Construction Contract 2020-Walcha Mens Shed

WINT/2020/2351 WC_CON01_Construction Contract Version 1.0

Construction Contract

2020-Walcha Mens Shed

Between:

Walcha Council (ABN: 24 780 320 847)

and

CONTRACTOR XXX (ABN: XX XXX XXX XXX)

Contract: WAL-2020-013 of 45


Table of Contents

1 Definitions and Interpretation 5

2 Works 10

2.1 General 10

2.2 Early Warning 10

2.3 Resources and Methodology 11

2.4 Materials 11

2.5 Standard of Work 11

2.6 Defects 12

2.7 Investigations 12

2.8 Site Cleaning 12

2.9 Care and Protection of Property and Persons 13

2.10 Registration 13

2.11 Contractor’s Key Roles, Employees and Sub-contractors 13

2.12 Access 14

2.13 Council's Property 14

3 Work Health and Safety and Environment 14

3.1 General 14

3.2 Contractor appointed as Principal Contractor 15

3.3 Environmental Obligations 15

3.4 Environmental Management Plan 15

3.5 Incident Reporting, Corrective and Preventive Action 16

4 Audit, Reporting and Performance 17

4.1 Audit 17

4.2 Complaint Management 17

4.3 Contractor’s Monthly Report 17

5 Time 18

5.1 Commencement, Progress and Completion 18

5.2 Extension of Time 18

5.3 Construction Program 19

6 Variations 19

6.1 Definition 19



6.2 Variation Request 19

6.3 Variation Order 20

6.4 Claims for Payment of Variation 21

6.5 Provisional Works 21

7 Completion 21

7.1 Practical Completion 21

7.2 Defects Liability Period 22

7.3 Final Completion 23

8 Total Contract Sum and Payment 23

8.1 Total Contract Sum 23

8.2 Payment 23

8.3 Security 24

8.4 Liquidated Damages 25

8.5 Right of Council to Recover Money 25

8.6 Security of Payment Legislation 25

8.7 Australian Business Numbers (ABNs) and Written Statements 26

9 Risk Management 27

9.1 Contractor’s Risks and Warranties 27

9.2 Indemnity 29

9.3 Insurance 29

9.4 Limitation of Liability 30

10 Termination and Disputes 31

10.1 Termination 31

10.2 Termination for Insolvency 31

10.3 Termination for Convenience 32

10.4 Accrued Rights and Remedies 32

10.5 No Prejudice 32

10.6 Claims 32

10.7 Emerging Risks and Issues 33

10.8 Settlement of Disputes 33

11 Miscellaneous 34

11.1 Directions 34

11.2 Notices 34

11.3 Communication Generally 34



11.4 Governing Law and Jurisdiction 34

11.5 Entire Contract 34

11.6 Amendments 34

11.7 Waivers 35

11.8 Assignment 35

11.9 Costs 35

11.10 Relationship 35

11.11 Representation 35

11.12 Records 35

11.13 Intellectual Property 36

11.14 Confidentiality 36

11.15 Resolution of Ambiguities 36

12 Executed as a Contract 37

Contract Particulars 38

Schedule A - Total Contract Sum 40

Schedule B - Contractor’s Key Roles 41

Schedule C - Works 42

Schedule D - Documents to be Provided to the Project Manager 43

Schedule E - Critical Timings 44

Schedule F - Special Conditions 45



AGREEMENT

BETWEEN: WALCHA COUNCIL (ABN 24 780 320 847) of 2W Hamilton Street Walcha, NSW 2354 (referred to as ‘Council’).

AND: CONTRACTORXX (ABN XX XXX XXX XXX) of Insert Full Address here (referred to as ‘the Contractor’).

DECLARATIONS:

A The Contractor has the requisite skills, material and workforce to perform the required Works.

B Council has engaged the Contractor to perform the Works in accordance with the terms of this Contract.

IN CONSIDERATION OF the payment of the amounts set out in Schedule A the parties agree as follows:

1 Definitions and Interpretation

(1) In this Contract unless the context otherwise requires:

‘Associated Parties’ means officers, employees, agents or Subcontractors.

‘Business Day’ means a day on which trading banks are open for general banking business in NSW not including a Saturday or Sunday or statutory holiday.

‘Claim’ includes any claim for money or time, and any cost, expense, loss, damage, claim, liability, action or proceeding whether or not presently ascertained, immediate, future or contingent and includes legal costs on a full indemnity basis.

‘Commencement Date’ means the date which is the later of:

(a) the date identified in Item 14 of the Contract Particulars upon which Works are to commence or where no date appears the date upon which the last party to the Contract duly executes the Contract, and

(b) the date on which the Contractor has done everything else which is expressed in the Contract to be a condition precedent to, or something that must otherwise be done before, commencement of the Works.

‘Commonwealth’ has the meaning given to it in the Work Health and Safety Act 2011 (Cth).

‘Consequential Loss’ means any loss of income or profit, loss of use, loss of business or business interruption or loss of opportunity arising from any event.

‘Contract’ means the contractual relationship between Council and the Contractor constituted by the Contract Documents and any documents referred to in the Contract Particulars.

‘Contract Documents’ means this document, the Contract Particulars, the schedules to this Contract and the documents referred to in the schedules.



‘Contract Particulars’ means the particulars annexed to this document and entitled Contract Particulars.

‘Corresponding WHS laws’ has the meaning given to it in the Work Health and Safety Act 2011 (Cth).

‘Council Property’ means any property or equipment owned, leased or hired by Council.

‘Date for Practical Completion’ means the date appearing in Item 15 of the Contract Particulars as the date upon which the Contractor must complete the Works, but if any extension of time for Practical Completion is directed by the Project Manager or allowed in any litigation, it means the date resulting therefrom.

‘Defect’ means any defect, shrinkage, fault, omission in or damage to the Works including any aspect of the Works which is not in accordance with the requirements of this Contract.

‘Defects Liability Period’ means the period specified in Item 7 of the Contract Particulars commencing in accordance with clause 7.2.

‘Delaying Event’ means any act, omission or default by, or on behalf of, Council or any other event beyond the reasonable control of the Contractor which causes, or is likely to cause, delay to Practical Completion but excludes any event appearing in Item 16 of the Contract Particulars.

‘Direction’ means any communication from Council to the Contractor for agreement, approval, authorisation, certification, decision, demand, determination, explanation, instruction, notice, order, permission, rejection, request or requirement and includes a Notice.

‘Dispute’ means any dispute or difference which is in any way connected with, or arises out of or in relation to this Contract (including the termination of this Contract) or the Works or any part thereof whether that dispute arises before or after the ending of this Contract.

‘Environmental Approvals and Licences’ means:

(a) any relevant approval, consent or licence (including any condition or requirement under any such approval, consent or licence) granted under any Environmental Law by any authority having any jurisdiction in connection with the Works;

(b) any environment protection licences held by Council and

(c) any environmental assessment or determination made by Council as a public authority in accordance with Part 5 of the Environmental Planning and Assessment Act 1979 (NSW) and clause 277 of the Environmental Planning and Assessment Regulation 2000.

‘Environmental Laws’ means:

(a) any laws (including acts, regulations, ordinances, by-laws and proclamations) relating to the environment or to environmental planning and development



including, but not limited to, the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and environmental and planning laws enacted in NSW; and

(b) any Environmental Approvals and Licences.

‘Total Contract Sum’ means the amount calculated in accordance with Schedule A and which appears in Item 2 of the Contract Particulars.

‘Final Certificate’ means the certificate issued by the Project Manager in accordance with clause 7.3.

‘GST’ includes amounts defined as "GST" under the GST law and:

(a) amounts payable on account of a notional liability under Division 177 of the GST Act; and

(b) "GST equivalents" payments under the Intergovernmental Contract Implementation (GST) Act 2000 (NSW) (or similar payments under corresponding legislation of any other State or Territory).

‘GST Act’ means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

‘GST law’ has the same meaning as in the GST Act.

‘Industrial Requirements’ means any requirement obligation or prohibition arising under the Fair Work Act 2009 (Cth) and its associated regulations and applicable workers’ compensation, superannuation and taxation legislation.

‘Contractor’s Key Roles’ means those persons nominated by the Contractor in Schedule B .

‘Notice’ means a communication in writing between the parties which is intended to manage various administrative processes in this Contract and includes all formal communication pursuant to the clauses of this Contract.

‘Notice of Practical Completion’ has the meaning given to it in clause 5.1(2).

‘Performance Default’ means a circumstance where:

(a) either party commits a substantial breach of this Contract; or

(b) in the case of the Contractor, where the Contractor refuses or fails to comply with any Direction issued under the Contract or a standard set out in Schedule C to this Contract.

‘Personnel’ means any person that the Contractor engages in order to carry out the Works and includes Subcontractors.

‘Policies, Procedures and Standards’ means all policies procedures and standards issued by Council from time to time in relation to works of the type being performed under this Contract or the conduct of a person such as the Contractor in carrying out such works.



‘Principal Contractor’ means the principal contractor as defined in section 293 of the Regulation.

‘Practical Completion’ means that stage in the carrying out and completion of the Works when:

(a) the Works are complete except for minor Defects:

(i) which do not prevent the Works from being reasonably capable of being used for their stated purpose;

(ii) which the Project Manager determines the Contractor has reasonable grounds for not promptly rectifying; and

(iii) the rectification of which will not prejudice the convenient use of the Works;

(b) those tests which are required by the Contract to be carried out and passed before the Works reach Practical Completion have been carried out and passed;

(c) documents and other information required under the Contract which, in the Project Manager's opinion, are essential for the use, operation and maintenance of the Works have been supplied; and

(d) the Contractor has done everything else which is expressed in the Contract to be a condition precedent to, or something that must be done before, Practical Completion.

‘Project Manager’ means the person described as such in Item 4 of the Contract Particulars or other person from time to time appointed in writing by Council to be the Project Manager and notified as such in writing to the Contractor by Council.

‘Provisional Works’ means additional items of work that may be set out in Item 18 of the Contract Particulars and that Council may at its option require the Contractor to perform in addition to the Works.

‘Records’ means the records associated with the Works which include, but are not limited to, operating and maintenance plans, information processes, techniques and methodologies, timetables, technical and operational information, technical data, specifications, manuals, drawings, tracings, calculations, worksheets, computer programs, computer disks, files and reports.

‘Regulation’ means the NSW Work Health and Safety Regulation 2017.

'Safe Work Method Statements' means the safe work method statements as defined in Part 6 of the Regulation.

‘Security of Payment Legislation’ means, the Building and Construction Security of Payments Act 1999 (NSW) and the Contractors Debt Act 1997 (NSW).

‘Site’ means the site of the Works set out in Item 3 of the Contract Particulars.

'Special Conditions' means the conditions identified in Schedule I.



‘Subcontractor’ means any subcontractor, supplier or consultant engaged by the Contractor to perform the Works or any part of the Works.

‘Tax Invoice’ has the meaning given by the GST Act.

‘Term’ means the period of time from the Commencement Date until the date of the issue of the Final Certificate.

‘Termination Default’ means a circumstance where either party:

(a) being an individual, commits an act of bankruptcy, has a bankruptcy petition presented against it or is made bankrupt; or

(b) has its accreditation cancelled or suspended; or

(c) fails to remedy a Performance Default in accordance with a Notice issued pursuant to clause 10.1(1).

‘Total Contract Sum’ means the amount calculated in accordance with Schedule A and

which appears in Item 2 of the Contract Particulars.

‘Variation’ has the meaning ascribed to it in clause 5(1).

‘WHS Legislation’ means, the relevant work health and safety legislation in NSW and all associated Regulations.

Where any other applicable legislation imposes work health and safety obligations, this legislation is taken to also fall within the definition of “WHS Legislation” for the purposes of this Contract.

‘WHS Requirements’ means the requirements contained in:

(a) the WHS Legislation;

(b) any part of any Code of Practice, Guideline, National Standard and Australian Standard which contain work health and safety requirements; and

(c) this Contract which are in the nature of work health and safety requirements.

‘Works’ means the works referred to in Item 1 of the Contract Particulars and more generally described in Schedule C and includes any other work not described in Schedule C if that other work should reasonably have been anticipated by an experienced and competent Contractor as being necessary for the carrying out of the works described in Schedule C.

(2) In this Contract, unless it is stated to the contrary:

(a) words in the singular include the plural and vice versa;

(b) where a word or phrase is given a defined meaning in this Contract, any other part of speech or other grammatical form of that word or phrase has a corresponding meaning;

(c) a reference to any legislation includes any amendment or replacement and all subordinate legislation;



(d) the words “includes” and “including” and any variants of those words, will be read as if followed by the words “without limitation”;

(e) references to agree, approve or consent are references to agreement, approval or consent (as the case may be) in writing; and

(f) a reference to $ is to Australian currency.

(3) This Contract is not to be interpreted against Council merely because it prepared this Contract.

(4) Headings in this Contract are for convenience only and do not affect the interpretation of any provision of this Contract.

2 Works

2.1 General

(1) The Contractor will carry out the Works during the Term in accordance with;

(a) Schedule C;

(b) the documents listed in Schedule D;

(c) the WHS Requirements;

(d) all applicable Environmental Laws and requirements;

(e) the Directions of the Project Manager from time to time;

(f) the Industrial Requirements;

(g) all applicable Policies, Procedures and Standards; and

(h) the other requirements of this Contract, and

(2) The Contractor will carry out the Works during the Term in co-operation and co-ordination with Council and persons engaged by Council at the Site.

(3) Upon issue of the Final Certificate or at such other time as instructed by the Project Manager, the Contractor will remove its presence from the Site in an orderly way and in accordance with the provisions of this Contract.

(4) The Project Manager and the Contractor will act reasonably and in good faith when exercising its functions within this Contract.

2.2 Early Warning

(1) Each party must do all it reasonably can to promptly inform the other of anything of which it becomes aware which is likely to affect the Works being completed by the Date for Practical Completion or the cost or quality of the Works

(2) If either party informs the other under clause 2.2(1), the parties must then investigate how to avoid or minimise any adverse effect on the Works.



2.3 Resources and Methodology

(1) The Contractor will:

(a) provide all things necessary to perform the Works in accordance with this Contract including plant and equipment, facilities, labour and materials; and

(b) ensure that those things comply with this Contract.

(2) If requested by a Notice issued by the Project Manager to the Contractor, the Contractor will provide the documents listed in Schedule D of this Contract to the Project Manager, and in accordance the Notice issued.

(3) The Contractor is responsible for all means and methods in performing the Works and will ensure that they comply with this Contract.

2.4 Materials

(1) Unless otherwise specified in this Contract, all materials used in the performance of the Works:

(a) must be new, of the highest quality, be free from any defects and be fit for their intended purpose; and

(b) ownership will be transferred to Council either when they are paid for by Council or are incorporated in any part of the Works, whichever is earlier.

(2) Should Council provide any materials these must:

(a) be free of any defects or damage and be fit for the intended purpose; and

(b) be stored in a secure location and managed by the Contractor in a prudent and reasonable manner, including being protected by the Contractor in such a way as to prevent damage or deterioration.

(3) After Council supplies any materials, the Contractor must:

(a) promptly perform all reasonable checks and tests on the materials supplies by Council (including any tests required by the Contract); and

(b) if the Contractor considers that the incorporation of those materials into the Works will not enable the Contractor to comply with the requirements of the Contract, it must notify the Project Manager within 7 days after the delivery of the materials supplied by Council giving detailed reasons.

2.5 Standard of Work

(1) The Works must be performed to the standards specified in Schedule C or in accordance with the standards subsequently directed by Notice from the Project Manager.

(2) In the event that the Project Manager gives Notice to the Contractor of standards to be met by the Contractor which differs from those specified in Schedule C or elsewhere in this Contract, the standards specified by the Project Manager’s Notice will prevail to the extent of any inconsistency.



(3) The Project Manager's determination as to the quality and quantity of the Works is final.

(4) The Contractor has the right to attend all examinations, inspections and measurements of the Works.

(5) The Contractor will be represented on Site at all times by a person with the requisite authority to accept Directions from the Project Manager when any part of the Works is being executed. All work is to be carried out or supervised by experienced and qualified Personnel.

2.6 Defects

(1) If the Contractor becomes aware of a Defect, it must advise the Project Manager as soon as practicable.

(2) In the event of a Defect, the Project Manager may:

(a) Direct the Contractor to rectify the Defect at the Contractor’s expense and specify the time within which this must occur; or

(b) advise the Contractor that Council accepts the work as it is and reduce the Total Contract Sum by an amount which represents fair compensation to Council for the existence of the Defect; or

(c) in the event of non-compliance by the Contractor with a Direction under clause 2.66(2)(a), advise the Contractor that Council intends to engage others to rectify the Defect.

(3) If Council is required to engage others to rectify a Defect because of the non-compliance by the Contractor with a Direction under clause 2.6(2)(a), the reasonable costs incurred by Council in doing so will be a debt due from the Contractor to Council which may be deducted or recovered by Council pursuant to clause 8.5.

2.7 Investigations

The Contractor warrants that it has fully informed itself of all site conditions it may reasonably expect to encounter when performing the Works by:

(1) visiting the Site; and

(2) conducting all reasonable scientific and geotechnical investigations (based on the information made available to the Contractor) that a prudent contractor in the position of the Contractor would necessarily conduct or perform given that the Contractor is not the designer of the Works.

2.8 Site Cleaning

(1) The Contractor must keep the Site and the Works clean and tidy and ensure that rubbish and debris is regularly removed from the Site.

(2) The Contractor must remove all constructional plant, surplus materials, rubbish and temporary works of every kind from the Site.



(3) The Contractor must leave the Site, existing structures and areas adjacent to the Site in as good a state of repair as when the Works commenced.

2.9 Care and Protection of Property and Persons

(1) The Contractor must provide, erect and maintain all temporary works including barricades, guards, fencing, temporary roadways, footpaths, signs and lighting and anything else required by the relevant authorities or necessary for the protection of the Works, people or property or for the safety and convenience of the public and others including people who may use or occupy the Site and must remove such temporary works when no longer required.

(2) The Contractor must avoid interference with, or damage to property on or adjacent to the Site and must provide temporary protection for and must repair and reinstate all damage caused by the Contractor or its Associated Parties.

(3) Until the commencement of the Defects Liability Period, the Contractor is liable for any loss or damage to the Works from any cause whatsoever and must at its own cost make good any such loss or damage, except for when loss or damage caused by any negligent act, omission or default of Council.

2.10 Registration

(1) The Contractor must ensure that all Personnel required to operate plant or equipment have the required relevant registration, license or permit.

(2) The Contractor is responsible for these costs, and documented proof must be produced to the Project Manager on request.

2.11 Contractor’s Key Roles, Employees and Sub-contractors

(1) The Contractor will perform its obligations under this Contract by using the Contractor’s Key Roles for their respective functions or tasks.

(2) The Contractor may amend the Contractor’s Key Roles list with the prior written approval of the Project Manager.

(3) All persons engaged by the Contractor or its Subcontractors to perform the Works must be competent and appropriately accredited, qualified, licensed and trained to perform the Works.

(4) The Contractor is responsible for the entitlements of its employees and will comply with the Industrial Requirements.

(5) The Contractor will comply with all laws binding on it applicable to its employees including taxation and the WHS Legislation.

(6) The Contractor will manage its relationship with its employees in a way which minimises the risk of industrial disputation.

(7) On the written request of the Project Manager, the Contractor must:



(a) produce evidence that all on-site employees of the Contractor and Subcontractors are compliant with the WHS Requirements; and

(b) immediately remove from the Site any person who may, in the opinion of the Project Manager, be incompetent or misconduct themselves. Such a person must not be engaged again on the Site without the prior written permission of the Project Manager.

(8) All Subcontractors must be competent and appropriately accredited, qualified, licensed and trained to undertake that part of the Works to be performed by them.

(9) The Contractor is responsible for all acts and omissions (whether negligent or otherwise) of the Subcontractors.

(10) The subcontracting of the Works in no way prejudices, limits or qualifies the Contractor’s obligations under this Contract nor Council’s rights and remedies against the Contractor.

2.12 Access

(1) Council grants the Contractor a non-exclusive licence to enter on and remain at the Site to carry out the Works during the Term.

(2) The Contractor exercises its rights under clause 2.12(1) at its own risk.

(3) In exercising its rights under clause 2.12(1), the Contractor must not restrict any rights granted by Council to any person except with the Project Manager’s prior written consent.

2.13 Council's Property

To the extent that the Contractor uses Council’s property to perform the Works, the Contractor must:

(1) only do so with the Project Manager’s prior consent and on the conditions (if any) imposed by the Project Manager;

(2) take proper care of and not misuse the Council property;

(3) not dispose of the Council property to, or encumber it in favour of, another person; and

(4) at the date of Practical Completion, return the Council property to Council (if applicable) in the same condition as it was provided to Contractor (fair wear and tear is excluded).

3 Work Health and Safety and Environment

3.1 General

(1) In performing its obligations under this Contract, the Contractor must comply with, and ensure that all persons for whom it is responsible including its Associated Parties, comply with:

(a) the WHS Legislation;

(b) the WHS Requirements; and



(c) any other work health and safety requirements set out in this Contract.

(2) If the Contractor fails to comply with an obligation under this clause 3.1, Council may perform or have the obligation performed on the Contractor’s behalf and recover from the Contractor the costs and expenses incurred as a debt.

(3) In the event that the Project Manager or a Council representative discovers a non-compliance with or breach of any WHS Requirement, the Project Manager or a Council representative may immediately suspend the work associated with the non-compliance or breach until the Project Manager (at their discretion) is satisfied that the Site is made safe, the unsafe practice removed or the breach rectified. All direct costs under this clause 3.1 will be borne by the Contractor.

3.2 Contractor appointed as Principal Contractor

(1) The Contractor is appointed and agrees to be the Principal Contractor for the Works at the Site until the Works are completed.

(2) The Contractor must at all times carry out the obligations imposed on a Principal Contractor under Chapter 6 of the Regulation.

(3) Council authorises the Contractor to have the management and control of the Works and the Site and to discharge the duties of a Principal Contractor under Chapter 6 of the Regulation.

(4) The Contractor warrants that it has read and understands the obligations imposed on it as Principal Contractor under Chapter 6 of the Regulation and to the extent not prohibited by law, the Contractor indemnifies Council against any damage, expense, loss or liability suffered or incurred by Council arising out of or in connection with any failure to fulfil the functions and obligations of a Principal Contractor.

3.3 Environmental Obligations

(1) In carrying out the Works Contractor must ensure that it and its Subcontractors comply with all applicable Environmental Laws (including any environment protection licences held by Council) in respect of the Works and the Site at all times.

3.4 Environmental Management Plan

(1) The Contractor must prepare and implement a Site specific EMP (Environmental Management Plan) for the carrying out of the Works.

(2) The EMP will be based upon and incorporate any previous Environmental Impact Assessment conducted by the Contractor or Council in respect of the Works at the Site, and must include the following details:

(a) the objectives of the EMP, including the Contractor's environmental policy;

(b) a listing of the environmental aspects and impacts associated with carrying out the Works;



(c) the appropriate control measures to manage the identified environmental aspects and impacts, and provide environmental protection in accordance with the requirements of the Contract;

(d) a clear indication of the respective environmental responsibilities of the Contractor and its Subcontractors; and

(e) a risk assessment in respect of the Works having regard to the Contractor’s and, to the extent applicable, Council’s obligations under Environmental Laws.

(3) The Contractor must submit the EMP for review and comment by the Project Manager prior to commencement of work on the Site. The Contractor acknowledges and agrees that if the EMP is not satisfactory in the opinion of the Project Manager, the Project Manager may notify the Contractor who will then make appropriate modifications to the EMP.

(4) The Contractor must document and advise the Project Manager of any proposed changes to the EMP. The Project Manager may review and comment on the Contractor's proposed changes subject to and in accordance with the provisions of clause F3(3).

(5) The Project Manager may direct the Contractor to submit a revised EMP for comment as soon as is reasonably practicable to reflect any changes to the scope of the Works or Environmental Laws.

3.5 Incident Reporting, Corrective and Preventive Action

(1) the Contractor must immediately notify the Project Manager, and promptly apply appropriate corrective and preventive action procedures to address any deficiencies should any:

(a) work practices be detected by the Contractor which do not conform to requirements under this Contract; or

(b) environmental or WHS controls be observed by the Contractor to be ineffective or fail to operate,

(2) In the event of an environmental incident, the Contractor must apply non-conformance control to containment measures, clean-up and restoration of the environment as well as rectification of deficient environmental protection measures to prevent recurrence.

(3) In the event of a WHS incident or significant near miss, the Contractor must immediately make the Site safe and immediately notify the Project Manager.

(4) If any incident occurs on the Site, the Contractor must provide a report to the Project Manager within 10 Business Days of the incident occurring containing:

(a) The immediate actions taken at the Site;

(b) Identification of root cause or contributing factors to the incident

(c) corrective and preventive action measures identified and implemented; and



(d) confirmation that all third party and legislative reporting obligations have been completed.

4 Audit, Reporting and Performance

4.1 Audit

(1) Council may conduct, at any time, an inspection and audit on all aspects of the Contractor’s compliance with its WHS Requirements, Environmental obligations or any other obligation under this Contract.

(2) The Contractor must make available, on request, all relevant records including those of its Personnel during the audit process.

(3) The Contractor must at its own cost provide all reasonable assistance to Council during the inspection and audit process including attendance by the Contractor.

4.2 Complaint Management

(1) The Contractor must keep and maintain written records of any complaints which it receives from a member of the public in respect of the Works.

(2) A record of a complaint received by the Contractor from a member of the public must detail:

(a) the date and time of the complaint;

(b) the method by which the complaint was made;

(c) any personal details of the complainant;

(d) the nature of the complaint; and

(e) any action taken or representations made by the Contractor in response to the complaint.

(3) If the Contractor receives a complaint from a member of the public in respect of the Works, it must notify the Project Manager as soon as possible and follow any Directions given by the Project Manager in order to resolve the complaint.

4.3 Contractor’s Monthly Report

(1) The Contractor must submit a monthly report to Council. The monthly report will include: (a) Contractors Payment Claim pursuant to clause 8.2; (b) Construction Program with tracked progress pursuant to clause 5.3;

(c) Summary of Works completed this month;

(d) Summary of project activity for the upcoming month; and (e) Summary of any known risks or opportunities arising from the project.



5 Time

5.1 Commencement, Progress and Completion

(1) Time is of the essence in the performance by the Contractor of the critical timing obligations set out in Schedule E of this Contract and in the compliance by the Contractor with any Direction issued by the Project Manager.

(2) The Contractor must:

(a) commence the Works on the Commencement Date;

(b) proceed with the Works with due expedition and without delay; and

(c) complete the Works by the Date for Practical Completion.

5.2 Extension of Time

(1) If the Contractor considers that a delay in the progress of the Works is likely to occur as a result of the occurrence of a Delaying Event, it must give Notice to Council.

(2) A Notice under clause 5.2(1) must be given as soon as practicable after the Contractor becoming aware of the possibility of a delay being caused by a Delaying Event but no later than 2 Business Days after becoming aware of the occurrence of the Delaying Event.

(3) The Notice must set out a description of the Delaying Event, the date of commencement of the Delaying Event, and the nature, cause and likely extent of the delay.

(4) Upon receipt of a Notice from the Contractor in compliance with clause 5.2(1) to (3), the Project Manager must, within 14 days, consider the contents of the Notice, and, if it agrees that a Delaying Event has occurred, grant an extension of time that it reasonably considers is warranted as a result of the Delaying Event.

(5) A delay or failure by Council to grant a reasonable, or any extension of time will not cause the Date for Practical Completion to be set at large.

(6) If the Delaying Event in respect of which the Project Manager has granted an extension of time causes the Contractor to perform further or other Works or causes a re-scheduling of the Works that give rise to additional costs being incurred by the Contractor then provided that within a reasonable time after the delay occurring (being the time limit stated in clause 8.6 or such longer time as the Project Manager allows), the Contractor submits a written Claim to the Project Manager together with such supporting evidence as the Project Manager requires, the Contractor will be entitled to payment of such extra costs as are reasonable in the circumstances, such costs to be assessed by the Project Manager.

(7) The Contractor must take all reasonable steps to minimise the effect of any Delaying Event including, without limitation, the reallocation of resources and the reprogramming of the Works.



(8) Notwithstanding clause 5.1(2)(c) and anything contained in this clause 5.2, the Project Manager may, in its absolute discretion, at any time by Notice to the Contractor unilaterally extend the Date for Practical Completion.

5.3 Construction Program

(1) The Contractor must submit a Construction Program to the Project Manager, within 14 days of being awarded the contract.

(2) The Contractor’s Construing Program can be in a Gantt Chart of Excel format, and will clearly show the following items as a minimum: (a) Date of commencement;

(b) Project Milestones; (c) Due dates for any items required from Council to support the Works;

(d) Commissioning Dates; and

(e) Date for Practical Completion

(3) The Contractor will track progress against this program, and advise the Project Manager of any significant changes or risks associated with the current program.

6 Variations

6.1 Definition

(1) A Variation means any change to the Works including any addition, increase, decrease, omission or deletion of any part of, or all of the Works pursuant to this Contract.

6.2 Variation Request

(1) A Variation may be initiated (a “Variation Request”):

(a) by the Project Manager (on behalf of Council) to the Contractor, or

(b) by the Contractor to Council.

(2) When the Contractor makes a Variation Request, the Contractor must provide Council with a Notice within 5 business days of making the Variation Request setting out:

(a) in the absence of an agreed schedule of rates (in Schedule A) which may be used to calculate the value of the Variation, the cost or method of costing of the proposed Variation;

(b) any timing implications associated with the proposed Variation; and

(c) the reasons for the proposed Variation.

(3) Where Council makes a Variation Request, the Contractor must provide a Notice to Council within 5 business days of Council making the Variation Request advising Council of:

(a) in the absence of an agreed schedule of rates (in Schedule A) which may be used to calculate the value of the Variation, the cost or method of costing of the proposed Variation; and



(b) any timing implications associated with the proposed Variation.

(4) Where the Contractor makes a Variation Request pursuant to clause 3.2(1), Council must consider the request in good faith and advise the Contractor of its acceptance (subject to clause 3.2(5) or rejection of the Variation Request within 14 days of the receipt of the Notice pursuant to clause 5.2(2).

(5) Where, pursuant to 3.2(1), a party seeks a Variation, the Contractor must not proceed until the value of the Variation or the method by which the value of the Variation will be calculated is approved by issue of a fee adjustment Notice from Council, and the Project Manager directs (by that Notice or a separate Notice) that the Contractor is to proceed with the Variation.

(6) If applicable, the Total Contract Sum will be adjusted, in respect of Variations, in accordance with the Total Contract Sum adjustment Notice issued by Council pursuant to clause 3.2(5)5).

6.3 Variation Order

(1) Whether or not either party has issued a Variation Request under clause 3.2(1), the Project Manager may at any time prior to Practical Completion give the Contractor a written Direction to carry out a Variation ("Variation Order").

(2) If the Contractor considers that a Direction by the Project Manager constitutes or involves a Variation Order, but the Project Manager has not expressly identified it as a Variation Order under clause 3.3(1), the Contractor must, if it wishes to make a Claim against Council arising out of, or in any way in connection with, that Direction:

(a) within 5 Business Days of receiving the Direction give Notice to the Project Manager that the Contractor considers that Direction constitutes or involves a Variation Order under clause 3.3(1) and must include the facts relied upon in support of the Notice in sufficient detail to permit verification by Council; and

(b) continue to carry out the Works in accordance with the Contract and all Directions of the Project Manager, including any Direction in respect of which Notice has been given under this clause 3.3(1).

(3) Upon receipt of a Notice from the Contractor given in accordance with clause 5(2)(a), the Project Manager may by Notice to the Contractor state whether or not the relevant Direction constitutes or involves a Variation Order.

(4) Where the Project Manager issues a Variation Order, the Total Contract Sum will be adjusted by:

(a) where the parties have agreed an amount in respect of the Variation, the agreed amount; or

(b) an amount determined by the Project Manager using any rates or prices which appear in the Contract to the extent they are applicable to, or it is reasonable to use them for valuing, the Variation; or



(c) to the extent clauses 5(4)(a) or 5(4)(b) do not apply, a reasonable amount determined by the Project Manager;

and the Project Manager will issue a fee Total Contract Sum adjustment Notice accordingly.

6.4 Claims for Payment of Variation

(1) Claims for payment for any Variation must be in writing and must include a copy of the Total Contract Sum adjustment Notice under clause 5(5), 5(6) or 5(4) together with relevant details relating to the Variation.

(2) The Contractor cannot make any Claim for payment for any Variation otherwise than in accordance with this clause 3.

6.5 Provisional Works

(1) Should Council have a requirement for Provisional Works, it will issue a Notice requiring the Contractor to perform any of the Provisional Works.

(2) The Contractor must perform the Provisional Works set out in the Notice and will be paid in accordance with the agreed pricing schedule for the respective items.

7 Completion

7.1 Practical Completion

(1) Prior to the Contractor seeking a certificate of Practical Completion it must ensure that:

(a) in the case where any testing or certification of any plant, equipment or any other hardware is required by this Contract, tests have been conducted to attain the appropriate outcome and that certification attests to an appropriate standard being achieved;

(b) the following has been delivered to Council:

(i) all original warranties relating to any plant, equipment, hardware and software;

(ii) all notices, permits, approvals and certificates required to be obtained from relevant authorities;

(iii) documents and other information required under this Contract which, in the opinion of the Principal, are essential for the use, operation and maintenance of the Works; and

(iv) all Records in accordance with clause 11.12.

(c) the Contractor has:-

(i) complied with its obligations under clause 2.8 of this Contract;

(ii) connected or reconnected all services relevant to the Works and the Site; and



(iii) complied with all relevant aspects of the quality assurance system including, but not limited to, having undertaken all final inspections and testing of the Works required by that system.

(2) When the Contractor is of the opinion that the Works have reached the stage of Practical Completion and the requirements of clause 7.1(1) have been met, the Contractor must advise the Project Manager in writing by issuing a Notice of Practical Completion.

(3) Within 5 Business Days of receipt of the Notice of Practical Completion from the Contractor, the Project Manager must:

(a) if it is satisfied that the Works have reached the stage of Practical Completion, issue a certificate to this effect; or

(b) if it is not satisfied that the Works have reached the stage of Practical Completion, advise the Contractor by Notice of the reasons for this; and

(c) if the Notice issued by the Contractor contains a Claim or is followed within 5 Business Days by a written Claim in accordance with clause 8.6, commence resolution of the Claim by investigating the matter.

(4) If the Claim turns into a Dispute, the Project Manager must proceed in accordance with clause 10.8 of this Contract.

(5) The Contractor must, upon receipt from the Project Manager of a Notice that the Works have not reached the stage of Practical Completion, attend to the matters described in the Notice.

(6) This clause will continue to apply until the Project Manager issues a certificate under clause 7.1(3)(a).

7.2 Defects Liability Period

(1) Upon certification by the Project Manager that the Works have reached the stage of Practical Completion, the Defects Liability Period will commence.

(2) Subject to Council’s rights at law, the Contractor must, during the Defects Liability Period:

(a) proceed to completion with all aspects of the Works;

(b) rectify at its own expense all Defects which exist at the commencement of the Defects Liability Period or are notified in writing by the Project Manager during the Defects Liability Period.

(3) The Defects Liability Period will be extended by the period set out in the Contract Particulars, commencing upon the completion of the Defect rectification if:

(a) the Project Manager gives the Contractor a Direction under clause 2.6(2)(a) during the Defects Liability Period; and

(b) the Contractor is responsible for the Defect (or a relevant part),



7.3 Final Completion

(1) Within 10 Business Days of the later of the expiration of the Defects Liability Period and the rectification of all Defects notified by the Project Manager, the Contractor must submit its final Claim in relation to the Works in writing.

(2) Immediately after the date referred to in clause 7.3(1) for forwarding the Contractor's final Claim has passed, the Contractor releases Council from any Claim in respect of any fact, matter or thing arising out of, or in any way in connection with, the Works or the Contract except for any Claim included in a progress payment claim or otherwise given to the Project Manager within the time required by, and in accordance with the terms of, a clause of this Contract applying to that Claim.

(3) Within 10 Business Days of receipt of the final Claim, the Project Manager must issue to the Contractor a Final Certificate certifying the final amount, if any, due to the Contractor.

(4) The issuing by the Project Manager of the Final Certificate is subject always to the rights Council has pursuant to clause 8.5 with respect of any sums owed by the Contractor that remain outstanding.

(5) A Final Certificate is a payment certificate for the purposes of clause 8.2.

8 Total Contract Sum and Payment

8.1 Total Contract Sum

(1) Council will pay the Contractor the Total Contract Sum in accordance with and subject to this Contract.

(2) The Total Contract Sum charged by the Contractor is inclusive of all expenses of the Contractor, including costs for delivery, cost of all materials and plant, insurance, duties, imposts and taxes.

8.2 Payment

(1) The Contractor may, not more than monthly, submit a progress payment Claim to the Project Manager

(2) The format of the progress payment claim will in a format satisfactory to the Project Manager.

(3) The progress payment Claim must show the value of the work carried out to the date of the progress payment Claim.

(4) Within 10 Business Days of receipt of a progress payment Claim from the Contractor, the Project Manager must give the Contractor a payment certificate which states:

(a) the progress payment Claim to which it relates;

(b) the value of the work completed in accordance with the Contract;

(c) the amount already paid to the Contractor;



(d) the amount Council is entitled to retain, deduct, withhold or set-off under this Contract;

(e) the amount (if any) which the Project Manager believes to be then payable by Council to the Contractor on account of the Total Contract Sum and otherwise under the Contract and which Council proposes to pay to the Contractor; and

(f) if the amount in clause 8.2(4)(e) is less than the amount claimed in the progress payment Claim:

(i) the reason why the amount in clause 8.2(4)(e) is less than the amount claimed in the progress payment Claim; and

(ii) if the reason for the difference is that Council has retained, deducted, withheld or set-off payment for any reason, the reason for the retention, deduction, withholding or setting-off payment.

(5) The progress payment Claim must be accompanied by a supporting statement in accordance with legislative requirements and approved form issued by NSW Department

of Fair Trading (link: Supporting Statement by Head Contractor).

(6) Within 15 Business Days of receipt of the progress payment Claim, Council must pay to the Contractor the amount set out as then payable in the payment certificate.

(7) Failure by the Project Manager to set out in a payment certificate an amount which Council is entitled to retain, deduct, withhold or set-off from the amount which would otherwise by payable to the Contractor by Council will not prejudice Council's right to subsequently exercise its right to retain, deduct, withhold or set-off any amount under this Contract.

(8) The payment of monies under a payment certificate are not evidence of the value of work or evidence that work has been executed satisfactorily but will be payment on account only.

(9) If the Contractor does not submit a progress payment Claim in accordance with the procedure set out in this clause 8.2, any invoice submitted by the Contractor will be dealt with in accordance with Council’s standard terms and conditions.

8.3 Security

(1) Within 5 Business Days following the Commencement Date, the Contractor must provide security in the amount and form set out in Items 9A and 9B of the Contract Particulars.

(2) The security must be unlimited as to time, irrevocable, unconditional and in a form approved by Council who may call upon the security to:

(a) satisfy any debt owed by the Contractor to Council under this Contract;

(b) ensure that any non-performance of or Defect in any of the Works by the Contractor may be remedied.

(3) If the Contractor does not comply with clause 8.3(1), Council may withhold a portion of the moneys otherwise due to the Contractor and treat such retentions as the required



security until the Contractor has provided the necessary security. The retention amount is set out in Item 9C of the Contract Particulars.

(4) The Contractor agrees that it will not take any action against Council with a view to preventing Council from calling upon the security.

(5) Council is under no obligation to pay the Contractor interest on or any charges associated with the security except in the circumstances set out in clause 8.3(6).

(6) If Council calls upon the security in circumstances when it was not entitled to do so, Council will only be liable to return to the Contractor the amount called together with interest on that amount from the date of receipt by Council to the date of repayment to the Contractor such interest being at the rate set in Item 10 of the Contract Particulars.

(7) Upon commencement of the Defects Liability Period pursuant to clause 7.2(1), the amount or percentage of the security identified in Item 9A of the Contract Particulars will be released by Council.

(8) The amount or percentage of security identified in Item 9B of the Contract Particulars will be released by Council upon the Contractor signing and giving to Council the release contained in the Final Certificate pursuant to clause 7.3.

8.4 Liquidated Damages

(1) If the Contractor fails to complete the Works by the Date for Practical Completion, the Contractor is indebted to Council for liquidated damages calculated at the rate set out in Item 11 of the Contract Particulars for every day after the Date for Practical Completion until Practical Completion has occurred.

(2) The Parties agree that the liquidated damages appearing in the Contract Particulars are a genuine pre-estimate of the losses that will be incurred by Council, should the Contractor fail to meet the Date for Practical Completion.

(3) The amount of liquidated damages under this clause will be a debt due from the Contractor to Council, and may be deducted by Council pursuant to clause 8.5.

(4) Should no amount for liquidated damages be referred to in the Contract Particulars, Council is entitled to damages from the Contractor under general principles of law.

8.5 Right of Council to Recover Money

(1) Any debt due (including liquidated damages) from the Contractor to Council under this Contract may be deducted by Council from any sum which is or may become due and payable to the Contractor under this Contract or any other agreement and if the debt exceeds such sum, from the security.

(2) Nothing in this clause affects the right of Council to otherwise recover from the Contractor the whole of the debt or any balance owing.

8.6 Security of Payment Legislation

(1) The Contractor must:



(a) promptly give Council a copy of any notice the Contractor receives from a Subcontractor under the Security of Payment Legislation or has been required to supply to a Subcontractor under the Security of Payment Legislation;

(b) ensure that each Subcontractor promptly gives to Council a copy of any notice that the Subcontractor receives from another person in connection with the Works under the Security of Payment Legislation;

(c) immediately notify Council if it becomes aware that a Subcontractor (or any other person carrying out work in connection with the project) has or intends to lodge, submit or exercise a statutory lien or charge under the Security of Payment Legislation over any property of Council, including, without limitation, over any unfixed plant and materials supplied by the Subcontractor for use in carrying out work forming part of the Works.

(2) If the Contractor becomes aware that a Subcontractor is entitled to suspend work under a provision of the Security of Payment Legislation, Council may, but is not required to, pay the Subcontractor such money that is, or may be, owing to the Subcontractor for work forming part of the Works and Council may recover from the Contractor any amount paid as a debt due and payable. As an alternative to recovering the money from the Contractor direct, Council may under clause 8.5 set-off any money paid to the Subcontractor against any moneys owed by Council to the Contractor in respect of subsequent progress payment Claims submitted under the Contract.

(3) The Contractor must indemnify Council against any loss on a full indemnity basis suffered or incurred by Council arising out of:

(a) a suspension by a Subcontractor of work which forms part of the Works under this Contract under the Security of Payment Legislation;

(b) a notice or claim being served on Council by any person in connection with the Works; and

(c) a Subcontractor or any other person exercising a statutory lien or charge under the Security of Payment Legislation over any property of Council, including without limitation, over any unfixed plant and materials supplied by the Subcontractor or others for use in carrying out work forming part of the Works.

8.7 Australian Business Numbers (ABNs) and Written Statements

(1) Notwithstanding any other provision of this Contract, Council is not required to make any payment under this Contract until the Contractor has, for the purposes of section 12-190 of Schedule 1 to the Taxation Administration Act 1953 (TAA), either:

(a) quoted a valid ABN in writing in relation to any supplies to which the payment relates; or

(b) given Council a written statement (in the form of a "Statement by a Supplier" published by the Commissioner of Taxation or otherwise) confirming that:



(i) the payment is for a supply in the course or furtherance of an activity or series of activities done as a private recreational pursuit or hobby or supply that is wholly of a private or domestic nature; or

(ii) the Contractor is not entitled to an ABN as it is not carrying on an enterprise in Australia.

(2) The Contractor warrants that any written statement given in accordance with clause 9.7(1) is true, accurate and correct, and the Contractor must indemnify Council, and keep Council indemnified against the amount of any tax, any withholding payments pursuant to Part 2-5 in Schedule 1 to the TAA, and any related cost, expense, loss or liability incurred as a result of the warranty given in this clause not being true, accurate or correct.

9 Risk Management

9.1 Contractor’s Risks and Warranties

(1) The Contractor will bear the risk of:

(a) any industrial dispute, strike, lockout or other workforce disruptions; and

(b) any loss of or damage to the Works or a stage of the Works, plant or equipment and any unfixed goods and materials (whether on or off Site), including anything provided by Council to the Contractor or brought onto Site by a Subcontractor, used or to be used in carrying out the Works, arising by reason of:

(i) any act or omissions (whether negligent or otherwise) of the Contractor or its Associated Parties;

(ii) any breach of this Contract by the Contractor; or

(iii) occupation of the Site by the Contractor or its Subcontractors;

(2) Risks included in clause 10.1(1) are the responsibility of the Contractor as follows:

(a) in the case of loss of or damage to the Works or a stage of the Works, until a certificate of Practical Completion is issued for the Works or a stage of the Works; and

(b) after the issue of a certificate of Practical Completion for the Works, or a stage of the Works, any loss of or damage to the Works or the stage of the Works arising from any act or omission of the Contractor during the Defects Liability Period or from an event which occurred prior to the issue of the certificate of Practical Completion for the Works or any stage of the Works.

(3) The Contractor warrants that it will at all times use Personnel that are suitably qualified and experienced, and who will exercise due skill, care and diligence in the execution and completion of the Works;



(4) The Contractor further warrants that in preparing its offer for the Works it has taken into account the following risks (hereafter ‘Contract Risks’) associated with the carrying out of the Works including, without limitation, risks associated with or arising in relation to:

(a) all Industrial Requirements;

(b) all delays, cost increases, re-execution of work or modification of the methodology for the carrying out of the Works caused by:

(i) the conditions at, on, under, over or in the vicinity of the Site or its surroundings differing from:

A. the conditions shown in or indicated by any document provided by Council, or

B. the conditions which the Contractor assumed to exist;

(ii) the Works progressing at a rate different from that which may have been anticipated by the Contractor;

(iii) the availability of labour or materials necessary for the carrying out of the Works,

(5) The Contractor further warrants that it has made proper allowance in the Total Contract Sum for:

(a) all matters contained in or capable of inference from this Contract;

(b) all matters which are likely to have an impact upon the Contractor’s ability to complete the Works or to complete the Works within any particular time, cost or quality constraints; and

(c) the cost of any of the Contract Risks.

(6) The Contractor also warrants that it:

(a) has, or will be able to, obtain all the necessary consents, permits or authorities necessary in order for the Contractor to carry out the Works;

(b) has carefully examined the Contract Documents and there are no ambiguities or discrepancies in the Contract Documents that will have a cost, timing or quality impact on the Works;

(c) owns (or is otherwise entitled to use) the copyright or other intellectual property in relation to the Works;

(d) is not insolvent within the meaning of section 95A of the Corporations Act 2001 (Cth) or otherwise, and there is no unfulfilled or unsatisfied judgment or Court order outstanding against the Contractor;

(e) if required by law, is a registered practitioner in their particular field of work (within whatever category as is necessary so as to permit the Contractor to enter into this Contract);

(f) if required by law, carries the insurance required under the relevant legislation;



(g) in the offer by the Contractor, in any interview or discussion leading up to the entering of this Contract or in response to any request from Council, has provided accurate and complete information and has not provided any false, inaccurate or misleading information or failed to provide any material information relevant to the Contractor’s ability to carry out the Works; and

(h) will comply fully with all of its obligations under this Contract;

(7) Each of the above warranties must be given full effect in its own right. No individual warranty will be read down by reason of the existence or absence of any other warranty.

9.2 Indemnity

(1) The Contractor indemnifies Council for any and all Claims the Contractor may have relating to the risks the Contractor has agreed to accept as set out in clauses 9.1(1) and 9.1(4) and for any breaches of the warranties made by the Contractor as set out in clauses 9.1(3), (4) and (6).

(2) The Contractor indemnifies Council against all Claims suffered or incurred by, or brought, made or recovered by any person against, Council by reason of:

(a) any act, default or omission (whether negligent or malicious) on the part of the Contractor or its Associated Parties causing injury to or the death of any person or damage to or the destruction of property;

(b) any breach of this Contract by the Contractor; and

(c) any injury to or the death of persons or damage to or the destruction of property as a result of the occupation of the Site by Contractor or its Associated Parties.

(3) The Contractor’s liability to indemnify Council under this clause is reduced proportionally to the extent that an act, default or omission of Council has caused or contributed to the Claim.

(4) Each indemnity in this Contract is a continuing obligation separate and independent from the other obligations of the parties and survives the termination or expiration of this Contract.

9.3 Insurance

(1) Before commencing the Works, the Contractor must effect and maintain each of the policies of insurance set out in Item 13 of the Contract Particulars with limits of liability not less than those detailed in the Contract Particulars.

(2) In relation to the Professional Indemnity Insurance referred to in Item 13 of the Contract Particulars, the Contractor must advise its insurer of the existence of this Contract and the nature of the work to be performed for Council.

(3) In relation to the Contract Works policy referred to in Item 13 of the Contract Particulars, the policy shall note Council as a joint insured, and must also note as a joint insured any other interested party required by Council to be so noted.



(4) The General Liability policy must remain in force for the duration of the Term and the Contractor will provide updated Certificates of Currency upon the renewal of any insurance policies.

(5) The Professional Indemnity policy must remain in force for a period of 7 years from the expiry of the Term.

(6) The Contractor must not do, permit or suffer to be done, any act or omission which could prejudice any insurance effected by the Contractor.

(7) The Contractor must on reasonable demand by Council provide Council with a copy of the Certificate of Currency relating to the detailed insurance policies.

(8) If the Contractor fails to effect and maintain the insurance policies in accordance with this Contract, Council may effect and maintain the necessary insurance policy and/or pay the premium in respect of the policy and the cost of doing so is a debt due and payable by Contractor to Council on demand.

9.4 Limitation of Liability

(1) Subject to clause 9.4(2), to the extent that the Contractor is entitled to be indemnified for any loss under a policy of insurance, or would have been entitled to be indemnified for that loss but for:

(a) a breach by the Contractor of its obligations under clause 9.3;

(b) a failure by the Contractor to pay any premiums or to otherwise maintain the insurances required by clause 9.3;

(c) a breach by the Contractor of any provision of a contract of insurance held in relation to this Contract; or

(d) any conduct by the Contractor under a contract of insurance held in relation to this Contract which entitles an insurer to avoid the relevant contract of insurance or to reduce its liability under the relevant contract of insurance,

the Contractor’s liability to Council in anyway arising out of or in connection with this Contract (including in contract, in tort, under statute or in equity) for that loss will be limited to the relevant amount of insurance that the Contractor is required to effect and maintain (whether or not such insurances were effected).

(2) Clause 9.4(1) does not limit the Contractor's liability under clause 8.4.

(3) Subject to clause 9.4(4), notwithstanding any other clause in this Contract, the Contractor’s liability to Council for Consequential Loss is limited to and will not exceed to the extent that such liability comes within the definition of “Consequential Loss”, any liability Council has to a third party.

(4) Clause 9.4(3) will not apply if an alternative limit on Consequential Loss is specified in Item 12 of the Contract Particulars.



10 Termination and Disputes

10.1 Termination

(1) If either party commits a Performance Default (the ‘Defaulting Party’), the other party may give a Notice requiring the Defaulting Party to remedy the breach within a stated period, which must not be less than 5 Business Days, of receiving the Notice.

(2) If the Defaulting Party does not remedy the Performance Default in accordance with a Notice issued pursuant to clause 10.1(1), the other party may proceed as if there had been a Termination Default.

(3) Following the giving of a Notice by Council pursuant to clause 10.1(1), Council may suspend payment under this Contract until the Performance Default has been remedied to the satisfaction of Council.

(4) If either party commits a Termination Default, the other party may, by Notice, immediately terminate this Contract.

(5) If Council terminates this Contract pursuant to clause 10.1(4), Council may complete any part of the Works remaining to be completed, by any means, including requiring the Contractor to novate to Council or its nominee, any or all subcontracts between the Contractor and its Subcontractors.

(6) On completion of the Works pursuant to clause 10.1(5) by Council or its nominee, the Project Manager must certify the cost incurred by Council in completing the Works. Should the amount so certified be greater than the further amount which would have been paid to the Contractor if the whole of the Works had been completed by the Contractor, (after taking into account all adjustments to the Total Contract Sum made under any provision of the Contract as at the date of termination, and any other amounts owing from the Contractor to Council in accordance with the provisions of the Contract as at the date of termination), the difference between the two amounts will be a debt due from the Contractor to Council recoverable under clause 8.5.

10.2 Termination for Insolvency

Council may immediately terminate this Contract if any of the following events occurs in relation to the Contractor:

(1) a receiver or a receiver and manager of its property is appointed, whether by a court or otherwise;

(2) an administrator, liquidator or provisional liquidator is appointed to it under the Corporations Act 2001 (Cth);

(3) it enters into a compromise or arrangement with its creditors or a class of them;

(4) it commences to be wound up or ceases to carry on business;

(5) it is unable to pay its debts as and when they fall due or is presumed so unable under the Corporations Act 2001 (Cth);



(6) any execution or similar process is issued against its property; or

(7) anything having a substantially similar effect to any of the events specified above happens under any law of NSW.

10.3 Termination for Convenience

(1) Without prejudice to any of Council’s other rights under this Contract, Council may:

(a) at any time for its sole convenience and for any reason, by Notice to the Contractor, terminate this Contract effective from the time stated in Council’s Notice or if no time is stated, at the time the Notice is given to the Contractor; and

(b) thereafter, at its absolute discretion, complete the uncompleted part of the Works by itself or by engaging other contractors.

(2) If Council terminates this Contract pursuant to this clause, Council will pay the Contractor:

(a) for work carried out prior to the date of termination the amount which would have been payable if the Contract had not been terminated and the Contractor had submitted a progress payment Claim for work carried out to the date of termination;

(b) the cost of goods or materials reasonably ordered by the Contractor for the Works for which the Contractor is legally bound to pay provided that:

(i) the value of the goods or materials is not included in the amount payable under clause 10.3(2)(b)(i); and

(ii) title in the goods and materials will vest in Council upon payment;

(c) the extra costs reasonably incurred by the Contractor of removing from the Site anything owned by the Contractor and all labour, plant, and equipment used by the Contractor in the performance of the Works.

10.4 Accrued Rights and Remedies

Termination of this Contract does not affect the accrued rights and remedies of the parties.

10.5 No Prejudice

This clause 10 does not affect the parties' rights at law, in equity or under statute.

10.6 Claims

(1) The Contractor must give Notice of any Claim which it may have against Council in relation to the carrying out of the Works within 5 Business Days of becoming aware of any potential Claim (unless the Claim is made under a clause of this Contract which specifies a different time limit).

(2) If the Contractor fails to comply with clause 10.6(1) (or a clause of this Contract which specifies a different time limit for the Claim), Council will not be liable upon any such Claim by the Contractor, and the Contractor will be absolutely barred from making any Claim against Council.



10.7 Emerging Risks and Issues

(1) The parties commit to communicating risks and potential emerging issues on the project as soon as they are known to them.

(2) Both the Project Manager and the Contractor will openly and transparently discuss the emerging risks or issues, and work together to ensure it can be managed.

(3) If Council identify an emerging risk or issue that may impact the Works or the Contractor’s Construction Program, the Project Manager will asses the issue and notify the Contractor.

(4) If the Contractor identifies an emerging risk or issue that may impact the Works or the Contractor’s Construction Program, the Contractor will asses the issue and notify the Project Manager.

(5) A notice issued pursuant to clause 10.7(3) or 10.7(4) must include:

(a) A description of the emerging issue or risk;

(b) Available options to mitigate or eliminate the risk of adverse impacts on the Works and Contractor’s Construction Program; and

(c) Any available supporting information.

(6) If a notice is issued pursuant to clause 10.7(3) or 10.7(4), then both parties will consider the options together and the Project Manager will consider all options prior to issuing a Notice to the Contractor outlining the actions to be taken.

10.8 Settlement of Disputes

(1) The provisions contained in this clause apply to all Disputes that may arise between the parties.

(2) Neither party may commence any action under clause 10.8 unless and until the procedures required under clauses 10.7(1) to and including 10.7(5) have been complied with.

(3) Within 5 days of becoming aware of a Dispute a party must notify the other party in writing of the Dispute setting out details of the Dispute.

(4) Within 5 Business Days of notification of the Dispute, the Council’s General Manager and the senior manager of the Contractor must meet to attempt to resolve the Dispute.

(5) No Dispute may be referred to litigation before the Council’s General Manager and the senior manager of the Contractor have met in good faith to attempt to resolve the Dispute.

(6) Neither party may commence any court proceedings, except proceedings of an urgent interlocutory nature, unless and until the procedures required under clauses 10.8(1) to and including 10.8(5) have been complied with.



11 Miscellaneous

11.1 Directions

(1) The Project Manager may give a Direction to the Contractor by Notice.

(2) In giving a Direction, or after the giving of a Direction, the Project Manager may nominate a time within which the Direction must be complied with.

(3) The Contractor must comply with a Direction within the time nominated by the Project Manager.

(4) The Project Manager will always act reasonably in the circumstances when giving Directions to the Contractor or when issuing any Notice.

(5) The Project Manager will give Directions and carry out all its functions under the Contract as agent of Council (and not as an independent certifier, assessor or valuer) including in responding to the Contractor under the Security of Payment Legislation.

11.2 Notices

Every Notice required to be issued between the parties under this Contract must be delivered, sent or transmitted to the postal address, e-mail address or facsimile of the receiving party as specified in the Contract Particulars and as notified from time to time.

11.3 Communication Generally

Every communication including a Notice that is sent by a party pursuant to any clause of this Contract will be deemed to be received as follows:

(1) If sent by post, on the second day after it was posted;

(2) If sent by e-mail, when the sender’s e-mail server records the message as having been sent without error; and

(3) If sent by facsimile when the sender’s facsimile machine records that it was transmitted without error.

11.4 Governing Law and Jurisdiction

This Contract is governed by the laws of New South Wales, Australia.

11.5 Entire Contract

This Contract constitutes the entire agreement and understanding between the parties as to its subject matter and supersedes all prior agreements, arrangements and understandings between the parties in relation to the subject matter of this Contract.

11.6 Amendments

Amendments to this Contract can only be made by agreement between the parties and must be recorded in writing and signed on behalf of both Council and the Contractor.



11.7 Waivers

Any waiver of a party’s rights or consent under this Contract will only be effective and binding if it is given or confirmed in writing.

11.8 Assignment

(1) The Contractor cannot assign, transfer or encumber its rights or liabilities under this Contract without the Project Manager’s prior written consent and except on such terms and conditions as are determined in writing by Council.

(2) Any change in the legal or beneficial ownership of the Contractor from that prevailing on the date of this Contract requires the Project Manager’s prior written consent.

(3) Council may assign, transfer or encumber its rights under this Contract as it sees fit.

11.9 Costs

Except as is provided for expressly in this Contract, each party is responsible for its own costs in negotiating and preparing this Contract and performing its obligations under it.

11.10 Relationship

The relationship between the parties is that of independent contractors and not partners, joint venturers or principal and agent.

11.11 Representation

The Contractor represents and warrants to Council on the date of this Contract and on every day during the Term that:

(1) it is properly registered under the Corporations Act 2001 (Cth);

(2) it has power to enter into this Contract and observe and perform its obligations under it;

(3) it has taken all action necessary to authorise the entering into of this Contract and observe and perform its obligations under it;

(4) its obligations under this Contract are valid, binding on, and enforceable against the Contractor;

(5) the execution of this Contract and the observance and performance of its obligations under it will not breach any law or arrangement to which it is a party or is bound by; and

(6) all approvals required to be obtained by it and its Associated Parties in connection with the performance of the Works have been obtained and are in force.

11.12 Records

(1) The Contractor must establish and maintain detailed and accurate Records of its correspondence, activities and performance associated with carrying out the Works in accordance with the State Records Act of NSW and the Archives Act 1983 (Cth).

(2) The Records must be kept in a format reasonably accessible to, and able to be read and interpreted by Council.



(3) Council’s employees and agents may inspect and take copies of the Records during normal business hours whether during or after the carrying out of the Works.

(4) At the end of the Term, the Contractor must provide a complete electronic set of the Records to Council

(5) The Records must be kept by the Contractor for not less than 7 years after the end of the Term.

11.13 Intellectual Property

(1) Intellectual property rights in everything produced by the Contractor in the course of undertaking the Works vest in Council upon their creation (except to the extent of the Contractor’s pre-existing or third party owned intellectual property rights).

(2) The Contractor will do all things necessary (including executing any documents) to give effect to clause 11.13(1).

(3) Council grants a royalty free, non-exclusive licence to the Contractor, to all intellectual property produced by the Contractor for the purposes of the Contract in order that it may undertake the Works.

(4) The Contractor warrants that design, materials, documents and methods of working provided to Council in the undertaking the Works do not infringe any intellectual property right. The Contractor shall indemnify Council in respect of any Claims from third parties in respect of infringement by Council of such intellectual property rights.

11.14 Confidentiality

(1) The Contractor must keep this Contract confidential and not disclose the terms of this Contract or any information relating to the Works to any person.

(2) Clause 11.14(1) does not apply where disclosure is:

(a) required by law, Council or the Project Manager;

(b) made to Council or its associated parties; or

(c) made to the Contractor's advisers and permitted Subcontractors on a confidential basis.

11.15 Resolution of Ambiguities

If there is any ambiguity, discrepancy or inconsistency in this Contract or in the interpretation of any Contract Document it is agreed that the order of precedence in Item 17 of the Contract Particulars will apply.



12 Executed as a Contract

SIGNED for and on behalf of WALCHA COUNCIL by a duly authorised officer of the Company:

SIGNED for and on behalf of THE CONTRACTOR by a duly authorised officer of the Company:

Signature

Signature

Print Name

Print Name

Date Date

in the presence of:

in the presence of:

Signature of Witness

Signature of Witness

Print Name

Print Name



Contract Particulars

Item Clause

1 1 Works Construction of Walcha Mens Shed Refer to Schedule C for details

2 8

Total Contract Sum [insert] Refer to Schedule A for details

Address for invoices (Please ensure Contract No. NUMXX is stated on Tax Invoice):

Walcha Council Accounts Payable 2W Hamilton Street Walcha NSW 2354 Email: [email protected]

3 1 Site Address [insert] Refer to Schedule C for further details

CONTACT DETAILS

4 1

Project Manager Name

Council Contact Details

Address

Telephone

Mobile

Facsimile

e-mail address

5 1

Contractor Contact Name

Contractor Contact Details

Address

Telephone

Mobile

Facsimile

e-mail address

6 Not used.

7 7.2 Defects Liability Period 52 weeks

9A 8.3(6) Security 1

One Bank Guarantee valued at 2.5% of the Total Contract Sum To be released upon the commencement of the Defects Liability Period.

9B 8.3(8) Security 2

One Bank Guarantee valued at 2.5% of the Total Contract Sum To be released upon the issuing of the Final Certificate pursuant to clause 7.3

9C 8.3(3) Retention Not Applicable

10 8.3(6) Interest 7% per annum

11 8.4 Rate of Liquidated Damages To be negotiated with preferred tenderer based on proposed constriction program.

12 9.4 Limit of liability for Consequential Loss Level of insurances + 100% of the Total Contract Sum

13 9.3 General Liability Insurance $20,000,000



Item Clause

Professional Indemnity Insurance $10,000,000

Contract Works Insurance Not less than the total value of the Works and the materials supplied by Council

Statutory Workers’ Compensation cover As required under NSW and Commonwealth legislation.

14 1 Date referred to in definition of Commencement Date

Insert Date Here (refer to definition of Commencement Date to see how this date is used)

15 1 Date for Practical Completion 31 August 2020

16 1

Delaying Event Exclusions [Identify those events which remain at the risk of the Contractor and do not give rise to a right to an extension of time under clause 5.2 refer to the definition of the expression ‘Delaying Event’ and clause 5.2]

Typical inclement weather conditions for the particular site as determined by the Bureau of Meteorology. Physical conditions on the site including artificial things which should reasonably have been anticipated by the Contractor at the time of its tender if the Contractor had done all the things listed in clause 2.7.

17 11.15 Resolution of Ambiguities

Schedule F - Special Conditions Terms and Conditions of the Contract Contract Particulars Schedules

18 6.5 Provisional Works



Schedule A - Total Contract Sum Cost schedule to be inserted



Schedule B - Contractor’s Key Roles

INSERT COPY OF CONTRACTOR’S PROPOSED ORG CHART FOR THE PROJET SHOWING KEY ROLES. EXAMPLE BELOW.

Role Name Contact

Contractor’s Project Manager

Site Supervisor

Electrical Supervisor

Leading hand

Engineer

Etc.



Schedule C - Works

Insert the scope of works – amended as required to reflect final negotiated outcome with preferred tenderer.



Schedule D - Documents to be Provided to the Project Manager

The Contractor will provide the following documents to the Council Project Manager before the commencement of any Works.

Insert any specific documents we need before they can start work. Can leave blank if nothing is critical.



Schedule E - Critical Timings

The following milestones are critical timings in accordance with clause 4.1(1) of the Contract:

(1) Completion of the Works by the Date for Practical Completion;

(2) [other critical timings to be inserted]

Details to be negotiated with preferred tenderer

Insert any additional specific milestones we need to ensure we meet. Can leave with only the date for Practical Completion if there are no other critical milestones. Examples of other critical milestones might be:

Stages of works completed by specific dates;

Due dates for design documents;

Due dates for all site excavation works’

Due date for work as executed drawings (2 weeks prior to date for PC?)

Etc



Schedule F - Special Conditions

[These special conditions vary the Contract clauses and must be approved by Council Legal or by the General Manager] None proposed.

Construction Contract 2020-Walcha Mens Shed

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Transcript of Construction Contract 2020-Walcha Mens Shed