law,
then:
(n)
the Principal will be entitled to suspend the whole or part of the Works until the breach of
OHS Law is rectified to the satisfaction of the Principal's Representative (acting
reasonably); and
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(o)
the Managing Contractor must bear any cost or delay it incurs, and will have no
entitlement to make any Claim as a result of the suspension.
24.5F Managing Contractor and Subcontractor obligations
The Managing Contractor must and must ensure that all Subcontractors:
(p)
comply with, and ensure that all other persons engaged in carrying out the Works comply
with:
(i)
OHS Law; and
(ii)
the OH&S Plan,
and upon request by or on behalf of the Principal, at their cost demonstrate compliance
with such requirements including providing evidence of measures taken to achieve
compliance;
(q)
co-operate with each other and employees on the Site in order to maintain uniform safety
practices on the Site;
(r)
co-operate with the Principal to enable the Principal to comply with its obligations under
the OHS Law applicable or relevant to the Works; and
(s)
immediately advise the Principal in writing of any act, fact or circumstance associated
with the activities of the Managing Contractor or any other person relevant to the ability
of the Managing Contractor to carry out the Works in a manner that is safe and without
risks to health.
24.5G Managing Contractor to give risk assessment
The Managing Contractor must and must ensure that all Subcontractors:
(t)
before commencement of the Works, undertake an assessment of the risks associated with
the Works, as applicable, and identify and implement appropriate measures to control all
such risks; and
(u)
provide details of the risk assessment and evidence of implementation of adequate risk
control measures to the Principal on and in accordance with any reasonable request by or
on behalf of the Principal.
24.5H Managing Contractor to give notice of accident, injury, damage to Principal
The Managing Contractor must:
(v)
(w)
promptly, and at a minimum, notify the Principal within 24 hours of any accident, incident
of a kind described in section 37 of the OHS Law, incident which is notifiable under any
OHS Law, injury, property or Environmental damage which:
(i)
occurs during the performance of the Works; or
(ii)
is associated with the Works; and
within 2 business days of any such incident, provide a written report to the Principal
giving complete details of the incident, including the results of investigations into its cause
and any recommendations or strategies for prevention of a recurrence.
24.5I Managing Contractor to provide information regarding goods
(x)
The Managing Contractor must, where appropriate, supply adequate health and safety
information concerning any goods it or any Subcontractors (or their respective agents or
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subcontractors) may use in carrying out the Works and must ensure that any such goods
will be safe when properly used or stored.
(y)
The Managing Contractor must at all times keep the Principal informed of all relevant
information which becomes known to the Managing Contractor or any Subcontractors (or
their respective agents or subcontractors) concerning the use, supply and maintenance
and/or storing of the goods described in clause 24.5I(a).
24.6 Compliance with government policy
(a)
The Managing Contractor must ensure that in carrying out the work under the Contract, as
the case may be, it complies with:
(i)
(b)
24.7
the requirements of the provisions of:
(A)
all applicable Ministerial Directions;
(B)
the Victorian Code of Practice; and
(C)
all Approvals.
The Managing Contractor must ensure that in the performance of the Subcontracts, the
Subcontractors also comply with the requirements of clause 24.6(a).
Australian Government Building and Construction OHS Accreditation Scheme
The Managing Contractor must:
(a)
maintain accreditation under the scheme established by the Building and Construction
Industry Improvement Act 2005 (Cth) at all times during the course of the Contract; and
(b)
comply with all conditions of Scheme accreditation.
24.8 Project Plans
The Managing Contractor must perform its obligations and execute the work under the Contract at
all times in accordance with the Project Plans, as updated in accordance with this Contract.
24A Victorian Code and Victorian Guidelines
24A.1 Defined Terms
In addition to terms defined in this document, terms used in this clause 24A (under the heading
Victorian Code and Victorian Guidelines), have the same meaning as is attributed to them in the
Victorian Government's Implementation Guidelines to the Victorian Code of Practice for the
Building and Construction Industry (Victorian Guidelines) (as published by the Department of
Treasury and Finance, June 2013). The Victorian Code and Victorian Guidelines are available at
www.dtf.vic.gov.au.
24A.2 Primary Obligation
(a)
The Managing Contractor must comply with, and meet any obligations imposed by, the
Victorian Government’s Code of Practice for the Building and Construction Industry
(Victorian Code), the Victorian Guidelines and any Practice Directions issued pursuant to
the Victorian Code or the Victorian Guidelines.
(b)
The Managing Contractor must notify the CCCU (or nominee) and the Client Agency of
any alleged breaches of the Victorian Code and Victorian Guidelines, and of voluntary
remedial action taken within 24 hours of becoming aware of the alleged breach.
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(c)
Where the Managing Contractor is authorised to engage a subcontractor or consultant, and
it does so, the Managing Contractor must ensure that any secondary contract imposes on
the subcontractor or consultant equivalent obligations to those in this section 24A (under
the heading Victorian Code and Victorian Guidelines), including that the subcontractor or
consultant must comply with, and meet any obligations imposed by, the Victorian Code,
the Victorian Guidelines and any Practice Directions issued pursuant to the Victorian
Code or the Victorian Guidelines.
(d)
The Managing Contractor must not appoint or engage another party in relation to the
project where that appointment or engagement would breach a sanction imposed on the
other party in relation to the Victorian Code or Victorian Guidelines.
24A.3 Access and Information
(e)
The Managing Contractor must maintain adequate records of compliance with the
Victorian Code and Victorian Guidelines by it, its subcontractors, consultants and related
entities.
(f)
The Managing Contractor must allow, and take reasonable steps to facilitate, Victorian
Government authorised personnel (including personnel of the CCCU) to:
(i)
enter and have access to sites and premises controlled by the contractor, including
the project site;
(ii)
inspect any work, material, machinery, appliance, article or facility;
(iii)
access information and documents;
(iv)
inspect and copy any record relevant to the project;
(v)
have access to personnel; and
(vi)
interview any person;
as is necessary for the authorised personnel to monitor and investigate compliance with
the Victorian Code and Victorian Guidelines, by the Managing Contractor, its
subcontractors, consultants and related entities.
(g)
The Managing Contractor, and its related entities, must agree to, and comply with, a
request from Victorian Government authorised personnel (including personnel of the
CCCU) for the production of specified documents by a certain date, whether in person, by
post or electronic means.
24A.4 Sanctions
(h)
The Managing Contractor warrants that at the time of entering into this contract, neither it,
nor any of its related entities, are subject to a sanction in connection with the Victorian
Code or Victorian Guidelines that would have precluded it from tendering for work to
which the Victorian Code and Victorian Guidelines apply.
(i)
If the Managing Contractor does not comply with, or fails to meet any obligation imposed
by, the Victorian Code or Victorian Guidelines, a sanction may be imposed against it in
connection with the Victorian Code or Victorian Guidelines.
(j)
Where a sanction is imposed:
(i)
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(ii)
the State of Victoria (through its agencies, Ministers and the CCCU) is entitled to:
(A)
record and disclose details of non‐compliance with the Victorian Code or
Victorian Guidelines and the sanction; and
(B)
take them into account in the evaluation of future expressions of interest or
tender responses that may be lodged by the Managing Contractor, or its
related entities, in respect of work to which the Victorian Code and
Victorian Guidelines apply.
24A.5 Compliance
(k)
The Managing Contractor bears the cost of ensuring its compliance with the Victorian
Code, Victorian Guidelines and any Practice Directions issued pursuant to the Victorian
Code or the Victorian Guidelines, including in respect of any positive steps it is obliged to
take to meet its obligations under the Victorian Guidelines. The Managing Contractor is
not entitled to make a claim for reimbursement or an extension of time from the Client
Agency or the State of Victoria for such costs.
(l)
Compliance with the Victorian Code and Victorian Guidelines does not relieve the
Managing Contractor from responsibility to perform the works and any other obligation
under the contract, or from liability for any defect in the works or from any other legal
liability, whether or not arising from its compliance with the Victorian Code and Victorian
Guidelines.
(m)
Where a change in the Contract or Works is proposed, and that change would, or would be
likely to, affect compliance with the Victorian Code and Victorian Guidelines, the
Managing Contractor must immediately notify the Client Agency (or nominee) of the
change, or likely change and specify:
(i)
the circumstances of the proposed change;
(ii)
the extent to which compliance with the Victorian Code and Victorian Guidelines
will, or is likely to be, affected by the change; and
(iii)
what steps the Managing Contractor proposes to take to mitigate any adverse
impact of the change (including any amendments it proposes to a Workplace
Relations Management Plan or Health and Safety Management Plan);
and the Principal will direct the Managing Contractor as to the course it must adopt within
5 business days of receiving notice.
25. Site Access Protocol, noise, disturbance and nuisance control
(a)
(b)
The Managing Contractor shall comply with the Site Access Protocol, and take all steps
to:
(i)
minimise noise, vibration, dust and prevent nuisances; and
(ii)
prevent the escape of any material from the Site onto property and roads near the
Site.
The Managing Contractor warrants that it has assessed the potential for delays, disruption,
suspension and extra costs in the performance of the work under the Contract because of
potential noise, vibration, dust and all other nuisances and made due allowance in its
tender, including taking into account any operational requirements of the Site included in
the Tender Documents.
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(c)
If there are delays, disruption, suspension or extra costs (including a requirement to alter
Working Hours and methods) caused by the Managing Contractor's compliance with this
clause then:
(i)
the Managing Contractor may not Claim and warrants to the Principal that it shall
not Claim any extra amount or extension of time from the Principal; and
(ii)
this Contract shall not be frustrated.
(d)
Not used.
(e)
Without limiting any other provision of this Contract, in carrying out the Managing
Contractor's obligations, the Managing Contractor must and must procure that
Subcontractors in carrying out the Works:
(i)
have in place and comply with an environmental management system;
(ii)
comply with all Environmental Laws, notices in relation to the Environment and
other requirements of this agreement for the protection of the Environment;
(iii)
not pollute, contaminate or otherwise damage the Environment; and
(iv)
make good any pollution, contamination or damage to the Environment on the Site
or arising out of, or in any way in connection with, the Works, whether or not it
has complied with all Environmental Laws or other requirements of this agreement
for the protection of the Environment and whether or not it caused the pollution or
contamination.
26. Protection of people and property
26.1 Protection measures
(a)
(b)
The Managing Contractor shall:
(i)
provide all things and take all measures necessary to protect people and property;
and
(ii)
avoid unnecessary interference with the passage of people and vehicles.
Without limiting the generality of the Managing Contractor's obligations, they include:
(i)
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the provision of:
(A)
barricades;
(B)
guards;
(C)
fencing;
(D)
temporary roads;
(E)
footpaths;
(F)
warning signs;
(G)
lighting;
(H)
watching;
(I)
traffic flagging; and
(J)
safety helmets and clothing; and
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(ii)
removal of obstructions and protection of services; and
(iii)
personally superintending the Construction Work at all times.
(c)
If the Managing Contractor or the employees or agents of the Managing Contractor
damage property, including but not limited to public utilities and services and property on
or adjacent to the Site, the Managing Contractor shall promptly make good the damage
and pay any compensation which the law or any Statutory Requirement requires the
Managing Contractor to pay.
(d)
If the Managing Contractor fails to comply with an obligation under this clause 26 the
Principal may, in addition to any other remedy, perform the obligation on the Managing
Contractor's behalf and the cost incurred by the Principal shall be a debt due from the
Managing Contractor to the Principal.
26.2 Traffic Management
(a)
(b)
During Stage One and Stage Two and whenever performing Construction Work, the
Managing Contractor:
(i)
is responsible for the control, direction and protection of all road and pedestrian
traffic in any way affected by the work under the Contract or the Works; and
(ii)
must manage all such traffic to minimise any delays and disruptions to vehicular
and pedestrian access and the movement of road traffic.
The Managing Contractor must at all times comply with:
(i)
the Site Access Protocol and the traffic management plan; and
(ii)
the directions or requirements of any relevant Authority,
regarding management of vehicular and pedestrian access and traffic management and
safety.
26.3 Not used
27. Urgent protection
(a)
If urgent action is necessary to protect the work under the Contract, other property or
people and the Managing Contractor fails to take the action, the Principal may take the
necessary action. If the action was action which the Managing Contractor should have
taken at the Managing Contractor's cost, the cost incurred by the Principal shall be a debt
due from the Managing Contractor.
(b)
If time permits, the Principal's Representative shall give the Managing Contractor prior
written notice of the Principal's intention to take action under this clause 27.
28. Care of the work under the Contract and reinstatement of damage
28.1 Care of the work under the Contract
(a)
From and including the date of commencement of work under the Contract to 4.00pm on
the Date of Practical Completion of the Works, the Managing Contractor shall be
responsible for the care of the work under the Contract and the Works.
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(b)
Without limiting the generality of the Managing Contractor's obligations, the Managing
Contractor:
(i)
(c)
shall be responsible for the care of:
(A)
unfixed items for which payment has been received;
(B)
things entrusted to the Managing Contractor by the Principal for the
purpose of carrying out the work under the Contract;
(C)
things brought on the Site by Subcontractors for the purpose of carrying
out work under the Contract;
(D)
the Works; and
(E)
the Temporary Works and constructional plant;
(ii)
shall provide the storage and protection necessary to preserve these items and
things, and the Works, the Temporary Works and constructional plant;
(iii)
prior to commencing any Construction Work, shall undertake to the satisfaction of
the Principal's Representative, and provide to the Principal a comprehensive
dilapidation investigation, survey and report in respect of the Site and any
improvements on or in the vicinity of the Site. The dilapidation survey must
satisfy the requirements of any relevant Statutory Requirement and the Project
Brief. The Managing Contractor must comply with the requirements of any
relevant Statutory Requirement in relation to the carrying out of the dilapidation
survey and perform any works required to satisfy the Principal's obligations under
the Building Act; and
(iv)
shall take a monthly photographic record of the Site in a form acceptable to the
Principal's Representative. The photographs shall be in colour, dated and of
professional quality. The Managing Contractor shall provide 2 copies of each set
of photographs with each claim for payment.
After 4.00pm on the Date of Practical Completion the Managing Contractor shall remain
responsible for the care of outstanding work and items to be removed from the Site by the
Managing Contractor and shall be liable for damage to the extent caused by the Managing
Contractor in the course of completing outstanding work or complying with obligations
under clause 43.1 and clause 51.
28.2 Reinstatement
If loss or damage occurs to anything while the Managing Contractor is responsible for its care, the
Managing Contractor shall promptly ensure the loss or damage is made good except to the extent
the loss or damage is a direct consequence, without fault or omission on the part of the Managing
Contractor, of an Excepted Risk defined in clause 28.3.
28.3 Excepted Risks
The Excepted Risks are:
(a)
any negligent act or omission of the Principal, the Principal's Representative or the
employees, other contractors, consultants or agents of the Principal (but not the
Nominated Consultants from the date of their engagement by the Managing Contractor);
(b)
any risk specifically excepted for the purpose of this clause 28.3 in the Contract;
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(c)
terrorism (other than ‘eligible terrorism loss’ to which the Terrorism Insurance Act 2003
(Cth) applies), war, invasion, act of foreign enemies, hostilities (whether war be declared
or not), civil war, terrorism, 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 Managing Contractor
or the Managing Contractor's employees or agents; and
(e)
use or occupation by the Principal or the employees or agents of the Principal or other
contractors or consultants to the Principal (but not the Nominated Consultants from the
date of their engagement by the Managing Contractor) of any part of the Works or the
Temporary Works.
29. Damage to persons and property other than the work under the
Contract
29.1 Indemnity by the Managing Contractor
(a)
The following clauses 29.1(c)(i) and (ii) shall not apply to:
(i)
not used;
(ii)
exclude any other right of the Principal to be indemnified by the Managing
Contractor;
(iii)
things for the care of which the Managing Contractor is responsible under clause
28.1;
(iv)
claims in respect of the right of the Principal to construct the work under the
Contract on the Site; or
(v)
damage which is the direct and unavoidable result of the construction of the Works
in accordance with the Contract.
(b)
Insofar as this clause 29.1 applies to property, it applies to property other than the work
under the Contract.
(c)
The Managing Contractor shall indemnify the Principal and Monash Health on demand
against:
(i)
loss of, liability for, or damage to property of the Principal or Monash Health,
including existing property in or upon or adjacent to which the work under the
Contract is being carried out;
(ii)
claims by any person against the Principal or Monash Health in respect of personal
injury or death or loss of or damage to any property,
arising out of or as a consequence of the carrying out by the Managing Contractor of the
work under the Contract, and:
(iii)
any loss, liability or claim arising due to a breach of the Contract or Site Licence
or negligence by the Managing Contractor, and
(iv)
claims by any person against the Principal or Monash Health in respect of
nuisance, vibration or disturbance to the extent that the claim arises from a breach
of the Project Methodology Plan by the Managing Contractor,
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but the Managing Contractor's liability to indemnify the Principal shall be reduced
proportionally to the extent that the wrongful act or omission of the Principal or
employees, consultants, other contractors or agents of the Principal (but not the
Nominated Consultants from the date of their engagement by the Managing Contractor)
may have contributed to the loss, damage, death or injury.
(d)
The Managing Contractor acknowledges that the Principal holds the benefit of the rights,
indemnities and releases expressed in this Contract in favour of Monash Health, on trust.
(e)
The Managing Contractor acknowledges the existence of such trusts and consents to:
(i)
the Principal exercising rights in relation to, or otherwise enforcing such
indemnities, releases and rights on behalf of Monash Health; and
(ii)
Monash Health exercising rights in relation to, or otherwise enforcing the
indemnities, releases and those rights as if they were a party to this Contract (as
applicable).
(f)
Subject to clause 29.1(g), the Managing Contractor may investigate, and, upon
acknowledging its obligation to indemnify under this Contract, may defend or
compromise in good faith in a commercially reasonable manner any claim for which
indemnification is sought under this Contract, provided that no claim shall be
compromised without the prior written consent of the Principal.
(g)
Clause 29.1(f) does not apply:
(i)
(ii)
if:
(A)
interlocutory proceedings are commenced against the Principal on an
urgent basis;
(B)
the Principal reasonably considers that there is insufficient time to notify
the Managing Contractor and for Managing Contractor to commence
defence of such proceedings on behalf of the Principal;
(C)
the Principal initially defends such proceedings; and
(D)
as soon as practical after commencement of the proceedings the Principal
gives the Managing Contractor the option to conduct the defence of such
proceedings; or
to any claim which:
(A)
the Principal (acting reasonably) considers should be conducted by the
Principal for public policy reasons; or
(B)
would prevent the continued development of the Project.
and the Principal to the extent reasonably practicable consults with the Managing
Contractor with respect to such claim.
In respect of a claim managed by the Principal under this clause, the Principal will:
(iii)
notify the Managing Contractor of that claim as soon as reasonably practical after
it becomes aware of a claim;
(iv)
give the Managing Contractor prior notice before agreeing to any compromise or
settlement of such a claim; and
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(v)
consult with the Managing Contractor prior to agreeing to any such compromise or
settlement.
(h)
Where the Managing Contractor has assumed control of defending any claim in
accordance with clause 29.1(f), the Managing Contractor will regularly keep the Principal
informed of the progress of the claim.
(i)
The Principal will, in respect of a claim by a third party for which the Managing
Contractor indemnifies the Principal, not settle or compromise the claim without the
Managing Contractor's prior consent (not to be unreasonably withheld or delayed), and
consider any reasonable steps suggested by the Managing Contractor in taking action in
respect of that claim.
30. Insurance of the work under the Contract
(a)
On or before the commencement of the Construction Work, the Principal will effect a
policy of insurance:
(i)
in relation to the Construction Work to be performed under this Contract;
(ii)
on such terms as set out in the Principal Controlled Insurance Policy:
(iii)
including the name of the insurer; and
(iv)
with all premiums to be paid for by the Principal.
(b)
The Managing Contractor and each Subcontractor will be included as an insured under the
terms of the Principal Controlled Insurance Policy.
(c)
The Managing Contractor will be deemed to have reviewed and accepted the terms of the
Principal Controlled Insurance Policy as adequate for the Works.
(d)
If the Managing Contractor considers that the insurance cover taken out by the Principal is
not sufficient to cover the Managing Contractor’s liabilities under this Contract, the
Managing Contractor must take out and pay for additional insurance as the Managing
Contractor considers necessary at its cost. The Principal is not liable for any loss, damage
or expense incurred by the Managing Contractor in relation to any gap, omission or
limitation in coverage of the Principal controlled Insurance Policy.
(e)
The Managing Contractor will be liable for the excess or deductibles associated with any
claim on the Principal Controlled Insurance Policy, except in relation to claims arising:
(i)
directly from an act or omission of the Principal that is not permitted by the terms
of this Contract, in which case the Principal shall pay such deductible or excess
directly; or
(ii)
other than as a result of an act or omission of the Managing Contractor, the
Subcontractors, any of their respective personnel, and anyone in or around the Site
whilst under their control or supervision, in which case the deductible or excess
will be treated as a Provisional Sum.
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31. Public liability insurance
(a)
On or before the commencement of the Construction Work, the Principal will effect a
public liability policy of insurance:
(i)
on such terms as set out in the Principal Controlled Insurance Policy:
(ii)
in relation to the Construction Work to be performed under this Contract;
(iii)
including the name of the insurer; and
(iv)
with all premiums to be paid for by the Principal.
(b)
The Managing Contractor and each Subcontractor will be included as an insured under the
terms of the Principal Controlled Insurance Policy.
(c)
The Managing Contractor will be deemed to have reviewed and accepted the terms of the
Principal Controlled Insurance Policy.
(d)
If the Managing Contractor considers that the insurance cover taken out by the Principal is
not sufficient to cover the Managing Contractor’s liabilities under this Contract, the
Managing Contractor must take out and pay for additional insurance as the Managing
Contractor considers necessary at its cost. The Principal is not liable for any loss, damage
or expense incurred by the Managing Contractor in relation to any gap, omission or
limitation in coverage of the Principal controlled Insurance Policy.
(e)
The Managing Contractor will be liable for the excess or deductibles associated with any
claim on the Principal Controlled Insurance Policy, except in relation to claims arising:
(i)
directly from an act or omission of the Principal that is not permitted by the terms
of this Contract, in which case the Principal shall pay such deductible or excess
directly; or
(ii)
other than as a result of an act or omission of the Managing Contractor, the
Subcontractors, any of their respective personnel, and anyone in or around the Site
whilst under their control or supervision, in which case the deductible or excess
will be treated as a Provisional Sum.
32. Insurance of employees
(a)
Before commencing work under the Contract the Managing Contractor shall insure
against liability for death of or injury to persons employed by the Managing Contractor
including liability by statute and at common law.
(b)
The insurance cover shall be maintained until all work including Defects Liability Work is
completed.
(c)
The Managing Contractor shall ensure that every Subcontractor and Consultant is
similarly insured.
33. Professional indemnity insurance
33.1 Managing Contractor to effect insurance
Within fourteen (14) days of the execution of the Contract the Managing Contractor shall effect a
Professional Indemnity Policy of insurance and, if specified elsewhere in the Contract or directed
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by the Principal's Representative, with an insurer approved by the Principal (such approval not to
be unreasonably withheld):
(a)
for a total cover not less than the amount stated in the Annexure with any associated
excess to be a reasonable amount (and in any event less than $500,000); and
(b)
covering the Managing Contractor's liability to any person arising from an act or omission
of the Managing Contractor in connection with the professional activities and duties of the
Managing Contractor.
33.2 Period of insurance
Professional Indemnity Insurance under this clause shall be maintained by the Managing
Contractor until the expiration of 10 years after the issue of the Final Certificate for the Works.
33A Other insurances
The Managing Contractor must, on or before the Commencement of the Construction Work,
effect or cause to be effected the following insurances:
(a)
all plant and materials and equipment insurance covering:
(i)
the full replacement value; and
(ii)
third party property damage,
for all plant and equipment used in connection with the Construction Work;
(b)
motor vehicle insurance covering death of or injury to any person and loss of or damage to
any property resulting from the use of any motor vehicle in connection with the Works for
a minimum amount of $30 million; and
(c)
any other insurance or cover required pursuant to any Law (including the Building Act).
34. Inspection and provision of insurance policies
34.1 Proof of insurance
(a)
Before the Managing Contractor commences work and whenever requested in writing by
the Principal, the Managing Contractor shall produce certificates of currency of insurance
and, if required by the Principal, details of an insurance policy to the Principal evidencing
the insurance effected and maintained, and showing the applicable insurance excess.
Failure to do so is a Payment Deferral Event.
(b)
Where a policy of insurance required by the Contract has been effected by the Principal
the Principal shall similarly inform the Managing Contractor.
(c)
The effecting of insurance shall not limit the liabilities or obligations of a party under
other provisions of the Contract.
34.2 Failure to produce proof of insurance
(a)
If, after being requested in writing by the Principal so to do, the Managing Contractor fails
to produce evidence of compliance with insurance obligations under clauses 31(e), 33 or
33A to the satisfaction and approval of the Principal, the Principal may effect and
maintain the insurance and pay the premiums. The amount paid shall be a debt due from
the Managing Contractor to the Principal.
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(b)
The Principal may refuse all payment until evidence of compliance with insurance
obligations under clauses 31(e), 33 or 33A is produced by the Managing Contractor to the
satisfaction and approval of the Principal.
(c)
Where a policy of insurance required by the Contract has been effected by the Principal
the Principal shall similarly inform the Managing Contractor.
34.3 Notices from or to the insurer
(a)
The Managing Contractor shall ensure that each policy of insurance contains provisions
acceptable to the Principal that provide that a notice of claim given to the insurer by the
Principal or the Principal's Representative shall be accepted by the insurer as a notice of
claim given by the Managing Contractor.
(b)
The Managing Contractor must immediately inform the Principal in writing of any:
(c)
(i)
notice of cancellation or other notice concerning the policy provided by the
insurer; and
(ii)
failure to renew a policy or to pay a premium, and where possible prior to the
insurer giving any notice of cancellation.
Where a policy of insurance required by the Contract has been effected by the Principal
the Principal shall similarly inform the Managing Contractor.
34.4 Notices of potential claims
(a)
The Managing Contractor shall, as soon as practicable, inform the Principal in writing of
any occurrence that may give rise to a claim under a policy of insurance required by
clauses 30, 30(e)(ii), 31(e), 33 or 33A and shall keep the Principal informed of subsequent
developments concerning the claim.
(b)
The Managing Contractor shall ensure that Subcontractors in respect of their operations
similarly inform the Principal and the Managing Contractor.
(c)
Where a policy of insurance required by the Contract has been effected by the Principal
the Principal shall similarly inform the Managing Contractor.
34.5 Settlement of claims
Upon settlement of a claim under the insurance specified by clause 30:
(a)
to the extent that the work under the Contract needing reinstatement has been the subject
of a payment or allowance by the Principal to the Managing Contractor, if the Managing
Contractor has not completed reinstatement of that work, moneys received shall, if
requested by either party, be paid into a bank agreed upon by the parties in an account in
the joint names of the Managing Contractor and the Principal. As the Managing
Contractor proceeds to reinstate the loss or damage, the Principal's Representative shall
certify against the joint account for the cost of reinstatement; and
(b)
to the extent that the work to be reinstated has not been the subject of a payment or
allowance by the Principal to the Managing Contractor, the Managing Contractor shall be
entitled immediately to receive from moneys received, the amount of money so paid in
relation to any loss suffered by the Managing Contractor relating to that work under the
Contract (including the supply of goods and materials on Site whether or not incorporated
into the Works).
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34.6 Cross liability
Any insurance required to be effected by the Managing Contractor in joint names in accordance
with the Contract (excluding those required in Clause 33 and 34) shall include a cross liability
clause in which the insurer agrees to waive all rights of subrogation or action against any of the
persons comprising the insured and for the purpose of which the insurer accepts the term 'insured'
as applying to each of the persons comprising the insured as if a separate policy of insurance had
been issued to each of them (subject always to the overall sum insured not being increased
thereby). Similarly, the Principal Controlled Insurance Policy in clause 30 and 30(e)(ii) will
contain a cross liability clause in favour of the Managing Contractor or sub-contractors.
35. Principal's Representative
35.1 General
(a)
The Principal shall ensure that at all times there is a Principal's Representative and that in
the exercise of the Certification Functions of the Principal's Representative under the
Contract, the Principal's Representative acts reasonably, honestly, independently and in
accordance with the Contract.
(b)
If, pursuant to a provision of the Contract enabling the Principal's Representative to give
directions, the Principal's Representative gives a direction, then the Managing Contractor
shall comply with the direction at its own cost.
(c)
In clause 35 'direction' includes agreement, approval, authorisation, certificate, decision,
demand, determination, explanation, instruction, notice, order, permission, rejection,
request or requirement.
(d)
Except where the Contract otherwise provides, a direction may be given orally but the
Principal's Representative shall as soon as practicable thereafter confirm it in writing.
(e)
For the purposes of the Security of Payments Act, the Principal's Representative is
authorised (but not exclusively) to receive payment claims and to issue payment schedules
on behalf of the Principal.
35.2 Site accommodation
The Managing Contractor shall provide adequate furnished Site accommodation for the Principal's
Representative in accordance with Schedule 16.
36. Site representative
36.1 General
(a)
(b)
The Principal's Representative may from time to time appoint:
(i)
a Site Representative to exercise any functions of the Principal's Representative
under the Contract but not more than one Site Representative shall be delegated
the same function at the same time. The appointment of a Site Representative
shall not prevent the Principal's Representative from exercising any function; and
(ii)
not used.
The Principal's Representative shall forthwith notify the Managing Contractor in writing
of:
(i)
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(ii)
the termination of the appointment of a Site Representative.
(c)
If the Managing Contractor makes a reasonable objection to the appointment of a Site
Representative, the Principal's Representative shall terminate the appointment.
(d)
The Managing Contractor shall provide adequate furnished Site accommodation for the
Site Representatives.
37. Managing Contractor's representative, management structure and
personnel
37.1 Personnel
(a)
The Managing Contractor shall at all times have competent and sufficient representatives
present on the Site and, if required by the Principal's Representative, at other places at
which activities relating to the execution of the work under the Contract are taking place.
(b)
The Managing Contractor shall ensure that any Key Personnel remain working on the
project to the extent and in the roles indicated, unless the Principal otherwise consents in
writing.
(c)
The Managing Contractor must:
(i)
give the Principal’s Representative prior written notice of any intention by the
Managing Contractor to terminate or replace any Key Personnel;
(ii)
subject to clause 37.1(c)(iii), not replace the people referred to in clause 37.2(b)
without the Principal's Representative’s prior written approval;
(iii)
if any of the people referred to in clause 37.2(b) die, become seriously ill or resign
from the employment of the Managing Contractor, replace them with persons
approved by the Principal's Representative’s of at least equivalent experience,
ability and expertise and who have been properly briefed and given detailed
handover instructions to ensure that they have a reasonable understanding of the
status of the Works and the activities that have been completed;
(iv)
ensure that any replacement Key Personnel have the same or better skills as the
person being replaced and will not lead to the occurrence of a Probity Event; and
(v)
give the Principal’s Representative notice of the details of any replacement Key
Personnel.
37.2 Managing Contractor's Representative
(a)
The Managing Contractor shall ensure that at all times there is a Managing Contractor's
Representative who possesses the appropriate skill, expertise and qualifications and that,
in the exercise of the functions of the Managing Contractor's Representative under the
Contract, the Managing Contractor's Representative acts in good faith.
(b)
The Managing Contractor shall promptly notify the Principal's Representative in writing
of the name of the Managing Contractor's Representative and of any subsequent changes.
(c)
Matters within the knowledge of, and matters which should have been within the
knowledge of, the Managing Contractor's Representative shall be deemed to be within the
knowledge of the Managing Contractor.
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37.3 Management structure
The Managing Contractor shall ensure that it has at all times appointed to the positions set out in
the Managing Contractor's Tender, individuals who possess the appropriate skill, expertise and
qualifications and are the individuals identified in the Managing Contractor's Tender or alternative
individuals acceptable to the Principal.
38. Control of Managing Contractor's employees and Subcontractors
38.1 Removal of personnel
(a)
The Principal's Representative may direct the Managing Contractor to have removed from
the Site or from any activity connected with the work under the Contract, within such time
as the Principal's Representative directs, any person employed in connection with the
work under the Contract who, in the opinion of the Principal's Representative, is guilty of
misconduct or is incompetent or negligent in relation to any aspect of the work under the
Contract.
(b)
The person shall not thereafter be employed on the Site or on activities connected with the
work under the Contract without the prior written approval of the Principal's
Representative.
38.2 Probity Events and Probity Investigations
(a)
The Managing Contractor must, and the Principal may, notify the other as soon as it has
become aware that a Probity Event has occurred or is likely to occur. The notice must as a
minimum describe the Probity Event, when the Probity Event occurred or is likely to
occur and the circumstances giving rise to the actual or likely occurrence of the Probity
Event.
(b)
The Principal may give a notice to the Managing Contractor referring to the Probity Event
and setting out the action the Principal requires the Managing Contractor to take to
address the adverse effects of the Probity Event. Such action may include in relation to a
Subcontractor or employee:
(i)
terminating any sub-contract or contract of employment; or
(ii)
removing that person from any involvement with the performance of the Works or
from involvement with or access to the Facility, or the Site under this Contract.
(c)
The Managing Contractor must ensure that any action required in a notice from the
Principal under clause 38.2(b) is taken within the time specified by the Principal.
(d)
Failure by the Managing Contractor to comply with its obligations under clause 38.2(c) is
a substantial breach of contract.
(e)
The Principal may at any time require the Managing Contractor to conduct a Probity
Investigation in respect of an employee, subcontractor or its employee or any persons who
are proposed to become employees or subcontractors, and the Principal at the time will
advise the Managing Contractor in writing of those persons in respect of whom the
Principal requires a Probity Investigation.
(f)
The Principal may require the Managing Contractor to conduct probity and security
investigations in addition to the Probity Investigations in respect of such employees,
subcontractors or employees of subcontractors.
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(g)
The Managing Contractor must advise the Principal at least ten (10) business days prior to
the proposed appointment of all persons proposed to be appointed as employees or
subcontractors of the Managing Contractor.
(h)
The Principal will require the Managing Contractor to procure the written consent to a
Probity Investigation, of all persons or organisations in respect of whom the Principal
advises the Managing Contractor it requires a Probity Investigation and other probity and
security investigations, and all consents and other information required by the law and by
the Principal must be given to the Principal’s Representative.
(i)
The Principal’s determination as to whether a person is a desirable person to become an
employee or subcontractor or its employees will be advised to the Managing Contractor
by the Principal’s Representative within ten (10) business days and is final.
(j)
The Managing Contractor must not appoint and must ensure no other person appoints a
person to the position to whom the Principal has not given approval, following a Probity
Investigation and other investigations that the Principal required.
(k)
The Managing Contractor is not entitled and must not Claim any expenses incurred in
carrying out each Probity Investigation under this Clause 38.2.
38.3 National Police Checks
(a)
The Managing Contractor:
(i)
must obtain a National Police Certificate and have passed all relevant checks
required by the Working with Children Act 2005 (Vic) and all related subordinate
regulations or instruments or any other Authority to allow that person to work with
or in the vicinity of children for all persons who work in the Existing Facility prior
to such persons being granted access to the Existing Facility;
(ii)
is not obliged to obtain a National Police Certificate for a person if the Managing
Contractor can provide to the Principal a National Police Certificate in relation to
that person which is dated no more than 12 months before the intended
employment start date for that person; and
(iii)
if requested by the Principal, the Managing Contractor must obtain a further
National Police Certificate for any Relevant Persons from time to time throughout
Stage One or Stage Two;
(b)
If the Managing Contractor does not obtain a National Police Certificate, or the Principal,
acting reasonably, has concerns in relation to the results of the National Police Certificate
then Managing Contractor must not, except to the extent explicitly authorised by the
Principal, permit the person (Uncleared Personnel) to access the Site during the Defects
Liability Period, or to undertake any task for the purpose of this Contract that requires
access to the Site during the Defects Liability Period and, if necessary the Managing
Contractor must engage alternative personnel with appropriate qualifications, skills and
experience in all relevant areas of expertise to meet the requirements of the security
clearance required pursuant to this clause to perform the tasks that were to have been
performed by the Uncleared Personnel.
(c)
The parties acknowledge that Managing Contractor is responsible for all costs associated
with obtaining all National Police Certificates and security clearances.
(d)
If following a Probity Investigation of a person in respect of a proposed subcontractor, the
Principal’s Representative is of the opinion that it is not desirable for any person to take
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part in the management or performance of a subcontract, the Principal’s Representative
may:
(i)
refuse to approve the Subcontract; or
(ii)
approve the Subcontract on condition that the relevant person or persons:
(A)
not take part in the management or performance of the Subcontract;
(B)
not be allowed to access the Site or the Existing Facility; and
(C)
not be given information,
or on such other conditions as the Principal’s Representative considers necessary to
quarantine that person from the Project and on condition that the subcontractor provides
its written undertaking to the Principal’s Representative to comply with such conditions.
39. Site
39.1 Access to and possession of Site
(a)
The Managing Contractor acknowledges that Monash Health has another contractor
performing Enabling Works on and in the immediate vicinity of the Site in the period
prior to the Managing Contractor's right to access the Site pursuant to this clause. The
Managing Contractor agrees to communicate openly and regularly with the contractor
performing such Enabling Works, and cooperate with that contractor to ensure that the
Principal is able to provide the Managing Contractor with timely access to the Site.
(b)
By the time stated in the Annexure, the Principal shall give the Managing Contractor
access to the Site in the form of one or more Site Licences. Access to and possession of
the Site is subject to the terms of the relevant Site Licence and the Site Access Protocol.
(c)
Not used.
(d)
If the Principal has not in a Site Licence given the Managing Contractor access to the
whole Site, the Principal shall from time to time give the Managing Contractor access to
such further parts of the Site as may be necessary to enable the Managing Contractor to
execute the work under the Contract in accordance with the requirements of the Contract.
(e)
The Principal shall advise the Managing Contractor in writing of the date upon which the
Site or any part thereof will be available.
(f)
A delay by the Principal in giving the Managing Contractor access or possession as
required by this clause shall not be a breach of contract but may be a ground for an
extension of time.
(g)
Notwithstanding the provisions of this clause 39.1, if the Managing Contractor is in
breach of clause 34.1, the Principal may refuse to give the Managing Contractor access to
the Site or the Existing Facility or any part of the Site or Existing Facility until the
Managing Contractor has complied with the requirements of clause 34.1.
(h)
Not used.
(i)
The Managing Contractor's and its Subcontractors' access to the Site and the Existing
Facility is subject to its compliance at all times with the Site Access Protocols. The
Managing Contractor will be responsible for ensuring all Subcontractors comply with the
Site Access Protocols and will be responsible for all associated cost and risks of
complying with the Site Access Protocols. Any non-compliance with the Site Access
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Protocols shall not entitle the Managing Contractor to any extension of time or any other
Claim.
(j)
(k)
The relevant Site Licence granted under this clause:
(i)
in relation to the Site terminates on the Date of Practical Completion of the Works;
(ii)
in relation to the Existing Facility terminates on the date on which the Managing
Contractor has performed all of its obligations under this Contract to be
undertaken in relation to the Refurbishment Works or as otherwise specified
pursuant to the terms of the Site Licence;
(iii)
is given for the benefit of the Managing Contractor and its Subcontractors
approved by the Principal's Representative from time to time; and
(iv)
is given subject to:
(A)
in the case of each of the Site Licences, the continued access to,
occupation and operation of the Existing Facility by the Principal and
Monash Health including for the purposes of undertaking the Hospital
Functions and installing and commissioning any equipment for which it is
responsible. The Managing Contractor has no Claim in relation the access,
occupation and operation of the Existing Facility by the Principal and
Monash Health; and
(B)
any other rights, powers or obligations which the Principal, Monash Health
or the State of Victoria has at law.
The Managing Contractor's rights under each Site Licence:
(i)
are personal rights in contract;
(ii)
do not create any estate or interest in any part or the whole of the Site or the
Existing Facility (as applicable);
(iii)
do not create the relationship of landlord and tenant between the Managing
Contractor and the Principal; and
(iv)
do not confer exclusive possession on the Managing Contractor; and
(v)
do not limit the Managing Contractor's obligations under this Contract.
(l)
The Managing Contractor must procure for itself the access, occupation or use of or
relevant rights over any land in addition to the Site, which the Contractor may require for
carrying out the work under the Contract or otherwise for the purpose of the Contract
including obtaining all necessary Approvals and complying with all Statutory
Requirements regarding access to or from, or work on or near, property adjoining or in the
vicinity of the Site.
(m)
Without limiting clause 39.1(j), where the nature of the Works requires that the Managing
Contractor access or execute work over, on, to, under or near an adjoining property then
the Managing Contractor shall:
(i)
at its own cost, obtain the written consent of the neighbours, which may be subject
to conditions as to working space, period of time, hours of work or otherwise;
(ii)
comply with all conditions attaching to such consent and in any event make good
at its own cost and with the least possible delay, or at the option of the neighbours,
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meet the cost of making good, any damage to adjoining properties arising out of
the Works; and
(iii)
(n)
at its own cost, procure all consents from any Authority that may be necessary to
execute any work over, on, to, under or near an adjoining property.
Subject to this clause 39.1, the Managing Contractor is responsible for gaining access to
and from the Site and the Existing Facility and is not entitled to make any Claim in
connection with access, or failure to obtain or delay in obtaining access, to and from the
Site or the Existing Facility.
39.2 Access for the Principal and others
(a)
The Managing Contractor acknowledges and agrees that it is not entitled to exclusive
access of the Site while performing the Works.
(b)
The Principal and the Principal's employees and agents may at any time after reasonable
notice to the Managing Contractor have access to any part of the Site for any purpose.
(c)
The Managing Contractor shall permit the execution of work on the Site by persons
engaged by the Principal and shall co operate with them and coordinate the Managing
Contractor's work with their work.
(d)
If requested by the Managing Contractor, the Principal shall provide to the Managing
Contractor the names of the persons so engaged.
(e)
The Managing Contractor shall at all reasonable times give the Principal, the Principal's
Representative and other persons authorised in writing by the Principal or by the
Principal's Representative access to the work under the Contract at any place where the
work is being carried out or materials are being prepared or stored.
(f)
The Principal shall ensure that the Managing Contractor is not prevented from executing
the Managing Contractor's work by any persons referred to in clause 39.1(n), whilst
exercising the right of access given by clause 39.1(n).
39.3 Delivery of materials to and work on Site before access
Until access to the Site or part of the Site is given to the Managing Contractor under clause 39.1,
the Managing Contractor shall not deliver materials to or perform work on the Site or part of the
Site, as the case may be, unless approval in writing is given by the Principal's Representative.
39.4 Use of Site by the Managing Contractor
Unless the Contract otherwise provides or the Principal's Representative gives prior written
approval, the Managing Contractor shall not use the Site or allow it to be used for:
(a)
camping;
(b)
residential purposes; or
(c)
any purpose prohibited elsewhere in the Contract or by Statutory Requirements not
connected with the work under the Contract.
39.5 Finding of minerals, fossils and relics
(a)
Valuable minerals, fossils, articles or objects of antiquity or of anthropological or
archaeological interest, treasure trove, coins and articles of value found on the Site shall as
between the parties be and remain the property of the Principal. Immediately upon the
discovery of these things the Managing Contractor shall take precautions to prevent their
loss or removal or damage and shall notify the Principal's Representative of the discovery.
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(b)
If compliance with obligations under clause 39.5(a) which are necessary to comply with a
Statutory Requirement or a direction of the Principal's Representative causes the
Managing Contractor to incur more or less cost than the Managing Contractor anticipated
or a Relevant Managing Contractor could reasonably have anticipated at the time of
tendering, the difference shall be valued under clause 53.4.
39.6 Extra land required by the Managing Contractor
(a)
The Managing Contractor shall procure, at the Managing Contractor's own cost, the right
to the occupation or use of any land in addition (Extra Land) to the Site which the
Managing Contractor may deem necessary for the execution of the work under the
Contract or for the purposes of the Contract, and shall, as a condition precedent to the
issue of the Certificate of Practical Completion if so required by the Principal's
Representative, provide a properly executed release from all claims (whether for damages
or otherwise howsoever) from the owner or occupier of and from other persons having an
interest in such land. Any such release shall be in a form approved by the Principal.
(b)
Clauses 21.4(d) and 24.2 will not apply in relation to any Extra Land.
39.7 Continuing Hospital Functions
(a)
The Managing Contractor acknowledges that Monash Health will continue to conduct
Hospital Functions around the Site.
(b)
The Managing Contractor must ensure that any interruption to the Hospital Functions
caused by the work under the Contract is minimised to the maximum extent possible and
that any unavoidable interruption is notified to the Principal's Representative a reasonable
period prior to the proposed interruption, and the timing and duration of any interruption
and reasonable mitigation steps to be employed are agreed with Principal's Representative
prior to such interruption.
(c)
The Managing Contractor must submit to the Principal's Representative, at the times and
in the form directed by the Principal's Representative, the Managing Contractor's proposed
procedures to ensure that the requirements in this subclause 39.7 are achieved.
(d)
The Managing Contractor shall not have any Claim against the Principal by reason of the
continuation of the Hospital Functions or Monash Health's business within, on or around
the Site.
(e)
For the avoidance of doubt, the parties confirm that it is not a Delay Event if the Principal
directs the Managing Contractor to comply with the obligations set out in Schedule 16 in
relation to minimising disruption to the Hospital Functions, including restrictions on
vibrations, working hours and noisy works.
40. Setting out the Works
40.1 Setting out
(a)
The Principal's Representative shall supply to the Managing Contractor the information
and Survey Marks necessary to enable the Managing Contractor to set out the Works.
(b)
Upon receipt of any necessary information and Survey Marks, the Managing Contractor
shall set out the Works in accordance with the Contract and shall provide all instruments
and things necessary for that purpose.
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40.2 Care of survey marks
(a)
The Managing Contractor shall keep in their true positions all Survey Marks supplied by
the Principal.
(b)
If a Survey Mark is disturbed or damaged, the Managing Contractor shall immediately
notify the Principal's Representative and, unless the Principal's Representative otherwise
directs, the Managing Contractor shall reinstate the Survey Mark.
(c)
If the disturbance or damage is caused by a person referred to in clause 39.2, other than
the Managing Contractor, the cost incurred by the Managing Contractor in reinstating the
Survey Mark shall be valued under clause 53.4.
40.3 Errors in setting out
(a)
If the Managing Contractor discovers an error in the position, level, dimensions or
alignment of any work under the Contract, the Managing Contractor shall immediately
notify the Principal's Representative and, unless the Principal's Representative otherwise
directs, the Managing Contractor shall rectify the error.
(b)
If the error has been caused by incorrect information, Survey Marks or data supplied by
the Principal, the cost incurred by the Managing Contractor in rectifying the error shall be
valued under clause 53.4.
41. Materials, labour and constructional plant
41.1 Provision of materials, labour and constructional plant
Except to the extent that the Contract otherwise provides, the Managing Contractor shall at its
cost supply everything necessary for the proper performance of the Managing Contractor's
obligations and discharge of the Managing Contractor's liabilities under the Contract.
41.2 Removal of materials and constructional plant
(a)
From time to time the Principal's Representative may by written notice to the Managing
Contractor direct the Managing Contractor not to remove from the Site constructional
plant or materials.
(b)
Thereafter, the Managing Contractor shall not remove the materials or the constructional
plant without the prior written approval of the Principal's Representative, which approval
shall not be unreasonably withheld.
41.3 Manufacture and supply of materials
The Principal's Representative may direct the Managing Contractor to supply particulars of:
(a)
the mode and place of manufacture;
(b)
the source of supply;
(c)
the performance capacities; and
(d)
other information,
in respect of any materials, machinery or equipment to be supplied or used by the Managing
Contractor under or in connection with the Contract.
41.4 Not used
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41.5 Victorian Industry Participation Policy
(a)
The Managing Contractor acknowledges that:
(i)
information contained in the VIPP Plan and information regarding the Managing
Contractor's compliance with the VIPP Plan may be provided to the central agency
in the Department of State Development, Business and Innovation for inclusion on
the register; and
(ii)
such information will be made available to departments and agencies of the
Victorian Government for the purposes of assessing other tender proposals for
VIPP purposes.
(b)
The VIPP Plan is attached to the Contract at Schedule 17 and is otherwise deemed to be
incorporated into the Contract. The Principal may monitor the Managing Contractor's
compliance with the VIPP Plan. The Managing Contractor acknowledges that to facilitate
this monitoring process, an auditor or other nominated representative of the Principal will
be entitled to have access to, and to obtain information from, the Managing Contractor's
records and staff.
(c)
In assessing the Managing Contractor's compliance with the VIPP Plan, the Principal
auditor or other representative will exercise their reasonable discretion, and will take into
account any issue raised by the Principal which fairly represents a cause of failure to
comply with the VIPP Plan that is beyond the Principal's reasonable control.
(d)
The Managing Contractor must provide a regular report to the Principal upon its
compliance with the VIPP Plan, if directed by the Principal.
41.6 Not used
41.7 Not used
42. Materials and Work
42.1 Quality of materials and Work
The Managing Contractor shall use the materials and standards of workmanship required by the
Contract. In the absence of any requirement to the contrary, the Managing Contractor shall use
suitable, fit for purpose, new materials.
42.1A Samples or prototypes
(a)
The Managing Contractor must provide, to the Principal's Representative, the samples of
items, material and Work (samples) and Prototypes set out in Schedule 16.
(b)
The samples and Protoypes must be provided:
(c)
(i)
at the time provided for by the Contract; or
(ii)
if no time is provided, in sufficient time to enable the Principal's Representative to
evaluate the samples or Prototypes (such time being not less than ten (10) business
days prior to the Managing Contractor wishing to progress with the work under the
Contract to which the sample and Prototypes relates).
The Principal's Representative may:
(i)
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review any samples and Prototypes, or any resubmitted samples and Prototypes,
submitted by the Managing Contractor; and
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(ii)
within fifteen (15) business days of the submission by the Managing Contractor of
such samples and Prototypes or resubmitted samples and Prototypes, reject the
samples or Prototypes if in its reasonable opinion the samples or Prototypes do not
comply with the requirements of the Contract.
(d)
If any samples or Prototypes are rejected, the Managing Contractor must submit amended
samples and Prototypes to the Principal's Representative.
(e)
The Managing Contractor must not commence construction of the part of the Works to
which any samples or Prototypes which it has submitted to the Principal's Representative
applies, unless the Principal's Representative has had fifteen (15) business days to review
the samples or Prototypes and has not rejected the samples or Prototypes.
(f)
Where a sample or Prototype has been approved by the Principal's Representative, all
relevant materials or work thereafter shall be, at least, of equal quality to the sample or
Prototypes.
(g)
Where the Contract requires a sample or Prototype to be approved by the Principal's
Representative, work to which the sample or Prototype relates is not to be commenced
until such approval has been granted.
(h)
The Principal's Representative does not assume or owe any duty of care to the Managing
Contractor to review, or in reviewing, the samples and Prototypes submitted by the
Managing Contractor including for errors, omissions or compliance with the Contract.
42.2 Defective materials or Work
(a)
If the Principal's Representative discovers a Defect or any other material or work provided
by the Managing Contractor which is not in accordance with the Contract, the Principal's
Representative may direct the Managing Contractor to:
(i)
remove the Defect from the Site;
(ii)
demolish the work;
(iii)
redesign, reconstruct, replace or correct the Defect; and/or
(iv)
not to deliver the material or work to the Site.
(b)
The Principal's Representative may direct the times within which the Managing
Contractor must commence and complete the removal, demolition, redesign,
reconstruction, replacement or correction.
(c)
The Managing Contractor shall comply with a direction pursuant to this clause 42.2 at the
Managing Contractor's own expense.
(d)
If the Managing Contractor fails to comply with a direction issued by the Principal's
Representative pursuant to this clause 42.2 within the time specified by the Principal's
Representative in the direction and, provided the Principal's Representative has given the
Managing Contractor notice in writing that after the expiry of 2 days from the date on
which the Managing Contractor receives the notice the Principal intends to have the work
carried out by other persons, the Principal may have the work of removal, redesign,
reconstruction, demolition, replacement or correction carried out by other persons and the
cost incurred by the Principal in having the work so carried out shall be a debt due from
the Managing Contractor to the Principal. Until the cost of such work has been incurred
by the Principal, the Principal may deduct the estimated cost of such work from payments
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to the Managing Contractor as an amount due from the Managing Contractor to the
Principal.
42.3 Variations due to defective materials or Work
(a)
Instead of a direction under clause 42.2, the Principal's Representative may direct a
Variation pursuant to clause 53.
(b)
The Variation shall be valued under clause 53.4 and:
(i)
if the Variation causes a decrease in the value to the Principal of the Works, regard
shall be had to the decrease; and
(ii)
if the Variation results in the Managing Contractor incurring less cost than would
reasonably have been incurred had the Managing Contractor been given a
direction under clause 42.2, regard shall also be had to the difference.
42.4 Acceptance of defective material or Work
Instead of a direction under clause 42.2 or 42.3, the Principal's Representative may notify the
Managing Contractor that the Principal elects to accept the material or work notwithstanding that
it is not in accordance with the Contract. In that event the resulting increase or decrease in the
value to the Principal of the Works and any other loss suffered by the Principal shall be valued
under clause 53.4.
42.5 Generally
(a)
The Principal's Representative shall give either a direction under clause 42.2 or 42.3 or a
notice under clause 42.4 as soon as practicable after the Principal's Representative
becomes aware that material or work is not in accordance with the Contract.
(b)
The Principal's Representative may give the direction or notice at any time before the
issue of the Final Certificate under clause 57.12.
(c)
Except to the extent that to do so would be inconsistent with a direction under clause 42.3
or a notice under clause 42.2 and notwithstanding that the Principal's Representative has
not given a direction under clause 42.2, the Managing Contractor shall promptly remove,
demolish, replace or correct material or work that is not in accordance with the Contract.
(d)
A payment to the Managing Contractor, or a test or a failure by the Principal's
Representative or anyone else to disapprove any material or work shall not prejudice the
power of the Principal's Representative to subsequently give a direction under clause 42.2
or 42.3 or a notice under clause 42.4.
(e)
Nothing in clause 42 shall prejudice any other right which the Principal may have against
the Managing Contractor arising out of the failure of the Managing Contractor to provide
material or work in accordance with the Contract.
(f)
The Principal's Representative shall not be obliged to give a direction under clause 42.3 or
a notice under clause 42.4 to assist the Managing Contractor.
43. Examination and testing
43.1 Principal's Representative may order tests
(a)
At any time prior to the issue of the Final Certificate the Principal's Representative may
direct that any material or work under the Contract be tested.
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(b)
The Managing Contractor shall provide such assistance and samples and make accessible
such parts of the work under the Contract as may be required by the Principal's
Representative.
(c)
On completion of the tests, the Managing Contractor shall make good the work under the
Contract so that it fully complies with the Contract.
43.2 Covering up of Work
The Principal's Representative may direct that any part of the work under the Contract shall not be
covered up or made inaccessible without the Principal's Representative's prior approval.
43.3 Who conducts tests
Tests shall be conducted as provided in the Contract or by the Principal's Representative or a
person (which may include the Managing Contractor) nominated by the Principal's
Representative.
43.4 Notice of tests
(a)
Before conducting a test under the Contract the party conducting the test, being the
Principal's Representative or the Managing Contractor, shall give reasonable notice in
writing to the other of the time, date and place of the test.
(b)
If the other does not then attend, the test may nevertheless proceed.
43.5 Procedure if tests delayed
Without prejudice to any other right, if the Managing Contractor or the Principal's Representative
delays in conducting a test, the other, after giving reasonable notice in writing of intention to do
so, may conduct the test.
43.6 Results of tests
Results of tests shall be promptly made available by each party to the other and to the Principal's
Representative.
43.7 Costs of testing
(a)
(b)
Costs of and incidental to testing shall be valued under clause 53.4 and shall be borne by
the Principal or paid by the Principal to the Managing Contractor unless:
(i)
the Contract provides that the Managing Contractor shall bear the costs, or the test
is one which the Managing Contractor was required by the Contract or should
reasonably to have been anticipated by a Relevant Managing Contractor to be
required to conduct, other than pursuant to a direction under clause 43.1;
(ii)
the test shows a Defect;
(iii)
the test is in respect of work under the Contract covered up or made inaccessible
without the Principal's Representative's prior approval where such was required; or
(iv)
the test is consequent upon a failure of the Managing Contractor to comply with a
requirement of the Contract.
Where such costs are not to be borne by the Principal, they shall be borne by the
Managing Contractor or paid by the Managing Contractor to the Principal.
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43.8 Access for testing
If, during the Defects Liability Period:
(a)
the Principal or the Principal's Representative asserts that material or work is not in
accordance with the Contract; and
(b)
the Managing Contractor requests permission to test the material or work,
the Principal shall not unreasonably refuse the Managing Contractor access to test the material or
work.
44. Working hours and Working Days
(a)
The Working Days and Working Hours on the Site shall be as stated in the Annexure but
excluding Sundays, public holidays in Victoria and days rostered off under the MBAV
working days calendar for the relevant calendar year.
(b)
The hours and days prescribed in clause 44(a) shall not be varied without the prior
approval of the Principal's Representative except when in the interests of safety of the
work under the Contract, or to protect life or property, the Managing Contractor finds it
necessary to carry out work outside the hours or on days other than the days as stated or
approved by the Principal's Representative. In such cases, the Managing Contractor shall
notify the Principal's Representative in writing of the circumstances as early as possible.
(c)
Notwithstanding any approval by the Principal's Representative to otherwise vary the
Working Hours or Working Days, events occurring outside of the Working Hours or
Working Days stated in clause 44(a) shall not be grounds for an extension of time.
(d)
In approving a variation to the hours or days prescribed in clause 44(a), the Principal's
Representative may attach conditions. Such conditions may include:
(i)
a prohibition of or restriction on the performance of work which requires
inspection;
(ii)
a requirement that the Managing Contractor meets the costs of contract
administration including costs of inspections, by or on behalf of the Principal's
Representative, of work during times approved by the Principal's Representative
that are outside of the hours stated in clause 44(a); and
(iii)
conditions regarding interface with the Existing Facility and the Hospital
Functions.
45. Programming
45.1 Submission and approval of program
(a)
Within 14 days of the execution of the Contract, the Managing Contractor shall submit to
the Principal's Representative an update to its bid program in accordance with Schedule 16
and the Principal's Representative's requirements.
(b)
Within 14 days after the Date of Commencement of Stage Two, the Managing Contractor
shall submit to the Principal's Representative a program in hard copy and native electronic
format in such form and detail as the Principal's Representative may require which:
(i)
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confirms or revises the program submitted with the Managing Contractor's GCS
Offer or Alternative GCS Offer (as applicable);
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(c)
(ii)
contains a date for Practical Completion not later than the Date for Practical
Completion;
(iii)
sets out the manner in which and times by which the various design, construction
and commissioning tasks comprising the work under the Contract shall be
completed, the interrelationship between the tasks, timing for all Approvals
required for the Works, and clearly shows a critical path for the activities required
for the Works; and
(iv)
makes reasonable allowance for the Principal's Representative to consent to or
comment on, in accordance with the Contract, the documentation submitted to the
Principal's Representative and shall also make reasonable allowance for any
resubmission of this documentation which may be required.
The Principal's Representative shall acknowledge receipt and provide any comment on
this program within 21 days of receipt.
45.2 Rights not affected
A Program shall not affect the Managing Contractor's rights or obligations under clause 46.1 nor
shall it form part of the Contract.
46. Progress
46.1 Rate of progress
(a)
The Managing Contractor shall:
(i)
proceed with the work under the Contract with due expedition and without delay;
and
(ii)
reach Practical Completion of the Works by the Date for Practical Completion.
(b)
For these purposes and without limiting the generality of the foregoing, the Managing
Contractor shall be obliged, in consultation with the Principal's Representative, to take
such positive steps to re schedule, re program, expedite and adjust activities and
subcontract work packages, sequences and the carrying out and execution of the work
under the Contract generally so as to ensure that a rate of progress satisfactory to the
Principal's Representative is maintained.
(c)
The Managing Contractor shall not suspend the progress of the whole or any part of the
work under the Contract except where the suspension is under clause 59.9 or is directed or
approved by the Principal's Representative under clause 48.
(d)
The Managing Contractor shall give the Principal's Representative reasonable advance
notice of when the Managing Contractor requires any information, materials, documents
or instructions from the Principal's Representative or the Principal. The Principal and
Principal's Representative shall not be required to give any information, materials,
documents or instructions earlier than expressly required by the Contract.
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47. Acceleration
47.1 Acceleration proposal
(a)
The Principal's Representative may at any time prior to the Date of Practical Completion
direct the Managing Contractor to provide a proposal to accelerate completion of the work
under the Contract or any part thereof (in this clause called the 'Acceleration Proposal').
Such direction may require the Managing Contractor to propose:
(i)
a revised Date for Practical Completion;
(ii)
the measures the Managing Contractor considers necessary to meet the
requirements of the Principal's Representative;
(iii)
the adjustment required in the opinion of the Managing Contractor, inclusive of all
costs howsoever arising to the:
(A)
Design/Buildability Advisor Fee,
(B)
ICT Management Fee;
(C)
Preliminaries;
(D)
Nominated Consultants' Fee; and
(E)
Offsite Overheads and Profit Fee;
to carry out those measures;
(iv)
(v)
(b)
the Managing Contractor's estimate of:
(A)
the appropriate adjustment to the Actual Construction Sum; and
(B)
the appropriate adjustment to the Guaranteed Construction Sum; and
the adjustment to the amounts payable under this clause that will apply if the
acceleration does not achieve the revised date.
Within 7 days of the direction or such further time as may be agreed, the Managing
Contractor shall provide to the Principal's Representative an Acceleration Proposal.
47.2 Acceptance of acceleration proposal
(a)
(b)
Within 14 days of receiving the Acceleration Proposal from the Managing Contractor or
such other time as may be agreed, the Principal's Representative may notify the Managing
Contractor that the Acceleration Proposal is:
(i)
acceptable;
(ii)
unacceptable, in whole or in part, and agree with the Managing Contractor and
accept a revised Acceleration Proposal, and direct the Managing Contractor to
carry out the measures contained in the accepted Acceleration Proposal. Such
direction shall be a direction to accelerate;
(iii)
unacceptable and that no acceleration is required; or
(iv)
or part thereof is, unacceptable, and give the Managing Contractor a direction to
accelerate in which event clause 47.3 shall apply.
The Managing Contractor must not implement the Acceleration Proposal unless it is
accepted.
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47.3 Direction to accelerate
(a)
Notwithstanding that the Principal's Representative has not requested an Acceleration
Proposal the Principal's Representative may nevertheless give the Managing Contractor a
direction to accelerate.
(b)
A direction to accelerate:
(c)
(d)
(i)
may, but not necessarily, be in response to an Acceleration Proposal;
(ii)
shall be in writing and contain a statement that it is a direction to accelerate under
this clause;
(iii)
shall identify generally the measures which the Principal's Representative requires
the Managing Contractor to take to accelerate the execution of the work under the
Contract;
(iv)
may identify the parts of the work under the Contract which the Principal's
Representative requires the Managing Contractor to accelerate;
(v)
shall state:
(A)
the revised Date for Practical Completion; and
(B)
the quantum of adjustment to:
(I)
the Design/Buildability Advisor Fee;
(II)
ICT Management Fee;
(III)
the Preliminaries;
(IV)
the Nominated Consultants' Fee;
(V)
Offsite Overheads and Profit Fee;
(VI)
the Actual Construction Sum; and
(VII)
the Guaranteed Construction Sum.
Where these revised dates or adjustments are not those contained in an accepted
Acceleration Proposal the Principal's Representative shall determine reasonable revised
dates and adjustments:
(i)
shall state the time by which the Managing Contractor shall commence to
implement the direction to accelerate;
(ii)
may not be given unless the work is capable of being performed by the revised
Date for Practical Completion.
If the Principal's Representative gives a direction to accelerate then:
(i)
before complying the Managing Contractor must notify in writing that a direction
under clause 47.3 has been given and that within two business days, the Managing
Contractor intends to comply. Unless Principal's Representative rescinds such
direction, the Managing Contractor shall comply with the direction to accelerate
within the time stated in the direction; and
(ii)
the:
(A)
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(B)
Design/Buildability Advisor Fee;
(C)
ICT Management Fee;
(D)
the Preliminaries; and
(E)
Nominated Consultants' Fee;
(F)
Offsite Overheads and Profit Fee;
(G)
the Actual Construction Sum; and
(H)
Guaranteed Construction Sum,
shall be revised or adjusted in accordance with the direction to accelerate.
48. Suspension of the Works
48.1 Suspension by Principal's Representative
(a)
If the Principal's Representative considers that the suspension of the whole or part of the
work under the Contract is necessary:
(i)
because of an act or omission of:
(A)
the Principal, the Principal's Representative or an employee, consultant or
agent of the Principal; or
(B)
the Managing Contractor, a Subcontractor or an employee or agent of
either; or
(ii)
for the protection or safety of any person or property; or
(iii)
to comply with an order of a court; or
(iv)
for any other reason which the Principal's Representative in the Principal's
Representative's opinion considers justifiable in the circumstances,
then the Principal's Representative may direct the Managing Contractor to suspend the
progress of the whole or part of the work under the Contract for such time as the
Principal's Representative thinks fit.
48.2 Suspension by the Managing Contractor
If the Managing Contractor wishes to suspend the whole or part of the work under the Contract,
otherwise than under clause 59.9, the Managing Contractor shall obtain the prior written approval
of the Principal's Representative. The Principal's Representative may approve of the suspension
and may impose conditions of approval.
48.3 Recommencement of Work
As soon as the Principal's Representative becomes aware that the reason for any suspension no
longer exists, the Principal's Representative shall direct the Managing Contractor to recommence
work on the whole or on the relevant part of the work under the Contract. If work is suspended
pursuant to clause 48.2 or 59.9, the Managing Contractor may recommence work at any time after
reasonable advance notice to the Principal's Representative.
48.4 Cost of suspension
Any cost incurred by the Managing Contractor by reason of a suspension under clause 48.1 or
clause 48.2 shall be borne by the Managing Contractor, but if the suspension is due to an act or
omission of the Principal, the Principal's Representative or an employee, consultant or agent of
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the Principal (but not the Nominated Consultants from the date of their engagement by the
Managing Contractor) and the suspension causes the Managing Contractor to incur more or less
cost than otherwise would have been incurred but for the suspension, then the difference shall be
valued by the Principal's Representative under clause 53.4 and the Design/Buildability Advisor
Fee, the ICT Management Fee, the Nominated Consultants' Fee, the Preliminaries and Guaranteed
Construction Sum shall be adjusted accordingly. The entitlement of the Managing Contractor
under this clause shall be the Managing Contractor's sole remedy in respect of any suspension.
48.5 Effect of suspension
A suspension shall not affect the Date for Practical Completion but the cause of the suspension
may be a ground for extension of time under clause 49.
49. Times for commencement and completion
49.1 Time for commencement
Upon execution of this Contract the Managing Contractor shall promptly commence work under
the Contract.
49.2 Time for completion
(a)
The Managing Contractor must ensure that the GCS Offer is submitted by the Date for
GCS Offer.
(b)
Subject to Stage Two proceeding, the Managing Contractor shall ensure the Works
achieves Practical Completion by the Date for Practical Completion.
49.3 Extension of time
(a)
(Notice of Likely Delay):
When the Managing Contractor becomes aware of anything including an act or omission
of the Principal, the Principal's Representative or the Principal's employees, consultants,
other contractors or agents which may delay the work under the Contract, the Managing
Contractor shall promptly, and in any event within 5 days of first becoming aware of the
event, give written notice of that cause and the estimated delay to the Principal's
Representative.
(b)
(Claim for an Extension of Time):
The Managing Contractor shall be entitled to such extension of time to any Milestone for
carrying out work under the Contract as the Principal's Representative assesses acting
reasonably, only if:
(i)
the Managing Contractor is or will be delayed in reaching the Milestone by a
cause described in clause 49.3(d);
(ii)
the Managing Contractor has complied with clause 49.3(a) and (where applicable)
49.3(c); and
(iii)
the Managing Contractor gives the Principal's Representative, within 14 days of
the earlier of when the Managing Contractor first became aware or should
reasonably have first become aware of that causation occurring, a written claim for
an extension of time evidencing the facts of causation and of the delay to work
under the Contract including the extent of the delay.
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(c)
(Further Notice):
If further delay results from a cause described in clause 49.3(d) evidenced in a claim under
clause 49.3(b)(iii), the Managing Contractor shall claim an extension of time for such
delay by promptly giving the Principal's Representative a written claim evidencing the
facts of the delay.
(d)
(Events Entitling the Managing Contractor to Claim Extension of Time):
(i)
The causes are any of the following events whether occurring before, on or after
the Date for Practical Completion:
(A)
delays caused by any act (other than an act contemplated by and in
accordance with the Contract or in response to a breach of this Contract by
the Managing Contractor) or omission (where there is an obligation to act)
by:
(I)
the Principal;
(II)
the Principal's Representative;
(III)
the Principal's employees, consultants (but not the Nominated
Consultants from the date of their engagement by the Managing
Contractor), other contractors or agents,
(B)
any breach of the Contract by the Principal; and
(C)
a Delay Event,
excluding a Variation direction issued by the Principal's Representative pursuant
to clause 19. However, this clause does not prevent the Principal's Representative
from exercising its discretion to extend the Date for Practical Completion pursuant
to clause 19.
(e)
(Evaluation of a Claim for an Extension of Time):
(i)
In assessing each claim for extension of time the Principal's Representative shall
disregard questions of whether:
(A)
work under the Contract can nevertheless reach the relevant Milestone by
the Milestone Date without an extension of time; and
(B)
the Managing Contractor can accelerate,
but shall have regard to what prevention and mitigation of the delay has not been
effected by the Managing Contractor.
(ii)
In determining a claim for an extension of time for an event causing delay, the
Principal's Representative may have regard to the program at the date of the event
or events on which the claim is based and whether the Managing Contractor has
taken all reasonable steps to preclude the occurrence of the cause and minimise the
consequences of the delay.
(iii)
Any extension to the Milestone otherwise available will be reduced to the extent
that the Managing Contractor:
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(A)
contributed to the delay; or
(B)
failed to take all reasonable steps necessary to minimise the consequences
of the delay.
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(f)
(Concurrent Delays):
Where more than one event causes concurrent delays and the cause of at least one of those
events, but not all of them, is not a cause referred to in clauses 49.3(d)(i)(A),
49.3(d)(i)(B) or 49.3(d)(i)(C), then to the extent that the delays are concurrent, the
Managing Contractor shall not be entitled to an extension of time.
(g)
(h)
(i)
(Determination of a Claim for Extension of Time):
(i)
If the Managing Contractor is entitled to an extension of time to a Milestone Date
then the Principal's Representative shall, within 28 days after receipt of the notice
of the number of days extension claimed, grant an extension of time. Such
extension shall be granted in calendar days.
(ii)
If the Principal's Representative does not grant the full extension of time claimed,
the Principal's Representative shall before the expiration of the 28 days give the
Managing Contractor notice in writing of the reason.
(Extension of Time Without Claim):
(i)
Notwithstanding that the Managing Contractor is not entitled to an extension of
time, the Principal's Representative may, at any time and from time to time before
the issue of the Final Certificate, by notice in writing to the Managing Contractor
extend a Milestone Date for any reason.
(ii)
The power given by this clause is exercisable by the Principal's Representative for
the sole benefit of the Principal.
(Consequences of Delay in or Failure to Grant an Extension of Time):
(i)
Neither:
(A)
a delay caused by the Principal, the Principal's Representative or any of the
Principal's employees, consultants, other contractors or agents; nor
(B)
the failure of the Principal's Representative to grant an extension of time,
shall cause the Date for Practical Completion to be set at large but nothing in this
clause 49.3 shall prejudice any right of the Managing Contractor to damages.
49.4 Liquidated damages
(a)
If the Managing Contractor fails to reach Practical Completion by the Date for Practical
Completion, the Managing Contractor shall be indebted to the Principal for liquidated
damages at the rate stated in the Annexure for every calendar day after the Date for
Practical Completion up to and including the Date of Practical Completion or the date that
the Contract is terminated, whichever first occurs.
(b)
The Principal's Representative may deduct liquidated damages in assessing any amount
due to the Managing Contractor under clause 57. The amount payable under this
subclause will be a debt due from the Managing Contractor to the Principal accruing daily.
The Principal may recover liquidated damages from the Managing Contractor on written
demand from the Principal or under clauses 9 or 57, whether or not Practical Completion
has occurred.
(c)
If, after the Managing Contractor has paid or the Principal has deducted liquidated
damages, the Date for Practical Completion is extended, the Principal shall forthwith
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repay the Managing Contractor any liquidated damages paid or deducted in respect of the
period up to and including the extended Date for Practical Completion.
(d)
The parties agree that the liquidated damages at the rate stated in the Annexure constitute
a fair and reasonable pre-estimate of the loss that will be suffered by the Principal for
delay to Practical Completion.
(e)
Subject to clause 49.4(f), the Managing Contractor's aggregate liability to the Principal for
liquidated damages is limited to the Liquidated Damages Cap.
(f)
The Managing Contractor's aggregate liability for failing to ensure that Practical
Completion is reached by the Date for Practical Completion does not limit:
(i)
where the Managing Contractor abandons the Works (in whole or in part)
(ii)
the Managing Contractor's liability for Wilful Misconduct, criminal conduct or
fraud by the Managing Contractor or its Subcontractors, employees or agents;
(iii)
where this Contract is terminated by the Principal under clause 59.4(a)(ii), the
Managing Contractor's liability for any loss (including for delay) incurred by the
Principal arising after the date of termination; or
(iv)
the Principal's rights with respect to an event giving rise to delay or the
consequences of such event, other than the delay.
49.5 Separable portions
(a)
The interpretations of:
(i)
Date for Practical Completion;
(ii)
Date of Practical Completion;
(iii)
Practical Completion; and
(iv)
clauses 9.2, 9.10, 9.11, 28, 49, 50, 51, 52, 53 and 57.9,
shall apply separately to each separable portion and references therein to the Works and to
work under the Contract shall mean so much of the Works and the work under the
Contract as is comprised in the relevant separable portion.
(b)
If the Contract does not make provision for the amount of security, retention moneys,
liquidated damages or damages for delay or disruption applicable to a separable portion,
the respective dates and amounts applicable shall be such proportion of those items
applicable to the whole of the work under the Contract as the value of the separable
portion bears to the value of the whole of the work under the Contract.
(c)
For the purposes of the Contract, separate subcontracts shall not of itself or themselves be
separable portions unless identified as such in the Contract.
(d)
The Managing Contractor acknowledges that any other discrete component of the Works
agreed with the Principal's Representative will each be separable portions.
49.6 Use of partly completed Works
(a)
If a 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 and the parties cannot agree (acting
reasonably) upon the creation of separable portions, the Principal's Representative may
determine that the respective parts shall be separable portions.
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(b)
In using the separable portion that has reached Practical Completion, the Principal shall
not hinder the Managing Contractor in the performance of the work under the Contract.
50. Delay or disruption costs
50.1 Principal's obligation and liability
Nothing in clause 50 shall oblige the Principal to pay extra costs for delay or disruption which
have already been included in any other payment under the Contract.
50.2 Costs for delay or disruption
(a)
The Managing Contractor shall only be entitled to costs for any delay in the completion of
or disruption in the progress of the work under the Contract if:
(i)
an extension of time to the Date for Practical Completion has been or should
properly have been allowed under clause 49.3(d)(i)(A) or 49.3(d)(i)(B);
(ii)
the cause of the delay:
(A)
is beyond the control of the Managing Contractor; and
(B)
arises out of an event under clause 49.3(d)(i)(A) or any breach of Contract
by the Principal;
(iii)
the Managing Contractor has taken all proper and reasonable steps necessary and
within its control both to preclude the occurrence of the cause of the delay and/or
to minimise the consequences thereof; and
(iv)
any costs, expenses or damages suffered or incurred by the Managing Contractor
as a result of any such delay have not been included in the value of any Variation
and are not payable by virtue of any other provision of the Contract.
(b)
Subject to compliance with the provisions of this clause 50.2, the Managing Contractor
shall in respect of any such delay or disruption encountered by it in the execution of the
work under the Contract be entitled to be paid by the Principal an amount by way of
damages for every Working Day (but limited to a maximum of nine (9) hours or part
thereof (which shall be cumulative)) calculated and determined by reference to the costs
properly and actually incurred by the Managing Contractor directly as a result of such
delay.
(c)
Except to the extent that such amounts form part of the Actual Construction Sum, the
amount due by the Principal to the Managing Contractor under this clause 50.2 is the
agreed damages due by the Principal to the Managing Contractor and is in full satisfaction
of all Claims for damages or any other payment or compensation whatsoever, for breach
of contract or otherwise according to law, which the Managing Contractor may make or
bring against the Principal arising in connection with all and any delay or disruption
howsoever caused or encountered by the Managing Contractor in the execution of the
work under the Contract.
(d)
The amount due by the Principal to the Managing Contractor under this clause 50.2
includes all Claims for damages or any other payment or compensation whatsoever which
subcontractors of the Managing Contractor may make or bring against the Managing
Contractor arising in connection with delay or disruption caused by the Principal, the
Principal's Representative, or any of the Principal's employees, consultants, other
contractors or agents.
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(e)
Subject to clause 50.3(b), all amounts due in respect of such damages shall be separately
identified in claims for payment under clause 57.2 and be included in claims pursuant to
57.2(f)(vii).
50.3 Provisional delay allowance
(a)
The Managing Contractor's Fee Breakdown included in Schedule 1 shall include a
provisional delay allowance for the number of days stated in the Annexure (Provisional
Delay Allowance).
(b)
If the total number of days for which the Managing Contractor is entitled to an extension
of time for a cause of delay stated in clause 49.3(d)(i)(A) or 49.3(d)(i)(B) exceeds the
Provisional Delay Allowance:
(i)
the Managing Contractor shall be paid the amount calculated and determined
pursuant to clause 50.2(b) for every day in excess of the Provisional Delay
Allowance, and such amounts shall be included in the payment certificates issued
by the Principal's Representative pursuant to clause 57; and
(ii)
the Principal’s Representative shall grant an extension of time to the Date for
Practical Completion and extend the Date for Practical Completion by the number
of days in excess of the Provisional Delay Allowance.
(c)
The parties acknowledge that the Provisional Delay Allowance may be reviewed by the
parties at the time submission of the GCS Offer, if the Managing Contractor includes in its
GCS Offer a request to review the Provisional Delay Allowance based on excessive
unforeseen delay events during Stage 1, including detailed reasons for the need to review
and the proposed changes to the Provisional Delay Allowance (Provisional Delay
Allowance Review Request).
(d)
Failure to submit the Provisional Delay Allowance Review Request in accordance with
clause 50.3(c) will be deemed to be confirmation that the Provisional Delay Allowance
will remain unchanged during Stage 2.
(e)
The Principal is required to review the Provisional Delay Allowance Review Request and
within 10 business days notify the Managing Contractor whether it accepts or rejects with
reasons any revisions to the Provisional Delay Allowance.
51. Defects liability
(a)
As soon as possible after the Date of Practical Completion, the Managing Contractor shall
rectify any Defects in the work under the Contract existing at the Date of Practical
Completion.
(b)
At any time prior to the expiration of the Defects Liability Period, the Principal's
Representative may direct the Managing Contractor to rectify any Defect in the work
under the Contract existing at the Date of Practical Completion or which becomes
apparent prior to the expiration of the Defects Liability Period. The direction shall
identify the Defect and state a date by which the Managing Contractor shall complete the
work of rectification and may state a date by which the work of rectification shall
commence.
(c)
The direction may provide that in respect of the work of rectification there shall be one
further separate defects liability period of a stated duration not exceeding the period stated
in the Annexure. The separate defects liability period shall commence on the date the
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Managing Contractor completes the work of rectification. Clause 51 shall apply in respect
of the work of rectification and the defects liability period for that work of rectification.
(d)
If the work of rectification is not commenced or completed by the stated dates, the
Principal may have the work of rectification carried out by others at the Managing
Contractor's expense, but without prejudice to any other rights that the Principal may have
against the Managing Contractor with respect to such omission or defect and the cost of
the work of rectification incurred by the Principal shall be a debt due from the Managing
Contractor. Until the cost of the work of rectification has been incurred by the Principal,
the Principal may deduct the estimated cost of such work from payments to the Managing
Contractor as an amount due from the Managing Contractor to the Principal.
(e)
The Managing Contractor shall carry out work of rectification at times and in a manner
which cause as little inconvenience to the occupants or users of the Works and the
Existing Facility as is reasonably possible.
(f)
The Managing Contractor acknowledges that in addition to its defects liability period
obligations, it will be responsible for maintaining certain services and plant during the
defects liability period as set out in Schedule 16.
52. Cleaning up
(a)
The Managing Contractor shall keep the Site and the work under the Contract clean and
tidy. The Managing Contractor shall regularly remove rubbish and surplus material.
(b)
The Managing Contractor shall ensure that rubbish and surplus materials are removed
from areas adjacent to occupied or operational areas on a daily basis, and that access to
such areas is not impeded by materials, rubbish or debris.
(c)
The Managing Contractor shall ensure that the removal of all rubbish and surplus material
is done in an environmentally conscious manner, with recycling options being utilised at
every opportunity.
(d)
Within 14 days after the Date of Practical Completion the Managing Contractor shall
remove Temporary Works and constructional plant.
(e)
The Principal's Representative may extend the time for removal of Temporary Works or
constructional plant necessary to enable the Managing Contractor to perform remaining
obligations.
(f)
Notwithstanding the provisions of clause 59, if the Managing Contractor fails to comply
with any obligation imposed on the Managing Contractor by clause 52 the Principal's
Representative may, after the Principal's Representative has given reasonable notice in
writing to the Managing Contractor, have the work of cleaning and tidying up carried out
by other persons and the cost incurred by the Principal in having the work so carried out
may be recovered by the Principal as a debt due from the Managing Contractor to the
Principal. The rights given by this paragraph are in addition to any other right.
53. Variations
53.1 Variations to the work under the Contract
(a)
The Principal's Representative may in writing direct the Managing Contractor, pursuant to
clause 53, to:
(i)
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increase, decrease or omit any part of the work under the Contract;
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(ii)
change the character or quality of any material or work or anything described in
the Developed Design or the Subcontract Construction Documentation;
(iii)
change the levels, lines, positions or dimensions of anything described in the
Developed Design or the Subcontract Construction Documentation or any part of
the work under the Contract;
(iv)
execute additional work; and/or
(v)
demolish or remove material or work no longer required by the Principal,
except where a Variation may be directed by the Principal's Representative pursuant to
clause 19.
(b)
The Managing Contractor is bound only to execute a Variation which is within the general
scope of the Contract.
(c)
The Managing Contractor shall not be bound to execute a Variation directed after the Date
of Practical Completion unless the Variation is in respect of rectification work referred to
in clause 51.
53.2 Proposed variations
(a)
(b)
Within five (5) business days of receipt of a notice in writing from the Principal's
Representative advising the Managing Contractor of a proposed Variation under clause 53
the Managing Contractor must advise the Principal's Representative:
(i)
in respect of the Managing Contractor's assessment as to whether the proposed
Variation can be effected; and
(ii)
details of the work performed by Nominated Consultants or other consultants
engaged by the Managing Contractor and associated costs in providing that
assessment.
The Principal shall not reimburse the Managing Contractor any of the Managing
Contractor's costs of complying with the requirements of this clause 53.2 other than:
(i)
the reasonable direct costs incurred for work performed by Nominated Consultants
or other consultants engaged by the Managing Contractor; and
(ii)
the reasonable direct costs incurred by the Managing Contractor in engaging new
additional resources specifically for the purpose of complying with the
requirements of this clause that have first been notified to and accepted by the
Principal’s Representative.
(c)
The costs described in paragraph (b) above will only be paid if the proposed Variation
does not proceed.
(d)
If the Variation can be effected, the Managing Contractor shall:
(i)
advise the Principal's Representative of the effect (if any) which the Managing
Contractor anticipates that the Variation will have on the Program and Date for
Practical Completion; and
(ii)
provide:
(A)
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a detailed quotation of the cost of the proposed Variation, exclusive of
GST, including any extra costs incurred by the Managing Contractor by
reason of delay, and any proposed adjustments to the Design/Buildability
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Advisor Fee, the ICT Management Fee, Nominated Consultants' Fee,
Preliminaries, Off Site Overheads and Profit Fee (if applicable) and
Guaranteed Construction Sum; and
(B)
(e)
advice as to the effect of the proposed Variation on any applicable
warranty.
Following receipt of the Managing Contractor's quotation pursuant to clause 53.2(c), the
Principal's Representative may:
(i)
accept the quotation provided by the Managing Contractor and direct a Variation
and, in doing so, accept or reject any advice (if any) given by the Managing
Contractor pursuant to clauses 53.2(d)(i) and 53.2(d)(ii); or
(ii)
reject the quotation.
53.3 Variations for the convenience of the Managing Contractor
(a)
If the Managing Contractor requests the Principal's Representative to approve a Variation
for the convenience of the Managing Contractor, except where the Managing Contractor
has requested a Variation pursuant to clause 19.2, the Principal's Representative may do so
in writing pursuant to this clause. If the proposed Variation is likely to reduce the Quality
of the Works, the Managing Contractor must expressly notify the Principal's
Representative of this fact in writing as part of its request. The approval may be
conditional.
(b)
Unless the Principal's Representative otherwise directs in the notice approving the
Variation, the Managing Contractor shall not be entitled to:
(i)
any extension of time for Practical Completion; or
(ii)
extra costs, any extra payment or an adjustment to:
(A)
the Design/Buildability Advisor Fee;
(B)
the ICT Management Fee,
(C)
the Nominated Consultants' Fee;
(D)
Preliminaries;
(E)
Off Site Overheads and Profit Fee; or
(F)
the Guaranteed Construction Sum,
in respect of the Variation or anything arising out of the Variation which would not have
arisen had the Variation not been approved.
(c)
The Principal's Representative shall not be obliged to approve a Variation for the
convenience of the Managing Contractor.
53.4 Valuation of Variations
(a)
If the Managing Contractor provides a detailed quotation for the work of a Variation under
clause 53.2 which is accepted by the Principal's Representative, then the actual
subcontract cost in respect of Construction Work the subject of the Variation shall form
part of the Actual Construction Sum and, the Design/Buildability Advisor Fee, the ICT
Management Fee, the Nominated Consultants' Fee, Preliminaries and Guaranteed
Construction Sum shall be adjusted in accordance with the accepted quotation.
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(b)
Where clause 53.4(a) does not apply, a Variation shall be valued as follows:
(i)
(Construction Work):
(A)
Where a Variation requires further or reduced Construction Work, the
value for the Variation shall be calculated in accordance with:
(I)
the rates or prices included in the Contract; or
(II)
any bill of quantities, schedule of rates or schedule of prices under
any relevant Subcontract,
to the extent to which the Principal's Representative reasonably determines
that those rates or prices are applicable to the Variation.
(B)
(C)
(ii)
To the extent that the Principal's Representative reasonably determines that
the rates or prices do not apply to a Variation, the value for the Variation
shall be:
(I)
as determined by agreement between the Managing Contractor and
the Principal's Representative; or
(II)
if an agreement cannot be reached, by the Principal's
Representative who shall determine such rate or price as the
Principal's Representative considers reasonable.
Not used.
(ICT Management Fee):
Where a Variation requires further or reduced work by the Managing Contractor in
relation to the ICT Works, the value for the Variation shall be such sum as is
agreed between the Managing Contractor and the Principal's Representative or in
the absence of such agreement, at such sum as the Principal's Representative
considers reasonable, and the ICT Management Fee shall be adjusted in
accordance with that value.
(iii)
(iv)
(Nominated Consultants):
(A)
Where a Variation requires further or reduced work by a Nominated
Consultant, the value for the Variation shall be such sum as is agreed
between the Managing Contractor and the Principal's Representative or in
the absence of such agreement, at such sum as the Principal's
Representative considers reasonable, and the Nominated Consultants' Fee
shall be adjusted in accordance with that value.
(B)
The Principal's Representative, in valuing a Variation pursuant to this
clause 53.4(b)(ii), may have regard to the contract between the Managing
Contractor and the Nominated Consultant.
(Off-site Overheads and Profit Fee):
If the Variation is:
(A)
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a material change in the scope of the Works (for example, the addition of
a floor or a functional department/area to the building, a material change to
the building envelope or fundamental changes to the proposed uses of the
Works); and
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(B)
in aggregate with all Variations issued from the date that the Principal
accepts the GCS Offer or an Alternative GCS Offer greater than
$5,000,000 in aggregate value,
the Managing Contractor shall be entitled to claim an amount of 5% of the value
of the Variation calculated under clause 53.4(b)(i), which amount will be deemed
to represent the Managing Contractor’s full and final entitlement in respect of the
amount of adjustment to the Off Site Overheads and Profit Fee for that Variation.
(v)
(Adjustment to Preliminaries):
Where a Variation requires the Managing Contractor to commit additional or
reduced On Site Overheads (not including overheads which form part of a
Subcontract trade package) the following shall apply:
(c)
(A)
where the Managing Contractor has an entitlement to be paid damages for
delay or disruption in accordance with clause 50 in respect of the
Variation, there shall be no adjustment to the Preliminaries; and
(B)
where the Managing Contractor does not have an entitlement to be paid
damages for delay or disruption in accordance with clause 50 in respect of
the Variation, then the value for the Variation shall be such sum as is
agreed between the Managing Contractor and the Principal's
Representative or, in the absence of such agreement, at such sum as the
Principal's Representative considers reasonable, and the Preliminaries shall
be adjusted in accordance with that value.
The aggregate value of a Variation calculated pursuant to clause 53.4(b) (excluding any
amount related to the adjustment to the Nominated Consultants' Fee) shall be the amount,
inclusive of GST, of the adjustment to the Guaranteed Construction Sum
53.5 Omissions
(a)
If the Principal's Representative instructs a Variation omitting any part of the work under
the Contract, the Principal may thereafter either perform the omitted work or employ or
engage another person to carry out and execute the omitted work.
(b)
The Managing Contractor shall have no entitlement to make a claim (including any claim
for loss of profit) as a result of any part of the work under the Contract being omitted
therefrom, whether or not the Principal thereafter performs the omitted work or employs
or engages another person to carry out and execute the omitted work.
(c)
The work which has been omitted shall be valued in accordance with the provisions of
clause 53.4.
53.6 Notice of Variations
If the Managing Contractor considers that a direction given by the Principal's Representative
while not expressly identified as a Variation constitutes a Variation, the Managing Contractor
must, as a condition precedent of any entitlement to make a Claim promptly, and within five (5)
business days after first receipt of such direction and in any event before commencing any Works
the subject of the Direction, notify the Principal's Representative of such. The Managing
Contractor will have no Claim against the Principal if it does not do so.
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54. Not used
55. Rates of exchange and duty
55.1 Custom tariff (anti dumping) legislation
(a)
The Managing Contractor shall be responsible for the payment of and indemnify the
Principal on demand in respect to, any loss, liability or claim under the Custom Tariff
(Anti-Dumping) Act 1975 (Cth) and in respect to any security that is due or may become
due under the Customs Act for duty that may become due under the Customs Tariff (AntiDumping) Act 1975 (Cth).
(b)
The Guaranteed Construction Sum shall include all amounts due under this clause 55 and
the Managing Contractor shall not be entitled to any additional remuneration whatsoever
in respect of any such amounts that are due or that may become due.
55.2 Variations in rates of exchange and duty
The Managing Contractor acknowledges and agrees that it has no Claim in relation to any
variation in the rates of exchange between any currencies or as a result of any changes in the rates
of duty payable in relation to the Project.
56. Not used
57. Claims, certificates and payments
57.1 GST and PAYG
(a)
(Definitions):
(i)
Terms defined by the GST Law and PAYG Law and used (without separate
definition) in this clause, shall have the meaning given to them by the GST Law or
PAYG Law.
(ii)
For the purposes of this clause:
'GST Law' has the meaning given to that term in A New Tax System (Goods and
Services Tax) Act 1999 (Cth); and
'PAYG Law' means any Act dealing with or relating to the PAYG system referred
to in Schedule 1 of the Taxation Administration Act 1953 (Cth).
(b)
(Payment of GST): Where a party is obliged to provide consideration to another party for
a taxable supply made under or in connection with the Contract:
(i)
any amount which the Contract provides:
(A)
is to be the amount of the consideration;
(B)
is to (or may) be used to calculate the amount of the consideration (and the
amount of the consideration so calculated); or
(C)
is included (provisionally or otherwise) in the consideration,
shall be taken to exclude GST payable in connection with the taxable supply
unless the amount is specifically stated to include GST;
(ii)
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where, despite paragraph (a) of this clause 57.1(b), any consideration to be
provided for a taxable supply is exclusive of GST, the party providing the
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consideration must also pay the GST payable in respect of the taxable supply,
when the consideration is provided; and
(iii)
no other provision of the Contract shall apply to give the Managing Contractor any
claim in connection with GST.
(c)
(Liability Net of GST): Where under or in connection with the Contract a party is
required to pay an amount which is (or is to be calculated by reference to) any cost,
expense, loss or other liability suffered or incurred by another party that amount shall be
(or be calculated by reference to) the cost, expense, loss or other liability net of any input
tax credits available to the other party or the representative member of its GST Group.
(d)
(Notification of GST Registration Status):
(i)
(ii)
(e)
(f)
The Managing Contractor warrants to the Principal that:
(A)
the Managing Contractor is registered for GST; and
(B)
the Managing Contractor's ABN stated in the Contract (or otherwise
notified by the Managing Contractor to the Principal) is correct.
The Managing Contractor must notify the Principal immediately if it ceases to be
registered for GST at any time.
(Tax Withholding):
(i)
Whenever the Managing Contractor does not have an ABN or the Principal
becomes aware that the Managing Contractor's ABN notified to it is incorrect or
the Principal otherwise reasonably considers itself bound by PAYG Law to do so,
the Principal shall be entitled to withhold from any payment otherwise due to the
Managing Contractor under or in connection with the Contract, amounts calculated
and to be withheld in accordance with the PAYG Law.
(ii)
Subject to clause 57.1(e)(iii), each time the Managing Contractor makes a claim
for any payment under or in connection with the Contract, the Managing
Contractor shall be taken to warrant to the Principal that it is an Australian resident
for the purposes of the foreign resident withholding provisions in Subdivision 12FB of the Taxation Administration Act 1953 (Cth).
(iii)
The warranty in clause 57.1(e) shall not apply to the extent the Managing
Contractor has notified the Principal in writing that it is not an Australian resident
before any claim for payment is made.
(Principal Created Tax Invoices): Except to the extent the Principal at any time gives to
the Managing Contractor written notice that it does not intend issuing recipient created tax
invoices for any taxable supplies to the Principal by the Managing Contractor under or in
connection with the Contract:
(i)
the Principal shall issue tax invoices and adjustment notes in respect of those
supplies;
(ii)
the Managing Contractor shall not issue tax invoices or adjustment notes in respect
of those supplies;
(iii)
the Principal acknowledges that it was registered for GST when it entered into the
Contract and that it will notify the Managing Contractor if it ceases to be
registered; and
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(iv)
(g)
the Managing Contractor must notify the Principal immediately it becomes aware
of an adjustment event occurring in respect of those supplies.
(Tax Invoices):
(i)
A party making a taxable supply must issue to the other a tax invoice or
adjustment note (as the case may require) within five (5) business days after each
of the following occurring in relation to that taxable supply:
(A)
the party submitting a claim for payment;
(B)
the Principal's Representative certifying an amount for payment different
to the amount claimed;
(C)
the amount for payment being otherwise determined to be different to the
amount claimed or (if applicable) certified,
unless the Principal is providing Principal created tax invoices for the taxable
supply under clause 57.1(f).
(ii)
For the purposes of GST Law, upon the occurrence of each of the events specified
in paragraph (i)(A), (B) or (C) of this clause 57.1(g), the Principal shall be taken to
have requested the Managing Contractor to provide to the Principal the tax invoice
or adjustment note referred to in paragraph (i) of this clause 57.1(g).
(iii)
Until the Principal notifies the Managing Contractor otherwise, the Principal's
Representative is authorised to provide to or receive from the Managing
Contractor tax invoices or adjustment notes (as the case may be) on the Principal's
behalf.
57.2 Payment claims
(a)
(b)
(c)
Subject to the prior receipt by the Principal's Representative of the information required
by clause 58, the Managing Contractor shall deliver to the Principal's Representative
payment claims:
(i)
at the times for payment claims under the Contract stated in the Annexure;
(ii)
upon completion of Stage One;
(iii)
upon the issue of a Certificate of Practical Completion; and
(iv)
within the time prescribed by clause 57.11.
The payment claim shall be supported by sufficiently detailed evidence of the amount
claimed to be due to the Managing Contractor and such information as the Principal's
Representative may reasonably require including:
(i)
evidence satisfactory to the Principal's Representative that the Managing
Contractor has complied with clause 58 so far as applicable and that all amounts
included in previous payments to the Managing Contractor in respect of
Consultants and Subcontractors and then due for payment have been paid or
otherwise discharged; and
(ii)
not used.
If the time for any payment claim falls due on a day which is not a business day, the
Managing Contractor shall submit the payment claim on the next business day following
that date.
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(d)
If the Managing Contractor submits a payment claim before the time for lodgement of that
payment claim, such early lodgement shall not require the Principal's Representative to
issue a payment certificate in respect of that payment claim earlier than would have been
the case had the Managing Contractor submitted the payment claim in accordance with the
Contract.
(e)
If the Managing Contractor fails to make a payment claim, the Principal's Representative
may nevertheless issue a payment certificate.
(f)
Subject to 57.2(g), the Managing Contractor shall be entitled to make a payment claim for
the total of:
(i)
Actual Construction Sum: that portion of the Actual Construction Sum,
representing the cost of Construction Work carried out on the Site to the date of
the payment claim;
(ii)
Design/Buildability Advisor Fee: that portion of the Design/Buildability Advisor
Fee equal to the portion of each of the:
(A)
Design Work;
(B)
Documentation Work; and
(C)
Construction Work,
carried out by the Managing Contractor to the date of the payment claim;
(iii)
Preliminaries:
(A)
the portion of the Preliminaries stated in Schedule 1 (if any) for the
purposes of site mobilisation, in the payment certificate which first
includes an amount for Construction Work after the commencement of
Construction Work on Site;
(B)
that portion of the Preliminaries (excluding the up front part payment
referred to in clause 57.2(f)(iii)(A)) having regard to the commencement of
Construction Work and the forecast time for Practical Completion as
agreed with the Principal's Representative or failing agreement as
reasonably determined by the Principal's Representative;
(iv)
Nominated Consultants' Fee: if the Consultants have been engaged by the
Managing Contractor in accordance with clause 18.1A, the value of the work
carried out by Consultants in accordance with the Contract since the Nomination
Date in the performance of work under the Contract to the date of the payment
claim;
(v)
Off Site Overheads and Profit Fee:
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(A)
during Stage One, that portion of the Off Site Overheads and Profit Fee for
Stage One, having regard to the progress of Stage One, as agreed with the
Principal's Representative or failing agreement as reasonably determined
by the Principal's Representative; and
(B)
during Stage Two, a portion of the lump sum amount for the Off Site
Overheads and Profit Fee for Stage Two proportional to the value of
Construction Work executed on the Site, exclusive of GST;
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(vi)
ICT Management Fee: that portion of the ICT Management Fee equal to the
portion of each of the ICT Works carried out by the Managing Contractor to the
date of the payment claim;
(vii)
All other amounts due to the Managing Contractor arising under or out of the
Contract.
(g)
The Managing Contractor's entitlement to make a payment claim for the total of the
Actual Construction Sum, the Preliminaries, Design/Buildability Advisor Fee, ICT
Management Fee and Off Site Overheads and Profit Fee is subject to and shall not exceed
in aggregate the Guaranteed Construction Sum, as adjusted in accordance with the
Contract.
(h)
In making a payment claim the Managing Contractor shall:
(i)
not be entitled to make any claim for or be entitled to payment of:
(A)
Excluded Costs;
(B)
costs of rectifying Documentation Work or Subcontract Construction
Documentation faults; or
(C)
costs of defective or damaged work unless such costs have been caused by
the Principal, the Principal's Representative, or the Principal's employees,
consultants, other contractors or agents;
(D)
the same amount twice or under this Contract and any Subcontract; and
(ii)
take account of clause 57.7;
(iii)
include any amounts due to the Principal under the Contract, including any
liquidated damages due under clause 49.4.
57.3 Payment certificates
(a)
Within 10 business days of receipt of a payment claim, the Principal's Representative shall
assess the payment claim and determine whether the Managing Contractor has satisfied
the provisions of the Contract and issue a payment certificate or give reasons in writing
for not issuing the certificate.
(b)
The Principal's Representative shall:
(i)
assess the amount claimed by the Managing Contractor under clause 57.2; and
(ii)
issue a payment certificate as its assessment of the amount claimed after
adjustment for:
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(A)
liquidated damages due to the Principal;
(B)
delay or disruption costs due to the Managing Contractor pursuant to
clause 50 to the date of the payment certificate;
(C)
payments already made;
(D)
retention moneys; and
(E)
all other adjustments which may be required to be made pursuant to the
provisions of the Contract.
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57.4 Payment
(a)
The Principal shall pay to the Managing Contractor or the Managing Contractor shall pay
to the Principal the amount shown in a payment certificate.
(b)
In making any payment, the Principal shall be entitled to deduct any sum within clause
57.14.
(c)
The Principal shall make payment to the Managing Contractor or the Managing
Contractor shall make payment to the Principal:
(i)
(ii)
(d)
within the later of:
(A)
30 calendar days after receipt by the Principal's Representative of a
payment claim; or
(B)
16 calendar days after issue by the Principal's Representative of a payment
certificate; and
within 16 calendar days after the issue of a Final Certificate.
Notwithstanding clause 57.4, the Managing Contractor will not be entitled to make a
claim, and the Principal will not be obliged (including for the purpose of the Security of
Payment Act) to make any payment to the Managing Contractor, whilst a Payment
Deferral Event is occurring. The Principal will promptly proceed to make payment to the
Managing Contractor once all Payment Deferral Events have ended.
57.5 Amount properly due
(a)
A payment made pursuant to this clause 57 shall not prejudice the right of either party to
dispute under clause 62 whether or not the amount so paid is the amount properly due. On
determination (whether under clause 62 or as otherwise agreed) of the amount so properly
due, the Principal or the Managing Contractor, as the case may be, shall be liable to pay
the difference between the amount of such payment and the amount so properly due.
(b)
Payment of moneys shall not be evidence of the value of work or an admission of liability
or evidence that work has been executed satisfactorily but shall be a payment on account
only, except as provided under clause 57.12. Nothing in this Contract shall oblige the
Principal to pay for work that is not in accordance with the Contract.
57.6 Audit of Actual Construction Sum
The Principal may at any time and from time to time prior to the issue of the Final Certificate,
undertake an audit (on an Open Book Basis) in respect of all matters pertaining to the Actual
Construction Sum including the value of subcontracts comprising the Actual Construction Sum
and the Managing Contractor shall allow such audit and comply and facilitate in all respects with
any request for information and further information which the Principal may make.
57.7 Unfixed plant and material
The Principal shall not be obliged to pay for plant or materials intended for incorporation in the
Works but not yet incorporated unless:
(a)
the item is listed in a list to be provided by the Managing Contractor with the GCS Offer
or the item is such that, in the opinion of the Principal's Representative, an early payment
is reasonable;
(b)
the Managing Contractor provides additional security pursuant to clause 9.8; and
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(c)
the Managing Contractor establishes to the satisfaction of the Principal's Representative
that:
(i)
the payment claimed is not in excess of any amount paid by the Managing
Contractor in respect of the unfixed plant and materials; and
(ii)
the item is:
(iii)
(A)
properly stored and labelled the property of the Principal;
(B)
is adequately protected and insured; and
(C)
landed in Australia; and
upon payment to the Managing Contractor of the amount which includes the value
of the item, the item shall be the property of the Principal free of any lien or
charge is not subject to a security interest which is registered on the Personal
Property Securities Register.
57.8 Provisional Sums
(a)
A Provisional Sum included in the Contract shall not itself be payable to the Managing
Contractor by the Principal.
(b)
Where at the direction of the Principal's Representative the work or item to which the
Provisional Sum relates is performed or supplied by:
(i)
the Managing Contractor, the work or item shall be valued under clause 53.4; and
(ii)
a Subcontractor to the Managing Contractor, the Principal shall pay the Managing
Contractor the total of the amount payable by the Managing Contractor to the
Subcontractor for the work or item. This amount is to be taken to be the net cost
to the Managing Contractor disregarding any addition of charges for late payment
and disregarding any damages payable by the Managing Contractor to the
Subcontractor or vice versa.
(c)
The Design/Buildability Advisor Fee, ICT Management Fee, Preliminaries, and Off Site
Overheads and Profit Fee shall include for work under the Contract the subject of
Provisional Sums.
(d)
The Guaranteed Construction Sum includes all Provisional Sums included in the Contract.
The Guaranteed Construction Sum shall be adjusted so as to include only the amount
calculated pursuant to clause 57.8(b) and that amount shall be included in the Actual
Construction Sum.
57.9 Certificate of Practical Completion
(a)
The Managing Contractor shall give the Principal's Representative at least ten (10)
business days notice of the date upon which the Managing Contractor anticipates that
Practical Completion will be reached.
(b)
When the Managing Contractor is of the opinion that Practical Completion has been
reached, the Managing Contractor shall in writing request the Principal's Representative to
issue a Certificate of Practical Completion. Within ten (10) business days of the receipt of
the request, the Principal's Representative shall give to the Managing Contractor and to
the Principal a Certificate of Practical Completion certifying the Date of Practical
Completion or give the reasons in writing for not issuing the Certificate of Practical
Completion.
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(c)
Where the Principal's Representative has given reasons for not issuing a Certificate of
Practical Completion the Managing Contractor shall proceed to complete the work under
the Contract and give the Principal's Representative at least 3 days notice of the date upon
which the Managing Contractor anticipates that Practical Completion will be reached
whereby the above process will be repeated.
(d)
When the Principal's Representative is of the opinion that Practical Completion has been
reached, the Principal's Representative may issue a Certificate of Practical Completion,
whether or not the Managing Contractor has made a request for its issue.
57.10 Effect of certificates
(a)
The issue of a payment certificate or a Certificate of Practical Completion shall not
constitute approval of any work or other matter nor shall it prejudice any claim by the
Principal or the Managing Contractor.
(b)
At any time and from time to time, the Principal's Representative may by a further
certificate correct any error which has been discovered in any previous certificate, other
than a Certificate of Practical Completion or Final Certificate.
57.11 Final Payment Claim
(a)
Within 28 days after the expiry of the Defects Liability Period, or where there is more
than one, the expiry of the last to expire, the Managing Contractor shall provide the
Principal's Representative with a final payment claim and endorse it 'Final Payment
Claim'. Such Final Payment Claim shall include the Notice or Notices of Claim pursuant
to clause 61.3(a)(ii).
(b)
After the expiration of the period for lodging a Final Payment Claim, any Claim:
(i)
which the Managing Contractor could have made against the Principal and has not
been made (including any Claim which could have been made by a contractor
exercising the skill, care and diligence of a Relevant Managing Contractor); or
(ii)
for which the Managing Contractor has not given to the Principal's Representative
a Notice of Claim;
shall be barred absolutely.
57.12 Final Certificate
(a)
If the Managing Contractor has not notified a Claim in accordance with clause 61, then
within ten (10) business days of receipt of the Managing Contractor's Final Payment
Claim or, where the Managing Contractor fails to provide such Final Payment Claim, the
expiration of the period specified in clause 57.11 for the lodgement of the Final Payment
Claim by the Managing Contractor, the Principal's Representative shall issue to the
Managing Contractor and to the Principal a final certificate endorsed 'Final Certificate' or
give the Managing Contractor in writing the reasons for not issuing the certificate.
(b)
In the Final Certificate the Principal's Representative shall certify the amount which, in the
Principal's Representative's reasonable opinion, is finally due from the Principal to the
Managing Contractor or from the Managing Contractor to the Principal arising out of the
Contract or any alleged breach thereof.
(c)
In such Final Certificate the Principal's Representative shall also set out:
(i)
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amounts paid under the Contract and amounts otherwise due from the Principal to
the Managing Contractor and/or due from the Managing Contractor to the
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Principal arising out of or in connection with the Contract including but not
limited to any amount due or to be credited under any provision of the Contract;
(d)
(e)
(ii)
the Guaranteed Construction Sum adjusted as necessary according to the terms and
conditions of the Contract;
(iii)
not used; and
(iv)
the total value of all previous certificates, claims and securities issued pursuant to
the Contract.
If the Managing Contractor has given the Principal a Notice or Notices of Claim in
accordance with clause 61:
(i)
within 3 months of receipt of the Managing Contractor's Final Payment Claim the
Principal's Representative and the Managing Contractor shall endeavour to agree
the Claim notified in accordance with clause 61;
(ii)
at the end of 3 months of receipt of the Managing Contractor's Final Payment
Claim:
(A)
if the Claim has been agreed, issue to the Managing Contractor and to the
Principal a final certificate endorsed 'Final Certificate' and the provisions
of clause 57.14 shall apply;
(B)
if the Claim has not been agreed in whole or in part, the Principal's
Representative shall issue a further certificate for any Claim agreed to
which the provisions of clause 57 shall apply. The failure to agree a Claim
shall entitle the Managing Contractor to dispute the Claim which has not
been agreed and the provisions of clause 62 shall apply.
Unless either party, either before the Final Certificate has been issued or not later than 21
days after the issue thereof, serves a notice of dispute under clause 62, the Final
Certificate shall be evidence that the Works have been completed in accordance with the
terms of the Contract, that any necessary effect has been given to all the terms of the
Contract in accord and satisfaction of all of the Managing Contractor's Claims, except in
the case of:
(i)
fraud, dishonesty or fraudulent concealment relating to the work under the
Contract or any part thereof or to any matter dealt with in the said Certificate;
(ii)
any Defect in the Works or any part thereof which was not apparent upon visual
inspection at the end of the Defects Liability Period;
(iii)
any accidental or erroneous inclusion or exclusion of any work, plant, materials or
figures in any computation or any arithmetical error in any computation; and
(iv)
security provided pursuant to clause 9; or
(v)
any Claims by third parties against the Principal.
57.13 Interest on overdue payments
If any moneys due to either party remain unpaid after the date upon which or the expiration of the
period within which they should have been paid, then interest shall be due thereon from but
excluding the date upon which or the expiration of the period within which they should have been
paid to and including the date upon which the moneys are paid. The rate of interest shall be 12%
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per annum or such higher amount as may be required by statute. Interest shall be compounded at
six monthly intervals.
57.14 General right of set off by the Principal
(a)
Without limiting the Principal's rights under any other provision in the Contract and
notwithstanding the provisions of or the issue of a certificate by the Principal's
Representative under clause 57, the Principal may deduct from any moneys due to the
Managing Contractor any sum which is payable by the Managing Contractor to the
Principal, Monash Health or the State of Victoria (State) arising under or in connection
with the Contract whether or not the right to payment of the Principal, Monash Health or
the State arises by way of indemnity, damages, debt restitution or otherwise.
(b)
If the moneys payable to the Managing Contractor are insufficient to discharge the
liability of the Managing Contractor to pay such sum to the Principal, Monash Health or
the State, the Principal may have recourse to:
(i)
retention moneys and any security provided in lieu of retention moneys under
clause 9.7, and if they are insufficient;
(ii)
security provided under clause 9.2 of the Contract.
(c)
Where the Principal exercises a right under this clause in respect of an amount payable to
Monash Health or the State, the Principal must account to Monash Health or the State for
any amount received by the Principal pursuant to the exercise of that right.
(d)
Nothing in this clause shall affect the right of the Principal to recover from the Managing
Contractor the whole of such moneys or any balance that remains owing.
57.15 Security of Payment Act - Notices
The Managing Contractor must give to the Principal:
(a)
a copy of any written communication regarding an adjudication application or Claim by a
Subcontractor (other than in the usual payment claim process) given to the Managing
Contractor by a Subcontractor pursuant to the Security of Payment Act; and
(b)
a copy of any determination given to the Managing Contractor by an adjudicator pursuant
to the Security of Payment Act,
on the same day that it is given or received by the Managing Contractor.
57.16 Security of Payment - suspension
(a)
The Managing Contractor must notify the Principal immediately in writing if any of the
Subcontractors are or may be entitled to exercise a right to suspend work, whether under
the Security of Payment Act or otherwise.
(b)
Not used.
(c)
If the Managing Contractor becomes entitled to suspend the whole or part of the work
under the Contract under the Security of Payment Act, and does in fact suspend under that
Act, the Managing Contractor must recommence the work under the Contract on the day
after the next clear business day following the Managing Contractor receiving payment of
the relevant amount or as otherwise agreed in writing between the parties.
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57.17 Security of Payment - Miscellaneous
(a)
The parties agree that a variation will only fall under the first class of claimable variations
in section 10A(2) of the Security of Payment Act, if all of the matters set out in section
10A(2) of the Security of Payment Act have been agreed to in writing by the Principal.
(b)
The Managing Contractor warrants that it has made an allowance in the Managing
Contractor's fees in respect of the Security of Payment Act.
(c)
The Managing Contractor must indemnify the Principal on demand against all and any
loss, liability or claim the Principal may become liable for, suffer or incur in connection
with any suspension by any Subcontractor or any other right or remedy by any
Subcontractor pursuant to the Security of Payment Act to the extent that such suspension
or other right or remedy is caused by the Managing Contractor.
57.18 Security of Payment - Disputes
(a)
The parties acknowledge and agree that the process set out in clause 62 is a method for
resolving disputes under the Contract for the purposes of section 10A(3)(d) of the Security
of Payment Act.
(b)
In the event that the Managing Contractor makes an adjudication application under the
Security of Payment Act, the Managing Contractor must make such application to one of
the Authorised Nominating Authorities listed below:
(i)
the Institute of Arbitrators and Mediators Australia;
(ii)
Building Adjudication Victoria; or
(iii)
Rialto Adjudications Pty Ltd.
57.19 Security of Payment
The Managing Contractor agrees that:
(a)
the time prescribed in subclause 57.2 for the Managing Contractor to submit a payment
claim is, subject to any Payment Deferral Event, the 'reference date' within the meaning
and for the purposes of the Security of Payment Act;
(b)
any payment certificate issued by the Principal's Representative is a 'payment schedule'
within the meaning and for the purposes of the Security of Payment Act;
(c)
the time prescribed in subclause 57.4 for payment is, subject to any Payment Deferral
Event, the 'due date' for the purposes of the Security of Payment Act;
(d)
payment of moneys for which the Principal has become liable to pay to the Managing
Contractor by reason of the Security of Payment Act (including amounts which have been
determined by an adjudicator or which are the subject of an adjudication under the
Security of Payment Act) shall not be evidence of the value of work or an admission of
liability or evidence that work has been executed satisfactorily, but shall be a payment on
account only;
(e)
in determining the value of the work carried out by the Managing Contractor in the
performance of the Contract pursuant to clause 57, the Principal's Representative may
determine a value which is less than the amount previously paid or payable to the
Managing Contractor (including any amount for which the Principal has become liable to
pay to the Managing Contractor by reason of the Security of Payment Act and any amount
paid into a designated trust account under the Security of Payment Act);
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(f)
(g)
in determining the amounts paid previously under the Contract as required by clause 57
the Principal's Representative may include, in that amount, the following:
(i)
any amount which has been paid to the Managing Contractor pursuant to the
Security of Payment Act;
(ii)
any amount which has been paid to the Managing Contractor in satisfaction of an
adjudication under the Security of Payment Act; and
(iii)
any amount that has been the subject of a judgment or adjudication certificate
within the meaning of the Security of Payment Act; and
the Managing Contractor must indemnify the Principal on demand against all loss,
liability or claims the Principal may become liable for, suffer or incur arising out of:
(i)
a suspension pursuant to the Security of Payment Act by a Subcontractor of work
which forms part of the Works;
(ii)
not used; or
(iii)
any lien claimed over unfixed plant or equipment forming part of the Works under
section 12A of the Security of Payment Act by a Subcontractor of the Managing
Contractor,
except to the extent directly caused by a failure of the Principal to pay an amount certified
as due under clause 57.4.
58. Payment of workers and Subcontractors
58.1 Payment direct to worker or Subcontractor
At the request of the Managing Contractor and out of moneys due to the Managing Contractor the
Principal may on behalf of the Managing Contractor make payment directly to a worker or
Subcontractor.
58.2 Statutory declaration
Prior to the making of a payment claim:
(a)
the Managing Contractor must deliver to the Principal a statutory declaration, by a
representative of the Managing Contractor who is in a position to know the facts attested
to that:
(i)
all Subcontractors of the Managing Contractor have been paid all that is due and
payable to such Subcontractors up to the date of submission by the Managing
Contractor of a progress claim in respect of the work under the Contract;
(ii)
all Nominated Consultants and other consultants of the Managing Contractor have
been paid all that is due and payable to them up to the date of submission by the
Managing Contractor of a progress claim in respect of the work under the
Contract;
(iii)
all the Managing Contractor's workers who at any time have been engaged on
work under the Contract by the Managing Contractor have been paid, in
accordance with the relevant award or industrial instrument, all moneys due to
them up to the date of submission by the Managing Contractor of a progress claim,
in respect of their engagement on the work under the Contract;
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(iv)
any sub subcontractors performing work under the Contract have been approved
by the Principal's Representative in accordance with clauses 21.2(u) and 21.2(v);
(v)
not used; and
(vi)
the Managing Contractor has taken reasonable steps to ensure that all
Subcontractors and any sub subcontractors performing work under the Contract
are aware of the existence of the Security of Payment Act,
and, if requested in writing, reasonable supporting documentary evidence thereof; and
(b)
if previously requested by the Principal's Representative, the Managing Contractor must
deliver a statutory declaration, by any Subcontractor, or where the Subcontractor is a
corporation, by a representative of the Subcontractor who is in a position to know the facts
attested to that:
(i)
all workers who have been engaged by a Subcontractor of the Managing
Contractor have been paid in accordance with the relevant award or industrial
instrument all moneys due and payable to them up to the date of submission by the
Managing Contractor of a progress claim in respect of their engagement on the
work under the Contract; and
(ii)
all subcontractors of the Subcontractor have been paid all that is due and payable
to such subcontractors up to the date of submission by the Managing Contractor of
a progress claim in respect of the work under the Contract,
and, if requested in writing, reasonable supporting documentary evidence thereof.
Failure to comply with this clause will be a Payment Deferral Event.
58.3 Details of payments
The Managing Contractor acknowledges that the Principal may release to a Subcontractor details
of payments in percentage terms made by the Principal to the Managing Contractor in respect of
the Subcontract to which the Subcontractor is a party unless the Managing Contractor shows
reasonable grounds why such details should not be released or satisfies the Principal that all
payments due to the Subcontractor by the Managing Contractor have been paid.
58.4 Court order
If a worker, Subcontractor or subcontractor of a Subcontractor obtains a court order in respect of
any moneys unpaid to the worker, Subcontractor or subcontractor of a Subcontractor the subject
of a statutory declaration under clause 58.2 and, produces to the Principal the court order and a
statutory declaration that it remains unpaid, the Principal may pay the amount of the order, and
costs included in the order, to the worker, Subcontractor or subcontractor of a Subcontractor and
the amount paid shall be a debt due from the Managing Contractor to the Principal.
59. Default or insolvency
59.1 Preservation of other rights
If a party breaches or repudiates the Contract, nothing in this clause 59 shall prejudice the right of
the other party to recover damages or exercise any other right.
59.2 Default by the Managing Contractor
(a)
If the Managing Contractor commits a substantial breach of Contract the Principal may
give the Managing Contractor a written notice to show cause.
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(b)
Substantial breaches include but are not limited to:
(i)
failing to engage the Nominated Consultants pursuant to the process in clause
18.1;
(ii)
failing in a material respect, to manage the production of the Developed Design;
(iii)
failing to comply with clauses 7.2, 9, 21.1A, 21.2(t) where the Managing
Contractor has failed to comply with clause 21.2, 24 (where such failing is a
breach of a Statutory Requirement), the process in clause 37, or 38.2;
(iv)
failing to proceed with the work under the Contract with due expedition and
without delay in accordance with clause 46.1;
(v)
failing to provide evidence of insurance in accordance with clause 34.1;
(vi)
failing to comply with a direction of the Principal's Representative in accordance
with clause 38.2(c) or 42.2;
(vii)
failing to use the materials or standards of workmanship in accordance with clause
42;
(viii)
failing to suspend the work under the Contract in accordance with clause 48.1;
(ix)
failing to comply with any requirement or request made in accordance with the
process in clause 58;
(x)
providing a statutory declaration pursuant to clause 58 which is false, misleading
or deceptive in any respect;
(xi)
committing an act of insolvency as defined by clause 59;
(xii)
failing to do those things which the Managing Contractor warranted it would do or
has done in accordance with the terms of the Contract, under clause 6(a),
3(g)(ii)(D), 10.2(g), 11.2(a) 12.1, 12.1(a), 12.4, 20.1(d), 21.2(k) 21.2(p), 23.1,
24.5A, 24A.4,25(b), 57.1(d) or 57.17;
(xiii)
failing in a material respect, to perform all duties and act in good faith;
(xiv)
failing to comply in any respect with the requirements of clause 11.2(a);
(xv)
failing to comply with or breaching, in any respect, the requirements of clause 6;
(xvi)
if the Managing Contractor's aggregate liability to the Principal reaches 80% of its
limit on liability set out in clause 68(a);
(xvii) if the Managing Contractor's aggregate liability for liquidated damages to the
Principal reaches the Liquidated Damages Cap, and the Managing Contractor has
not within 5 days after the Liquidated Damages Cap is reached agreed to increase
its limit on liability for liquidated damages cap to 200% of the original Liquidated
Damages Cap (or such lesser amount as proposed by the Principal);
(xviii) the occurrence of any Payment Deferral Event;
(xix)
not achieving Practical Completion by the Date for Practical Completion; and
(xx)
any other material or persistent breach of a term of this Contract.
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59.3 Requirements of a notice by the Principal to show cause
(a)
(b)
A notice given under clause 59.2 shall:
(i)
state that it is a notice under clause 59 of the Contract;
(ii)
specify the alleged substantial breach;
(iii)
require the Managing Contractor to show cause in writing why the Principal
should not exercise a right referred to in clause 59.4;
(iv)
specify the time and date by which the Managing Contractor must show cause; and
(v)
specify the place at which cause must be shown.
A notice from the Managing Contractor in response to a show cause must (without
limiting clause 59) either contain particulars of how the breach will be remedied and an
enforceable undertaking and timeframe to do so, or an enforceable undertaking to pay the
Principal reasonable compensation arising from the breach. In respect of a show cause
notice under clause 59.2(b)(xix):
(i)
the parties agree that the liquidated damages payable under clause 49.4 constitute a
fair and reasonable pre-estimate of the reasonable compensation payable to the
Principal pursuant to this clause arising from that breach; and
(ii)
without limiting any other rights of the Principal, the Managing Contractor must
provide the Principal a written plan (enforceable against the Managing Contractor)
of the steps being taken or to be taken to overcome the consequences of the delay
to Practical Completion, and a time frame within which the consequences of the
delay will be overcome.
59.4 Rights of the Principal
(a)
(b)
If, by the time specified in a notice given under clause 59.2, the Managing Contractor fails
to show reasonable cause why the Principal should not exercise a right referred to in this
clause 59.4, the Principal may by notice in writing to the Managing Contractor:
(i)
take out of the hands of the Managing Contractor the whole or part of the work
remaining to be completed; or
(ii)
terminate the Contract.
Notwithstanding any other provision of this Contract, upon giving a notice under clause
59.2:
(i)
the Managing Contractor is not entitled to make a claim for payment; and
(ii)
other than in respect of a show cause notice under clause 59.2(b)(xix),the Principal
may suspend payments to the Managing Contractor,
until the earlier of:
(iii)
the date upon which the Managing Contractor shows reasonable cause;
(iv)
the date upon which the Principal takes action under clause 59.4(a); or
(v)
the date which is 7 days after the last day for showing cause in the notice given
under clause 59.2.
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(c)
If the Managing Contractor by notice in writing advises the Principal that the Managing
Contractor is unable or unwilling to complete performance of the Contract, the Principal
may forthwith exercise the rights under clause 59.4(a).
(d)
If the Principal exercises the right under clause 59.4(a)(i), the Managing Contractor shall
not be entitled to make any Claim for payment under clause 57 or to any further payment
in respect of the work taken out of the hands of the Managing Contractor and the Principal
shall not be entitled to make any further payment to the Managing Contractor, unless a
payment becomes due to the Managing Contractor under clause 59.6.
59.5 Procedure when the Principal takes over Work
(a)
If the Principal takes work out of the hands of the Managing Contractor under clause
59.4(a)(i), the Principal may complete that work and the Principal may without payment
of compensation:
(i)
take possession of such of the constructional plant and other things on or in the
vicinity of the Site or on or in the vicinity of any land in addition to the Site
procured by the Managing Contractor pursuant to clause 39.4 as are owned by the
Managing Contractor and are reasonably required by the Principal to facilitate
completion of the work;
(ii)
take possession of the documents, information, materials and the like produced by
the Managing Contractor, which are reasonably required by the Principal to
facilitate completion of the work; and
(iii)
take an assignment of the Managing Contractor's rights and benefits under
Subcontracts including all warranties and guarantees in connection therewith.
(b)
If the Principal takes possession of constructional plant, or other things, the Principal shall
maintain them and, subject to clause 59.6, on completion of the work, the Principal shall
return to the Managing Contractor the constructional plant and any things taken under this
clause 59.5 which are surplus.
(c)
The Managing Contractor agrees to:
(d)
(i)
execute all documents and do all things necessary (including giving all necessary
notices to Subcontractors and third parties) to allow the Principal to exercise its
rights under this clause; and
(ii)
appoint the Principal as its agent for this purpose which appointment shall not be
revoked at any time prior to issuance of the Final Certificate.
The Managing Contractor agrees that it will not be entitled to submit any further progress
claim as a result of the Principal exercising its rights under this clause.
59.6 Adjustment on completion of the Work taken out of the hands of the Managing
Contractor
(a)
The Principal's Representative shall ascertain the cost incurred by the Principal in
completing the work completed under clause 59.5 and the amount of any loss, cost,
liability or damages sustained by the Principal for delay in completion and shall issue a
certificate pursuant to this clause 59.6 to the Principal and the Managing Contractor
certifying:
(i)
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the amount of that cost and damages, and setting out the calculations employed to
arrive at that cost and damages;
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(ii)
the amount which would otherwise have been paid to the Managing Contractor if
the work had been completed by the Managing Contractor; and
(iii)
the difference.
(b)
If the loss, cost, liability and damages incurred by the Principal are greater than the
amount which would have been paid to the Managing Contractor if the work had been
completed by the Managing Contractor, the difference shall be a debt due from the
Managing Contractor to the Principal.
(c)
Not used.
(d)
If the Managing Contractor is indebted to the Principal, the Principal may retain
constructional plant or other things taken under clause 59.5 until the debt is satisfied. If
after reasonable notice, the Managing Contractor fails to pay the debt, the Principal may
sell the constructional plant or other things and apply the proceeds to the satisfaction of
the debt and the costs of sale. Any excess shall be paid to the Managing Contractor.
59.7 Default of the Principal
(a)
If the Principal commits a substantial breach of Contract and the Managing Contractor
considers that damages may not be an adequate remedy, the Managing Contractor may
give the Principal a written notice to show cause.
(b)
Substantial breaches are limited to:
(i)
failing to provide or execute the Site Licence (where the Managing Contractor has
so executed) but only if the failure continues for longer than the period stated in
the Annexure;
(ii)
failing to make a payment due and payable under the Contract within five (5)
business days of receiving a notice from the Managing Contractor advising the
Principal of the Managing Contractor’s intention to serve a notice under clause
59.8;
(iii)
failure by the Principal's Representative either to issue a Certificate of Practical
Completion or give the Managing Contractor the reasons in writing for not issuing
that Certificate within 14 days of receipt of a request by the Managing Contractor
to issue that Certificate, in breach of clause 57.10; and
(iv)
repudiation of the Contract.
59.8 Requirements of a notice by the Managing Contractor to show cause
A notice given under clause 59.7 shall:
(a)
state that it is a notice under clause 59 of the Contract;
(b)
specify the alleged substantial breach;
(c)
require the Principal to show cause in writing why the Managing Contractor should not
exercise a right referred to in clause 59.9;
(d)
specify the time and date by which the Principal must show cause; and
(e)
specify the place at which cause must be shown.
59.9 Rights of the Managing Contractor
(a)
If by the time specified in a notice given under clause 59.7, the Principal fails to show
reasonable cause why the Managing Contractor should not exercise a right referred to in
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this clause 59.9, the Managing Contractor may by notice in writing to the Principal
suspend the whole or any part of the work under the Contract.
(b)
The Managing Contractor shall lift the suspension if the Principal remedies the breach
within 28 days of the date of suspension under this clause 59.9.
(c)
If:
(i)
within 28 days of the date of suspension the Principal fails to remedy the breach;
or
(ii)
the breach is not capable of remedy and the Principal fails to make other
arrangements to the reasonable satisfaction of the Managing Contractor,
then the Managing Contractor may by notice in writing to the Principal terminate the
Contract.
(d)
The Managing Contractor shall be entitled to recover from the Principal any damages
incurred by the Managing Contractor by reason of the suspension.
59.10 Rights of the parties on termination
(a)
If the Contract is terminated pursuant to clause 59.4(a) or clause 59.9, the rights and
liabilities of the parties shall be the same as they would have been at common law had the
defaulting party repudiated the Contract and the other party elected to treat the Contract as
at an end and recover damages.
(b)
The Principal may also, without payment of compensation, take possession of drawings,
specifications and other information, samples, models, patterns and the like created for the
construction of the Works and take an assignment of subcontract and consultancy
agreements.
59.11 Insolvency
If:
(a)
the Managing Contractor informs another party in writing or creditors generally that the
Managing Contractor is insolvent or is financially unable to proceed with the Contract or
is unable to pay its debts when they fall due, or is deemed unable to pay its debts under
any applicable legislation;
(b)
execution is levied against the Managing Contractor by a creditor;
(c)
the Managing Contractor, being an individual person, or a partnership including an
individual person and that person:
(i)
commits an act of bankruptcy;
(ii)
has a bankruptcy petition presented against him or her or presents his or her own
petition;
(iii)
presents a debtor's petition or a declaration of an intention to present a debtor's
petition to the Official Receiver;
(iv)
is made bankrupt;
(v)
under Part IX of the Bankruptcy Act 1966 (Cth):
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(A)
makes a written proposal for a debt agreement; and
(B)
the proposal becomes a debt agreement; or
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(C)
(vi)
(d)
makes a proposal for a deed of assignment, deed of arrangement or a
composition; or
under Part X of the Bankruptcy Act 1966 (Cth):
(A)
has a deed of assignment or deed of arrangement made;
(B)
accepts a composition;
(C)
is required to present a debtor's petition; or
(D)
has a sequestration order made; or
the Managing Contractor, being a corporation and if:
(i)
a notice is given of a meeting of creditors with a view to the corporation entering a
deed of company arrangement;
(ii)
the Managing Contractor enters a deed of company arrangement with creditors;
(iii)
a liquidator, controller, trustee in bankruptcy or administrator is appointed;
(iv)
a meeting of creditors is called with a view to:
(A)
entering a scheme of arrangement or composition with creditors generally,
or any class of its creditors; or
(B)
appointing a controller or administrator;
(v)
a receiver or receiver and manager or similar officer of the property or part of the
property of the Managing Contractor is appointed;
(vi)
the Managing Contractor takes or commences or has taken, commenced or
instituted against it any process, action or proceeding whether voluntary or
compulsory which has an object or may result in the winding up of the company,
other than a voluntary winding up by members for the purpose of reconstruction or
amalgamation, or a controller or administrator is appointed or enters into a
compromise or other arrangement with its creditors or a receiver or receiver and
manager is appointed to carry on the Managing Contractor's business for the
benefit of creditors or any of them;
(vii)
a winding up order is made for the administration, dissolution or winding up of the
Managing Contractor, or a resolution is passed for the administration or winding
up of the Managing Contractor;
(viii)
distress, attachment, or other execution is levied by creditors, debenture holders or
trustees is levied or enforced upon or against any assets of the Managing
Contractor or under a floating charge;
(ix)
a mortgagee of any of its property takes possession of that property;
(x)
the party:
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(A)
becomes insolvent within the meaning of section 95A;
(B)
is taken to have failed to comply with a statutory demand under section
459F(1);
(C)
must be presumed by a court to be insolvent under section 459C(2);
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(D)
is the subject of a circumstance specified in section 461 (whether or not an
application to court has been made under that section); or
(E)
if the person is a Part 5.7 body, is taken to be unable to pay its debts under
section 585,
(with, in each case the references being references to the Corporations Act);
(xi)
a step is taken under sections 601AA, 601AB or 601AC of the Corporations Act
to cancel its registration;
(xii)
the Managing Contractor ceases, or threatens to cease, to carry on its business or
payment of its debts generally;
(xiii)
an inspector is appointed under any companies legislation to investigate all or any
part of the affairs of a corporation in relation to a possible contravention by the
Managing Contractor of that legislation and, in the reasonable opinion of the
Principal, the appointment may have a material adverse effect on the Managing
Contractor's ability to perform its obligations under this Contact;
(xiv)
an analogous or equivalent event to any listed above occurs to a party in any
jurisdiction; or,
(xv)
the Managing Contractor abandons the work under the Contract,
then the Principal may, without giving a notice to show cause, exercise the rights under clause
59.4(a). The rights given by this clause 59.11 are in addition to any other rights and may be
exercised notwithstanding that there has been no breach of Contract.
59.12 Personal Property Security Act 2009 (Cth)
(a)
(b)
In this clause 59.12:
(i)
PPS Act means the Personal Property Securities Act 2009 (Cth);
(ii)
PPS Property means all property which forms or will form part of the Works over
which the Managing Contractor is legally capable under the PPS Act of granting a
security interest; and
(iii)
terms have the meanings given to them in the PPS Act.
The Managing Contractor must do anything, and must ensure that its employees and
agents do anything, that the Principal may reasonably require in the context of the PPS
Act to:
(i)
give full effect to this document;
(ii)
better secure the PPS Property to the Principal in a manner consistent with this
Contract; and
(iii)
assist in the execution or exercise of any power,
including executing any transfer or other document and provide such information as
reasonably requested by the Principal.
59.13 No requirement for PPS Act notices
The Principal need not give any notice under the PPS Act (including notice of a verification
statement) unless the notice is required by the PPS Act to be given and cannot be excluded.
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59.14 Priority of Principal’s interest
Nothing in this Contract will be taken or construed as an agreement or consent by the Principal to:
(a)
subordinate the Principal’s interest in PPS Property (or any part thereof) to any other
encumbrance or interest affecting PPS Property at any time; or
(b)
delay the time when a security interest created or provided for under this Contract attaches
to the relevant collateral.
59.15 Notices to be given to the Principal
The Managing Contractor must notify the Principal in writing as soon as the Managing Contractor
becomes aware of any of the following:
(a)
if any personal property which does not form part of PPS Property becomes an accession
to PPS Property and is subject to a security interest in favour of a third party, that has
attached at the time it becomes an accession;
(b)
if any PPS Property is located or situated outside Australia; and
(c)
upon request by the Principal, of the present location or situation of any PPS Property.
59.16 Negative undertakings
The Managing Contractor must not:
(a)
create any security interest or lien over any PPS Property whatsoever (other than security
interests granted in favour of the Principal under the Contract);
(b)
sell, lease or dispose of its interest in or control or use of any PPS Property;
(c)
give possession of PPS Property to another person other than the Principal or where the
Principal expressly authorises it to do so;
(d)
permit any PPS Property to become an accession to or commingled with any asset that is
not part of the Project; or
(e)
allow any other person to acquire control of any personal property forming part of PPS
Property at any time.
59.17 Principal’s interest remains unaffected
The Principal’s interest in PPS Property is not affected by anything which, but for this provision
might have that effect, including any failure to perfect or to continuously perfect (within the
meaning of the PPS Act) the security interest in relation to any personal property forming part of
PPS Property at any time.
59.18 Confidentiality for the purposes of the PPS Act
(a)
Neither the Principal nor the Managing Contractor will disclose information of the kind
mentioned in section 275(1) of the PPS Act and the Managing Contractor will not
authorise, and will ensure that no other party authorises, the disclosure of such
information.
(b)
Clause 59.18(a) does not prevent disclosure where such disclosure is required under
section 275 of the PPS Act because of the operation of section 275(7) of the PPS Act.
59.19 Costs and expenses relating to PPS Act and registration
Everything the Managing Contractor is required to do under clauses 59.12 to 59.18 is at the
Managing Contractor’s expense.
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60. Termination
60.1 Termination by frustration
(a)
If under the law governing the Contract, the Contract is frustrated, the Principal shall
(subject to the Principal's rights under or in connection with the Contract including to
withhold or set off payments and recover damages, and subject to any other legal rights or
obligations of the Principal):
(i)
pay the Managing Contractor:
(A)
the amount due to the Managing Contractor shown in any unpaid payment
certificate;
(B)
for work executed prior to the date of frustration, the amount which would
have been due if the Contract had not been frustrated and the Managing
Contractor had been entitled to and had made a payment claim on the date
of frustration;
(C)
the cost of materials and equipment which:
(I)
were required to be ordered by the Managing Contractor to comply
with clause 46;
(II)
the Managing Contractor is liable to accept; and
(III)
become the property of the Principal upon payment;
(D)
costs reasonably incurred by the Managing Contractor in the expectation
of completing the whole of the work under the Contract and not included
in any payment by the Principal;
(E)
the reasonable cost of removal of Temporary Works and constructional
plant; and
(F)
the reasonable cost of return to their place of recruitment of the Managing
Contractor's employees engaged in the work under the Contract at the date
of frustration (but excluding any redundancy payments),
provided that and notwithstanding all other provisions of the Contract the payment
of the Preliminaries shall be reduced to such extra costs as are necessarily incurred
by the Managing Contractor; and
(ii)
release security and retention moneys.
(b)
The Principal may also take possession of drawings, specifications and other information,
samples, models, patterns and the like created in relation to the Contract.
(c)
The Principal shall not otherwise be liable to the Managing Contractor and the Managing
Contract shall have no Claim for any cost, loss, expense or damage incurred by the
Managing Contractor under or in connection with the Contract or its termination,
including compensation for loss of profits.
60.2 Principal's rights of termination
(a)
In addition to any other right available to the Principal to terminate the Contract, the
Principal may, at any time and without obligation to act reasonably, by written notice to
the Managing Contractor terminate the Contract.
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(b)
Upon receipt of the Principal's written notice of termination in accordance with clause
60.2, the Managing Contractor shall immediately cease the work under the Contract and
comply with any directions by the Principal's Representative including any directions to:
(i)
protect property in the possession of the Managing Contractor in which the
Principal has or may acquire an interest;
(ii)
demobilise from the Site persons, construction or plant, vehicles, equipment and
other things;
(iii)
assign or novate to the Principal all rights and benefits under contracts with third
parties (including Subcontractors, Nominated Consultants and other consultants);
(iv)
provide the Principal with possession of all plant and equipment, materials and
other things on and off the Site, which are required for the work under the
Contract or for incorporation in the Works; and
(v)
deliver to the Principal all documentation and other information prepared or
created by the Managing Contractor in connection with the work under the
Contract (including but not limited to the Developed Design).
(c)
Where the Principal terminates the Contract pursuant to clause 60.2, the Principal may
have the remaining work under the Contract not completed by the Managing Contractor
prior to termination of the Contract carried out by others.
(d)
Within 14 days after the issue of the notice of termination in accordance with this clause
60.2 the Principal shall (subject to the Principal's rights under or in connection with the
Contract including to withhold or set off payments and recover damages, and subject to
any other legal rights or obligations of the Principal):
(i)
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pay the Managing Contractor:
(A)
the amount due to the Managing Contractor shown in any unpaid payment
certificate;
(B)
for work executed prior to the date of the notice of termination, the amount
which would have been due if the Contract had not been terminated and
the Managing Contractor had been entitled to and had made a payment
claim on the date of the notice of termination;
(C)
the cost of materials and equipment which:
(I)
were required to be ordered by the Managing Contractor to comply
with clause 46;
(II)
the Managing Contractor is liable to accept; and
(III)
become the property of the Principal upon payment;
(D)
costs necessarily incurred by the Managing Contractor in the expectation
of completing the whole of the work under the Contract and not included
in any payment by the Principal;
(E)
the reasonable cost of removal of Temporary Works and constructional
plant; and
(F)
the reasonable cost of return to their place of recruitment of the Managing
Contractor's employees engaged in the work under the Contract at the date
of frustration (but excluding any redundancy payments),
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December 2013
provided that, and notwithstanding all other provisions of the Contract, the
payment of the Preliminaries shall be reduced to such extra costs as are necessarily
incurred by the Managing Contractor; and
(ii)
release any security and retention moneys.
(e)
The Principal may also take possession of drawings, specifications and other information,
samples and prototypes, models, patterns and the like created in relation to the Contract.
(f)
The Principal shall not otherwise be liable to the Managing Contractor and the Managing
Contractor shall have no Claim for any cost, loss, expense or damage incurred by the
Managing Contractor under or in connection with the Contract or its termination,
including compensation for loss of profits.
61. Notification of Claims
61.1 Notice of Intention to Claim
(a)
The Managing Contractor shall give to the Principal's Representative a Notice of Intention
to Claim within ten (10) business days after the Managing Contractor becomes aware or
should have become aware exercising the skill, care and diligence of a Relevant Managing
Contractor of any breach, act, omission, direction, approval or circumstance which may
entitle the Managing Contractor to Claim.
(b)
The Notice of Intention to Claim shall detail the general basis and quantum of the Claim.
(c)
This clause 61.1 shall not apply to any Claim which is required to be notified by another
provision of the Contract.
61.2 Liability for failure to give Notice of Intention to Claim
The failure of the Managing Contractor to comply with the provisions of clause 61.1 or to notify
the Principal's Representative in accordance with the relevant provision of the Contract shall:
(a)
entitle the Principal to damages from the Managing Contractor for breach of Contract.
Such damages shall be assessed by the Principal's Representative and included in a
certificate pursuant to clause 57;
(b)
subject to clause 57.12(e), neither bar nor invalidate the Claim; and
(c)
disentitle the Managing Contractor to interest pursuant to clause 57.13 in respect of the
Claim.
61.3 Notice of Claim
(a)
If a Claim is based on a breach, act, omission, direction, approval or circumstance:
(i)
which occurs, is given or commences prior to the Date of Practical Completion,
then the Managing Contractor shall give to the Principal's Representative the
Notice of Claim not later than 60 days after the Date of Practical Completion;
(ii)
which occurs, is given or commences on or after the Date of Practical Completion,
then the Managing Contractor shall give to the Principal's Representative the
Notice of Claim not later than 60 days after the Managing Contractor becomes
aware or should have become aware exercising the skill, care and diligence of a
Relevant Managing Contractor of the breach, act, omission, direction, approval or
circumstance. However, such Notice of Claim shall not be given to the Principal's
Representative after the date for lodgement of the Final Payment Claim pursuant
to clause 57.11.
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(b)
(c)
A Notice of Claim shall include particulars of:
(i)
the breach, act, omission, direction, approval or circumstances on which the Claim
is based;
(ii)
the provision of the Contract or other basis for the Claim; and
(iii)
the quantum of the Claim.
This clause 61.3 shall not apply to any Claim which is required to be notified by another
provision of the Contract.
61.4 Liability for failure to give notice of Claim
The Principal shall not be liable upon any Claim by the Managing Contractor in respect of or
arising out of the Contract unless the Managing Contractor complies with the provisions of clause
61.3 or notifies the Principal's Representative in accordance with the relevant provision of the
Contract.
62. Dispute resolution
62.1 Notice of dispute
(a)
If a dispute or difference (hereafter called a 'dispute') between the Managing Contractor
and the Principal (hereafter called individually 'a party' and collectively 'the parties') arises
in connection with the Contract or the subject matter thereof, then a party shall deliver by
hand or send by certified mail to the other party and to the Principal's Representative a
notice of dispute in writing adequately identifying and providing details of the dispute.
(b)
Notwithstanding the existence of a dispute, the Principal and the Managing Contractor
shall continue to perform the Contract and, subject to clause 59, the Managing Contractor
shall continue with the work under the Contract and the Principal and the Managing
Contractor shall continue to comply with clauses 57.2 and 57.4.
62.2 Further steps required before mediation
Within 14 days after the service of a notice of dispute, the parties shall confer at least once to
attempt to resolve the dispute or to agree on methods of resolving the dispute by other means. At
any such conference each party shall be represented by a person having authority to agree to a
resolution of the dispute.
62.3 Mediation notice
If the dispute has not been resolved within 21 days of service of the notice of dispute, or such
other time as may be mutually agreed by the parties prior to the expiry of 21 days of the service of
the notice of dispute, either party shall be able to refer the dispute to mediation.
62.4 Mediation
The parties shall confer and attempt to agree upon the identity of a mediator within 7 days of the
date of the reference to mediation. Failing agreement, the dissatisfied party may write to the
Institute of Arbitrators and Mediators Australia to nominate a mediator. A mediation must be
held within twenty (20) business days of the mediation notice unless otherwise agreed by the
parties.
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62.5 Arbitrator
(a)
(b)
All disputes referred to arbitration in accordance with this clause must be finally
determined:
(i)
before an arbitrator to be agreed between the parties within five (5) business days
of the dispute being referred to arbitration; or
(ii)
failing agreement within that period, an arbitrator nominated by ACICA.
The arbitrator will have power to grant all legal, equitable and statutory remedies and to
open up, review and substitute any determination of the Principal's Representative under
the contract which has been referred to arbitration.
62.6 Arbitration
(a)
Arbitration pursuant to this clause 62 will be conducted in accordance with the ACICA
Rules and as otherwise set out in this clause 62. For the avoidance of doubt, any question
that arises for determination in the course of proceedings under this clause 62 must be
determined according to law and not by reference to considerations of general justice and
fairness.
(b)
The seat of the arbitration will be Melbourne in Victoria.
(c)
Nothing in this clause 62 or the ACICA Rules modifies or varies (or is intended to modify
or vary) the rights of appeal contained in the Commercial Arbitration Act 1984 (Vic).
(d)
The parties agree that:
(i)
they have entered into an arbitration agreement under this clause 62 for the
purposes of achieving a just, quick and cheap resolution of any dispute or
difference;
(ii)
subject to clause 62.6(f), any arbitration conducted pursuant to this clause 62 will
not mimic court proceedings of the seat of the arbitration and the practices of those
courts will not regulate the conduct of the proceedings before the arbitrator; and
(iii)
in conducting the arbitration, the arbitrator must take into account the matters set
out in subparagraphs (i) and (ii).
(e)
All evidence in chief must be in writing unless otherwise ordered by the arbitrator.
(f)
Discovery must be governed by the substantive and procedural rules and practices adopted
by the Federal Court of Australia at the time of arbitration.
(g)
The oral hearing must be conducted as follows:
(i)
the oral hearing must take place in Melbourne, Victoria and all outstanding issues
must be addressed at the oral hearing;
(ii)
the date and duration of the oral hearing must be fixed by the arbitrator at the first
preliminary conference. The arbitrator must have regard to the principles set out
in paragraph (d) when determining the duration of the oral hearing;
(iii)
oral evidence in chief at the hearing will be permitted only with the permission of
the arbitrator for a good cause;
(iv)
the oral hearing must be conducted on a stop clock basis with the effect that the
time available to the parties must be split equally between the parties so that each
party has the same time to conduct its case unless, in the opinion of the arbitrator,
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such a split would breach the rules of natural justice or is otherwise unfair to one
of the parties;
(v)
not less than twenty (20) business days prior to the date fixed for the oral hearing,
each party must give written notice of those witnesses (both factual and expert) of
the other party that it wishes to attend the hearing for cross examination; and
(vi)
in exceptional circumstances, the arbitrator may amend the date of hearing and
extend the time for the oral hearing set under subparagraph (ii).
(h)
Unless otherwise ordered, each party may only rely upon one expert witness in respect of
any recognised area of specialisation.
(i)
Any determinations made by the arbitrator under this clause 62 must include a
determination relating to the costs of the reference and the award, including the fees and
expenses of the arbitrator.
62.7 Proportionate liability
Notwithstanding anything else, to the extent permissible by law, the arbitrator appointed pursuant
to this clause 62 will have no power to apply or to have regard to the provision of any
proportional liability legislation (including Part IVAA of the Wrongs Act 1958 (Vic)) which
might, in the absence of this provision, have applied to any dispute referred to arbitration or
expert determination pursuant to this contract.
63. Waiver of conditions
Except as provided at law or in equity or elsewhere in the Contract, none of the terms of the
Contract shall be varied, waived, discharged or released, except with the prior consent in writing
in each instance of the party against whom a waiver, discharge or release is claimed.
64. Records and access to records
(a)
The Managing Contractor shall make and keep and shall ensure all Subcontractors make
and keep accurate records of its tender and of the work under the Contract including all
documents referred to in these Conditions of Contract, design calculations, tender
estimates, calculations and make ups, records as to progress of the Works, diary records of
daily tasks, complete photographic records, quality system documents and records,
manning and equipment records, results of the examination and testing of any work or
materials, quality assurance records and reports, cost to date records, costs to complete
calculations, time records, all cost records relating in any way to delays, Variations, all
Nominated Consultants' and other consultants' reports and opinions obtained by the them
in relation to the matters referred to in this clause and all necessary supporting documents
invoices records and related financial statements whether in writing or stored on any other
medium whatsoever.
(b)
Subject to the Managing Contractor's (or a Subcontractor's) right to claim legal
professional privilege in respect of any record, which is hereby maintained, the Principal
shall have the right to inspect (on an Open Book Basis) and to copy at any time any record
referred to in clause 64(a). In the case of any records referred to in clause 64(a) stored on
a medium other than in writing the Managing Contractor shall make available
immediately upon request such facilities as may be necessary to enable a legible
reproduction of them to be provided to the Principal.
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(c)
Without limiting any other obligation of the Managing Contractor, for those records
referred to in clause 64(a) stored on a medium licensed from a third party, where the
Principal is a party to the communication, the Managing Contractor must provide the
Principal with a copy of such records in CD format readable on the Principal's information
technology system, or such other format as may be reasonably required by the Principal,
each month until the issue of the Final Certificate.
(d)
The records referred to in clause 64(a) shall only be destroyed 10 years after the issue of
the Final Certificate under clause 57.12 or after the resolution of all claims under or
arising out of the Contract whichever is the later in time.
(e)
The Managing Contractor must provide all claims for payment and information referred to
in, or required to be provided in accordance with, this Contract on an Open Book Basis.
(f)
The Managing Contractor must allow, and must procure that its subcontractors allow, the
Principal's Representative, the Principal and any accountant or auditor on behalf of the
Principal to review and undertake audits to verify compliance with this 64.
(g)
Any information provided or accessed under this clause shall be treated as confidential
information and shall not be used other than for the purposes of this Contract or disclosed
other than as required to comply with the written request of the Auditor General for
Victoria.
(h)
The confidentiality obligations of the parties shall not extend to:
(i)
information already in the public domain other than due to a breach of this
Contract.
(ii)
any disclosure required by law.
65. Not used
66. Disclosure of information
66.1 Information privacy act
(a)
(b)
In this clause:
(i)
“Information Privacy Principles” means the principles so identified and set out in
the Information Privacy Act 2000 (Vic.);
(ii)
“Personal Information” means information or an opinion (including information or
an opinion forming part of a database) that is recorded in any form and whether
true or not, about an individual whose identity is apparent, or can reasonably be
ascertained, from the information or opinion.
The Managing Contractor agrees in respect of Personal Information held in connection
with the Contract:
(i)
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that it shall be bound by the Information Privacy Principles and any applicable
IPA Code of Practice with respect to any act done or practice engaged in by the
Managing Contractor for the purposes of the Contract, in the same way and to the
same extent as the Principal would have been bound by the Information Privacy
Principles and any applicable IPA Code of Practice in respect of that Act or
practice had it been directly done or engaged in by the Principal; and
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December 2013
(ii)
(c)
to immediately notify the Principal where it becomes aware of a breach of this
clause by it or any of its agents or employees or a Subcontractor.
This clause shall continue to have effect after the termination or expiration of the
Contract.
66.2 Principal may disclose
(a)
Subject to clause 66.2(c), the Principal may at any time disclose confidential information
related to the Project and the contents of any document in relation to the Project,
including:
(i)
where disclosure is made in the course of the official duties of the Principal or the
Minister;
(ii)
to satisfy the requirements of parliamentary accountability;
(iii)
to the Victorian Auditor-General for the purposes of satisfying its statutory duties;
(iv)
pursuant to policies of the Victorian government;
(v)
in annual reports of the Principal; and
(vi)
pursuant to the Freedom of Information Act 1982 (Vic) or the Ombudsman Act
1973 (Vic),
(being the Principal's Public Disclosure Obligations), and the Managing Contractor
must use all reasonable endeavours to assist the Principal to meet its Public Disclosure
Obligations.
(b)
Subject to clause 66.2(c), the contents of this Contract may be published on a Victorian
government internet website.
(c)
The Principal must not disclose or publish any other information which the Principal has
previously agreed must not be disclosed or published on the basis that it is commercially
sensitive, without the prior written consent of the Managing Contractor except if required
to do so to comply with the Public Disclosure Obligations of the Principal, Monash Health
or the State of Victoria.
67. No signage
The Managing Contractor must not at any time erect any signage or advertising on the Site or
Existing Facility without the prior approval of the Principal's Representative at the time as to the
erection of, and the form and location of that signage or advertising.
68. Limit on liability
(a)
Subject to clause 68(b), the limit of the Managing Contractor's aggregate liability to the
Principal and Monash Health in connection with this Contract is equal to:
(i)
(ii)
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during Stage One, the sum of:
(A)
$10,000,000; and
(B)
the value of all Subcontracts let by the Managing Contractor at that time;
and
during Stage Two, the Guaranteed Construction Sum.
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December 2013
(b)
The Managing Contractor's liabilities to the Principal and Monash Health for or in
connection with the following liabilities are unlimited and shall not be taken into account
for the purposes of clause 68(a):
(i)
liabilities for death, injury or property damage;
(ii)
liabilities for third party claims, to the extent the loss or liability arises at law;
(iii)
liabilities for abandonment of part or the whole of the Works, Wilful Misconduct,
gross negligence, criminal conduct or fraud by the Managing Contractor or its
Subcontractors, employees or agents; and
(iv)
deductibles and liabilities covered by insurance proceeds required to be effected
under the Contract, or which would have been covered but for the Managing
Contractor's acts or omissions.
(c)
Subject to clause 68(d), neither party will be liable to the other party in relation to claims
for loss of profit, loss of revenue or loss of business.
(d)
Clause 68(c) above does not apply in relation to its liabilities for or in connection with:
(i)
death, injury or property damage;
(ii)
abandonment of part or the whole of the Works, Wilful Misconduct, criminal
conduct or fraud by the Managing Contractor or its Subcontractors, employees or
agents; and
(iii)
liabilities covered by insurance proceeds required to be effected under the
Contract, or which would have been covered but for the Managing Contractor's
acts or omissions;
(iv)
liquidated damages payable to the Principal pursuant to this Contract;
(v)
rectification costs (incurred by the Principal or Monash Health) in relation to the
Project; and
(vi)
the additional costs of a third party contractor completing the Works on
termination of the Managing Contractor.
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Annexure to the
conditions of contract
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This Annexure shall be read as part of the
Contract.
The Principal: (clause 2)
The Secretary to the Department of Health, a body
corporate established under the Public Health and
Wellbeing Act 2008.
The address of the Principal: (clause 10)
50 Lonsdale Street
Melbourne, VIC 3001
The Principal's Representative: (clause 2)
Maddison Projects Pty Ltd
The address of the Principal's Representative:
(clause 10)
50 Lonsdale Street
Date for GCS Offer: (clause 2)
29 January 2015
Date for Practical Completion: (clause 2)
10 November 2016
Payments under the Contract shall be made at:
Melbourne
Defects Liability Period: (clause 2)
12 months from the Date of Practical Completion
The amount of Security: (clause 9.2)
Stage One– 5% of the sum of the Design/Buildability
Advisor Fee, ICT Management Fee for Stage 1 and
the Actual Construction Sum for the Early Works
Stage Two –5% of the Total Construction Cost
The Principal's entitlement to security shall be
reduced to upon issue of the Certificate of
Practical Completion: (clause 9.10)
50%
The Principal's entitlement to retention moneys
shall be reduced to upon issue of the Certificate
of Practical Completion: (clause 9.10)
50%
The members of the POG: (clause 13.2)
• Principal,
• Principal's Representative
• Monash Health
• Representative from the Principal's design
consultants
• Representative from the services engineer
• Representative from Principal's quantity surveyor
• Two representatives from the Managing
Contractor
The amount of Professional Indemnity Insurance
shall be not less than (clause 33)
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$20 million
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The time by which access to the Site shall be
given: (clause 39.1)
Upon completion of the Enabling Works, which shall
not be before 1 July 2014 (unless otherwise agreed
by the parties), provided no Payment Deferral Event
is then subsisting
The time by which the Site Licence for the Site
shall be given: (clause 39.1)
1 July 2014
The Working Days shall be: (clause 44(a)):
Subject to compliance with the Site Access Protocols
and all Statutory Requirements and Authority
requirements, 7 days a week
The Working Hours shall be: (clause 44(a)):
Subject to compliance with the Site Access Protocols,
all Statutory Requirements and Authority
requirements, 24 hours a day
Liquidated damages: (clause 49.4)
$57,000 per day
Provisional Delay Allowance: (clause 50.3(a))
55
Time for payment claims: (clause 57.2)
monthly on last day of the month
Up front part payment of Preliminaries for the
purpose of Site Mobilisation: (clause
57.2(f)(iii)(A))
$300,000 (or as otherwise agreed between the
parties)
Unfixed plant and materials for which payment
claims may be made before they are incorporated
in the Works: (clause 57.7)
Nil
The period of delay in giving access the Site
Licence which shall be a substantial breach:
(clause 59.7)
13 weeks
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days
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December 2013
Schedule 2 - Approved form of undertakings
Approved Form of Unconditional Undertaking - Sub-clauses 9.3, 9.7 and 9.8
UNDERTAKING
Contract for
(Contract)
At the request of
(Managing Contractor) and in consideration of
ABN
(Principal) accepting this undertaking
ABN
(Financial Institution) 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 of
(Sum)
This undertaking is to continue:
(a)
until notification has been received from the Principal that the Sum is no longer required by the
Principal; or
(b)
until this undertaking is returned to the Financial Institution; or
(c)
until payment to the Principal by the Financial Institution of the whole of the Sum.
Should the Financial Institution be notified in writing purportedly signed by or on behalf of the Principal
that the Principal desires payment to be made of the whole or any part or parts of the Sum, such
notification to be delivered to any branch of the Financial Institution located within Australia, it is
unconditionally agreed that the Financial Institution will make payment or payments to the Principal
forthwith without reference to the Managing Contractor and notwithstanding any notice given by the
Managing Contractor not to pay same.
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 required and specified by the Principal and thereupon the liability of the Financial
Institution hereunder shall immediately cease.
The Principal shall not assign or transfer its rights under this undertaking.
Minter Ellison | Ref: OLC SIN 30-6752847
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7 September 2011
Dated at:
day of
20
Signed for and on behalf of
(Financial Institution)
By its Attorney(s)
(Names)
Pursuant to Power of Attorney No
who hereby warrant that he has/they have not received
notification of revocation of his/their appointment in the
presence of
←
Attorney
Branch of Issue:
Monash Children's Hospital
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Telephone:
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December 2013
Schedule 3 - Performance warranty from
suppliers or manufacturers
Sub-clause 12.4
List of items of materials, goods, plant and equipment requiring a performance warranty and warranty
period
Minter Ellison | Ref: OLC SIN 30-6752847
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7 September 2011
Form of warranty
This deed is made the
day of
20
Between
The Secretary to the Department of Health, a body corporate established under the Public Health and
Wellbeing Act 2008. (Principal)
and
Lend Lease Building Contractors Pty Limited (formerly Baulderstone) (ABN 56 002 625 130)
(hereinafter with its successors, substitutes and permitted assigns called the Managing Contractor)
and
The party described in Item 1 of the Annexure (hereinafter with its successors, substitutes and permitted
assigns called the Warrantor)
Recitals
A
The Principal and the Managing Contractor have entered into the Contract described in Item 2 of
the Annexure (Contract) pursuant to which the Managing Contractor has agreed to perform the
work described in Item 3 of the Annexure (Works).
B
The Warrantor has agreed to supply or to supply and install the goods described in Item 4 of the
Annexure (Equipment) for the Works.
C
The Warrantor has agreed to give the warranties and indemnity herein contained to the Principal
and the Managing Contractor.
Operative
1.
The Warrantor hereby warrants to the Principal and the Managing Contractor:
(a)
that the Equipment shall be in accordance with the quality and/or standard stipulated by
the specification described at Item 8 of the Annexure and to the extent that the quality
and/or standard is not so stipulated, shall be of merchantable quality and be fit for the
purpose or purposes for which it is required; and
(b)
on the terms more particularly set out in Item 5 of the Annexure with respect to the
Equipment.
The above warranties shall be in addition to and shall not derogate from any warranty implied by
law in respect of the Equipment.
2.
The Warrantor covenants with the Principal and the Managing Contractor to replace and/or make
good to the reasonable satisfaction of the Principal and the Managing Contractor but at the
expense of the Warrantor, so much of the Equipment as within the period described in Item 6 of
the Annexure shall be found to be of a lower quality or standard than that referred to in clause 1 or
shall show deterioration to such extent that in the opinion of the Principal or the Managing
Contractor the Equipment ought to be made good or replaced in order to achieve fitness for the
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purpose or purposes for which it is required and whether this is on account of utility, performance,
appearance or otherwise.
3.
The Warrantor further covenants with the Principal and the Managing Contractor to meet the cost
of any work necessary to any part of the Works to enable the requirements of clause 2 of this
Deed to be carried out and/or necessary to make good the Works afterwards.
4.
The decision of the Principal as to:
(a)
the Equipment failing to comply with quality or standard as abovementioned or otherwise
failing to comply with the foregoing warranties;
(b)
as to the extent of replacement and/or making good which shall be necessary to properly
remedy the defects; or
(c)
as to the extent of any work required under clause 2 of this Deed
shall be notified in writing to the Warrantor and shall be final and binding upon the parties.
5.
The Warrantor further covenants that, within a reasonable time after written notification to the
Warrantor of a decision of the Principal or the Managing Contractor as to work required as
aforesaid, the Warrantor will replace and/or make good the Equipment or parts thereof and/or
meet the cost of any work required by clause 2 of this Deed, whether or not any dispute or
difference exists between the parties hereto, and the Warrantor hereby agrees to indemnify on
demand and keep indemnified the Principal and the Managing Contractor against any direct loss
or damages of any nature whatsoever sustained by them or either of them, directly or indirectly
arising out of any breach of the warranties, covenants or other conditions hereby given by the
Warrantor howsoever arising.
6.
If, within the time prescribed in clause 5 (and the Principal's decision as to what is a reasonable
time in any case shall be final and binding upon the parties), the Warrantor shall fail to fully and
properly carry out the work, the Managing Contractor or the Principal may carry out such work,
or cause the same to be carried out, and the Warrantor hereby agrees to indemnify on demand and
keep indemnified the Managing Contractor and the Principal against all the costs and expenses of
and incidental to the carrying out of the work and also against any direct loss or damages
sustained by the Managing Contractor or the Principal as a result of the Warrantor's failure as
aforesaid.
7.
The provisions of this Deed shall come into operation in favour of the Principal and the Managing
Contractor as soon as it has been executed by the Warrantor, notwithstanding that it may not have
been or may not thereafter be executed by the Principal or the Managing Contractor.
8.
Nothing contained in this Deed is intended to nor shall render the Principal in any way liable to
the Warrantor in relation to any matters arising out of the Managing Contractor or otherwise.
Governing law and jurisdiction
9.
This Deed shall be construed in accordance with the law of the State or Territory in which the
Works are situated and the parties irrevocably submit to the jurisdiction of the Courts of that State
or Territory.
Notices
10.
A party may give a notice required under this Deed by delivering such notice to the address
provided in Item 7 of this Annexure. Such notice may be delivered by hand.
11.
If a party gives the notice by post the notice will be taken as given on the second business day in
the place of delivery after the notice is posted.
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December 2013
12.
The parties may give notice of another address (within Australia) to the other party and the new
address shall be the address for service of the party for the purpose of this clause.
Non revocation of power of attorney
13.
Each of the Attorneys executing this Deed states that at the time of execution of this Deed, he has
received no notice of revocation of the Power of Attorney pursuant to which he has executed this
Deed.
Execution as a deed
14.
The parties agree that this instrument is and shall operate as a Deed.
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December 2013
Annexure A
Item 1
Warrantor
Item 2
Contract
(Recital A)
Item 3
Works
(Recital A)
Item 4
Equipment
(Recital B)
Item 5
Detailed Warranty
(Clause 1)
of Warrantor
Item 6
(Clause 2)
Period of Years
years from the Practical Completion of the Works as defined
in the Contract
Item 7
Address for notices
Item 8
Details of specification
(Clause 1(a))
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December 2013
THE CORPORATE SEAL of the
SECRETARY TO THE DEPARTMENT OF
HEALTH (ABN 74 410 330 756), a body
corporate established under the Public
Health and Wellbeing Act 2008, was affixed
by:
¬
¬
Corporate Seal
Date
Executed by
Lend Lease Building Contractors Pty
Limited (formerly Baulderstone) (ABN 56
002 625 130) in accordance with Section
127 of the Corporations Act 2001
←
←
Signature of director
Signature of director/company secretary
(Please delete as applicable)
Name of director (print)
Name of director/company secretary (print)
Executed by
[Warrantor] ACN [#]
in accordance with Section 127 of the
Corporations Act 2001
←
←
Signature of director
Signature of director/company secretary
(Please delete as applicable)
Name of director (print)
Name of director/company secretary (print)
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December 2013
Schedule 6 – Notice of acceptance of a
subcontract tender including warranties and
indemnity
1.
Sub-clause 21.2
[Insert
name and address of Principal's Representative]
Re: Monash Children's Hospital
This is a notice pursuant to sub-clause 21.2 of the Conditions of Contract.
In respect of the subcontract for: [Insert description of work under the subcontract]
be advised that the tender submitted by: [Insert name and address of successful subcontract tenderer]
of
has been accepted,
The relevant details, in accordance with paragraph 21.2 of the Conditions of Contract, are:
The subcontract sum which appeared on the notice of
acceptance
$
The Date of acceptance of the tender which appeared on the
notice of acceptance
The time for commencement of the work
The Managing Contractor has complied with the requirements of clause 21.2 of the Conditions of
Contract. The obligations of government agencies pursuant to the Purchasing Policy have applied equally
to the Managing Contractor as though it is a government agency and the Managing Contractor has
complied with those obligations.
The Managing Contractor hereby re-affirms the warranties and indemnities given to the Principal
pursuant to paragraph 21.2(k) of the Conditions of Contract.
I, the undersigned, am in a position to know the facts contained herein and I am duly authorised by the
Managing Contractor to provide this notice pursuant to the terms of the Contract on the Managing
Contractor's behalf.
(Name)
Managing Contractor's Representative
(Signature)
(Name)
Witness
(Signature)
Minter Ellison | Ref: OLC SIN 30-7723040
ME_110480158_5 (W2007)
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December 2013
Schedule 7 - Statutory declaration of Managing
Contractor, statutory declaration of
Subcontractor
Clause 58.2
Statutory Declaration by Managing Contractor
Evidence (Miscellaneous Provisions) Act 1958 (Vic)
To Wit
I,
of
in the State of Victoria, do solemnly and sincerely declare that, in relation to the Contract between the
(Insert name of Principal)
'the Principal
and
'the Managing Contractor' for
1.
'the Contract'.
I hold the position of
I am in a position to know the facts contained herein and to bind the Managing Contractor by the
terms of this declaration, and I am duly authorised by the Managing Contractor to make this
declaration on its/his behalf.
2.
All Subcontractors of the Managing Contractor have been paid all that is due and payable to them
up to the date of submission by the Managing Contractor of Progress Claim No
in
respect of their part of the work under the Contract.
3.
All Consultants of the Managing Contractor have been paid all that is due and payable to them up
to the date of the submission by the Managing Contractor of Progress Claim No
in
respect of their part of the work under the Contract.
4.
All the Managing Contractor's workers who at any time have been engaged on work under the
Contract by the Managing Contractor have been paid, in accordance with the relevant award or
industrial instrument, all moneys due and payable to them up to the date of submission by the
Managing Contractor of Progress Claim No
5.
Any sub subcontractors performing work under the Contract have been approved by the
Principal's Representative in accordance with clause 21.2(u).
I acknowledge that this declaration is true and correct and I make it with the understanding and belief that
a person who makes a false declaration is liable to the penalties of perjury.
Minter Ellison | Ref: OLC SIN 30-7723040
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Taken and declared before me:
←
←
Name in full
Managing Contractor
at
A Justice of the Peace/Legal Practitioner/Member of the
Police Force
in the state of this
day of
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Statutory Declaration by Managing Contractor
Evidence (Miscellaneous Provisions) Act 1958 (Vic)
To Wit
I,
of
in the State of Victoria, do solemnly and sincerely declare that, in relation to the Contract between the
(Insert name of Principal)
'the
Principal' and
'the Managing Contractor' for
'the Contract'.
(name of Subcontractor)
('the Subcontractor') is a Subcontractor to the Managing Contractor for part of the work under the
Contract, namely [insert description]:
1.
I hold the position of
I am in a position to know the facts contained herein and to bind the Subcontractor by the terms of
this declaration, and I am duly authorised by the Subcontractor to make this declaration on its
behalf.
2.
All the Subcontractor's workers who at any time have been engaged on work under the Contract
by the Subcontractor have been paid in accordance with the relevant award or industrial
instrument all moneys due and payable to them up to the date of submission by the Managing
Contractor of Progress Claim No
3.
All subcontractors of the Subcontractor have been paid all that is due and payable to them up to
the date of submission by the Managing Contractor of Progress Claim No.
in respect of
their part of the work under the Contract.
I acknowledge that this declaration is true and correct and I make it with the understanding and belief that
a person who makes a false declaration is liable to the penalties of perjury.
Taken and declared before me:
←
←
Name in full
Managing Contractor
at
A Justice of the Peace/Legal Practitioner/Member of the
Police Force
in the state of this # day of # 20#.
Minter Ellison | Ref: OLC SIN 30-7723040
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Schedule 10 - Deed of guarantee and indemnity
Details
Date
Parties
Name
Short form name
Notice details
Name
Short form name
Notice details
Name
Short form name
Notice details
The Secretary to the Department of Health, a body corporate established under
the Public Health and Wellbeing Act 2008
Principal
50 Lonsdale Street, Melbourne, VIC 3001
Lend Lease Building Contractors Pty Limited (formerly Baulderstone) (ABN 56
002 625 130)
Managing Contractor
Level 4, The Bond, 30 Hickson Road, Millers Point NSW 2000
Lend Lease Construction Australia Holdings Pty Limited (ABN 50 147 880
966)
Guarantor
Level 4, The Bond, 30 Hickson Road, Millers Point NSW 2000
Background
A
The Principal and the Managing Contractor are parties to a Managing Contractor Contract dated
on or about the date of this Deed as amended from time to time (Contract).
B
It is a requirement under the Contract that the Guarantor execute in favour of the Principal a Deed
the effect of which is to guarantee due and punctual performance by the Managing Contractor of
its obligations under the Contract.
C
The Guarantor and the Managing Contractor have accordingly agreed to execute this Deed in
favour of the Principal.
D
This deed witnesses that in consideration of, among other things, the mutual promises contained
in this Deed, the parties agree as set out in the Operative part of this Deed.
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Agreed terms
1.
Guarantee
(a)
The Guarantor guarantees to the Principal the due and punctual performance and observance of
the Managing Contractor’s obligations (including any obligation to indemnify) under or pursuant
to or arising from any breach of the provisions of the Contract, and the payment of all moneys due
from the Managing Contractor to the Principal under or pursuant to or arising from any breach of
the provisions of the Contract which the Managing Contractor is now or shall hereafter become
liable to perform, observe or pay.
(b)
If the Managing Contractor is in breach of any of the provisions of the Contract, then upon the
Principal giving to the Guarantor written notice of any such breach, the Guarantor shall be
responsible to the Principal for the performance of the provisions of the Contract in the same
manner as if it were the Managing Contractor under the Contract. Where the obligation is to pay
money, the Guarantor shall satisfy those obligations within ten (10) business days of demand by
the Principal. For any other obligation, the Guarantor shall satisfy that obligation within a
reasonable period of time specified by the Principal.
(c)
Subject to clause 5, the Guarantor indemnifies the Principal on demand against any loss, liability
or damage suffered or incurred by the Principal because of:
(d)
(i)
any failure of the Managing Contractor to observe or perform any of the Managing
Contractor's obligations under the Contract (including any breach by the Managing
Contractor of the Contract);
(ii)
any of the provisions of the Contract being unenforceable against the Managing
Contractor because of the insolvency or administration of the Managing Contractor; or
(iii)
any amount paid by the Managing Contractor under the Contract being required to be
repaid by the Principal under any law relating to insolvency.
The Principal, the Managing Contractor and the Guarantor agree that the guarantee and indemnity
given pursuant to this Deed shall not be abrogated, prejudiced or affected by the existence or
occurrence of any of the following events or states of affairs:
(i)
any lack of capacity or legal disability on the part of the Managing Contractor;
(ii)
the insolvency or the winding up of the Managing Contractor;
(iii)
the Principal agreeing to an assignment of the Managing Contractor’s property to a trustee
for the benefit of its creditors or to a scheme of arrangement or other form of compromise
or composition with the Managing Contractor’s creditors; or
(iv)
any part of the obligations of the Managing Contractor not being enforceable against the
Managing Contractor, or the Contract being or becoming void or voidable in whole or in
part.
(e)
The Principal, the Managing Contractor and the Guarantor acknowledge and agree that, for the
purposes of this Deed, the Guarantor shall have the benefit of any extension of time, indulgence
or waiver given or granted by the Principal to the Managing Contractor in respect of the
performance of the Managing Contractor’s obligations under or pursuant to the Contract.
(f)
Each guarantee and each indemnity contained in this Deed is a continuing obligation of the
Guarantor, despite any settlement of account, or the occurrence of any other thing, and remains in
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full force and effect until fulfilment by the Managing Contractor of all the terms, provisions and
conditions on the part of the Managing Contractor to be performed, observed and fulfilled in
accordance with the terms of the Contract.
(g)
(h)
(i)
2.
The Guarantor represents and warrants to the Principal that:
(i)
the Guarantor has the power to execute and perform its obligations under this Deed and
has taken all necessary corporate action to authorise the execution, delivery and
performance of this Deed;
(ii)
this Deed constitutes the Guarantor's valid and binding obligations enforceable against the
Guarantor in accordance with its terms, subject to the application of principles of equity
and laws affecting creditors' rights generally; and
(iii)
the execution and performance by the Guarantor of this Deed did not and will not
contravene any existing law; and
(iv)
the Guarantor is not executing this Deed in reliance upon any promise, representation or
statement by the Principal.
The liability of the Guarantor under this Deed is not affected by anything which, but for this
provision, might operate to release or otherwise exonerate the Managing Contractor from its
obligations in whole or in part, including any of the following, whether with or without the
consent of the Guarantor:
(i)
the Managing Contractor being or becoming subject to or under threat of administration,
compromise, arrangement, merger, amalgamation, reconstruction, winding up, dissolution,
any scheme or arrangement for the benefit of creditors or any arrangement or compromise
with creditors;
(ii)
the Principal exercising or refraining from exercising its rights under any other security or
any other rights, powers or remedies against the Managing Contractor;
(iii)
without limiting clause 5, any amendment or variation of the terms of Contract or the
work or services under the Contract; and
(iv)
any legal disability or incapacity related to the Managing Contractor.
The Guarantor shall not be entitled on any grounds to and shall not:
(i)
be subrogated to the Principal or claim the benefit of any security held by the Principal; or
(ii)
claim or receive the benefit of any distribution, dividend or payment arising out of any
assignment for the benefit of creditors, arrangement with creditors, winding up,
reconstruction or other demise of the Managing Contractor so as to diminish any
distribution, dividend or payment which (but for such claim or receipt) the Principal
would be entitled to receive, even where such claim or receipt would arise in respect of a
matter not connected with the Guarantor's rights as a surety.
Choice of Law
The law in force in Victoria applies to this Deed.
3.
Stamp Duty and Costs
(a)
The Principal shall pay any stamp duty payable on this Deed.
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(b)
Each party shall bear its own costs for the preparation, negotiation and execution of this Deed.
4.
Absolute liability
(a)
The liability of the Guarantor under this Deed is not subject to the performance of any condition
precedent or subsequent.
(b)
This Deed binds the Guarantor notwithstanding that the Contract is or becomes unenforceable,
void or voidable against any other person.
5.
Limitation
Notwithstanding any other provision of this Deed:
(a)
nothing in this Deed is intended to make or makes the Guarantor and the Managing Contractor
liable for the same loss twice for the same breach of an obligation;
(b)
payment or performance by the Managing Contractor or the Guarantor to or in favour of the
Principal, in accordance with this Deed or the Contract (as applicable), will be good discharge as
against the Principal;
(c)
the Guarantor has the benefit of all limitations on and exclusions of liability expressed for the
benefit of the Managing Contractor in the contract (assuming, for the purposes of ascertaining the
level of that liability at the time, that the Contract is valid, binding and enforceable in accordance
with its terms); and
(d)
the liability of the Guarantor under this Deed shall be no greater than the Managing Contractor's
liability under the Contract.
This clause 5 continues after this deed ends.
6.
Waiver
A right may only be waived in writing, signed by the party giving the waiver, and:
(a)
no other conduct of a party (including a failure to exercise, or delay in exercising, the right)
operates as a waiver of the right or otherwise prevents the exercise of the right;
(b)
a waiver of a right on one or more occasions does not operate as a waiver of that right if it arises
again; and
(c)
the exercise of a right does not prevent any further exercise of that right or of any other right.
7.
Amendment
A variation or amendment of this Deed must be in writing and signed by the parties.
8.
Counterparts
This Deed may be executed in any number of counterparts. All counterparts together will be taken to
constitute one instrument.
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9.
Notices
(a)
Notices under this Deed shall be in writing and sent to the following addresses:
Principal
Address
50 Lonsdale Street, Melbourne, VIC 3001
Attention
Maddison Project Pty Ltd
Fax
(03) [insert details]
Managing
Contractor
Address
The Gauge, 825 Bourke Street, Docklands VIC 3008
Attention
Daniel Crawley
Fax
(03) [insert details]
Guarantor
Address
Level 4, The Bond, 30 Hickson Road, Millers Point NSW 2000
Attention
Company Secretary
Fax
(02) 9236 6111
(b)
Notices shall be served by hand or by certified post.
(c)
Notices are served for the purposes of this Deed:
(i)
if sent by registered post, five (5) days after the day it is posted;
(ii)
if delivered by hand, at the time of delivery to the premises of a party.
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Signing page
EXECUTED as an agreement.
THE CORPORATE SEAL of the
SECRETARY TO THE DEPARTMENT OF
HEALTH (ABN 74 410 330 756), a body
corporate established under the Public
Health and Wellbeing Act 2008, was affixed
by:
¬
¬
Corporate Seal
Date
EXECUTED by Lend Lease Building
Contractors Pty Limited (formerly
Baulderstone) (ABN 56 002 625 130)
in accordance with Section 127 of the
Corporations Act 2001
←
←
Signature of director
Signature of director/company secretary
(Please delete as applicable)
Name of director (print)
Name of director/company secretary (print)
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EXECUTED by Lend Lease Construction
Australia Holdings Pty Limited (ABN 50
147 880 966)
in accordance with Section 127 of the
Corporations Act 2001
←
←
Signature of director
Signature of director/company secretary
(Please delete as applicable)
Name of director (print)
Name of director/company secretary (print)
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Schedule 15 - Requirements for GCS offer
Clause 2
The GCS Offer to be submitted by the Managing Contractor during Stage One must include:
1.
a guaranteed construction sum for the work under the Contract, including:
(a)
the Construction Works;
(b)
the Preliminaries, as set out in Schedule 1;
(c)
the Design/Buildability Advisor Fee, as set out in Schedule 1;
(d)
the Off Site Overheads and Profit Fee, as set out in Schedule 1; and
(e)
the ICT Management Fee, as set out in Schedule 1;
2.
a Date for Practical Completion and Programs in accordance with the requirements of the
Contract;
3.
the Developed Design documentation approved by the Principal upon which the Guaranteed
Construction Sum is to be based;
4.
the Managing Contractor's proposed separable portions for the Works (including scope of work
and access dates);
5.
the Managing Contractor's proposed trade package break up and budget for each trade package,
including full details of all tendered subcontract packages and any preferred subcontractors for
future trade packages and such further information as may be reasonably required by the Principal
or the Principal's Representative;
6.
an updated VIPP Plan;
7.
the updated commissioning plan, including details of all tests required by the Contract and those
that would be expected to be performed by a Relevant Managing Contractor to prove the Works
have reached Practical Completion; and
8.
all other information required by the Contract to be provided prior to, or with, the GCS Offer.
Minter Ellison | Ref: OLC SIN 30-6752847
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