DEED OF STANDING OFFER FOR DEFENCE ENVIRONMENT …€¦ · 1.3.1 This Deed is legally binding from...

DEFENCE ENVIRONMENT AND HERITAGE PANEL

From ASDEFCON (Standing Offer for Services)

DEED OF STANDING OFFER

FOR

DEFENCE ENVIRONMENT AND

HERITAGE PANEL

Version 2.0

DEHP Conditions of Deed 1

DEHP Deed of Standing Offer - Version 2.0



RECITALS

A. The Commonwealth may from time to time require the provision of Services. The Services are broadly categorised as environment and heritage services (including contamination and unexploded ordnance assessment, management and remediation services). The Services may include both professional advisory services (desk based services) and works (field based services).

B. The Commonwealth has established a Panel of suppliers that may be requested to provide Services to the Commonwealth.

C. The Contractor is one of the suppliers on the Panel. The Contractor has made a standing offer to provide the Services on the terms set out in this Deed. The Commonwealth has accepted the Contractor’s standing offer to provide the Services on the terms set out in this Deed.

D. The terms of Contracts for Service Category A – E Services (which are predominately desk based services) are significantly different to the terms of Contracts for Service Category F Services (which are predominately field based for contamination and unexploded ordnance remediation works).

E. The Contractor acknowledges that this Deed does not guarantee that the Commonwealth will request any Quotation or enter into any Contract with the Contractor. The Contractor acknowledges that the Commonwealth may seek services that are the same as, or similar to, the Services from other persons.

THE PARTIES AGREE AS FOLLOWS

DEHP Conditions of Deed 1




DEED OF STANDING OFFER

TABLE OF CONTENTS

Page

1 ......................................................................................................................1 DEED FRAMEWORK

1.1 ............................................................................................................................1 Definitions

1.2 ........................................................................................................................1 Interpretation

1.3 .....................................................................................................................................2 Term

1.4 .................................................................................................................2 Entire Agreement

1.5 ..................................................................................................2 Precedence of Documents

1.6 ................................................................................................................3 Operation of Deed

1.7 .................................................................................................3 Notice of Material Changes

1.8 ..........................................................................4 Ordering Services and Creating Contracts

1.9 .................................................................................................5 Services to Other Providers

1.10 .......................................................................5 Services to Other Commonwealth Agencies

1.11 ......................................................................................................6 No Assurance of Orders

1.12 ...........................................................................................................6 Provision of Services

2 ..................................................................................................8 ROLES AND RESPONSIBILITIES

2.1 ..........................................................................................8 Commonwealth Panel Manager

2.2 ............................................................................8 Commonwealth Contract Representative

2.3 .........................................................................................8 Contractor Panel Representative

2.4 ....................................................................................8 Contractor Contract Representative

2.5 .................................................................................................................................8 Notices

3 ..................................................................................................10 PROVISION OF THE SERVICES

3.1 .............................................................................................10 Language and Measurement

3.2 ..............................................................................................10 Personnel and Key Persons

3.3 ........................................................................................11 Government Furnished Material

3.4 .......................................................................................11 Government Furnished Facilities

3.5 ....................................................................12 Contractor Managed Commonwealth Assets

3.6 ............................................12 Stocktaking of Contractor Managed Commonwealth Assets

3.7 ....................................................................................................................12 Authorisations

3.8 ................................................................................13 Commonwealth Information Systems

4 .......................................................................................................14 INTELLECTUAL PROPERTY

4.1 .....................................................................................14 Ownership of Intellectual Property

4.2 ..............................................................................................14 Intellectual Property Licence

4.3 .....................................................................................................................14 Third Party IP

4.4 ................................................................................................................14 Content Register

4.5 ...............................................................................................14 Provision of Technical Data

4.6 .......................................................................................................................15 Moral Rights

DEHP Conditions of Deed

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5 .................................................................................................................16 PRICE AND PAYMENT

5.1 .........................................................................................................16 Price and Price Basis

5.2 .............................................................................................................................16 Payment

5.3 ............................................................................................................16 Claims for Payment

5.4 ...................................................................................17 Ownership and Control of Services

5.5 ...............................................................................................................17 Taxes and Duties

5.6 .......................................................................................................................17 Adjustments

5.7 ...................................................................................................................18 Late Payments

5.8 ...................................................................................................................18 Cost Principles

5.9 ..............................................................................................................................18 All Work

6 .......................................................................................................19 INSURANCE AND LIABILITY

6.1 ............................................................................................................................19 Indemnity

6.2 ..........................................................................................19 Intellectual Property Indemnity

6.3 ........................................................................................19 Proportionate Liability Excluded

6.4 ...........................................................................................................................19 Insurance

7 ...............................................................................................................................21 WARRANTIES

7.1 ............................................................................................21 Fitness for Purpose Warranty

7.2 ............................................................................................................21 Capability Warranty

7.3 ...............................................................................................................21 Defects Warranty

7.4 ......................................................................................................21 IT Equipment Warranty

7.5 .........................................................................................................21 Warranties Generally

7.6 ..............................................................................................................22 Conflict of Interest

8 ..................................................................................................................23 DEED MANAGEMENT

8.1 ..............................................................................................................................23 Records

8.2 .......................................................................23 Performance Measurement and Reporting

8.3 ....................................................................................23 Change to this Deed or a Contract

8.4 ................................................................................................................................23 Waiver

8.5 .............................................................................23 Commercial-in-Confidence Information

8.6 ..................................................................................................24 Assignment and Novation

8.7 ...............................................................................24 Negation of Employment and Agency

8.8 .....................................................................................................25 Commonwealth Access

8.9 ..............................................................................................................25 Contractor Access

8.10 ..............................................................................................................................25 Auditing

8.11 ......................................................................................................................26 Subcontracts

8.12 ......................................................................................26 Cooperation with Other Providers

8.13 ................................................................................................................27 Defence Security

8.14 ............................................................................................28 Safe Base Alert State System

8.15 ..............................................................................28 Post Defence Separation Employment


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9 ........................................................................................................................30 POLICY AND LAW

9.1 ...................................................................................................................30 Applicable Law

9.2 ..........................................................................................................30 Policy Requirements

9.3 .........................................................................................31 Work Health and Safety (WHS)

9.4 ...............................................................................................33 Workplace Gender Equality

9.5 .................................................................................................33 Environmental Obligations

9.6 .........................................................................................................................33 Severability

9.7 ...............................................................................................................................33 Privacy

9.8 .....................................................................................................................35 Building Code

9.9 ......................................................................................................35 Freedom of Information

9.10 ......................................................................................................36 Public Announcements

10 ..................................................................................................37 DISPUTES AND TERMINATION

10.1 .......................................................................................................37 Resolution of Disputes

10.2 ..............................................................................................................37 Contractor Default

10.3 .......................................................................38 Termination or Reduction for Convenience

10.4 ......................................................................39 Right of Commonwealth to Recover Money

10.5 .......................................................................................................................39 Survivorship

SCHEDULE

1. DEED PARTICULARS………………………………………………………………………………..1-1

ATTACHMENTS

A. SCOPE OF SERVICES .............................................................................................................A-1

B. MAXIMUM RATES AND ALLOWANCES ..................................................................................B-1

C. REQUEST FOR QUOTATION AND TASKING STATEMENT TEMPLATE ..............................C-1

D. QUOTATION TEMPLATE..........................................................................................................D-1

E. OFFICIAL ORDER TEMPLATE.................................................................................................E-1

F. ADJUSTMENT FORMULA ........................................................................................................ F-1

G. PARTS OF DEED THAT ARE C-I-C INFORMATION .............................................................. G-1

H. CONTROLLED CONTENT REGISTER TEMPLATE ................................................................H-1

I. GLOSSARY................................................................................................................................. I-1

J. NEW CUSTOMER DEED TEMPLATE ...................................................................................... J-1

K. PERFORMANCE MANAGEMENT AND REPORTING SYSTEM .............................................K-1

L. NOT USED................................................................................................................................. L-1

M. DEED OF CONFIDENTIALITY AND FIDELITY TEMPLATE ................................................... M-1

N. SPECIAL CONDITIONS ............................................................................................................N-1

O. GENERAL REMEDIATION CONTRACT TERMS .................................................................... O-1

P. TOXIC REMNANTS OF WAR REMEDIATION CONTRACT TERMS ......................................P-1




1 DEED FRAMEWORK

1.1 Definitions

1.1.1 In this Deed and in any Contract, unless the contrary intention appears, words, abbreviations and acronyms have the meanings given to them by the Glossary at Attachment I. The Glossary also contains a list of documents referred to in this Deed and details of the version that is applicable to this Deed and any Contract.

1.2 Interpretation

1.2.1 In this Deed and in any Contract, unless the contrary intention appears:

a. headings are for the purpose of convenient reference only and do not form part of this Deed or any Contract;

b. the singular includes the plural and vice-versa;

c. a reference to one gender includes the others;

d. a reference to a person includes a body politic, body corporate or a partnership;

e. if the last day of any period prescribed for the doing of an action falls on a day which is not a Working Day, the action shall be done no later than the end of the next Working Day;

f. a reference to an Act is a reference to an Act of the Commonwealth, State or Territory of Australia, as amended from time to time, and includes a reference to any subordinate legislation made under the Act;

g. a reference to a clause includes a reference to a subclause of that clause;

h. a reference to a ‘dollar’, ’$’, ’$A’ or ’AUD’ means the Australian dollar unless otherwise stated;

i. a reference to a specification, publication, Commonwealth policy or other document is a reference to that specification, publication, Commonwealth policy or document:

(i) if the document relates to the Deed, in effect on the Deed Effective Date and updated from time to time;

(ii) if the document relates to a Contract, in effect on the Contract Award Date and updated from time to time; or

(iii) another version of the document if agreed in writing between the parties;

j. the word ‘includes’ in any form is not a word of limitation; and

k. a reference to a party includes that party’s administrators, successors, and permitted assignees, including any person to whom that party novates any part of this Deed or any Contract.

1.2.2 The interpretation of one Contract formed under the Deed does not affect the interpretation of any other Contract formed under the Deed. In particular, the parties:

a. recognise that the Contract terms for Service Category A to E Services are significantly different to the Contract terms for Service Category F Services; and

b. agree that the inclusion or absence of a provision in a Contract for Service Category A to E Services does not affect the interpretation of any Contract for Service Category F Services (and vice versa).

1.2.3 The objectives of the parties in entering into this Deed and any Contract are:

a. to ensure that the Contractor delivers the Services on time, on budget, to the required safety, quality and capability, in accordance with this Deed and any Contract;

b. to provide an effective capability to the Australian Defence Force (ADF) that:

(i) supports the ADF’s mission to ‘fight and win’;


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(ii) supports the Commonwealth’s policy of Defence self-reliance; and

(iii) minimises the lifecycle costs to the Commonwealth.

c. to develop, maintain and enhance appropriate skill sets and capabilities within both the Commonwealth and the Contractor;

d. to obtain value for money for the Commonwealth on an ongoing basis in relation to the procurement and delivery of the Services;

e. to obtain for the Contractor as a commercial entity a reasonable return on its investment when it performs this Deed and any Contract efficiently and successfully, being a return that appropriately reflects the properly managed risks assumed by the Contractor in the performance of this Deed and any Contract;

f. to have appropriate Contract Material and Intellectual Property rights to allow the Commonwealth to have the full benefit of the Services;

g. to facilitate the retention and enhancement of industry capabilities within Australia and New Zealand;

h. to work within a framework that ensures the safety of persons and materiel safety, and assures compliance with all laws and other regulatory requirements;

i. to achieve these joint objectives through a culture of mutual respect and co-operation, and in an environment that fosters innovation, continuous improvement, cost efficiency, transparency and open, honest and timely communication; and

j. the protection of the environment and heritage sites.

1.2.4 Without in any way affecting or overriding the other terms of this Deed and any Contract, each party agrees to perform its obligations and enforce its rights under this Deed and any Contract having regard to, and with the aim of, satisfying the objectives described in clause 1.2.3.

1.3 Term

1.3.1 This Deed is legally binding from the Deed Effective Date. Unless terminated earlier and subject to this clause 1.3, this Deed expires on the date set out in Item 2 (Initial Expiry Date) of the Deed Particulars.

1.3.2 The Commonwealth may at its option extend the Term of this Deed for a period or periods not extending beyond the date set out in Item 3 (Latest Expiry Date) of the Deed Particulars by giving the Contractor an extension notice in writing not less than three months before the then current expiry date of the Term.

1.3.3 The Commonwealth may set out, in an extension notice given under clause 1.3.2, changes to this Deed. The changes specified in the extension notice take effect from the day after the date on which the Term would have expired if the Commonwealth did not give the extension notice.

1.3.4 If the Contractor does not agree to changes specified in an extension notice, the Contractor shall notify the Commonwealth, within 1 month of receiving the extension notice, that the Contractor does not accept the changes. If the Contractor provides notice under this clause 1.3.4, the Term is not extended.

1.3.5 If the Deed expires, the Contractor shall continue to perform the Contracts. This clause 1.3.5 applies even if completion of the Contract occurs after the date on which this Deed expires.

1.4 Entire Agreement

1.4.1 This Deed, and each Contract, represents the parties’ entire agreement in relation to the subject matter and supersedes all tendered offers and prior representations, communications, agreements, statements and understandings, whether oral or in writing.

1.5 Precedence


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1.5.1 If there is any inconsistency between the terms of any documents that form part of this Deed, a descending order of precedence shall be accorded to:

a. the conditions of Deed, Schedule 1 (Deed Particulars) and Attachment I (Glossary);

b. the Attachments to this Deed, other than the Glossary; and

c. any document incorporated by express reference as part of this Deed;

so that the term in the higher ranked document, to the extent of the inconsistency, shall prevail.

1.5.2 This clause 1.5 relates to the precedence of documents that form part of the Deed. The order of precedence for Contracts is addressed in clause 1.8.10.

1.6 Operation of Deed

1.6.1 This Deed constitutes a standing offer for the Term during which the Commonwealth may require the Contractor to provide Services as and when required by the Commonwealth in accordance with clause 1.8.

1.6.2 The range of Services which the Contractor offers the Commonwealth are detailed at Attachment A to this Deed.

1.6.3 The Contractor acknowledges that:

a. the Commonwealth has established the Panel; and

b. the Contractor is one of a number of suppliers on the Panel which may be requested to provide Services.

1.6.4 The Commonwealth may by notice remove the Contractor from the Panel if:

a. the Contractor fails to participate in the Performance Management and Reporting System in accordance with Attachment K;

b. the Contractor is given an Engagement Performance Review rating of ‘minimum standard’ for three or more Engagement Performance Reviews during the Term;

c. the Contractor is given an Engagement Performance Review rating of ‘unsatisfactory standard’ for two or more Engagement Performance Reviews during the Term;

d. the Contractor is given an Annual Performance Review rating of ‘minimum standard’ or ‘unsatisfactory standard’ for one or more APRs during the Term; or

e. the Commonwealth considers that a Contractor Material Change will adversely affect the Contractor’s ability to perform its obligations under this Deed.

1.6.5 If the Commonwealth gives notice in accordance with clause 1.6.4, the change will take effect from the date specified in the notice (or if no date is specified, from the date that the notice is received by the Contractor).

1.6.6 The Contractor is not and will not be entitled to make any claim or proceeding against the Commonwealth arising out of or in connection with any decision by the Commonwealth to remove the Contractor from the Panel.

1.7 Notice of Contractor Material Changes

1.7.1 The Contractor shall:

a. provide immediate notice in writing to the Commonwealth Panel Manager on the occurrence of any Contractor Material Change; and

b. provide annual notice in writing to the Commonwealth, within one month of the anniversary of the Deed Effective Date, confirming that each Contractor Material Change that occurred in relation to the Contractor in the 12 months preceding the anniversary of the Deed Effective Date has been notified to the Commonwealth in accordance with clause 1.7.1a.


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1.8 Ordering Services and Creating Contracts

1.8.1 If the Commonwealth requires Services, the Commonwealth Panel Manager or Commonwealth Contract Representative may seek competitive Quotations from one or more Panellists on the Panel by issuing a Request for Quote and Tasking Statement in a form similar to Attachment C.

1.8.2 A Request for Quote and Tasking Statement issued under clause 1.8.1 may seek Quotations on a fixed price or other price basis. The Contract Price proposed by the Contractor in its Quotation shall be based on rates which do not exceed the Maximum Rates and Allowances in Attachment B.

1.8.3 The Contractor shall either submit a written Quotation or give a notice declining to quote by the date that the quote is required as specified in the Request for Quote and Tasking Statement. The Contractor shall submit the Quotation or give the notice to the Commonwealth Contract Representative with a copy to the Panel Email Address set out in Item 10 of the Deed Particulars.

1.8.4 The Quotation shall be in a form similar to Attachment D and contain:

a. the Contractor’s approach to performing the requested Services;

b. the time for completing the requested Services;

c. curricula vitae of the personnel that the Contractor proposes to use in performing the Services;

d. the proposed Contract Price for performing the Services;

e. the Contractor's acceptance of the Special Conditions (if any) specified in the relevant Request for Quotation and Tasking Statement; and

f. all other information required by the Request for Quote and Tasking Statement.

1.8.5 A Quotation, when submitted to the Commonwealth, constitutes an offer by the Contractor to perform the Services requested.

1.8.6 The Commonwealth shall evaluate Quotations on the basis of best value for money consistent with Commonwealth procurement policies. Neither the lowest priced Quotation nor any Quotation will necessarily be accepted by the Commonwealth.

1.8.7 If a Quotation submitted by the Contractor is acceptable to the Commonwealth, the Commonwealth may accept the Quotation by giving a signed Official Order to the Contractor. The Official Order will typically be in a similar form to Attachment E.

1.8.8 If the Commonwealth Panel Manager or Commonwealth Contract Representative delivers an Official Order to the Contractor, the Official Order creates a Contract for the Services required by the Commonwealth.

1.8.9 The Contract Award Date is:

a. if the Official Order expressly states a Contract Award Date, the date specified in the Official Order; or

b. if the Official Order does not expressly state a Contract Award Date, the date on which the Commonwealth gives the Official Order to the Contractor.

1.8.10 The terms of the Contract are those set out in the following documents, in a descending order of precedence (unless the Official Order expressly states that a term will have a different order of precedence to the order set out below and the Official Order has been signed by both the Commonwealth Panel Manager and the Commonwealth Contract Representative):

a. if the Services to be provided under the Contract are Service Category A, B, C, D or E Services:

(i) the conditions of this Deed as applicable to the Contract;

(ii) the Attachments to the conditions of Deed;

(iii) the Official Order (including all Special Conditions); and


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(iv) any documents incorporated by express reference as part of the Contract (including the Request for Quote and Tasking Statement and Quotation to the extent they are referenced in the Official Order).

b. if the Services to be provided under the Contract are Service Category F Services (Contamination and Unexploded Ordnance Remediation Works):

(i) Attachment O (General Remediation Contract) or Attachment P (Toxic Remnants of War Remediation Contract) as specified in the Official Order;

(ii) the conditions of this Deed as applicable to the Contract;

(iii) the Attachments to the conditions of Deed;

(iv) the Official Order (including all Special Conditions); and

(v) any documents incorporated by express reference as part of the Contract (including the Request for Quote and Tasking Statement and Quotation to the extent they are referenced in the Official Order).

1.8.11 If a Special Condition:

a. is not a special condition set out in Attachment N; or

b. imposes a limit on the Contractor’s liability,

the Special Condition only forms part of the Contract if the Official Order expressly incorporates the Special Condition and the Official Order has been signed by both the Commonwealth Panel Manager and the Commonwealth Contract Representative.

1.8.12 No Services shall be carried out by the Contractor, and no amount shall become payable to the Contractor in respect of the Services unless and until a Contract has been formed in accordance with this clause 1.8.

1.8.13 The Contractor shall provide Services in accordance with any Contract, and fulfil all other obligations as specified in that Contract.

1.8.14 The Contractor shall not at any time solicit, provide a Quotation for, or enter into a Contract to perform Services in a Service Category or for a skill level for which it is not on the Panel. The Contractor’s Panel appointment and Service Category appointments as at the Deed Effective Date are set out in Items 8 and 9 of the Deed Particulars.

1.9 Services to Other Providers

1.9.1 If a Commonwealth project being undertaken by an Other Provider requires services that are the same as or similar to the Services:

a. the Commonwealth may require the Other Provider to engage as a subcontractor a Panellist from the Panel to perform those services;

b. the Contractor shall offer to the Other Provider to enter into a contract on the same terms that would apply if the Contractor was engaged directly by the Commonwealth under this Deed subject only to such changes as may be reasonably required to take account of the fact that it is a contract with the Other Provider and not the Commonwealth; and

c. the Contractor shall comply with any contract which it enters into under clause 1.9.1b.

1.9.2 The Contractor acknowledges and agrees that neither the Commonwealth nor any Other Provider guarantees any volume of work or makes any other representation to the Contractor under this clause 1.9.

1.10 Services to Other Commonwealth Agencies

1.10.1 The Contractor irrevocably offers to provide any Other Commonwealth Agency with any and all Services during the Term in accordance with the provisions of this Deed (including in relation to price and payment).


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1.10.2 To accept the offer made by the Contractor pursuant to clause 1.10.1, an Other Commonwealth Agency will issue a New Customer Deed to the Contractor in the form of Attachment J.

1.10.3 On receipt by the Contractor of the New Customer Deed executed by the Other Commonwealth Agency and the Lead Customer, a separate Deed of standing offer will be created between the Contractor and the Other Commonwealth Agency on the terms of this Deed with the exception that:

a. references to the Commonwealth of Australia (as represented by the Department of Defence) and to Defence will be references to the Other Commonwealth Agency as detailed in the New Customer Deed;

b. the following clauses shall be replaced with ‘Not used’:

(i) Defence Security;

(ii) Safe Base Alert State System;

(iii) Post Defence Separation Employment;

(iv) Services to Other Defence Providers;

(v) clauses relating to Defence specific objectives; and

(vi) clauses relating to Defence Information Systems.

c. any Contract formed pursuant to this Deed does not form part of the standing offer with the Other Commonwealth Agency; and

d. references to relevant information in this Deed as set out in the New Customer Deed will be varied as set out in the New Customer Deed.

1.10.4 The Contractor acknowledges and agrees that neither the Commonwealth nor any Other Commonwealth Agency guarantees any volume of work or makes any other representation to the Contractor under this clause 1.10.

1.11 No Assurance of Orders

1.11.1 The Commonwealth does not make any representation nor in any way binds itself to placing any specific number of orders, or any orders at all, during the Term of this Deed.

1.11.2 Subject to clause 1.6.1, this Deed or any Contract is not to be interpreted as providing that the:

a. Contractor has the right to be the sole provider of the Services, or any part of the Services, to the Commonwealth; or

b. Commonwealth is prevented from seeking the Services from other Panellists on the Panel or from other suppliers.

1.12 Provision of Services

1.12.1 The Contractor acknowledges and agrees that:

a. the specification of the requirements for the Services in any Contract is the result of resource-intensive Commonwealth definition, approval and procurement processes;

b. the Commonwealth has relied on the Contractor’s representations about schedule (including as reflected in the Contract);

c. the Commonwealth has determined that the Contract is value for money on the basis that the provision of all Services is achieved in accordance with this Deed and the Contract and with no delay; and

d. it is reasonable that the Commonwealth at all times during the period of this Deed and any Contract has current knowledge and be advised by the Contractor of:

(i) progress under the Contract;

(ii) risks to the timely provision of the Services including potential minor omissions and defects;


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(iii) any other potential or actual non-compliance with this Deed or any Contract;

(iv) risk management, including management of emerging risks; and

(v) any potential delay in meeting any timing obligation in this Deed or any Contract, for any reason, and whether or not the delay risk was foreseeable or has been previously identified.


a. proactively ensure that the Commonwealth is kept informed of matters relevant to the issues in clause 1.12.1, using the communication channels and reporting processes in this Deed and any Contract; and

b. comply with any directions by the Commonwealth or the exercise of any other Commonwealth powers under or in relation to this Deed or any Contract in dealing with such matters, including providing any additional information or knowledge that the Commonwealth requires.

1.12.3 The Contractor:

a. acknowledges that the industry for providing the Services changes quickly, with evolving technologies and methodologies;

b. shall seek to continuously improve the quality and efficiency of Services it provides; and

c. shall remain current with, and utilise as appropriate, leading-edge concepts, technologies and methodologies.


2 ROLES AND RESPONSIBILITIES

2.1 Commonwealth Panel Manager

2.1.1 The Commonwealth Panel Manager is responsible for administering this Deed on behalf of the Commonwealth.

2.1.2 The Contractor shall comply with the reasonable directions of the Commonwealth Panel Manager made within the scope of the administration of this Deed.

2.1.3 The Commonwealth Panel Manager has no authority to waive, amend or vary the terms of this Deed or a Contract except as expressly provided in this Deed or a Contract.

2.1.4 The Commonwealth Panel Manager has no responsibility for the day to day management of a Contract except:

a. as otherwise expressly provided in this Deed; or

b. if the Commonwealth Panel Manager is also the Commonwealth Contract Representative for the Contract.

2.2 Commonwealth Contract Representative

2.2.1 The Commonwealth Contract Representative is the person identified as the Commonwealth Contract Representative in a Request for Quote and Tasking Statement and Official Order. The Commonwealth Contract Representative is responsible for administering the Contract on behalf of the Commonwealth.

2.2.2 The Contractor shall comply with the reasonable directions of the Commonwealth Contract Representative made within the scope of the administration of the Contract.

2.2.3 The Commonwealth Contract Representative has no authority to waive, amend or vary the terms of this Deed or a Contract except as expressly provided in this Deed or a Contract.

2.3 Contractor Panel Representative

2.3.1 The Contractor Panel Representative is responsible for administering this Deed on behalf of the Contractor.

2.3.2 The Contractor Panel Representative shall:

a. keep the Contractor’s personnel and Subcontractors informed of the Commonwealth’s requirements; and

b. keep the Commonwealth informed on issues which affect the Commonwealth’s activities connected with the Services and the Panel; and

c. ensure that the most appropriate resources are allocated to Services that the Contractor is engaged to perform under a Contract; and

d. take action to establish, maintain and further a collaborative relationship between the Commonwealth and the Contractor.

2.3.3 The Contractor Panel Representative shall manage the Contractor’s interaction with the Commonwealth Information Systems.

2.4 Contractor Contract Representative

2.4.1 The Contractor Contract Representative nominated in any Quotation shall be responsible for administering any resultant Contract on behalf of the Contractor with full authority to act on behalf of the Contractor in relation to that Contract.

2.5 Notices

2.5.1 A notice or communication under this Deed shall be effective if it is signed (unless it is sent by email), in writing and delivered to the Commonwealth Panel Manager or Contractor Panel Representative at the address specified in Item 4 or Item 5 of the Deed Particulars (or an alternative address as notified to the other party in writing from time to time).


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2.5.2 A notice or communication under a Contract shall be effective if it is signed (unless it is sent by email), in writing and delivered:

a. to the Commonwealth Contract Representative or the Contractor Contract Representative at the address for service specified in the Contract (or an alternative address as notified to the other party in writing from time to time); or

b. if an address for service is not specified in the Contract, to the Commonwealth Panel Manager or Contractor Panel Representative at the address specified in Item 4 or Item 5 the Deed Particulars (or an alternative address as notified to the other party in writing from time to time).

2.5.3 Subject to clause 2.5.4, a notice or communication shall be deemed to have been delivered:

a. by prepaid post in three Working Days if sent within Australia and in eight Working Days if sent by air mail from one country to another;

b. by facsimile, at the time recorded by the transmitting machine, unless within one Working Day the sender is informed that the transmission was received in incomplete or garbled form; or

c. by email:

(i) where the email is sent during a Business Hour (being an hour in the period between 8am to 5pm on a Working Day) on a Working Day, upon the return of a receipt which confirms successful transmission of the email to the email address of the recipient or, where no return receipt is produced by the recipient’s email system, by the end of the last Business Hour on the day the email was sent; or

(ii) where the email is sent after the end of the last Business Hour on a Working Day or on a non-Working Day, the email will be deemed to be received at the beginning of the first Business Hour on the next Working Day.

2.5.4 For a notice pursuant to clause 1.7 (Notice of Contractor Material Changes),3.2.6 (Personnel and Key Persons), 3.5.2 or 3.6.3 (Contractor Managed Commonwealth Assets), 6.4.7 (Insurance), 7.6.2 (Conflict of Interest), 9.4.2 (Workplace Gender Equality), 9.5.2 (Environmental Obligations), 9.7.2 (Privacy), 10.2.1 or 10.2.3 (Contractor Default) or 10.3.1 (Termination or Reduction for Convenience), the notice or communication shall be deemed to have been delivered in accordance with clause 2.5.3(a) only if sent by registered prepaid post and the party that sent the notice has documentation to establish that the notice was sent by registered post.

2.5.5 Clauses 2.5.2, and 2.5.4 do not apply to Contracts for Service Category F Services.

2.6 Subcontractors

2.6.1 Notwithstanding any other provision of this Deed, if a Contractor Material Change results in a Subcontractor that was nominated in the Contractor’s Tender becoming unavailable during the Term of the Deed to provide Services under a Contract, the Contractor must:

a. provide notice to the Commonwealth in accordance with clause 1.7.1a; and

b. put forward a replacement Subcontractor for the Commonwealth’s consideration,

and the Commonwealth may:

c. approve the replacement Subcontractor;

d. allow the Contractor to remain on the Panel without the Subcontractor that is no longer available or its proposed replacement Subcontractor; or

e. terminate this Deed, or reduce the scope of this Deed, in accordance with clause 10.2.


3 PROVISION OF THE SERVICES

3.1 Language and Measurement

3.1.1 All information delivered as part of the Services under this Deed and any Contract shall be written in English. Measurements of physical quantity shall be in Australian legal units as prescribed under the National Measurement Act 1960 or, if supplies are imported, units of measurement as agreed by the Commonwealth Contract Representative.

3.2 Personnel and Key Persons

3.2.1 The Contractor shall ensure that the Services are undertaken by personnel who:

a. are suitably qualified, with appropriate skills and experience; and

b. hold an appropriate current certificate, licence, authorisation or accreditation at all times during the provision of the Services.

3.2.2 The Contractor shall ensure that its personnel:

a. report all security incidents to the Commonwealth in accordance with the applicable site instructions (including Base Security Instructions);

b. observe all local orders and regulations relating to the daily operations of each site, including orders and regulations relating to traffic, parking and induction training;

c. wear a Contractor approved uniform that is suitable for the role (for example, personal protective equipment for any work with hazardous chemicals);

d. observe, respect and support Defence’s culture, values and military tradition;

e. contribute to maintaining a safe and secure environment, and adhere to the emergency, lockdown and security procedures for each site;

f. do not display on their person, equipment or vehicles any badge, emblem or slogans of any political or social cause or movement while at a site; and

g. do not provide public comment to any media outlet on any defence security related matter.

3.2.3 The Contractor shall maintain records of its personnel’s competencies, qualifications and Authorisations and make such records available to the Commonwealth Panel Manager on request.

3.2.4 The Contractor shall ensure that personnel performing Services under a Contract satisfy the minimum requirements set out in:

a. for Service Categories A to E, Table 2 of Attachment A;

b. for Service Category F1, Table 3 of Attachment A; and

c. for Service Category F2, Table 4 of Attachment A.

3.2.5 The Contractor shall ensure that the Key Persons named in the Official Order deliver the Services under the Contract.

3.2.6 In the event that a Key Person will or may become unavailable for the performance of the work under the Contract, the Contractor shall:

a. notify the Commonwealth of the impending unavailability immediately that the Contractor becomes aware of the situation; and

b. nominate, at its earliest opportunity, a suitable replacement (including in relation to qualifications, skills and experience) for the Commonwealth’s consideration.

3.2.7 The Commonwealth may, at its discretion and at any time, give a notice in writing, including reasons, directing the Contractor to remove a Key Person or other Contractor personnel from work in respect of the Services. The Contractor shall arrange for their replacement at the earliest opportunity with personnel of appropriate skills and experience.


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3.2.8 If the Contractor is unable to provide a replacement with suitable skills or in a sufficient time or make suitable alternative arrangements to the Commonwealth’s satisfaction to enable the Contractor to complete the Services in accordance with the Contract, the Commonwealth may terminate the Contract in accordance with clause 10.2.

3.2.9 Any requirement to replace any of the Contractor’s personnel during the course of any Contract (whether at the request of the Commonwealth or not) shall not constitute an act or event that is beyond the reasonable control of the Contractor in meeting the requirements of the Contract.

3.3 Government Furnished Material

3.3.1 If specified in and required under any Contract, the Commonwealth will deliver or provide access to the GFM listed in the Official Order to the Contractor at the place and times specified in that Contract or otherwise determined by the relevant Commonwealth Contract Representative. GFM may include templates for draft and final reports and other deliverables.

3.3.2 Upon receipt of GFM, the Contractor shall:

a. inspect GFM for physical damage, any defects or deficiencies which impact on, or are likely to impact on, the intended use of the GFM; and

b. report its satisfaction or dissatisfaction with the GFM in writing to the relevant Commonwealth Contract Representative.


a. take all reasonable care of, and be liable for loss of or damage to, GFM in its care, custody or control; and

b. utilise the GFM in performing the Services with a high degree of professional skill and care and in accordance with the relevant Contract.

3.3.4 The Contractor shall return GFM (other than consumable items of GFM) to the Commonwealth as required by the Contract or as directed by the relevant Commonwealth Contract Representative.

3.3.5 The Contractor acknowledges and agrees that the Commonwealth does not give any warranty or representation about the suitability or fitness of GFM for any particular use or application. This clause 3.3.5 does not apply to the extent that GFM is Commonwealth Mandated GFM.

3.3.6 The Contractor shall not:

a. without the prior written approval of the relevant Commonwealth Contract Representative:

(i) use GFM other than for a purpose for which the GFM was designed, manufactured or constructed;

(ii) use GFM other than for the purposes of the relevant Contract;

(iii) modify GFM;

(iv) transfer possession or control of GFM to any other party; or

(v) communicate or divulge GFM to any other party; or

b. create or allow to be created any lien, charge, mortgage or encumbrance over any GFM.

3.3.7 The relevant Commonwealth Contract Representative may notify the Contractor of any Intellectual Property rights applicable to the GFM and the Contractor shall not act contrary to the existence of such rights.

3.4 Government Furnished Facilities

3.4.1 If required under any Contract and specified in the Official Order, the Commonwealth shall grant to the Contractor a non-exclusive licence to occupy and use the GFF listed in the Official Order for the purpose of performing work under the Contract.


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3.5 Contractor Managed Commonwealth Assets

3.5.1 The Contractor shall take all reasonable care of Contractor Managed Commonwealth Assets (CMCA) and shall provide facilities to store and handle all CMCA as they are received.

3.5.2 The Contractor shall, within seven days of becoming aware that any CMCA are lost, destroyed, damaged, defective or deficient, notify the Commonwealth Contract Representative of the event in writing.

3.5.3 Without limiting clause 6.1, the Contractor shall be liable to the Commonwealth for loss or destruction of, damage to or defects or deficiencies in, the CMCA, except to the extent that the loss, destruction, damage, defects or deficiencies result from any unlawful or negligent act or omission on the part of the Commonwealth, its officers, employees or agents. Subject to clause 3.5.4, or an agreement by the parties to replace the CMCA, the Contractor shall compensate the Commonwealth for the loss or destruction of, damage to or defects or deficiencies in, the CMCA and the Commonwealth may recover an amount equivalent to the value of the compensation under clause 10.4 as a debt due to the Commonwealth.

3.5.4 If in the opinion of the Commonwealth Contract Representative the Contractor has the necessary capacity, the Commonwealth Contract Representative may require the Contractor, by notice in writing, to transport, dispose of or repair damaged, defective or deficient CMCA. If the Contractor is liable under clause 3.5.3 for the damage, defect or deficiency, the work performed by the Contractor under this clause 3.5.4 shall discharge or partially discharge the Contractor’s liability. If the Contractor is not liable under clause 3.5.3 for the damage, defect or deficiency, the Contractor shall, if the parties agree in advance to the cost of the work, perform the work for no more than the agreed cost.

3.6 Stocktaking of Contractor Managed Commonwealth Assets


a. institute, maintain and apply a system for, the accounting for and control, handling, preservation, protection and maintenance of CMCA;

b. undertake quarterly stocktakes of CMCA; and

c. develop and deliver quarterly CMCA stocktaking reports that include the following information:

(i) the stocktake number;

(ii) the storage location of all goods included in the stocktake;

(iii) all stocktake codes;

(iv) stocktake start and end dates; and

(v) statistical data including the quantity and value of all discrepancies, shelf stock held, shelf stock stocktaken, surpluses and deficiencies.

3.6.2 The Contractor shall promptly conduct investigations into every discrepancy arising from stocktakes of CMCA.

3.6.3 The Contractor shall immediately notify the Commonwealth Panel Manager and the relevant Commonwealth Contract Representative of any deficiencies that are discovered through a stocktake of CMCA.

3.7 Authorisations

3.7.1 The Contractor shall, and shall ensure that its Subcontractors:

a. obtain and maintain in full force all Authorisations required for provision of the Services;

b. provide a copy of any Authorisations to the Commonwealth within 10 Working Days of request by the Commonwealth; and

c. ensure that the Services are provided in accordance with all Authorisations.


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3.7.2 The Contractor shall notify the Commonwealth within 5 Working Days after receiving notification of refusal to grant, or an intent to revoke or qualify, an Authorisation required for provision of the Services.

3.8 Commonwealth Information Systems


a. do everything within its control (including by providing information for all fields and in the format required by the Commonwealth) to ensure that all information relating to this Deed and Contracts that is able to be stored in a Commonwealth Information System is accurately recorded in the relevant Commonwealth Information Systems;

b. check the accuracy of all information relating to this Deed and Contracts that is stored in the Commonwealth Information Systems;

c. ensure the timely payment of all licence and other relevant fees, charges and expenses payable by the Contractor arising out of or in connection with the Commonwealth Information Systems;

d. ensure that the Contractor does not infringe any Intellectual Property rights arising out of or in connection with the Commonwealth Information Systems;

e. establish appropriate security and access procedures relating to the Contractor’s interaction with Commonwealth Information Systems;

f. ensure that all passwords and security data relating to a Commonwealth Information System are stored in accordance with the Defence Security Manual;

g. keep the Contractor’s personnel informed on matters relating to Commonwealth Information Systems that affect the Contractor’s performance of this Deed or a Contract; and

h. notify the Commonwealth of issues which affect a Commonwealth Information System (including any malfunctions or potential improvements).

3.8.2 The Commonwealth may, in respect of any data or information in a Commonwealth Information System do any of the following:

a. access the data or information;

b. generate reports from or interrogate any data or information; and

c. disclose the data or information.

3.8.3 The table below sets out some key Commonwealth Information Systems and some of the information and data stored in those systems:

System Information

Defence Estate Management System (or its replacement)

Maintenance and operation of buildings, plant and equipment, (including costs for replacement, maintenance requirements, asset design life, warranties)

Geographical Facilities Information System

Site plans, physical location of buildings, services, property details, topography

Panel Database RFQTS, Quotation and Official Order information, Key Persons (name, skills, CV, location, security clearance, current Commonwealth projects, referees, position)

3.8.4 The Commonwealth may provide up to two nominated Contractor personnel with access to the Defence Restricted Network to ensure connectivity if this is reasonably required for the performance of the Services.




4 INTELLECTUAL PROPERTY

4.1 Ownership of Intellectual Property

4.1.1 Nothing in this Deed affects the ownership of Background IP or Third Party IP.

4.1.2 Ownership of all Foreground IP vests on its creation in the Contractor.

4.2 Intellectual Property Licence

4.2.1 The Contractor grants to the Commonwealth a royalty-free, irrevocable, world-wide, perpetual, non-exclusive licence (including the right to sub-license) to exercise all rights in respect of all Background IP and Foreground IP owned or controlled by the Contractor to use (including maintain, adapt, modify, develop, copy, retain and dispose) the Services and any Contract Material arising out of or in connection with the Services.

4.3 Third Party IP

4.3.1 The Contractor shall not use or supply any Third Party IP in the course of or in connection with the performance of the Services without either:

a. the prior written consent of and on terms agreed by the Commonwealth Panel Manager; or

b. obtaining in favour of the Commonwealth from the third party a licence (or sub-licence) for the Third Party IP on the same terms as clause 4.2.1.

4.3.2 The Commonwealth Panel Manager, when giving a consent under clause 4.3.1a, may attach conditions to that consent which may include an obligation on the Contractor to obtain in favour of the Commonwealth a licence on the same terms as clause 4.2.1 to exercise all rights in respect of the Third Party IP.

4.3.3 The Contractor warrants that by exercising its rights in respect of the Third Party IP in accordance with this Deed, the Commonwealth will not infringe any Third Party IP.

4.4 Content Register

4.4.1 The Contractor shall for each Contract prepare and deliver to the Commonwealth Contract Representative, within one month of the Contract Award Date, a Contract Content Register in the form set out in Attachment H setting out any details of the Material, Commercial-in-Confidence Information, Intellectual Property and other content which is or will be supplied or used by the Contractor under or in connection with that Contract.

4.4.2 The Contractor shall submit to the relevant Commonwealth Contract Representative an updated Contract Content Register for each Contract prior to the final claim for payment under that Contract.

4.4.3 The Contractor shall submit to the Commonwealth Panel Manager an updated and accurate Consolidated Content Register by combining each Contract Content Register prior to each annual Deed Review Meeting. Failure to provide a Consolidated Content Register shall be a breach of this Deed which entitles the Commonwealth to terminate this Deed.

4.4.4 The Contractor shall provide such evidence as the Commonwealth Contract Representative or Commonwealth Panel Manager reasonably requires to substantiate any information in a Content Register.

4.4.5 The Consolidated Content Registers are for record management purposes and do not in any way alter or limit the licences or rights granted to the Commonwealth in pursuant to this Deed or a Contract.

4.5 Provision of Technical Data

4.5.1 The Contractor shall provide with the Services all Technical Data (TD) necessary for the Commonwealth to exercise the IP rights that it has pursuant to or in connection with this Deed or a Contract.

4.5.2 The Contractor shall ensure that the Contract Material and Technical Data provided to the Commonwealth under this Deed and a Contract is in sufficient detail to enable a person


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reasonably skilled in the relevant area to utilise the Services, Contract Material and Technical Data efficiently and effectively without further reference to the Contractor.

4.6 Moral Rights

4.6.1 The Contractor represents and warrants that the use of the Services for Defence Purposes or other purposes permitted by this Deed or any Contract will not infringe the Moral Rights of the officers, employees or agents of the Contractor or its Subcontractors.

4.6.2 The Contractor shall ensure that none of its:

a. officers, employees or agents;

b. Subcontractors; or

c. Subcontractors' officers, employees or agents,

institute, maintain or support any claim or proceeding against the Commonwealth or its officers, employees or agents for infringement of any of their Moral Rights.




5 PRICE AND PAYMENT

5.1 Price and Price Basis

5.1.1 Attachment B outlines the Maximum Rates and Allowances that shall apply to all work performed under this Deed and any Contract. The Maximum Rates and Allowances set out in Attachment B are unalterable unless adjusted in accordance with clauses 5.6 and 8.3.

5.1.2 The Contract Price shall be based on rates and allowances that do not exceed the Maximum Rates and Allowances listed in Attachment B. The Contract Price will be as set out in the relevant Official Order, and is payable, subject to satisfactory performance of the Services, in accordance with this Deed and the relevant Contract.

5.1.3 If the Contract Price proposed in a Quotation or included in a Contract is a fixed price, the Contractor shall, if requested by the Commonwealth, provide calculations and supporting materials to show that the Contract Price has been calculated based on rates and allowances that do not exceed the Maximum Rates and Allowances set out in Attachment B.

5.1.4 The Commonwealth shall be entitled, without derogating from any other rights it may have, to defer payment of a claim until the Contractor has completed, to the satisfaction of the Commonwealth Contract Representative, that part of the Services to which the claim relates.

5.2 Payment

5.2.1 This clause 5.2:

a. applies to Contracts for Service Category A to E Services; and

b. does not apply to Contracts for Service Category F Services.

5.2.2 The Contractor shall submit a claim for payment in accordance with clause 5.3.

5.2.3 On receipt of a claim for payment the Commonwealth Contract Representative shall either:

a. approve the claim if it is submitted in accordance with clause 5.2.1; or

b. reject the claim if it is not submitted in accordance with clause 5.2.1, or on the basis of clause 5.1.4.

5.2.4 If a claim is approved under clause 5.2.3a, the Commonwealth shall make payment within 30 days of receipt of the claim.

5.2.5 If the Commonwealth Contract Representative rejects the claim under clause 5.2.3b, the Commonwealth Contract Representative shall, within 14 days of receipt of the claim, notify the Contractor in writing of the need to resubmit the claim and the reasons for rejection and any action to be taken by the Contractor for the claim to be rendered correct for payment.

5.2.6 Upon receipt of a notice issued pursuant to clause 5.2.5, the Contractor shall immediately take all necessary steps to make the claim for payment conform to the requirements of this Deed and the relevant Contract and shall submit a revised claim to the Commonwealth Contract Representative when such action is complete. The resubmitted claim shall be subject to the same conditions as if it were the original claim.

5.2.7 If the Commonwealth agrees to accept the Services despite any minor omissions or defects or other non-compliance, the Commonwealth may, after consultation with the Contractor:

a. determine a revised Contract Price reflecting the reduction in value for money of the omission, defect or non-compliance (‘Reduction Amount’); and

b. exercise its rights under clause 10.4 in respect of the Reduction Amount.

5.3 Claims for Payment

5.3.1 The Contractor shall be entitled to submit claims for payment in accordance with this Deed and the relevant Contract.

5.3.2 All claims for payment submitted by the Contractor shall:

a. be correctly addressed and calculated in accordance with the relevant Contract;


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b. subject to clause 5.2.7, only claim payment for Services that meet the requirements of the relevant Contract;

c. be in the form of a valid tax invoice in accordance with clause 5.5;

d. contain the following information:

(i) the title of the Services

(ii) the name of the Contractor Contract Representative;

(iii) the name and phone number of the Commonwealth Contract Representative;

(iv) the Official Order number and purchase order number;

(v) the date, task item, number of hours/days and hourly/daily rate (if applicable); and

(vi) the amount of the claim; and

e. be accompanied by any documentation requested by the Commonwealth Contract Representative in order to establish that the Services meet the requirements of the relevant Contract or that the claim is in accordance with the relevant Contract.

5.3.3 All claims for payment are to be submitted to the Commonwealth Contract Representative in accordance with clause 2.5.

5.4 Ownership and Control of Services

5.4.1 Title to all Contract Material passes to the Commonwealth on creation.

5.4.2 The Contractor shall deliver to the Commonwealth all Contract Material created in connection with the performance of a Contract prior to payment of the final claim relating to that Contract.

5.4.3 Subject to clause 4, ownership of all Services, or partially completed Services, shall pass to the Commonwealth upon payment of a claim relating to those Services in accordance with clause 5.

5.5 Taxes and Duties

5.5.1 All taxes, duties and government charges imposed or levied in Australia or overseas in connection with this Deed or any Contract shall be met by the Contractor and shall be included within the Contract Price.

5.5.2 The Contract Price set out in the Official Order includes GST for Services to be delivered under the Contract which are taxable supplies within the meaning of the GST Act.

5.5.3 The Contractor shall submit each claim for payment pursuant to clause 5 in the form of a valid tax invoice. The tax invoice shall include the amount and method of calculation of any GST payable by the Contractor in relation to that claim for payment as a separate item.

5.5.4 If the Contractor incorrectly states the amount of GST payable, or paid, by the Commonwealth on an otherwise valid tax invoice, the Contractor shall issue to the Commonwealth a valid adjustment note in accordance with the GST Act.

5.5.5 If the Commonwealth makes, or is assessed by the ATO as having made, a taxable supply to the Contractor under or in connection with the Contract, the Commonwealth shall be entitled to recover from the Contractor upon presentation of a valid tax invoice, the amount of GST paid or payable by the Commonwealth to the ATO.

5.5.6 Any amount of GST to be paid by the Contractor under clause 5.5.5 shall be a debt recoverable by the Commonwealth.

5.6 Adjustments

5.6.1 From the first anniversary of the Deed Effective Date, the Maximum Rates at Attachment B may be subject to annual adjustment to reflect changes in the cost of labour and materials in accordance with the formula at Attachment F.


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5.6.2 The Contractor shall submit any proposed change to this Deed to adjust the Maximum Rates in accordance with Attachment F no earlier than 1 month prior to, and no later than 1 month after, the Adjustment Date. If the proposed change:

a. is determined by the Commonwealth as being in accordance with this Deed, the Commonwealth shall issue an amendment to this Deed pursuant to clause 8.3 to amend the Maximum Rates; or

b. is determined by the Commonwealth as not being in accordance with this Deed, the Commonwealth shall make any adjustments to the change proposed by the Contractor as the Commonwealth thinks necessary and shall issue an amendment to this Deed pursuant to clause 8.3 to amend the Maximum Rates. The Commonwealth may decide not to make any adjustments and, in that case, there will be no amendment to this Deed.

5.7 Late Payments

5.7.1 Subject to clause 5.7.3, if payment of an amount due under a Contract is made late and:

a. the Contractor is a Small Business at the Contract Award Date; and

b. the Contract Price is valued up to A$1 million (GST inclusive),

the Contractor may submit a separate claim for payment of interest calculated in accordance with clause 5.7.2.

5.7.2 Interest payable by the Commonwealth under this clause 5.7 shall be calculated in accordance with the following formula:

Interest payment = P x I x n.

Where:

"I" means the Australian Taxation Office sourced General Interest Charge rate determined under section 8AAD of the Taxation Administration Act 1953 current at the due date of payment expressed as a decimal rate per day;

"P" means the amount of the late payment; and

"n" means the number of days from the day after payment was due up to and including the day that payment is made.

5.7.3 The Contractor shall only be entitled to submit a claim for simple interest under clause 5.7.1 if the simple interest amount calculated in accordance with clause 5.7.2 is greater than $10.

5.8 Cost Principles

5.8.1 Without in any way affecting or overriding the other terms of this Deed or any Contract, the Commonwealth may, at its discretion, apply the DMO Cost Principles when considering any:

a. price for any change to this Deed or any Contract under clause 8.3; or

b. claim for costs if the Deed or any Contract is terminated.

5.9 All Work

5.9.1 The Contractor warrants that the Contract Price:

a. makes adequate provisioning for all of the Contractor's costs associated with labour (including supervision or training costs, all fees and costs associated with any licence or permit used to provide any Services, any professional or trade accreditation, or the membership of any association), on and off site overheads, goods, materials, tools, plant, equipment, facilities, consumables and all other items which are required to enable the Contractor to comply with its Contract obligations or which are reasonably inferred from the Contract, notwithstanding that they are not expressly mentioned in the Contract; and

b. comprises the total consideration payable by the Commonwealth to the Contractor for the provision of the Services to which that Contract relates, and the Contractor will not otherwise make any claim in respect of payment for the provision of the Services.




6 INSURANCE AND LIABILITY

6.1 Indemnity

6.1.1 The Contractor shall indemnify the Commonwealth, its officers, employees and agents against any liability, loss, damage, costs (including the cost of any settlement and legal costs and expenses on a solicitor and own client basis) and expenses arising out of or in connection with a default or unlawful or negligent act or omission on the part of the Contractor, its officers, employees, agents or Subcontractors.

6.1.2 The Contractor’s liability to indemnify the Commonwealth under clause 6.1.1 shall be reduced proportionally to the extent that any unlawful or negligent act or omission on the part of the Commonwealth or any person through whom the Commonwealth is acting (but not including the Contractor, its officers, employees, agents or Subcontractors) contributed to the liability, loss, damage, costs or expenses.

6.2 Intellectual Property Indemnity

6.2.1 The Contractor shall indemnify the Commonwealth its officers, employees, agents, licensees or sub-licensees against any liability, loss, damage, cost (including the cost of any settlement and legal costs and expenses on a solicitor and own client basis), compensation or expense sustained or incurred by the Commonwealth which arises out of any action, claim, dispute, suit or proceeding brought by any third party in respect of any:

a. infringement or alleged infringement of that third party’s IP rights or Moral Rights when the infringement or alleged infringement arises out of any activity permitted under any licence or assignment referred to in clause 4 or otherwise under this Deed or any Contract; or

b. breach or alleged breach of any duty of confidentiality owed to that third party, when the breach is caused by any act or omission on the part of the Contractor or any of its Subcontractors, officers, employees or agents (whether or not such act or omission constitutes a breach of this Deed or any Contract).

6.2.2 For the purposes of this clause 6.2, ‘infringement’ includes unauthorised acts which would, but for the operation of section 163 of the Patents Act 1990, section 96 of the Designs Act 2003, section 183 of the Copyright Act 1968, and section 25 of the Circuits Layout Act 1989, constitute an infringement.

6.3 Proportionate Liability Excluded

6.3.1 To the extent permitted by law, the application of any proportional liability legislation (including the Civil Liability Act of a State or Territory) is expressly excluded.

6.4 Insurance

6.4.1 The Contractor shall, on or before the Deed Effective Date:

a. be fully insured or registered with the appropriate statutory authority against liability for death of or injury to persons employed by the Contractor, including liability under statute and common law;

b. have public liability insurance for an amount of not less than the amount set out in Item 6 of the Deed Particulars; and

c. have professional indemnity insurance for an amount of not less than the amount set out in Item 7 of the Deed Particulars.

6.4.2 The Contractor shall have and maintain any additional insurance as required in an Official Order or Contract.

6.4.3 The Contractor shall maintain the insurance or registration required by this clause 6.4:

a. if the insurance or registration provides coverage for the period during which the policy or registration was in force regardless of when the claim is made (‘occurrence’), until completion of this Deed and all Contracts; and


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b. if the insurance or registration provides coverage only for claims made in the period during which the policy or registration is in force (‘claims made’), until seven years after completion of this Deed and all Contracts.

6.4.4 The Contractor shall, for each type of insurance that it is required to maintain under or in connection with this Deed, maintain insurance on an occurrence basis where such insurance is readily available for that type of insurance.

6.4.5 The Contractor shall ensure each Subcontractor is insured against the Subcontractor’s corresponding liabilities.

6.4.6 The Contractor shall, on request, produce satisfactory evidence of the insurance or registration to the Commonwealth Contract Representative or Commonwealth Panel Manager including details of:

a. name of the insurance provider;

b. type of insurance;

c. terms of the insurance, including any specific exclusions;

d. limits of liability per claim or occurrence and details of any aggregate limits or relevant sub-limits that apply;

e. whether any past or current claims made under the policy have materially affected, or are likely to materially affect, the amount of cover available under the policy;

f. deductible amounts; and

g. period of insurance.

6.4.7 The Contractor shall immediately notify the Commonwealth if the Contractor becomes aware or reasonably believes that, in relation to any policy of insurance relevant to this Deed or any Contract:

a. the policy:

(i) is or will be cancelled;

(ii) has not been or will not be renewed; or

(iii) has had or will have its coverage reduced in any material respect; or

b. there has been non-compliance with any conditions to which the policy is subject.


7 WARRANTIES

7.1 Fitness for Purpose Warranty

7.1.1 The Contractor shall ensure and warrants that any Services provided under any Contract shall be fit for the purpose or purposes:

a. notified in the Request for Quotation and Tasking Statement;

b. for which Services of that kind would be reasonably expected to be applied by the Commonwealth; and

c. that would be inferred by a prudent and competent contractor.

7.2 Capability Warranty

7.2.1 The Contractor warrants that it has the necessary expertise, experience, capacity and capability required to perform the Services in accordance with a standard of care, skill and diligence that would be exercised by a competent supplier of such Services and that the Services shall conform with the requirements of the Contract.

7.3 Defects Warranty

7.3.1 The Contractor shall remedy any errors or defects in the Services notified to the Contractor by the Commonwealth Contract Representative during the warranty period which should not exceed three years

7.3.2 The liability of the Contractor to remedy defects under the warranty provided by the Contractor under clause 7.3 shall not apply to the extent that the defect arises from the Commonwealth’s negligent or wilful damage of the Services.

7.3.3 If the Contractor fails within the period of 14 days after notification by the Commonwealth Contract Representative, to rectify an error or a defect pursuant to this clause 7.3, the Commonwealth may, without limiting the Contractor’s other warranties and obligations, perform or have performed the necessary remedial work at the expense of the Contractor, and may recover such expense as a debt due to the Commonwealth in accordance with clause 10.4.

7.4 IT Equipment Warranty

7.4.1 The Contractor warrants that:

a. each item of IT Equipment:

(i) is free of defects in materials and workmanship;

(ii) complies and operates in accordance with any technical or descriptive specifications of functional, operational, performance or other characteristics specified for that item of IT Equipment in any documentation accompanying that IT Equipment; and

b. no virus will be introduced into the Commonwealth's systems as a result of the supply by the Contractor of any IT Equipment or as a result of any other act or omission of the Contractor in connection with carrying out the Services.

7.4.2 The Contractor shall assign to the Commonwealth the benefits of warranties given by any supplier from whom the Contractor sources any IT Equipment and shall execute any instrument necessary to give effect to the assignment within 7 days of the Contractor becoming entitled to the benefit of such warranties. The assignment of a warranty pursuant to this clause 7.4.2 does not in any way relieve the Contractor of the obligation to comply with warranties given by the Contractor under this Deed or a Contract.

7.5 Warranties Generally

7.5.1 The Contractor, unless the Commonwealth Contract Representative otherwise allows, shall meet all costs of, and incidental to, the discharge of the warranties under this clause 7.


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7.5.2 The Contractor acknowledges that the Commonwealth enters into the Contract in reliance on the Contractor’s warranties in this clause 7, and the Contractor’s skill and judgement in rendering the Services.

7.5.3 The rights and remedies provided in this clause 7 are in addition to, and shall not limit, any other rights of the Commonwealth under this Deed, any Contract or otherwise.

7.6 Conflict of Interest

7.6.1 The Contractor warrants that, to the best of its knowledge after making diligent inquiries at the Deed Effective Date, no conflict of interest exists or is likely to arise in the performance of its obligations under this Deed or any Contract by itself or by any of its officers, employees, agents or Subcontractors.

7.6.2 If during the Term (or prior to the completion of all Contracts) a conflict of interest arises, or appears likely to arise, the Contractor shall notify the Commonwealth immediately in writing and shall take such steps as the Commonwealth may reasonably require to resolve or otherwise deal with the conflict. If the Contractor fails to notify the Commonwealth or is unable or unwilling to resolve or deal with the conflict as required, the Commonwealth may terminate this Deed and any Contract in accordance with clause 10.2.

7.6.3 The Contractor shall not, and shall ensure that any officer, employee, agent or Subcontractor of the Contractor does not, engage in any activity or obtain any interest during the course of this Deed or any Contract that conflicts with, or is likely to conflict with, or restrict the Contractor in providing the Services to the Commonwealth fairly and independently.


8 DEED MANAGEMENT

8.1 Records


a. keep records relating to the provision of the Services under this Deed and any Contract in accordance with industry standards; and

b. keep such other records as the Commonwealth Panel Manager or Commonwealth Contract Representative reasonably requires, or may from time to time require, and as advised to the Contractor.

8.2 Performance Measurement and Reporting

8.2.1 The parties agree that the Commonwealth will manage the Contractor’s performance in accordance with the Performance Management and Reporting System at Attachment K, including the Contractor’s performance at both the:

a. Panel level; and

b. Contract level.

8.2.2 The Contractor Panel Representative shall attend meetings and provide reports:

a. in accordance with the Performance Management and Reporting System; and

b. as required to fulfil the meeting and reporting requirements of Contracts.

8.3 Change to this Deed or a Contract

8.3.1 Either party may propose a change to this Deed. However, the Contractor acknowledges the Commonwealth’s preference to have consistent Deeds with all of the Panellists.

8.3.2 This Deed may only be changed in writing and signed by the Commonwealth Panel Manager and the Contractor Panel Representative.

8.3.3 The Commonwealth Panel Manager may issue an amendment to this Deed to incorporate any changes that have taken effect under clause 8.3.2. The amendment does not affect the legal status of the change as determined under clause 8.3.2.

8.3.4 Either party may propose a change to a Contract.

8.3.5 A Contract may only be changed in writing and signed by the Commonwealth Contract Manager and the Contractor Contract Representative.

8.3.6 A change to this Deed or a Contract shall take effect on:

a. the date specified in the contract change document signed by both parties; or

b. if no date is specified in the contract change document, the date on which the contract change document is signed by the parties in accordance with clauses 8.3.2 or 8.3.5, or if signed on separate days, the date of the last signature.

8.3.7 The Commonwealth Contract Representative may issue an amendment to any Contract to incorporate any changes that have taken effect under clause 8.3.5. The amendment does not affect the legal status of any Contract change as determined under clause 8.3.5.

8.4 Waiver

8.4.1 Failure by either party to enforce a term of this Deed or any Contract shall not be construed as in any way affecting the enforceability of that provision, or this Deed or any Contract as a whole.

8.5 Commercial-in-Confidence Information

8.5.1 If in connection with this Deed or any Contract, Commercial-in-Confidence Information is provided or produced by any person, the relevant party shall ensure that any person receiving or producing the information protects the confidential nature of the information except:


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a. when disclosure of the information is required by law or statutory or portfolio duties (including compliance with any order or requirement of parliament); or

b. to the extent that the Commonwealth would be prevented from exercising any of its rights (including IP rights) under this Deed or any Contract.

8.5.2 If it is necessary to disclose Commercial-in-Confidence Information, provided or produced by or on behalf of the other party, to a third party, other than a legal adviser or for a purpose within an exception listed in clause 8.5.1, the party wishing to make the disclosure shall obtain the written consent of the other party to this Deed.

8.5.3 The Commonwealth may require the Contractor to ensure that its officers, employees, agents, and Subcontractors engaged in the performance of a Contract give a written undertaking in the form of Attachment M prior to the disclosure of Commercial-in-Confidence Information.

8.5.4 The Contractor shall not, in marking information supplied to the Commonwealth, misuse the term ‘Commercial-In-Confidence’ or the Contractor’s equivalent. The marking of information as ‘Commercial-In-Confidence’ shall not affect the legal nature and character of the information.

8.5.5 The parties agree that any conditions of this Deed and Attachments, or the parts of them, listed in Attachment G are Commercial-in-Confidence Information for the relevant party as at the Deed Effective Date.

8.5.6 The Contractor agrees to deliver to the Commonwealth, as required by the Commonwealth, all documents in its possession, power or control which contain or relate to any information that is Commercial-in-Confidence Information of the Commonwealth on the earlier of:

a. demand by the Commonwealth; or

b. the time the documents and other material are no longer required for the purposes of this Deed or any Contract.

8.5.7 If the Commonwealth makes a demand under clause 8.5.6, and the Contractor has placed or is aware that documents containing the Commercial-in-Confidence Information are beyond its possession or control, then the Contractor shall provide full particulars of the whereabouts of the documents containing the Commercial-in-Confidence Information, and the identity of the person in whose custody or control they lie.

8.5.8 The Contractor, when directed by the Commonwealth in writing, agrees to destroy any document in its possession, power or control that contain or relate to any Commercial-in-Confidence Information.

8.5.9 Return or destruction of the documents referred to in this clause 8.5 does not release the Contractor from its obligations under this Deed or any Contract.

8.6 Assignment and Novation

8.6.1 Neither party may, without the written consent of the other, assign in whole or in part, its rights under this Deed or any Contract.

8.6.2 If the Contractor proposes to enter into any arrangement that will require the novation of this Deed or any Contract, it shall notify and seek the consent of the Commonwealth Panel Manager or Commonwealth Contract Representative (as applicable) within a reasonable period prior to the proposed novation.

8.7 Negation of Employment and Agency

8.7.1 The Contractor shall not represent itself, and shall ensure that its officers, employees, agents and Subcontractors do not represent themselves, as being employees, partners or agents of the Commonwealth.

8.7.2 Without limiting clause 8.7.1, the Contractor shall clearly identify itself, and shall ensure that its officers, employees, agents and Subcontractors clearly identify themselves, as a contractor to the Commonwealth when communicating through telephone, facsimile, email or any other communication tool in the course of performing the Services.


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8.7.3 The Contractor, its officers, employees, agents and Subcontractors shall not by virtue of this Deed or any Contract, be, or for any purpose be deemed to be, an employee, partner or agent of the Commonwealth.

8.8 Commonwealth Access

8.8.1 During the Term of this Deed or during the performance of any Contract, the Contractor shall permit the Commonwealth Panel Manager, Commonwealth Contract Representative or any person authorised by them access to its premises, records and accounts relevant to or impacting on the performance of work under this Deed or any Contract. The Commonwealth may copy any records or accounts for the purposes of this Deed or any Contract.

8.8.2 Without limiting the generality of clause 8.8.1, the purposes for which the Commonwealth Panel Manager, Commonwealth Contract Representative or any person authorised by them may require access include:

a. investigating all costs and pricing matters in relation to this Deed or any Contract including investigating the reasonableness of:

(i) proposed prices or costs in any Deed or Contract change proposal submitted in accordance with clause 8.3; and

(ii) costs associated with claims for payment;

b. conducting audits under the Auditor-General Act 1997;

c. inspecting CMCA, attending, checking or conducting stocktakes of CMCA, including viewing and assessing the Contractor’s inventory control and stocktaking systems, or removing CMCA that are no longer required for the performance of the Contract;

d. determining whether and to what extent steps should be taken to register or otherwise protect Commonwealth IP;

e. monitoring the Contractor’s work health and safety and environmental compliance in connection with the provision of the Services; and

f. validating the Contractor's progress in meeting the AIC Schedule.

8.8.3 If the Contractor enters into a Subcontract in accordance with clause 8.10, the Contractor shall ensure the Subcontracts require Subcontractors to give the Commonwealth Panel Manager, Commonwealth Contract Representative or any person authorised by them access to Subcontractors’ premises, records and accounts in connection with the performance of work under the Subcontract, including the right to copy.

8.8.4 If the Commonwealth exercises a right to access premises pursuant to this clause 8.8, the Commonwealth shall require any person accessing premises pursuant to that right to comply with any reasonable Contractor or Subcontractor safety and security requirements or codes of behaviour for the premises.

8.9 Contractor Access

8.9.1 The Commonwealth shall allow the Contractor access to Commonwealth premises for the purpose of performing the Contract.

8.9.2 The Contractor shall comply with, and require persons afforded access under this clause 8.9 to comply with, any relevant Commonwealth safety requirements, security requirements, regulations, standing orders, or codes of behaviour for the Commonwealth premises.

8.9.3 The Commonwealth retains the right to deny access on occasions to the Contractor because of safety and security arrangements or as a result of failure by the Contractor to comply with clause 8.12.

8.10 Auditing

8.10.1 At any time the Commonwealth Panel Manager or any person authorised by them (including the Auditor-General or their nominee), may audit the Contractor's:

a. performance of this Deed and Contracts; and


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b. compliance with obligations under this Deed and Contracts, which includes audits of the Contractor's:

(i) operational practices and procedures;

(ii) performance efficiency; and

(iii) Quotations, and their accuracy.

8.10.2 The Contractor shall, at its own cost, participate fully and co-operatively in any audits conducted by the Commonwealth.

8.11 Subcontracts

8.11.1 The Contractor shall not Subcontract the whole of the work under this Deed.

8.11.2 The Contractor shall not Subcontract any Services under a Contract without the prior written approval of both the Commonwealth Contract Representative and the Commonwealth Panel Manager.

8.11.3 If a Quotation submitted by the Contractor clearly indicates that Services are to be provided by a Subcontractor and that Quotation is accepted by the Commonwealth, acceptance of the Quotation is deemed to be prior written approval for the purposes of clause 8.11.2.

8.11.4 The Contractor, by subcontracting any of its obligations or by obtaining approval of a Subcontractor, shall not be relieved of its liabilities or obligations, and shall be responsible for all Subcontractors.

8.11.5 The Contractor shall not enter into a Subcontract:

a. with a Subcontractor named by the Director of Affirmative Action as an employer currently not complying with the Workplace Gender Equality Act 2012; or

b. if the appointment of the Subcontractor would breach a sanction imposed by the Code Monitoring Group.

8.11.6 The Commonwealth may revoke its approval of a Subcontractor on any reasonable grounds by providing notice to the Contractor. If the Commonwealth has revoked its approval of a Subcontractor, the Contractor shall take the necessary steps to ensure that

a. the Subcontractor ceases to perform Services pursuant to the Contract; and

b. those Services are satisfactorily performed by the Contractor or by another approved Subcontractor pursuant to the terms of the Contract at no extra cost to the Commonwealth.

8.11.7 The Contractor shall, if requested by the Commonwealth Panel Manager or the Commonwealth Contract Representative, provide the Commonwealth Panel Manager or the Commonwealth Contract Representative with names of all Subcontractors and a copy of any Subcontract, which copy need not contain prices.

8.11.8 The Contractor acknowledges and shall inform its Subcontractors that the Commonwealth may be required to publicly disclose the Subcontractors’ participation in the performance of the Contract.

8.12 Cooperation with Other Providers


a. fully co-operate with each Other Provider;

b. permit Other Providers to carry out their work;

c. carefully co-ordinate and integrate the Services with the activities of each Other Provider;

d. carry out the Services so as to avoid interfering with, disrupting or delaying, the activities of each Other Provider; and

e. provide whatever advice, support and co-operation is reasonable to facilitate the due carrying out of the activities of each Other Provider.


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8.13 Defence Security

8.13.1 If the Contractor requires access to any Commonwealth place, area or facility under the control or responsibility of the Department of Defence or the ADF, the Contractor shall:

a. comply with any security requirements (including those contained in the DSM) notified to the Contractor by the Commonwealth Contract Representative from time to time; and

b. ensure that its officers, employees, agents and Subcontractors are aware of and comply with the Commonwealth’s security requirements.


a. ensure that its officers, employees, agents and Subcontractors, undertake any security checks, clearances or accreditations as required by the Commonwealth;

b. notify the Commonwealth of any changes to circumstances which may affect the Contractor’s capacity to provide Services in accordance with the Commonwealth’s security requirements; and

c. provide any written undertakings in respect of security or access to the Commonwealth place, area or facility in the form required by the Commonwealth.

8.13.3 The Contractor shall comply with any security requirements set out in an Official Order (or otherwise in a Contract) that relate to security, including any requirement relating to:

a. facility accreditation;

b. ICT system accreditation;

c. personnel security clearances; and

d. membership of the Defence Industry Security Program in accordance with the Defence Security Manual.

8.13.4 The Contractor shall not release security classified information furnished or generated under this Deed or any Contract to a third party, including a representative of another country, without prior written approval of the originator through the Commonwealth Contract Representative.

8.13.5 The Contractor shall promptly report to the Commonwealth Contract Representative any instance in which it is known or suspected that security classified information furnished or generated under this Deed or any Contract has been lost or disclosed to unauthorised parties, including a representative of another country.

8.13.6 All security classified information transmitted between the parties or a party and a Subcontractor, in Australia, whether generated in Australia or overseas, shall be subject to the terms of Part 2:33 of the DSM, as amended from time to time.

8.13.7 All COMSEC material transmitted between the parties or a party and a Subcontractor, in Australia shall, in addition to the terms of clause 8.13.6, be subject to the special security provisions of Part 2:53 of the DSM, as amended from time to time.

8.13.8 All security classified information transmitted between the parties or a party and a Subcontractor located overseas, whether generated in Australia or by another country, shall be subject to the laws of the overseas country regarding the custody and protection of security classified information, and to any bilateral security instrument between Australia and the overseas country.

8.13.9 All COMSEC material transmitted between the parties or a party and Subcontractor located overseas shall be subject to approval in the first instance by the Director Defence Signals Directorate (DSD), in respect of Australian COMSEC material, and by the respective COMSEC authorities in other countries in respect of COMSEC material originating from those countries. Once approved for release, the material shall be subject to the laws of the overseas country regarding the custody and protection of COMSEC material as determined by the Director DSD and to any bilateral security instrument between Australia and the overseas country.


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8.13.10 If there has been a breach by the Contractor, a Subcontractor, or any of their officers, employees or agents, of this clause 8.13:

a. the Commonwealth Panel Manager may give the Contractor a notice of termination of this Deed for default under clause 10.2.1; and

b. the Commonwealth Contract Representative may give the Contractor a notice of termination of the Contract for default.

8.13.11 The Contractor shall ensure the requirements of this clause 8.13 are included in all Subcontracts where the Subcontractor requires access to any Commonwealth place, area or facility, or to security classified information in order to perform the obligations of the Subcontract.

8.13.12 Unless otherwise agreed in writing by the Commonwealth, the Contractor shall bear the cost of complying with the Commonwealth’s security requirements under this Deed and any Contract.

8.14 Safe Base Alert State System

8.14.1 The Contractor shall be, and shall ensure that its Subcontractors are, fully familiar with the requirements of the Safe Base Alert State System ("SAFE BASE").

8.14.2 The Contractor shall attend, and arrange for its Subcontractors to attend, security briefings and SAFE BASE rehearsals as required by the Commonwealth Panel Manager or the Commonwealth Contract Representative from time to time.

8.14.3 The Contractor shall comply, and ensure that its Subcontractors comply, with the requirements of SAFE BASE, including complying with the requirements that apply to any Defence establishments at which the Contractor is performing Services at the level:

a. specified in the Official Order; and

b. any alternative level (or individual measure from a higher alert state to meet a specific threat or threats) applicable to from time to time.

8.15 Post Defence Separation Employment

8.15.1 The Contractor shall ensure that any prospective employee who is a former Defence Employee complies with the requirements of the Defence Workplace Relations Manual and DI(G) PERS 25-4 as applicable.

8.15.2 Except with the written Approval of the Commonwealth Panel Manager, the Contractor shall not permit any Defence Personnel or Defence Service Provider to perform or contribute to the performance of this Deed or a Contract (or include a person in a Quotation) if the person was at any time in the preceding 12 months engaged or involved in any of the following in their position as Defence Personnel or a Defence Service Provider:

a. the preparation or management of this Deed or a Contract;

b. the assessment or selection of the Contractor; or

c. the planning or performance of the procurement or any activity relevant or related to this Deed or any Contract.

8.15.3 The 12 month period referred to in clause 8.15.2 applies from the date which is 12 months before the date on which the Contractor proposes that the person start performing or contributing to the performance of this Deed or any Contract.

8.15.4 The Commonwealth Panel Manager, shall not unreasonably withhold Approval under clause 8.15.2 and may consider:

a. the character and duration of the engagement, services or work performed by the Defence Employee or contractor in the period specified in clause 8.15.2;

b. any information provided by the contractor about the character and duration of the services to be performed by the Defence Employee or contractor under the Contract;


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c. the potential for real or perceived conflicts of interest or probity objections if the Defence Employee or contractor performs or contributes to the performance of the Contract;

d. any information provided by the Contractor concerning any significant effect which withholding approval will have on the persons employment opportunities or the performance of the Contract; and

e. the policy set out in the Defence Workplace Relations Manual and DI(G) PERS 25-4, as applicable.

8.15.5 Each restriction created by clause 8.15.2, by the operation of the definition of three relevant periods, is separate and independent of the other (although they are concurrent in effect).


9 POLICY AND LAW

9.1 Applicable Law

9.1.1 The laws of the Australian Capital Territory shall apply to this Deed and shall apply to any Contract unless the Official Order expressly provides that an alternate jurisdiction applies. The courts of the Australian Capital Territory shall have non-exclusive jurisdiction to decide any matter arising out of this Deed or any Contract.

9.1.2 The Contractor shall, in the performance of this Deed or any Contract, comply with and ensure its officers, employees, agents and Subcontractors comply with, the laws from time to time in force in the State, Territory, or other jurisdictions (including overseas) in which any part of the Contract is to be carried out.

9.1.3 Without limiting clause 9.1.2, the Contractor shall ensure that it has and its personnel have a thorough knowledge of, and comply with, the following legislation to the extent that it is relevant to a particular Contract:

a. Environment Protection and Biodiversity Conservation Act 1999;

b. Great Barrier Reef Marine Park Act 1975 (Cth);

c. Sea Dumping Act (Environment Protection (Sea Dumping) Act 1981 (Cth); and

d. all National Environment Protection Measures made in accordance with the provisions of the National Environmental Protection Council Act 1994.

9.2 Policy Requirements

9.2.1 The Contractor shall comply with and require its officers, employees, agents and Subcontractors to comply with the following Commonwealth policies of general application relevant or applicable to any Contract:

a. Conflict of Interest and Gifts, hospitality and sponsorship policies as detailed in DI(G) PERS 25-6 and DI(G) PERS 25-7;

b. Defence Equity and Diversity policy as detailed in DI(G) PERS 35-3;

c. Defence Stocktaking policy as detailed in DI(G) LOG 4-3-014;

d. Workplace Gender Equality policy as detailed in the DPPM;

e. Fraud Control policy as detailed in DI(G) FIN 12-1

f. Hazardous Substances policy as detailed in the DPPM;

g. Information Management policy as detailed in DIMPI 1/2004; DIMPI 5/2001; and DI(G) ADMIN 10-6;

h. Ozone Depleting Substances and Synthetic Greenhouse Gases policy as detailed in the DPPM; and

i. Defence Environmental policy as detailed in the DPPM.

9.2.2 Without limiting clause 9.2.1, the Contractor shall comply with and require its officers, employees, agents and Subcontractors to comply with the following Commonwealth policies of specific environmental policies as applicable to any Contract:

a. DI(G) ADMIN 40–2—Environment and Heritage Management in Defence;

b. National Waste Policy (2009-2020);

c. DSRG Strategic Asbestos Management Plan (SAMP);

d. Defence Manual of Fire Protection and Engineering (MFPE);

e. Bushfire Management and Mitigation on the Defence Estate – National Guidelines;

f. Australian Government’s Information and Communications Technology (ICT) Sustainability Plan (2010-2015);

g. Australian Packaging Covenant Australian Government Action Plan (2010-2015);


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h. Department of Sustainability, Environment, Water, Population and Communities (SEWPaC) Significant Impact Guidelines 1.1 and 1.2 in relation to Matters of National Environmental Significance (MNES);

i. Defence Pollution Prevention Strategy;

j. Defence Support and Reform Group Spatial Data Management Plan; and

k. Defence Biosecurity and Overabundant Native Species Policy and guidelines.

9.2.3 The Contractor shall comply, and shall ensure that its Subcontractors comply, with any judgment against it from any Court or Tribunal (including overseas jurisdictions but excluding judgments under appeal or instances where the period for appeal or payment/settlement has not expired) relating to a breach of workplace relations law, work health and safety law or workers’ compensation law.

9.3 Work Health and Safety (WHS)


a. comply with, and shall ensure that all Subcontractors comply with, the applicable WHS Legislation when providing the Services under this Deed or any Contract including the obligation under the WHS Legislation to, so far as is reasonably practicable, consult, co-operate and co-ordinate activities with the Commonwealth and any other person who, concurrently with the Contractor, has a work health and safety duty under the WHS Legislation in relation to the same matter; and

b. in carrying out work under this Deed or any Contract ensure, so far as is reasonably practicable, the health and safety of:

(i) Commonwealth personnel;

(ii) Contractor personnel and Subcontractor personnel; and

(iii) other persons,

in connection with the Services.

9.3.2 The Contractor represents and warrants that:

a. it has given careful, prudent and comprehensive consideration to the work health and safety implications of the work to be performed by it under this Deed and any Contract; and

b. the proposed method of performance of that work complies with, and includes a system for identifying and managing work health and safety risks which complies with, all applicable legislation relating to work health and safety including the WHS Legislation.


a. provide the Services under this Deed or any Contract in such a way that the Commonwealth and Commonwealth personnel are able to undertake any roles or obligations in connection with the Services provided under this Deed or any Contract (such as in relation to testing or auditing); and

b. ensure that the Commonwealth and Commonwealth personnel are able to make full use of the Services for the purposes for which they are intended, and to maintain, support and develop them,

without the Commonwealth or Commonwealth personnel contravening any applicable legislation relating to work health and safety including the WHS Legislation, any applicable standards relating to work health and safety or any Commonwealth or Defence policy relating to work health and safety.

9.3.4 Without limiting the Contractor's obligations under this Deed or any Contract or at law, the Contractor shall:

a. provide, and shall ensure that a Subcontractor provides, to the Commonwealth within 10 Working Days of a request by the Commonwealth any information or copies of


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documentation requested by the Commonwealth and held by the Contractor or a Subcontractor (as the case may be) to enable the Commonwealth to comply with its obligations under the WHS Legislation in relation to this Deed or any Contract;

b. without limiting clause 9.3.9, provide copies of:

(i) all formal notices and written communications issued by a regulator or agent of the regulator under or in compliance with the WHS Legislation to the Contractor or a Subcontractor relating to work health and safety matters;

(ii) all formal notices issued by a health and safety representative under or in compliance with the WHS Legislation; and

(iii) all formal notices, written communications and written undertakings given by the Contractor or a Subcontractor to the regulator or agent of the regulator under or in compliance with the WHS Legislation,

in connection with or related to this Deed or any Contract within 10 Working Days of receipt or submission of the notice, written communication or written undertaking by the Contractor or Subcontractor (as the case may be); and

c. provide, and shall ensure that a Subcontractor provides, to the Commonwealth within 10 Working Days of a request by the Commonwealth written assurances specifying that to the best of the Contractor's or the Subcontractor's (as the case may be) knowledge that it and its officers, employees, agents and Subcontractors are compliant with:

(i) the WHS Legislation; and

(ii) any relevant or applicable approved codes of practice under the Work Health and Safety Act 2011 (Cth) except where the Contractor can demonstrate compliance with the WHS Legislation in a manner that is different from the relevant code of practice but provides a standard of work health and safety that is equivalent to or higher than the standard required in the code of practice,

and that the Contractor or Subcontractor (as the case may be) has made reasonable enquiries before providing the written assurances.

9.3.5 To the extent not inconsistent with the express requirements of this Deed or any Contract, the Commonwealth Panel Manager or the Commonwealth Contract Representative may direct the Contractor to take specified measures that the Commonwealth Panel Manager or the Commonwealth Contract Representative considers reasonably necessary to comply with applicable legislation relating to work health and safety including the WHS Legislation in relation to the performance of the work under this Deed or any Contract. The Contractor shall comply with the direction unless the Contractor demonstrates to the reasonable satisfaction of the Commonwealth that it is already complying with the WHS Legislation in relation to the matter to which the direction relates or the direction goes beyond what is reasonably necessary to achieve compliance with the WHS Legislation.

9.3.6 The Contractor shall not use Asbestos Containing Material in providing the Services and shall not take any Asbestos Containing Material onto Commonwealth Premises in connection with providing the Services.

9.3.7 Unless the Commonwealth Contract Representative otherwise agrees in writing, the Contractor shall:

a. ensure that any deliverable provided to the Commonwealth in connection with the Services does not contain a Problematic Substance; and

b. not use, handle or store a Problematic Substance on Commonwealth Premises in connection with the Services.

9.3.8 If the Commonwealth Contract Representative agrees that a deliverable may contain a Problematic Substance or that the Contractor may use, handle or store a Problematic Substance on Commonwealth Premises, the Contractor shall ensure that:

a. full details of the approved Problematic Substances are provided to the Commonwealth Contract Representative in the format of a Safety Data Sheet (SDS)


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prescribed by the Commonwealth, except where the applicable SDS exists within the Australian ChemAlert database and the Contractor identifies that SDS to the Commonwealth Contract Representative by reference to its unique record within that database; and

b. the approved Problematic Substance is correctly labelled and packaged (including to clearly identify the nature of the substance and its associated hazards) in accordance with Australian legislative and regulatory requirements, and that all documentation supporting the Services clearly identifies the nature of the substance and its associated hazards.

9.3.9 If a Notifiable Incident occurs at Commonwealth Premises or involves Commonwealth personnel in connection with the Services or this Deed or any Contract, the Contractor shall immediately report the incident to the Commonwealth, provide the Commonwealth with a copy of any notice provided to the relevant State or Territory regulator, provide the Commonwealth with such other information required by the Commonwealth to notify Comcare of the Notifiable Incident in accordance with the WHS Legislation (including the completion of the Department of Defence Form AC563 Defence Work Health and Safety Incident Report) and provide assistance to the Commonwealth to undertake mandatory incident reporting.

9.3.10 The Contractor shall ensure that all Subcontracts contain equivalent provisions to those set out in this clause 9.3.

9.4 Workplace Gender Equality

9.4.1 This clause 9.4.1 applies only to the extent that the Contractor is a ‘relevant employer’ for the purposes of the Workplace Gender Equality Act 2012 (Cth) (WGE Act).

9.4.2 If the Contractor becomes non-compliant with the WGE Act during the Term of the Deed or the term of any Contract, the Contractor shall notify the Commonwealth Panel Manager of the non-compliance.

9.4.3 The Contractor shall provide a current letter of compliance within 18 months from the Deed Effective Date and following this, annually, to the Commonwealth Panel Manager.

9.4.4 Compliance with the WGE Act does not relieve the Contractor from its responsibility to comply with its other obligations under the Deed and any Contract.

9.5 Environmental Obligations

9.5.1 The Contractor shall perform its obligations under the Contract in such a way that:

a. the Commonwealth is not placed in breach of; and

b. the Commonwealth is able to support and to make full use of the Services for the purposes for which they are intended without being in breach of,

any applicable environmental legislation including the Environment Protection and Biodiversity Conservation Act 1999 and National Environment Protection (Used Packaging Materials) Measure Act 1998.

9.5.2 The Contractor shall immediately notify the Commonwealth Contract Representative of any contamination or hazard that is a result of the Contractor’s actions.

9.5.3 If the act or omission of the Contractor results in a contamination or hazard, the Contractor shall remediate the contamination or hazard to the Commonwealth’s satisfaction, at no cost to the Commonwealth.

9.6 Severability

9.6.1 If any part of this Deed or any Contract is or becomes illegal, invalid or unenforceable, the legality, validity or enforceability of the remainder of this Deed or any Contract, as applicable, shall not be affected and shall be read as if that part had been severed.

9.7 Privacy



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a. use or disclose Personal Information obtained during the course of providing Services under this Deed or any Contract, only for the purposes of this Deed or any Contract;

b. not do any act, or engage in any practice that would breach an Information Privacy Principle contained in section 14 of the Privacy Act 1988 (Privacy Act), which if done or engaged in by an Agency, would be a breach of that Information Privacy Principle;

c. not use or disclose Personal Information, or engage in an act or practice that would breach section 16F of the Privacy Act, or a National Privacy Principle, particularly National Privacy Principles 7 through to 10 or an Approved Privacy Code, unless:

(i) in the case of section 16F - the use or disclosure is necessary, directly or indirectly, to discharge an obligation under this Deed or any Contract; or

(ii) in the case of a National Privacy Principle or an Approved Privacy Code, the activity or practice is engaged in for the purpose of discharging, directly or indirectly, an obligation under this Deed or any Contract, and the activity or practice is inconsistent with the National Privacy Principle or Approved Privacy Code;

d. notify individuals whose Personal Information is held by the Contractor or Subcontractor, as the case may be, of the complaints mechanism outlined in the Privacy Act that may apply to the Contractor;

e. disclose in writing to any person who asks, the content of the provisions of this Deed or any Contract (if any) that are inconsistent with a National Privacy Principle or an Approved Privacy Code, binding a party to this Deed or any Contract;

f. carry out and discharge the obligations contained in the Information Privacy Principles as if it were an Agency under the Act; and

g. ensure that any officer, employee or agent of the Contractor who is required to deal with Personal Information for the purposes of this Deed or any Contract, is made aware of the obligations of the Contractor as set out in this clause 9.7.

9.7.2 The Contractor shall promptly notify the Commonwealth Panel Manager and any relevant Commonwealth Contract Representative if the Contractor:

a. becomes aware of a breach or possible breach of any of the obligations contained in, or referred to, in this clause 9.7, whether by the Contractor or Subcontractor;

b. becomes aware that a disclosure of Personal Information may be required by law; or

c. is approached by the Privacy Commissioner, or by any individual to whom any Personal Information held by the Contractor or Subcontractor relates, in respect of Personal Information.

9.7.3 The Contractor shall ensure that any Subcontract entered into for the purposes of fulfilling its obligations under this Deed or any Contract, contains provisions to ensure that the Subcontractor has the same awareness and obligations as the Contractor has under this clause 9.7, including the requirement in relation to Subcontracts.

9.7.4 The Contractor:

a. acknowledges that the Commonwealth conducted a review of the Privacy Act which resulted in the passing of the Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth);

b. must comply (at no additional cost) with any amendments to the Privacy Act, including compliance with the Australian Privacy Principles (APPs) and any other relevant privacy principles when they come into effect; and

c. undertakes to accept the making of changes to this clause 9.7 which are required to reflect any such changes to the Privacy Act.

9.7.5 Without limiting clause 9.7.4, on and from 12 March 2014:

a. the Contractor is only required to comply with the then-current privacy principles and other requirements in the amended Privacy Act;


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b. references in clause 9.7.1 will be taken to be changed as follows:

(i) ‘APC’ and ‘Approved Privacy Code’ will be read as references to a registered APP code; and

(ii) ‘IPPs’, ‘Information Privacy Principles’, ‘NPPs’ and ‘National Privacy Principles’ will be read as references to Australian Privacy Principles.

9.8 Building Code

9.8.1 If the Services or any part of the Services constitute building works (as defined in section 5 of the Fair Works (Building Industry) Act 2012), this clause 9.8 applies.

9.8.2 The Contractor shall comply with the Building Code in the performance of Services and the provision of Quotations to which the Building Code applies.

9.8.3 Compliance with the Building Code shall not relieve the Contractor from its other obligations under this Deed or a Contract.

9.8.4 If a change is proposed to this Deed or a Contract and that change would affect compliance with the Building Code, the Contractor shall submit a report to the Commonwealth specifying the extent to which the Contractor’s compliance with the Building Code will be affected.

9.8.5 The Contractor shall maintain adequate records of the compliance with the Building Code by:

a. the Contractor;

b. its Subcontractors; and

c. its related entities (refer Section 8 of the Building Code).

9.8.6 If the Contractor does not comply with the requirements of the Building Code in the performance of this Deed or a Contract such that a sanction is applied by the Minister for Employment and Workplace Relations, the Code Monitoring Group or the Commonwealth, without prejudice to any rights that would otherwise accrue, those parties shall be entitled to record that non-compliance and take it, or require it to be taken, into account in the evaluation of any future tenders that may be lodged by the Contractor or a related entity in respect of work funded by the Commonwealth or its agencies.

9.8.7 The Contractor shall provide, and ensure that its Subcontractors and its related entities provide, the Commonwealth or any person authorised by the Commonwealth (including a person occupying a position in the Fair Work Building Industry Inspectorate) with access to any construction sites or places, including privately funded construction sites or places, to which the Building Code applies to:

a. inspect any work, material, machinery, appliance, article or facility;

b. inspect and copy any record relevant to the Services the subject of a Contract; and

c. interview any person,

as is necessary to demonstrate compliance with the Building Code.

9.8.8 The Contractor shall produce, and shall ensure that its related entities produce, on request from the Commonwealth or any person authorised by the Commonwealth (including a person occupying a position in the fair Work Building Industry Inspectorate) any requested document related to compliance with the Building Code within the period and by the means specified in the request.

9.8.9 The Contractor acknowledges that it is aware the Commonwealth may impose a sanction on contractor that does not comply with the Building Code.

9.8.10 The Contractor shall if performing Services to which the Building Code applies:

a. ensure that its Subcontractors comply with the Building Code; and

b. ensure that all Subcontracts impose an obligation on the Subcontractor equivalent to the obligations in this clause 9.8.

9.9 Freedom of Information


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a. the Freedom of Information Act 1982 (Cth) (FOI Act) gives members of the public rights of access to official documents of the Commonwealth Government and its agencies; and

b. that Commonwealth is required to publish certain identifying details of this Deed and Contracts to the public via the internet.

9.10 Public Announcements

9.10.1 The Contractor shall not make any public announcement or other statement which refers or is connected to this Deed or any Contract, including on any matter related to the Services, without first consulting the Commonwealth Panel Manager and any relevant Commonwealth Contract Representative, except if prevented from doing so by any law or the rules of any stock exchange or similar body on which the Contractor is listed. This clause does not apply to routine marketing activities promoting a Contractor's product or to information that is public knowledge other than by breach of this clause.


10 DISPUTES AND TERMINATION

10.1 Resolution of Disputes

10.1.1 This clause 10.1 does not apply to disputes relating to a Contract for Service Category F Services.

10.1.2 Unless the parties agree otherwise, a dispute arising under this Deed or a Contract for Service Category A to E Services shall be dealt with as follows:

a. the party claiming that there is a dispute will give notice to the other party setting out the nature of the dispute;

b. within 10 Working Days the parties will try to settle the dispute by direct negotiation as follows:

(i) if the dispute relates to a Contract, direct negotiation between the Commonwealth Contract Representative and the Contractor Contract Representative;

(ii) if the dispute relates to the Deed, direct negotiation between the Commonwealth Panel Manager and the Contractor Panel Representative;

c. failing settlement within a further 25 Working Days, the parties will refer the dispute to nominated representatives that are at least one level more senior than the parties’ representatives that tried to settle the dispute in accordance with clause 10.1.2b;

d. failing settlement within a further 25 Working Days, the parties shall refer the dispute to an independent third person with power to mediate and recommend some form of non-binding resolution (and each party shall participate fully in the mediation process, which shall occur in Canberra unless agreed otherwise); and

e. failing a resolution within a further 25 Working Days, either party may commence legal proceedings.

10.1.3 Each Party will bear its own costs of complying with direct negotiation and mediation pursuant to this clause 10.1.2, and the parties must bear equally the cost of any third person engaged under clause 10.1.2d.

10.1.4 This clause 10 does not apply to:

a. action by either party under or purportedly under a termination provision; or

b. either party commencing legal proceedings for urgent interlocutory relief.

10.1.5 The parties shall at all times during the dispute continue to fulfil their obligations under this Deed and any Contract.

10.2 Contractor Default

10.2.1 In addition to its other rights, the Commonwealth may immediately terminate this Deed or any Contract or reduce the scope of this Deed or any Contract by notice in writing to the Contractor, if the Contractor:

a. suffers a Contractor Material Change which in the sole opinion of the Commonwealth would affect the Contractor’s ability to comply with its obligations under this Deed;

b. becomes bankrupt or insolvent;

c. becomes subject to any form of administration or assigns its rights otherwise than in accordance with this Deed or any Contract;

d. commits any breach for which this Deed or any Contract provides a notice of termination for default may be given;

e. fails to take action to remedy a default by the Contractor of another obligation to be performed or observed under this Deed or any Contract within 14 days of being given notice in writing by the Commonwealth Panel Manager or the Commonwealth


37


Contract Representative, to do so or, if action is taken within 14 days, the Contractor fails to remedy the default within the period specified in the notice; or

f. breaches any of its obligations under clause 9.2.2a or 9.3; or

g. fails to obtain or maintain any Authorisation required to enable it to comply with its obligations under this Deed or any Contract, except to the extent that the failure was outside of the Contractor’s reasonable control.

10.2.2 If this Deed or any Contract is terminated under this clause or otherwise:

a. the Contractor shall deliver to the Commonwealth, as required by the Commonwealth, all documents in its possession, power or control or in the possession, power or control of its officers, employees, agents or Subcontractors and personnel, which contain or relate to any Commercial-in-Confidence Information or which are security classified;

b. subject to clause 10.5, the parties shall be relieved from future performance, in respect of this Deed or any Contract, without prejudice to any right of action that has accrued at the date of termination;

c. rights to recover damages, including full contractual damages, shall not be affected;

d. the Contractor shall deliver to the Commonwealth the TD for Services produced prior to the date of termination, within 30 days of receipt of the notice of termination, or other period agreed by the parties; and

e. the Contractor shall return to the Commonwealth all CMCA in its possession, power or control or in the possession, power or control of its officers, employees, agents or Subcontractors and personnel.

10.2.3 The Commonwealth may also terminate this Deed and any Contract by written notice if:

a. the Contractor has persistently failed to meet its obligations under this Deed, or any Contract; or

b. in the Commonwealth's reasonable opinion, even though any breaches may have been remedied on each occasion, the cumulative effect of these breaches is sufficient for the Commonwealth to conclude that the Contractor cannot be relied upon to provide the Services required by the Commonwealth and the relationship between the parties is no longer workable.

10.3 Termination or Reduction for Convenience

10.3.1 In addition to any other rights it has under this Deed or any Contract, the Commonwealth may at any time terminate this Deed or any Contract or reduce the scope of this Deed or any Contract by notifying the Contractor in writing.

10.3.2 If the Commonwealth Panel Manager or a Commonwealth Contract Representative issues a notice under this clause 10.3, the Contractor shall:

a. stop or reduce work in connection with any current Contracts in accordance with the notice;

b. comply with any directions given to the Contractor by the Commonwealth; and

c. mitigate all loss, costs (including the costs of its compliance with any directions) and expenses in connection with the termination or reduction, including those arising from affected Subcontracts.

10.3.3 If the Commonwealth Panel Manager or a Commonwealth Contract Representative issues a notice under this clause 10.3, the Commonwealth shall only be liable for:

a. payments under the payment conditions of the Contract for work conducted before the effective date of termination or reduction; and

b. any reasonable costs incurred by the Contractor that are directly attributable to the termination or reduction,

if the Contractor substantiates these amounts to the satisfaction of the Commonwealth.


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39

10.3.4 The Contractor shall not be entitled to:

a. any profit anticipated on any part of the Contract terminated or reduced;

b. any lost opportunity as a result of the contractor entering into any Deed or Contract with the Commonwealth; or

c. for a Contract that has been terminated or reduced, an amount exceeding the Contract Price for that Contract.

10.3.5 The Contractor shall, in each Subcontract, secure the right of termination and reduction and provisions for compensation functionally equivalent to that of the Commonwealth under this clause 10.3.

10.4 Right of Commonwealth to Recover Money

10.4.1 Without limiting the Commonwealth’s other rights or remedies under this Deed or any Contract or at law, if the Contractor owes any debt to the Commonwealth in relation to this Deed or any Contract, the Commonwealth may at its discretion do one or both of the following:

a. deduct the amount of the debt from payment of any claim; or

b. provide the Contractor with written notice of the existence of a debt which shall be paid by the Contractor within 30 days of receipt of notice.

10.4.2 If any sum of money owed to the Commonwealth is not received by its due date for payment, the Contractor shall pay to the Commonwealth interest at the Reserve Bank of Australia cash rate target current at the date the payment was due for each day the payment is late.

10.4.3 Nothing in this clause 10.4 shall affect the right of the Commonwealth to recover from the Contractor part of or the whole of any debt owed by the Contractor, or any balance that remains owing after deduction.

10.5 Survivorship

10.5.1 Any provision of this Deed or any Contract which expressly or by implication from its nature is intended to survive the termination or expiration of this Deed or any Contract and any rights arising on termination or expiration shall survive, including provisions relating to Commercial-in-Confidence Information, Privacy, IP, the Right of Commonwealth to Recover Money, Defence Security and any warranties, guarantees, licences, indemnities or financial and performance securities given under this Deed or any Contract.


Schedule 1 Deed Particulars

Item Field Details

1 Parties Commonwealth:

Commonwealth of Australia represented by the Department of Defence ABN 68 706 814 312

Contractor:

COMPANY NAME

A.B.N./A.C.N.

REGISTERED OFFICE

2 Initial Expiry Date means 1 March 2017

3 Latest Expiry Date means 1 March 2021

4 Commonwealth Panel Manager Peter Ellis

5 Contractor Panel Representative

6 Minimum Public Liability Insurance $10,000,000

7 Minimum Professional Indemnity Insurance $5,000,000

8 Contractor Panel Appointment as at Deed Effective Date

9 February 2014

9 Contractor Service Category Appointments as at Deed Effective Date

10 Panel Email Address [email protected]


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ASDEFCON (Standing Offer for Services)

ATTACHMENT A

SCOPE OF SERVICES

PART 1 – SCOPE OF SERVICES

SERVICE CATEGORY

TITLE TASK EXAMPLES

A Environmental Management Systems (EMS)

Conduct projects to integrate environmental requirements into Defence business processes and procedures to ensure that Defence’s environmental impacts and risks are identified, considered and managed.

Conduct audits and/or reviews of the Defence Environmental Management System(s).

Conduct audits and/or reviews of environmental management methodologies, procedures, processes or documentation.

Conduct environmental data entry tasks and other non-specialised functions.

Develop and review Defence Environmental Management System documentation and/or registers, including but nor limited to:

o Environmental Management Programs,

o Environmental Risk Registers,

o Environmental Management Plans, and

o Relevant manuals and guidance material.

Design and/or implement innovative and integrated frameworks of processes and procedures that comprise Defence Environmental Management System (compliant with Defence Site EMS Guidelines).

Undertake site environmental risk assessment processes and identify management solutions and actions.

Document site level Defence Environmental Management System (s).

Assist with the collection, management and analysis of environmental data.

Attachments to Conditions of Deed A-1



ATTACHMENT A

SERVICE CATEGORY

TITLE TASK EXAMPLES

Provide environmental stakeholder consultancy and advocacy.

Develop, implement and/or provide training services relating to Defence EMS.

B Energy Efficiency, Environmental Resource Management & Sustainability

B1 Energy Provide specialist technical advice:

o on existing or emerging energy technologies;

o to inform the development of policies, strategies, standards, templates and guidelines relating to energy (for example, energy performance contracts);

o for the design and implementation of building control improvements including the installation of hardware including sub-meters and efficiency initiatives; and

o on the impact of current and expected Government reporting and accounting schemes relating to energy.

Develop and/or integrate documents such as guidelines, strategies, management plans, feasibility studies, scoping studies relating to energy (for example renewable energy feasibility studies, energy management plans).

Undertake the review of documents, including but not limited to:

o infrastructure design proposals,

o guidelines,

o management plans,




ATTACHMENT A

SERVICE CATEGORY

TITLE TASK EXAMPLES

o works schedules,

o technical pamphlets, and

o compliance conditions.

Undertake desktop audits, physical audits and verification of performance and conformance with Defence and Commonwealth requirements. Audits include energy profiling, energy audits, post occupancy reviews and compliance audits.

Undertake Environmental data management relating to energy including collecting and entering data, monitoring and reporting on performance or compliance (for example validation of data such as invoice data consumption data and sub metering data).

Undertake energy data modelling and analysis.

Manage, coordinate and/or facilitate stakeholder engagement(s) relating to energy.

Design/review and/or implement key performance indicators and reporting regimes relating to energy.

Undertake financial analysis relating to energy, including cost benefit calculations and payback / return on investment (ROI) figures.

Develop, implement and/or provide training services relating to energy.

Prepare and consolidate required documentation to assist Defence to meet Government reporting obligations relating to energy (for example the Government Greenhouse Reporting System (GGER) as part of the EEGO policy).

B2 Climate Change Provide specialist technical advice:

o on existing and emerging technologies,

o to inform the development of policies, strategies, standards, templates and guidelines relating to




ATTACHMENT A

SERVICE CATEGORY

TITLE TASK EXAMPLES

climate change; and

o on the impact of current and expected Government reporting and accounting schemes relating to climate change.

Develop and/or integrate documents such as guidelines, strategies, management plans, feasibility studies, scoping studies relating to climate change (for example adaptation studies and management plans).



o guidelines,

o management plans,

o works schedules,



Undertake desktop audits, physical audits and verification of performance and conformance with Defence and Commonwealth requirements in relating to climate change.

Undertake Environmental data management relating to climate change including collecting and entering data, monitoring and reporting on performance or compliance (for example validation of data such as invoice data, consumption data and sub metering data).

Undertake climate change data modelling and analysis.

Manage, coordinate and/or facilitate stakeholder engagement relating to climate change.

Design/review and/or implement key performance indicators and reporting regimes relating to climate change.




ATTACHMENT A

SERVICE CATEGORY

TITLE TASK EXAMPLES

Undertake financial analysis relating to climate change, including cost benefit calculations and payback / return on investment (ROI) figures.

Develop, implement and/or provide training services relating to climate change.

Prepare and consolidate required documentation to assist Defence to meet Government reporting obligations relating to climate change.

B3 Sustainable Buildings and Estate

Provide specialist technical advice:

o on existing or emerging technologies;

o to inform the development of policies, strategies, standards, templates and guidelines relating to sustainable buildings and estate (for example advice input into master planning documents);

o for the design and implementation of building control improvements including the installation of hardware including sub-meters and efficiency initiatives;

o for building tuning and optimising operational performance; and

o on the impact of current and expected Government reporting and accounting schemes relating to sustainable buildings and estate.

Develop and/or integrate documents such as guidelines, strategies, management plans, feasibility studies, scoping studies relating to sustainable buildings and estate (for example development and integration of the SMART Infrastructure Requirements).



o guidelines,

o management plans,




ATTACHMENT A

SERVICE CATEGORY

TITLE TASK EXAMPLES

o works schedules,



Undertake desktop audits, physical audits and verification of performance and conformance with Defence and Commonwealth requirements. Audits include energy profiling, water profiling, energy audits, water audits, post occupancy reviews and compliance audits.

Undertake Environmental data management relating to energy including collecting and entering data, monitoring and reporting on performance or compliance (for example validation of data such as invoice data, consumption data and sub metering data).

Undertake data modelling and analysis relating to sustainable buildings and estate.

Manage, coordinate and/or facilitate stakeholder engagement relating to sustainable buildings and estate.

Design/review and implement key performance indicators and reporting regimes relating to sustainable buildings and estate.

Undertake financial analysis, including cost benefit calculations and payback / return on investment (ROI) figures relating to sustainable buildings and estate.

Develop, implement and/or provide training services relating to sustainable buildings and estate.

Undertake detailed engineering investigations including technical feasibility studies to determine strategies for new infrastructure, repairs, refit or maintenance of infrastructure and operating systems within the Defence estate.

Prepare and consolidate required documentation to assist Defence to meet Government reporting obligations relating to sustainable buildings and estate.

B4 Water Provide specialist technical advice




ATTACHMENT A

SERVICE CATEGORY

TITLE TASK EXAMPLES

o on existing or emerging technologies;

o to inform the development of policies, strategies, standards, templates and guidelines relating to water (for example advice, water reuse opportunities);

o for the design and implementation of building control improvements including the installation of hardware including sub-meters and efficiency initiatives; and

o on the impact of current and expected Government reporting and accounting schemes relating to water

Develop and/or integrate documents such as guidelines, strategies, management plans, feasibility studies, scoping studies relating to water (for example water management plans, water recycling feasibility studies).



o guidelines,

o management plans,

o works schedules,



Undertake desktop audits, physical audits and verification of performance and conformance with Defence and Commonwealth requirements. Audits include water profiling, water audits, and compliance audits.

Undertake Environmental data management relating to water including collecting and entering data, monitoring and reporting on performance or compliance (for example validation of data such as invoice data, consumption data and sub metering data).




ATTACHMENT A

SERVICE CATEGORY

TITLE TASK EXAMPLES

Undertake water data modelling and analysis.

Manage, coordinate and/or facilitate stakeholder engagement relating to water.

Design/review and implement key performance indicators and reporting regimes relating to water.

Undertake financial analysis relating to water, including cost benefit calculations and payback / return on investment (ROI) figures.

Develop, implement and/or provide training services relating to water as directed.

Prepare and consolidate required documentation to assist Defence to meet Government reporting obligations relating to water.

B5 Waste Minimisation Provide specialist technical advice:

o on existing or emerging technologies); and

o to inform the development of policies, strategies, standards, templates, implementation plans and guidelines relating to waste minimisation.

Develop and/or integrate documents such as guidelines, strategies, management plans, feasibility studies, scoping studies relating to waste minimisation.



o guidelines,

o management plans,

o works schedules,




ATTACHMENT A

SERVICE CATEGORY

TITLE TASK EXAMPLES



Develop and/or undertake desktop audits, background research, desktop assessments, physical audits, risk assessments, environmental works and verification of performance and conformance with Defence and Commonwealth requirements relating to waste minimisation.

Undertake data management, modelling and analysis relevant to waste minimisation (for example collecting and entering data, monitoring and reporting on performance or compliance, validation of data such as invoice data, consumption data and emission data).

Manage, coordinate and/or facilitate stakeholder engagement relevant to waste minimisation.

Design/review and/or implement key performance indicators and reporting regimes relating to waste minimisation.

Undertake financial analysis, including cost benefit calculations and payback / return on investment (ROI) figures as part of determining project options and issues for waste minimisation.

Develop, implement and/or provide training services relating to waste minimisation.

Undertake reviews for the improvement of life-cycle management for the initial and end use of waste products.

Develop innovative environmental and/or scientific solutions to meet waste performance targets and waste project issues to improve the estate operations and maintenance to minimise waste.

Prepare and consolidate required documentation to assist Defence to meet Government reporting obligations relating to waste (for example the National Packaging Covenant (APC), Movement of controlled waste (MCW) NEPM and National Waste Policy).

Interpret and apply industry/government specific codes, national standards and National Waste Policy Product Stewardship schemes for policy development.




ATTACHMENT A

SERVICE CATEGORY

TITLE TASK EXAMPLES

B6 Sustainable Procurement

Provide specialist technical advice:

o on future technologies;

o to inform the development of policies, strategies, standards, templates and guidelines relating to sustainable procurement; and

o on the impact of current and expected Government reporting and accounting schemes relating to sustainable procurement.

Develop and integrate documents such as guidelines, strategies, management plans, feasibility studies, scoping studies relating to sustainable procurement.



o guidelines,

o management plans,

o works schedules,



Undertake desktop audits, physical audits and verification of performance and conformance with Defence and Commonwealth requirements relating to sustainable procurement.

Undertake environmental data management relating to sustainable procurement including collecting and entering data, monitoring and reporting on performance or compliance (for example validation of data such as invoice data).

Undertake sustainable procurement data modelling and analysis.




ATTACHMENT A

SERVICE CATEGORY

TITLE TASK EXAMPLES

Manage, coordinate and/or facilitate stakeholder engagement relating to sustainable procurement.

Design/review and/or implement key performance indicators and reporting regimes relating to sustainable procurement.

Undertake financial analysis, including cost benefit calculations and payback / return on investment (ROI) figures relating to sustainable procurement.

Develop, implement and/or provide training services relating to sustainable procurement.

Prepare and consolidate required documentation to assist Defence to meet Government reporting obligations relating to sustainable procurement.

C Biodiversity, Landscape Management, Environmental Impact Assessment and Bushfire Preparedness Planning

C1 Environmental Impact Assessment

Conduct and report environmental impact assessments1 that include:

o specific, detailed and justified consideration of all EPBC Act triggers including MNES and Commonwealth actions/lands/waters;

o issues relating to sustainable management;

o issues relating to pollution/contamination prevention and management;

o issues relating to biodiversity and natural resources conservation; and

1 Defence may require EIS reports to be peer-reviewed.




ATTACHMENT A

SERVICE CATEGORY

TITLE TASK EXAMPLES

o relationships with regulators and the community.

Undertake peer reviews of independent environmental impact assessments that have the potential to impact of Defence interests, including those that have been prepared for Defence activities and non-Defence activities.

Develop and review compliance conditions associated with development proposals and impact assessments.

Undertake economic cost benefit analysis of project options contained in environmental assessments and other planning documents, including offset requirements.

Develop environmental mitigations strategies (engineering and scientific) to minimise environmental impacts.

Prepare EPBC Act referrals and relevant supporting documents, including but not limited to:

o Preliminary Information,

o Public Referral Reports,

o Environmental Impact Statements, and

o Strategic Assessments.

Undertake public consultation and advocacy relating to Defence actions and impact mitigation strategies.

Conduct compliance auditing against legislative obligations and Defence approval conditions, including but not limited to:

o conditions and protection measures for EPBC Act approvals;

o Defence Environmental Assessment Reviews (EARs); and

o Environmental Clearance Certificates (ECCs) processes.




ATTACHMENT A

SERVICE CATEGORY

TITLE TASK EXAMPLES

Prepare environmental management plans (construction and operations).

Prepare Environmental Clearance Certificates.

Prepare Environmental Reports.

C2 Biodiversity and Landscape Management

Develop technical documents relating to Biodiversity and Landscape Management, including but not limited to:

o management plans, including constraints and opportunities analysis;

o conservation notes;

o technical pamphlets; and

o training packages.

Conduct desktop assessments including but not limited to: vegetation, fauna, weed and pest distribution and occurrence (on and off the Defence estate).

Conduct field surveys associated with Biodiversity and Landscape Management, including but not limited to: vegetation, fauna, weeds, pests, soils, wetlands and general land condition.

Undertake environmental works associated with Biodiversity and Landscape Management, including but not limited to: vegetation enhancement, weeds and pest management, soil erosion works.

Collect and provide environmental GIS data (in accordance with Defence spatial data requirements).

Review documents relating to Biodiversity and Landscape Management, including but not limited to:


o guidelines,

o management plans,

o recovery plans,




ATTACHMENT A

SERVICE CATEGORY

TITLE TASK EXAMPLES

o threat abatement plans,

o environmental assessments,

o conservation notes, and

o technical pamphlets.

Manage/coordinate and/or facilitate internal and external stakeholder engagement and advocacy.

Develop training material relating to biodiversity, biosecurity, soils management and other aspects of environmental stewardship relevant to Landscape Management.

C3 Bushfire Preparedness Planning

Develop site or property based bushfire management plans in accordance with Defence policy and guidelines, including but not limited to:

o developing or using regional models of fire behaviour to predict bushfire spread and behaviour;

o determining what levels of suppression response capacity are required to contain bushfires at different fire danger ratings;

o prescribing burning and other Bushfire Mitigation Works that are actionable, ecologically appropriate, cost-efficient, and able to be safely conducted; and

o identify command and control arrangements, including partnership arrangements with emergency services, for inclusion in the Response section of the BMP (based on the AIIMS Incident Control System for fire incident management).

Review existing site or property based bushfire management plans

Develop and/or review Defence fire policies.

Conduct and document bushfire hazard monitoring assessments (fuel loads, Bushfire Attack Level (BAL) according to relevant Australian Standard(s).




ATTACHMENT A

SERVICE CATEGORY

TITLE TASK EXAMPLES

Prepare bushfire awareness material and training.

D Contaminated Sites Assessment and Management and Pollution Prevention

NOTE: Unexploded Ordnance Assessment is included in this Service Category.

D1 Contaminated Sites Assessment and Management

Undertake desktop and detailed intrusive contamination investigations in accordance with the National Environmental Protection (Assessment of Contaminated Sites) Measure 2013 and, where appropriate, other Commonwealth, State and Territory legislation, requirements and guidance.

Undertake contamination remediation project design, including but not limited to:

o environmental approvals;

o remediation action plans;

o remediation action reports;

o remediation concept design;

o remediation options analysis;

o cost benefit analysis;

o development of works consultant tender documentation;

o participation in tender processes and assessment;

o validation design and delivery in support of remediation projects

o validation of remediation outcomes; and

o design and develop scopes of work for the rehabilitation of UXO sites.




ATTACHMENT A

SERVICE CATEGORY

TITLE TASK EXAMPLES

Undertake statutory and non-statutory contaminated sites audits, including but not limited to:

o hazardous material assessments; and

o prepare and issues site audit statements to meet relevant State and Territory legislation, including those subject to disposal.

Undertake soil and ground water remediation research, technical development, testing and monitoring programs.

Prepare assessments, reviews, policy position and information papers, operational plans, and audits in support of programs aimed at improving the life-cycle management of activities and substances with the potential for pollution.

Prepare EPBC referrals and environmental assessments, including but not limited to:

o Environmental Impact Statements, and

o Public Environment Reports

Provide high level technical advice to Defence with regard to the conduct of its contamination management and/or remediation projects, including compliance with relevant Workplace Health and Safety legislation, environmental legislation and international policy (such as the Chemical Warfare Convention).

Assist Defence appointed Project Managers to manage and administer remediation consultants engaged to Defence for ‘design and construction’ of remediation projects.

Project Management and Contract Administration of Defence appointed consultants and contractors engaged to undertake contamination management and remediation projects, including those involving UXO and chemical warfare agent related contaminants.

Contract Administration of the General Environmental Remediation Works Contract and Chemical Agent Remediation Contract.




ATTACHMENT A

SERVICE CATEGORY

TITLE TASK EXAMPLES

Coordinate and/or conduct stakeholder engagement.

Assist in the preparation of tender and contract documentation for contractor works, including performing tender briefings and pre-tender site inspections and evaluation of tenders.

D2 Unexploded Ordnance Related Materials Assessment and Management

Coordinate and manage UXO including chemical related materials assessment survey(s).

Provide strategic advice on the planning, development, management and auditing requirements for UXO and chemical warfare related materials, including but not limited to:

o Land management,

o Zoning proposal,

o Property divestment, and

o Range planning and maintenance.

Provide specialist technical advice to inform the development of policies, strategies, standards, templates, implementation plans and guidelines relating to UXO assessment and management.

Undertake and report upon site historical research of military usage and activity likely to have resulted in ordnance-related or chemical agent contamination, including but not limited to;

o Time frames of such usage;

o Formations and units that occupied and/or used the site, together with principal weapons systems likely to have been used and natures and types of explosive ordnance and chemical warfare related materials associated with those weapon systems;

o Types and natures of explosive ordnance or chemical warfare related materials remaining at the site;

o Locations of firing points, impact and danger areas and other similar high risk areas;




ATTACHMENT A

SERVICE CATEGORY

TITLE TASK EXAMPLES

o The identification of demolition or disposal areas, including information on quantities, natures, and types of explosive ordnance or chemical warfare related items disposed of and the methods of disposal, including the likely spatial extent of the disposal;

o The locations of disposal points (including burial sites) or areas that potentially present explosive ordnance and/or chemical contamination hazards; and

o The effects of any local natural or cultural features that may either increase or lessen the effects of any ordnance-related contamination.

Provide specialist advice in project design and development of scopes of requirement for UXO related projects; and

Provide technical support in the preparation of tender and contract documentation for UXO remediation works, including but not limited to:

o Conducting tender briefings;

o Conducting pre-tender site inspections; and

o Evaluating tenders.

D3 Pollution Prevention

Provide specialist technical advice to:

o inform the development of strategies and policies;

o develop standards and templates;

o develop implementation plans;

o develop guidelines;

o inform on existing or emerging technologies;

o inform on the life-cycle management of military equipment;




ATTACHMENT A

SERVICE CATEGORY

TITLE TASK EXAMPLES

o inform on the life-cycle management of infrastructure projects; and

o inform on Defence Environmental Management System implementation programs.

Develop and/or integrate documents such as guidelines, strategies, management plans, feasibility studies, scoping studies relating to pollution prevention.

Develop and/or undertake desktop audits, background research, desktop assessments, physical audits, risk assessments, environmental works and verification of performance and conformance with Defence and Commonwealth requirements relating to pollution prevention.

Undertake data management, modelling and analysis relevant to pollution prevention (for example collecting and entering data, monitoring and reporting on performance or compliance, validation of data such as invoice data, consumption data and emission data).

Manage, coordinate and/or facilitate stakeholder engagement relevant to pollution prevention.

Design/review and/or implement key performance indicators and reporting regimes relating to pollution prevention.

Undertake financial analysis, including cost benefit calculations and payback / return on investment (ROI) figures as part of determining project options and issues for pollution prevention.

Develop, implement and/or provide training relating to pollution prevention

Undertake reviews for the improvement of life-cycle management for the initial and end use of potential pollutants.

Develop innovative environmental and/or scientific solutions to project issues, estate operations and maintenance to minimise pollution prevention.

Prepare and consolidate required documentation to assist Defence to meet Government reporting obligations relating to pollution prevention, including but not limited to:




ATTACHMENT A

SERVICE CATEGORY

TITLE TASK EXAMPLES

o National Environmental Protection Measures (NEPM); and

o National Pollutant Inventory.

E Heritage Assessment and Management

E1 Historic Heritage Assessment and Management

Assess the historic heritage (including archaeological) significance of Defence-managed properties in accordance with EPBC Act criteria and any relevant guidelines.

Prepare relevant documentation including, but not limited to:

o heritage management plans; and

o covenants, heritage management strategies and nominations to State/Territory heritage registers for disposal properties.

Conduct heritage impact assessments for works with potential to impact on historic heritage values.

Provide strategic advice on, but not limited to:

o planning, development and management of historic heritage sites and values;

o management of historic heritage on the Defence Estate; and

o heritage policy.

Develop, review and/or implement:

o the Defence Heritage Strategy; and/or

o Defence heritage guidelines.

Conduct thematic studies of historic heritage places on the Defence Estate;




ATTACHMENT A

SERVICE CATEGORY

TITLE TASK EXAMPLES

Develop and/or conduct desktop assessments, field surveys, and condition assessments for historic heritage assets.

Scope, design and/or supervise heritage works to, and maintenance plans for, historic heritage places.

Conduct heritage audits, including but not limited to:

o reviewing the effectiveness of the implementation of heritage management plans for key historic heritage assets; and

o reviewing and/or compliance checks of heritage management plans, heritage impact assessments and other heritage studies.

Prepare assessments, referrals, nominations and other documentation as required under the provisions of the EPBC Act.

Undertake or assist with public consultation, stakeholder engagement and advocacy.

Develop and deliver historic heritage awareness training.

Monitor condition of historic heritage values, including but not limited to:

o Buildings;

o Built structures; and

o Cultural landscapes.

Develop, review and/or facilitate the interpretation of key historic heritage assets.

Provide specialist advice relating to conservation of heritage items, historic plantings, cultural landscapes, or other historic heritage issues.

E2 Natural Heritage Assessment and

Assess the natural heritage significance of Defence-managed properties in accordance with EPBC Act




ATTACHMENT A

SERVICE CATEGORY

TITLE

Management criteria and any relevant guidelines.


o heritage management plans;


Conduct heritage impact assessments for works with potential to impact on natural heritage values.


o planning, development and management of natural heritage sites and values;

o management of natural heritage on the Defence Estate; and

o heritage policy.




Develop and/or conduct desktop assessments, field surveys, and condition assessments for natural heritage assets.


o reviewing the effectiveness of the implementation of heritage management plans for key natural heritage assets; and





ATTACHMENT A

SERVICE CATEGORY

TITLE TASK EXAMPLES



Develop and deliver natural heritage awareness training.

Monitor condition of natural heritage values, including but not limited to:

o large, intact, natural areas;

o specific landscape features;

o social values attributable to a natural place; and

o areas contributing to World Heritage Places.

Develop, review and/or facilitate the interpretation of key natural heritage assets.

Provide specialist advice relating to natural heritage issues as distinct from ecological or biodiversity conservation advice.

E3 Indigenous Heritage Assessment and Management

Assess the Indigenous heritage (including archaeological) significance of Defence-managed properties in accordance with EPBC Act criteria and any relevant guidelines.


o heritage management plans;

o plain English versions of heritage management plans for distribution to Traditional Owners; and





ATTACHMENT A

SERVICE CATEGORY

TITLE TASK EXAMPLES

Conduct heritage impact assessments for works with potential to impact on Indigenous heritage values.


o planning, development and management of Indigenous heritage sites and values;

o management of Indigenous heritage on the Defence Estate; and

o heritage policy.

Undertake or assist with:

o Indigenous participation in site surveys (including anthropological surveys or cultural mapping)

o consultation with Traditional Owners when developing management recommendations for heritage management plans;

o liaison and/or negotiation with Traditional Owners about proposed works at Indigenous heritage sites on Defence land.




Develop and/or conduct desktop assessments, field surveys, and condition assessments for Indigenous heritage sites.

Scope, design and/or supervise heritage works to, and maintenance plans for, Indigenous heritage sites.


o reviewing the effectiveness of the implementation of heritage management plans for key Indigenous heritage assets; and




ATTACHMENT A

SERVICE CATEGORY

TITLE TASK EXAMPLES




Develop and deliver Indigenous heritage awareness training.

Monitor condition of Indigenous heritage values.

Develop, review and/or facilitate the interpretation of key Indigenous heritage assets.

Provide specialist advice relating to Indigenous heritage issues.

F Contamination and Unexploded Ordnance Remediation Works

F1 Contamination Remediation Works

Undertake remediation civil works (i.e. any physical remediation or associated works) including, but not limited to:

o Decommissioning, removal and validation of above and underground storage tanks;

o Sediment and erosion control works;

o Geophysical surveys;

o UXO safe path finding and safeguarding;

o Onsite Capping and Containment;

o Excavation and offsite disposal;




ATTACHMENT A

SERVICE CATEGORY

TITLE TASK EXAMPLES

o Soil treatment including; vitrification, soil washing, immobilisation/stabilisation, catalytic chemical oxidation, thermal oxidation, acid leaching, air sparging;

o Bioremediation and Phytoremediation;

o Permeable reactive barriers;

o Pump and treat;

o Soil vapour and/or solvent extraction; and

o Identification and clean up of asbestos in soil.

Reinstate remediated sites, including but not limited to:

o refilling excavations with stockpiled clean material or validated imported backfill,

o topsoiling, and

o revegetation.

Undertake remediation works design and validation, including the requirement to conduct all aspects of siting, design, method of works, approvals/licences/compliance certificates from relevant issuing authorities, insurances, operation, waste classification (including certification as Free From Explosives) and treatment of contaminants and materials, waste tracking and controls, site management & access control and decommissioning activities.

F2 Unexploded Ordnance

Undertake and report upon UXO and chemical warfare materials assessment surveys to confirm or discount information produced from historical research. Assessment survey work is to include, but is not




ATTACHMENT A

SERVICE CATEGORY

TITLE TASK EXAMPLES

Remediation Works 2

limited to:

o the determination of the locations,

o area limits,

o densities,

o depths,

o types and natures of materials, and

o inert ordnance-related items of types (including explosive ordnance waste) likely to pose a risk.

Undertake and report upon relevant remediation operations designed to reduce the hazard within those areas found to be UXO or chemical warfare materials affected.

Process and dispose of explosive ordnance waste (EOW) in such a manner that it can readily be recycled as scrap metal.

Dispose of or demolish (including explosive demolition, burning and breakdown) of conventional derelict Explosive Ordnance and Unexploded Ordnance.

Dispose of chemical warfare agent charged derelict ordnance and storage containers, UXO and EOW (including arisings from disposal operations) that may be contaminated.

PART 2 – MINIMUM PERSONNEL REQUIREMENTS

Table 2: Minimum personnel requirements for Service Categories A-E

2 Defence policies and protocols for the management of UXO will be published in the DEHP Protocols Handbook




ATTACHMENT A

Standard Practitioner (P) Qualified Practitioner

(QP)

Experienced Practitioner

(EP)

Discipline Specialist

(DS)

Pre-eminent Consultant

(PC)

Qualifications Vocational education and training sector accreditation

Higher education sector accreditation (minimum advanced diploma level)

Higher degree qualifications or relevant continual training to maintain professional competencies and knowledge

Qualified practitioner with specific qualifications or industry training

Specific tertiary qualifications (Masters Degree or above) and expert industry experience

Professional Body Recognition or Certification

Eligible for industry professional body membership

Attained industry professional body certification

Attained industry professional

body membership

Recognised by the industry professional body or peers as the authoritative subject matter expert

Experience Minimum 3 years in the broad industry stream

Minimum 5 years in the broad industry stream

Minimum 10 years in the broad industry stream and 3 years in the specialist stream



If a person is performing the role of contaminated site auditor, an additional requirement for the purposes of Table 2 is that the person is accredited in accordance with applicable EPA Legislation for the location in which the role is performed.




ATTACHMENT A

Table 3: Minimum personnel requirements for Service Category F1

Standard Experience Accreditation

Project Director Minimum 10 years in the broad industry stream and 5 years in the specialist stream

N/A

Senior Project Manager Minimum 8 years in the broad industry stream and 3 years in the specialist stream

N/A

Project Manager Minimum 5 years in the broad industry stream and 3 years in the specialist stream

N/A

Senior Site Manager Minimum 8 years in the specialist industry stream

N/A

Site Manager Minimum 5 years in the specialist industry stream

N/A

WHS Supervisor Minimum 5 years in the specialist stream Relevant State Accreditation (where applicable)

Asbestos Supervisor Minimum 5 years in the specialist stream Relevant Licence

Labourer Industry experience N/A




ATTACHMENT A


Table 4: Minimum personnel requirements for Service Category F2

Standard Experience Accreditation

Project Director Minimum 10 years in the broad industry stream and 5 years in the specialist stream

N/A

Technical Remediation Manager Minimum 5 years military or civil experience in the industry

Relevant Accreditation

Project Manager Minimum 5 years in the broad industry stream and 3 years in the specialist stream

N/A

Site Manager Minimum 3 years in the specialist industry stream

N/A

WHS Supervisor Minimum 5 years in the WHS specialist stream

Relevant State Accreditation (where applicable)

Asbestos Supervisor Minimum 5 years in the specialist stream Relevant Licence

EOD Technician Minimum 3 years military or civil experience in the industry

Relevant Accreditation

Labourer Industry experience N/A

Special competency for Unexploded Ordnance Service Providers

If a person is exercising technical control of Unexploded Ordnance Services, an additional requirement for the purposes of Table 4 is that the person is a member of the Institute of Explosive Engineers.

.



ATTACHMENT B

MAXIMUM RATES AND ALLOWANCES (INCLUSIVE OF GST)

Note to tenderers: Attachment B will consist of an amalgamation of the Schedule of Rates tables at Annex M to the conditions of tender and the successful tenderer’s response.

1. MAXIMUM RATES

Service Categories

Level Rate <31 days of work

Rate 31-90 days of work

Rate >90 days of work

Practitioner

Qualified Practitioner

Experienced Practitioner

Discipline Specialist

Pre-eminent Consultant

Attachments to Conditions of Deed B-1



ATTACHMENT B

Attachments to Conditions of Deed B-2

2. EQUIPMENT AND CONSUMABLES

2.1 Unless expressly stated otherwise in the Official Order, the Contract Price or Schedule of Rates set out in the Official Order includes the costs for the provision of all equipment and consumables required for the performance of the Services.

3. TRAVEL

3.1 Unless the Official Order states otherwise, the following expenses shall be reimbursed at cost (no administration costs, no profit) to the Contractor under the Contract provided that the Commonwealth Contract Representatives has provided prior consent (and for international airfares, the Commonwealth Panel Manager has also provided consent):

Item Cap

Domestic airfares ‘Economy’ rate, best fare of the day

International airfares ‘Economy class’ rate, best fare of the day

Accommodation Non-SES rates

Meals and incidentals Non-SES rates

Car hire Reimbursed at cost

Taxi fares Reimbursed at cost

3.2 The Commonwealth’s consent under clause 3.1 shall sought prior to any international travel.

3.3 Subject to clauses 3.1, all disbursements are included within the Contract Price or Schedule of Rates set out in the Official Order and are not separately payable by the Commonwealth. Items which will not be reimbursed by the Commonwealth include (without limitation);

a. telephone calls;

b. photocopying;

c. email and internet charges;

d. royalties, licence fees and any other amounts arising out or in connection with any intellectual property rights;

e. taxes (except GST) and duties; and

f. superannuation, long service leave and other employment-related levies, charge and amounts.

3.4 If the Contractor is required to travel under a Contract, the hours spent travelling are not billable work hours, and the maximum allowable billable hours for each day shall be eight hours (a standard work day). Time spent travelling for work under an Official Order does not constitute a reimbursable expense.

3.5 If requested by the Commonwealth Contract Officer, the Contractor shall provide satisfactory evidence to substantiate any specified claim for reimbursement prior to any payment of the related claim.



ATTACHMENT C

REQUEST FOR QUOTATION AND TASKING STATEMENT TEMPLATE

RFQTS Request for Quotation and Tasking Statement

under Defence Environment and Heritage Panel (DEHP) Deed

The Commonwealth requests a quotation for the following Services.

The Quotation must be provided in the template provided at Annex A.

The Contract Particulars relevant to this RFQTS are provided in the draft Official Order at Annex B.

Service Reference Number: (Available from the DEHP Panel Manager)

Standing Offer Number (SON):

Task Title:

Requesting Section:

Background:

Statement of Work, including Task Descriptions and Task Objectives:

(Attach as Annex C if insufficient room.)

Deliverables:

(Attach as Annex C if insufficient room.)

Commencement date for Task:

Special Conditions of Deed: Refer to the Contract Particulars at Annex B.

Applicable Standards or References:

Security Clearances required for personnel working on this Task:

Refer to the Contract Particulars at Annex B.

Attachments to Conditions of Deed C-1



ATTACHMENT C

Attachments to Conditions of Deed C-2

Security Guidance (If Applicable):

Refer to the Contract Particulars at Annex B.

Compliance with the Building Code (if required)

Completion date for Task:

Closing Date for Quotation:

Evaluation Criteria:

Key Result Areas in accordance with the Deed:

RFQTS AUTHORISED BY THE COMMONWEALTH

Name of Commonwealth Representative authorising the RFQTS

Title and Name:

Appointment:

Email:

Telephone:

Facsimile:

Address:

Annexes:

A. Quotation Template

B. Draft Official Order

C. Statement of Work / Deliverables (if required)

D. [Insert relevant documents required]



ATTACHMENT D

QUOTATION TEMPLATE

The Quotation Template is structured to ensure conformance with Defence requirements. The Respondent is required to complete each item and include any other information the Respondent considers necessary to distinguish the Respondent’s approach from that of other responses.

The Detailed Contractor's Activities Proposal (DCAP) will be contractually binding once accepted by the Commonwealth and will form an Annexure to the Official Order. The Commonwealth reserves the right to negotiate the DCAP prior to providing the Official Order to the preferred Respondent.

Detailed Contractor's Activities Proposal (DCAP)

Response Description of Requirement Attachment

1 Describe your understanding of the engagement Attach as Attachment A

2 Describe your proposed methodology to undertake the engagement

Attach as Attachment B

3 Describe your proposed approach to programming for the engagement

Attach as Attachment C

4 Identify the key risks and issues you understand may impact on this engagement. Provide details on how you may mitigate the risks and manage the issues.

Attach as Attachment D

5 How does your company intend to add-value to the engagement?

Attach as Attachment E

6 Described your methodology to quality assurance during the engagement

Attach as Attachment F

7 Provide detail on the roles, availability, experience and intended actual time on the engagement for key personnel, (the inclusion of engagement specific CVs is mandatory)

Attach as Attachment G

8 List the subcontractors to be engaged, including the services they will provide and the basis of their engagement and the price (the inclusion of engagement specific CVs is mandatory)

Attach as Attachment H

9 Fees, including reimbursable costs Attach as Attachment I

10 Provide evidence of building code compliance (if applicable)

Attach as Attachment J

11 Respondents must indicate whether they propose to include any Problematic Substances in the Services. If so, Respondents must indicate what these Problematic Substances are, the purposes for which they will be used and how they will be managed in accordance with the Deed or Contract

Attach as Attachment K

12 Other engagement relevant information Attach as Attachment L

13 Respond to the Contract Particulars provided as Annex B of the RFQTS, where required

Attach as Attachment M

Attachments to Conditions of Deed D-1



ATTACHMENT E

OFFICIAL ORDER TEMPLATE

The Official Order, once executed by the Commonwealth and delivered in accordance with the Defence Environment and Heritage Panel (SON######), will constitute acceptance by the Commonwealth of the Contractor’s offer to supply the Services specified in this Official Order. The Official Order for Service Category F will include the General Remediation Contract and/or the Toxic Remnants of War Contract.

The conditions in the Defence Environment and Heritage Panel Deed of Standing Offer, the Commonwealth’s RFQTS, the subsequent response accepted and referenced in this Official Order, together with any other documents expressly referred to in this Official Order, constitute a Contract between the Commonwealth and the Contractor.

ACCEPTANCE OF QUOTATION BY COMMONWEALTH

RFQTS Number:

Received Quotation ID Number:

Defence Purchase Order Number:

Contract Award Date:

Contract End Date:

Contract Extension Options, if applicable:

Contractor Contract Representative Details:

[INSERT CONTRACTOR’S NAME, A.B.N/A.C.N AND A.R.B.N (IF APPLICABLE), ROMAN VENDOR NUMBER (IF KNOWN), PHYSICAL AND POSTAL ADDRESS, PHONE AND FAX NUMBERS]

Commonwealth Contract Representative Details:

(Except as provided in the Deed, all correspondence in relation to this Contract is to be forwarded to this officer.)

[INSERT AUTHORISED OFFICER’S NAME, POSITION, PHYSICAL AND POSTAL ADDRESS, PHONE AND FAX NUMBERS]

Signature of Authorised Commonwealth Officer:

Signature of Contractor Representative:

Date: Date:

ANNEXURES

A. Contract Particulars

B. RFQTS

C. Quotation

D. [Insert Other Documents required for this Contract]

Attachments to Conditions of Deed E-1



ATTACHMENT E

ANNEXURE A

CONTRACT PARTICULARS

Note to Drafters: Please select the Option relevant to your requirements and delete the other Options. Populate the items relevant to your Contract prior to seeking a Quotation and attach the draft Official Order to the RFQTS you are forwarding to panelists.

OPTION A: FOR SERVICE CATEGORIES A – E

Note to Drafters: clause references are for guidance and relates to the Conditions of Deed (excluding Attachments O and P).

1 Terms of Contract (clause 1.8.10)

[Include if different from clause 1.8.10. Otherwise, indicate “Not Applicable”]

2 Special Conditions (clause 1.8.11)

[Indicate Special Conditions including, but not limited to, the following:

Liquidated Damages (Attachment N clause 1.1.1),

Overtime (Attachment N clause 3.1.2),

Australian Industry Capability (Attachment N clause 4.4.1), and

Phase In Requirements (Attachment N clause 4.6.1).

Otherwise, indicate “Not Applicable”]

3 Personnel (clause 3.2.5)

4 Government Furnished Material (clause 3.3.1)

5 Government Furnished Facilities(clause 3.4.1)

6 Authorisations (clause 3.7.1)

7 Intellectual Property (clauses 4.2 & 4.3)

8 Contract Price (clause 5.1)

9 Additional Insurance Requirements, if applicable




ATTACHMENT E

(clause 6.4.2)

10 Subcontractor (clause 8.11.3)

11 Security Requirements (clause 8.13.3)

12 Safe Base Alert State System, if applicable (clause 8.14.3)

13 Alternative Jurisdiction, if applicable (clause 9.1.1)

14 Equipment and Consumables (Attachment B clause 2)

15 Travel (Attachment B clause 3)

16 Contract Progress Reports, if applicable (Attachment K clause 4.1.1)

Attachments Required (If Applicable)

A. Content Register (clause 4.4)

B. Safety Data Sheets (clause 9.3.8)




ATTACHMENT E

OPTION B: FOR SERVICE CATEGORY F1 (CONTAMINATION REMEDIATION WORKS)

Note to Drafters: Unless otherwise indicated, clause references are for guidance and relates to the Conditions of Deed Attachment O General Remediation Contract Terms.

CLAUSE 1 - GLOSSARY OF TERMS, INTERPRETATION AND MISCELLANEOUS

Accredited Environmental Site Auditor (Clause 1.1)

.........................................................................................

Additional Project Plans: (Clause 1.1)

.........................................................................................

Contract - other documents forming part of the Contract: (Clause 1.1)

.........................................................................................

Contract Administrator: (Clause 1.1)

.........................................................................................

Contractor: (Clause 1.1)

.............................................................................................

Contract Price: (Clauses 1.1, 12.21 and 16.2(b))

(a) for the Lump Sum Work, a Lump Sum Component of $................; and

(b) for the Schedule of Rates Work, the Schedule of Rates Component calculated by multiplying the quantity of Schedule of Rates Work carried out in accordance with the Contract by the rate or price in the Schedule of Rates for that work,

neither of which is, unless elsewhere stated, subject to rise and fall in costs.

Contractor's Representative: (Clause 1.1) .............................................................................................

Where there are no Stages, for the Remediation Works is:

.........................................................................................

Where there are Stages, for each Stage is:

Stage Date for Completion

.............................................. ..............................................

.............................................. ..............................................

Date for Remediation Completion: (Clause 1.1)

.............................................. ..............................................

Environmental Consultant (Clause 1.1)

.............................................................................................

Environmental Requirements (additional): .........................................................................................




ATTACHMENT E

(Clause 1.1)

Executive Negotiators: (Clause 1.1)

Commonwealth: Assistant Secretary, Environment and Engineering

Contractor: ....................................................................

Meeting frequency: Meeting location: Project Management Meetings: (Clauses 1.1 and 8.7(b)(ii)A)

............................................

..........................................

Remediation Completion - additional conditions precedent to Remediation Completion: (Clause 1.1)

.............................................................................................

Remediation Defects Rectification Period: (Clause 1.1)

Remediation Works: (Clause 1.1)

[INSERT BRIEF DESCRIPTION OF REMEDIATION WORKS]

Schedule of Collateral Documents: (Clause 1.1)

1. Approved Security (Unconditional Undertaking)

2. Collateral Warranty

3. Subcontractor Deed of Covenant

4. Deed of Guarantee, Undertaking and Substitution

5. Proforma Building Code 2013 Subcontract Provisions

6. Payment Claim

7. Payment Statement

8. Expert Determination Agreement

Schedule of Rates: (Clause 1.1)

.........................................................................................

Site: (Clause 1.1)

.........................................................................................

Site Information (Clause 1.1)

.........................................................................................

Site Management Plan: (Clause 1.1)

Security procedures

Access to the Site by visitors, pedestrians and vehicles

Site induction procedures

Safety procedures

Emergency procedures

Waste management procedures

Site maintenance and cleaning procedures




ATTACHMENT E

Site establishment procedures

Dangerous, prohibited and hazardous materials and goods procedures

Approval procedures

User group and stakeholder procedures

Noise management procedures

Military expeditions and military exercises procedures

Vehicle and traffic management procedures

Special Conditions: (Clause 1.1)

.........................................................................................

Specified Site Use Objective: (Clause 1.1)

.........................................................................................

Stages of the Remediation Works: (Clause 1.1)

.........................................................................................

Table of Remediation Works Variation Rates and Prices: (Clause 1.1)

.........................................................................................

Technical Advisor: (Clause 1.1)

.........................................................................................

Technical Specification: (Clause 1.1)

[LIST DOCUMENTS DESCRIBING THE REMEDIATION WORKS]

1. ……………………………

2. ……………………………

3. ……………………………

4. ……………………………

5. ……………………………

.........................................................................................

Work Health and Safety Plan: (Clause 1.1)

1. Matters required to be covered in a Work Health and Safety Management Plan by the WHS Legislation, including:

(a) the names, positions and responsibilities of all persons at the workplace whose positions or roles involve specific health and safety responsibilities in connection with the Contractor's Activities;

(b) the arrangements in place, or to be implemented, between any persons conducting a business or undertaking at the workplace where the Contractor's Activities are being undertaken, for




ATTACHMENT E

consultation, cooperation and coordination of activities in relation to compliance with their duties under the WHS Legislation;

(c) the arrangements in place, or to be implemented, for managing any work health and safety incidents that occur, including incident reporting procedures, corrective action procedures, record-keeping and reporting requirements (including project-specific and general reporting and reporting to the Contract Administrator with respect to work health and safety matters), project-specific emergency plans and first aid procedures;

(d) any site-specific health and safety rules, and the arrangements for ensuring that all persons at the workplace are informed of these rules;

(e) the arrangements for the collection and recording, and any assessment, monitoring and review of safe work method statements at the workplace; and

(f) ensuring that work health and safety is a compulsory agenda item at all meetings in accordance with clause 3.12 of the Conditions of Contract and ensuring that the outcomes of those agenda items are communicated to the Contract Administrator.

2. If design forms part of the Contractor's Activities, proposed design risk assessments, purchasing policies for plant, materials and substances, the process for meeting Statutory Requirements regarding design and the process for addressing design changes relevant to work health and safety considerations.

3. Management of work health and safety generally, including any work health and safety policy, details of any work health and safety management system (including certification, inspection and audit programs), training and induction programs (including work health and safety generally, emergency procedures and use of emergency equipment), the process of communication, information-sharing and provision of assurances to the




ATTACHMENT E

Contract Administrator under clause 8.13 of the Conditions of Contract, and dispute resolution on work health and safety matters.

4. Provision of assurances to the Contract Administrator regarding compliance with any relevant or applicable requirements or standards (or codes of practice) in accordance with clause 8.13 of the Conditions of Contract relating to work health and safety management plans.

5. Management of subcontractors, including induction, training, development of safe work method statements, job safety assessments or equivalent documentation, the obligation to consult, cooperate and coordinate activities, the process of communication, information-sharing and provision of assurances under clause 8.13 of the Conditions of Contract and the process for ensuring subcontractor compliance with the Work Health and Safety Plan.

6. Management of project hazards and risks generally, including work involving:

(a) fall hazards;

(b) telecommunications towers;

(c) demolition;

(d) disturbance or removal of asbestos;

(e) structural alterations requiring temporary supports;

(f) confined spaces;

(g) excavation deeper than 1.5 metres;

(h) tunnels;

(i) use of explosives;

(j) pressurised gas distribution mains and consumer piping;

(k) chemical, fuel or refrigerant lines;

(l) electrical work, including involving energised electrical installations and services;

(m) hazardous atmospheres;

(n) tilt-up and precast concrete;

(o) roadways or railways used by




ATTACHMENT E

road or rail traffic;

(p) movement of powered mobile plant;

(q) artificial extremes of temperature;

(r) water or other liquids where there is a risk of drowning;

(s) diving;

(t) remote or isolated work;

(u) above-standard exposure to noise;

(v) other hazardous manual tasks;

(w) exposure to falling objects;

(x) abrasive blasting; and

(y) hazardous chemicals.

Governing law: (Clause 1.3(a)) ..........................................................................................

CLAUSE 2 - COMMENCEMENT

Date for commencement on Site: (Clauses 2.1(b) and 2.2(a)(ii))

.........................................................................................

Other conditions precedent to Site access: (Clause 2.2(a)(i)C)

.........................................................................................

CLAUSE 3 - PERSONNEL

Representative Function(s)

............................................ ............................................

Contract Administrator's representatives and their functions: (Clause 3.4)

............................................ ............................................

Person Position

............................................ ............................................

Contractor's key people: (Clause 3.6(a))

............................................ ............................................

CLAUSE 4 - SECURITY

Security to be provided by the Contractor: (Clause 4.1)

$.................... or .......... % of the Contract Price (in the form of two Approved Securities, each for 50% of this amount).

To the extent that any part of the Contractor's Activities is to be carried out in Queensland, the following warning applies:

This Contract is not subject to the condition that would otherwise be implied by section 67K(2) of the Queensland Building Services Authority Act 1991 (Qld).




ATTACHMENT E

Section 67K(2) implies a condition into building contracts that the total value of security is not to be more than 5% of the Contract Price of the Contract, unless the Contract expressly provides otherwise. Under this Contract, the parties agree that the amount of the security provided by the Contractor is governed by clause 4.

Initialled for and on behalf of the Contractor: ...................

Initialled for and on behalf of the Commonwealth: ..........

CLAUSE 5 - RISKS AND INSURANCE

Public Liability Insurance

Amount of Cover: $……..…………. in respect of any one occurrence and $...................... in the aggregate, all occurrences during the period of insurance.

Construction Risks Insurance

Is Construction Risks Insurance required? [YES / NO]


Workers Compensation Insurance

Amount of Cover: The minimum amounts required by statute in each State and Territory in which the Contractor's Activities are to be performed or the Contractor's employees are employed or normally reside.

Errors and Omissions Insurance

Amount of Cover: $… per claim and $…… in the aggregate, all claims during the period of insurance.

Professional Indemnity Insurance

Amount of Cover: $……. per claim and $…… in the aggregate, all claims during the period of insurance.

Insurance policies required to be obtained by the Contractor: (Clause 5.4(a))

(for whichever of Errors and Omissions Insurance and Professional Indemnity Insurance does not apply, insert "N/A" after the $ references)

Other Insurances: (Clause 5.4(a)(v))

………………………………………………………….

Minimum amount of subcontractors' Professional Indemnity Insurance or Errors and Omissions Insurance: (Clause 5.4(f))








ATTACHMENT E


Period for maintenance of Errors and Omissions Insurance or Professional Indemnity Insurance: (Clause 5.6(c))

Where any part of the Site is located in the Australian Capital Territory, New South Wales, Victoria, Tasmania, South Australia or the Northern Territory: 11 years.

Otherwise: 7 years.

CLAUSE 7 - PLANS AND DOCUMENTATION

Contractor to prepare Remediation Design Documentation

(Clause 7.2(a)(i))

[YES/NO]

Documents and number of copies to be provided by the Commonwealth to the Contractor: (Clause 7.1)

Document Copies

Number of copies of Design Documentation to be submitted by the Contractor to the Contract Administrator: (Clause 7.5)

............................................

Design Documentation hard copy requirements: (Clause 7.5(a))

[Compatible with AutoCAD 14]

To scale

Printed in black ink on white or transparent ISO Standard Sheet (size A1, A3, A4 or as determined by the Contract Administrator)]

Design Documentation electronic copy requirements: (Clause 7.5(b))


CD-ROM or as determined by the Contract Administrator]

Environmental Management Plan:

........................................

Site Management Plan: ........................................

Work Health and Safety Plan:

........................................

Number of days for submission of Project Plans: (Clause 7.7(a)(ii))

Other: [SPECIFY] ........................................

CLAUSE 8 - EXECUTION OF REMEDIATION ACTIVITIES

Existing Approvals and other Approvals which the Commonwealth is to obtain: (Clause 8.3)

.........................................................................................

Statutory Requirements with which the Contractor does not need to comply: (Clause 8.3(a))

.........................................................................................

Remediation Work which requires approval to Work or Goods Subcontractors




ATTACHMENT E

............................................ ............................................ subcontract or which must be let to one of the named subcontractors: (Clause 8.5(a)) ............................................ ............................................

Stages for which Collateral Warranties required: (Clause 8.6)

.........................................................................................

Collateral Warranties required to be procured by the Contractor from subcontractors and provided to the Commonwealth: (Clause 8.6)

.........................................................................................

Other projects being carried out as part of the Commonwealth's program of works: (Clause 8.7(a))

.........................................................................................

Stages for which a certificate signed by a surveyor is required as condition precedent to Remediation Completion: (Clause 8.10)

.........................................................................................

Plant, Equipment and Work which must not be removed from the Site without the Contract Administrator's consent: (Clause 8.14)

.........................................................................................

Access hours for Contractor's Activities on Site: (Clause 8.20)

.........................................................................................

Requirements for Contract Administrator's Office: (Clause 8.22)

.........................................................................................

Number of project signboards: (Clause 8.23(a))

.........................................................................................

Project signboard dimensions: (Clause 8.23(a)(i))

.........................................................................................

Project signboard information (additional): (Clause 8.23(a)(ii)H)

.........................................................................................

CLAUSE 9 – QUALITY OF REMEDIATION WORKS

......................................................................................... Reference development for purpose of determining minimum standards for workmanship and materials: (Clause 9.1)

Other: [SPECIFY] ........................................

Period by which Remediation Defects Rectification Period will be extended following rectification of a Remediation Defect: (Clause 9.10)

.........................................................................................

CLAUSE 10 - TIME

Maximum intervals between program updates by Contractor: (Clause 10.2(b))

.........................................................................................

Program format to be compatible with: [Primavera Suretrak/Microsoft Project] or approved




ATTACHMENT E

(Clause 10.2(e)) equivalent

Additional causes of delay entitling Contractor to claim an extension of time: (Clauses 10.5(a) and 10.7(c))

1. State-wide industrial disputation or other industrial disputation caused by the Commonwealth, which in neither case is caused or contributed to by the Contractor or any subcontractor of the Contractor

2. A change in a Statutory Requirement or in the requirements of local or other authorities after the Award Date

3. Commonwealth Risks

4. Unidentified Site Conditions which have been determined by the Contract Administrator to have been encountered under clause 11.1

Clause 10.11 [does/does not] apply. (Clause 10.11 applies unless otherwise stated)

If clause 10.11 applies:

Where there are no Stages, the agreed damages for the Works are:

$.........................per working day

If there are Stages, the agreed damages for each Stage are:

Stage Agreed damages

$.......... per working day



Agreed damages: (Clause 10.11)


Percentage of extra costs reasonably incurred due to acceleration: (Clause 10.15(b)(ii))

.....................% (5% unless otherwise stated)

CLAUSE 12 – PAYMENT

Times for submission of payment claims by the Contractor to Contract Administrator: (Clause 12.2(a))

Monthly on the ……………… day of each month

OR

on Completion of the following milestones:

.........................................................................................

Number of business days for payment: (Clause 12.5)

To the extent that the relevant part of the Contractor's Activities is carried out in:

1. Queensland: 5; or

2. any other State or Territory: 10.

Interest rate: (Clause 12.13)

1. In the case of damages - the Australian Taxation Office-sourced General Interest Charge Rate current at the due date for payment or such other rate nominated in




ATTACHMENT E

writing from time to time by the Contract Administrator; or

2. In the case of late payments - the greater of:

(a) the rate in paragraph (1); and

(b) the rate of interest prescribed under any applicable Security of Payment Legislation.

Limits of accuracy for quantities in Schedule of Rates (Clause 12.19(c))

Upper Limit:

Lower Limit:

Appointed Adjudicator/Prescribed Appointer/Authorised Nominating Authority: (Clause 12.20(d))


1. the Northern Territory or Western Australia:

(a) the appointed adjudicator is …………............................; or

(b) if no appointed adjudicator is appointed, the prescribed appointer is the Chair of the Institute of Arbitrators and Mediators Australia, Northern Territory Chapter or Western Australian Chapter (as the case may be); or

2. any other State or Territory, the Chair of the Institute of Arbitrators and Mediators Australia of the Chapter in that State or Territory.

Facilities and infrastructure accounting (additional): (Clause 12.23(b))

.........................................................................................

CLAUSE 13 – COMPLETION

If there are no Stages, for the Remediation Works is:

$............... per day.

If there are Stages, for each Stage is:

Stage Liquidated Damages

……………………......... $................... per day

Liquidated damages payable by Contractor when Date of Remediation Completion occurs after Date for Remediation Completion: (Clause 13.7)

……………………......... $................... per day

CLAUSE 14 - TERMINATION

Number of days to remedy breach: (Clauses 14.3(c) and 14.4(b))

.........................................................................................

CLAUSE 15 - DISPUTES

Directions to be subject of an expert determination if disputed:

Directions under clauses: 2.3(b), 8.4(e), 8.18, 9.4, 9.8(b)(i), 9.10, 10.8, 10.9, 10.12(b)(ii)A.1, 11.5(a),




ATTACHMENT E

(Clause 15.2) 11.5(c)(ii), 11.3(d), 12.4, 13.2(b)(ii), 14.8(a), 17.3(e)

Industry expert who will conduct expert determinations: (Clause 15.3(a)(i))

.........................................................................................

Nominating authority for industry expert: (Clause 15.3(a)(ii) .........................................................................................

(The President for the time being of the Institute of Arbitrators and Mediators Australia unless otherwise stated)

CLAUSE 16 - NOTICES

Commonwealth: ........................................................

......................................................................................

......................................................................................

Contract Administrator: ...........................................

......................................................................................

......................................................................................

Address and fax number, for the giving or serving of notices, upon: (Clause 16.7(b)(i))

Contractor: ................................................................

......................................................................................

CLAUSE 17 - GENERAL

Indigenous Opportunities: (Clause 17.2)

Clause 17.2 [does/does not] apply. (Clause 18.2 does not apply unless otherwise stated)

Safe Base Alert State System level: (Clause 17.3(d)(i)) .........................................................................................

("Bravo" if not otherwise stated)

CLAUSE 19 - COMMERCIAL-IN-CONFIDENCE INFORMATION

Commercial-in-Confidence Information: (Clause 19.2)


Specific Information

Justification Period of confidentiality

Information which is Commercial-in-Confidence Information: (Clause 19.2)

........................... .......................... ........................




ATTACHMENT E

CLAUSE 20 - FAIR WORK PRINCIPLES

Applicability of Fair Work Principles: (Clause 20)

Clause 20 [does/does not] apply. (Clause 20 applies unless otherwise stated)

ANNEXURE 1 - COMPLETION

Number of copies of Final Operation and Maintenance Manuals: (Clause [#])

.........................................................................................

Content of manuals (additional): (Clause [#])

.........................................................................................

Number of persons to be trained: (Clause [#])

.........................................................................................

Categories of persons to be trained: (Clause [#])

.........................................................................................




ATTACHMENT E

OPTION C: FOR SERVICE CATEGORY F2 (UNEXPLODED ORDNANCE REMEDIATION WORKS)

Note to Drafters: Unless otherwise indicated, clause references are for guidance and relates to the Conditions of Deed Attachment P Toxic Remnants of War Remediation Contract Terms.


Accredited Environmental Site Auditor: (Clause 1.1)

.........................................................................................


.........................................................................................

Communications Plan: (Clause 1.1)

[DETAILS OF MATTERS TO BE INCLUDED IN COMMUNICATIONS PLAN TO BE SPECIFIED HERE.]


.........................................................................................


.........................................................................................


.........................................................................................

Contractor's Representative: (Clause 1.1)

.........................................................................................

Contract Price: (Clauses 1.1, 12.21, and 16.2(b))




(If there is no lump sum component of the Contract Price, "N/A" should be inserted into paragraph (a).)


.........................................................................................


Stage Date for Remediation Completion


.............................................. ..............................................




ATTACHMENT E

.............................................. ..............................................

.............................................. ..............................................

DCAP (Detailed Contractor's Activities Proposal): (Clause 1.1)

.............................................................................................

Environmental Consultant: (Clause 1.1)

.............................................................................................

Environmental Requirements (additional): (Clause 1.1)

.........................................................................................



Contractor: ....................................................................

Other Materials: (Clause 1.1 and clause 6.7)

.............................................................................................


............................................

..........................................


............................................................................................


............................................................................................


[INSERT BRIEF DESCRIPTION OF REMEDIATION WORKS.]







6. Payment Claim




.........................................................................................

Site: .........................................................................................




ATTACHMENT E

(Clause 1.1)

Site Information: (Clause 1.1)

.........................................................................................


Security procedures



Safety procedures






Approval procedures






.........................................................................................


.........................................................................................


.........................................................................................


.........................................................................................


.........................................................................................


[LIST OF DOCUMENTS DESCRIBING THE REMEDIATION WORKS.]

1. ……………………………

2. ……………………………

3. ……………………………

4. ……………………………

5. ……………………………

.........................................................................................




ATTACHMENT E

Toxic Agent Specialist: (Clause 1.1)

The Edgewood Chemical Biological Center, being an agency of the United States Army.




(b) the arrangements in place, or to be implemented, between any persons conducting a business or undertaking at the workplace where the Contractor's Activities are being undertaken, for consultation, cooperation and coordination of activities in relation to compliance with their duties under the WHS Legislation;




(f) ensuring that work health and safety is a compulsory agenda item at all meetings in accordance with clause 3.13 of the Conditions of Contract and ensuring that the outcomes of those agenda items are communicated to the Contract




ATTACHMENT E

Administrator.


3. Management of work health and safety generally, including any work health and safety policy, details of any work health and safety management system (including certification, inspection and audit programs), training and induction programs (including work health and safety generally, emergency procedures and use of emergency equipment), the process of communication, information-sharing and provision of assurances to the Contract Administrator under clause 8.13 of the Conditions of Contract, and dispute resolution on work health and safety matters.




(a) fall hazards;


(c) demolition;




(g) excavation deeper than 1.5




ATTACHMENT E

metres;

(h) tunnels;







(o) roadways or railways used by road or rail traffic;




(s) diving;








CLAUSE 2 – COMMENCEMENT


.........................................................................................


.........................................................................................

CLAUSE 3 – PERSONNEL


............................................ ............................................


............................................ ............................................




ATTACHMENT E

Person Position

............................................ ............................................


............................................ ............................................

CLAUSE 4 – SECURITY




This Contract is not subject to the condition that would otherwise be implied by section 67K(2) of the Queensland Building Services Authority Act 1991 (Qld). Section 67K(2) implies a condition into building contracts that the total value of security is not to be more than 5% of the Contract Price of the Contract, unless the Contract expressly provides otherwise. Under this Contract, the parties agree that the amount of the security provided by the Contractor is governed by clause 4.



















ATTACHMENT E



………………………………………………………….









Otherwise: 7 years.


Contractor to prepare Remediation Design Documentation: (Clause 7.2(a)(i))

[YES/NO]

Documents and number of copies of to be provided by the Commonwealth to the Contractor: (Clause 7.1)

………………………………………………………….

Number of copies of Remediation Design Documentation to be submitted by the Contractor to the Contract Administrator: (Clause 7.5(a))

Document ……………………………

Copies ……………………………

Remediation Design Documentation hard copy requirements: (Clause 7.5(a))


To scale


Remediation Design Documentation electronic copy requirements: (Clause 7.5(b))




........................................ Number of days for submission of Project Plans: (Clause 7.7(a)(ii))





ATTACHMENT E

Commissioning and Handover Plan:

........................................


........................................

Communications Plan:

Other: [SPECIFY] ........................................

CLAUSE 8 - EXECUTION OF REMEDIATION WORKS


.........................................................................................

Statutory Requirements with which the Contractor does not need to comply: (Clause 8.3(a))

.........................................................................................

Work or Goods Subcontractors

............................................ ............................................

Remediation Work which requires approval to subcontract or which must be let to one of the named subcontractors: (Clause 8.5(a))

............................................ ............................................


.........................................................................................


.........................................................................................


.........................................................................................


.........................................................................................

Plant, Equipment and Work which must not be removed from the Site without the Contract Administrator's consent: (Clause 8.14)

.........................................................................................


.........................................................................................


.........................................................................................


.........................................................................................

Project signboard dimensions: .........................................................................................




ATTACHMENT E

(Clause 8.23(a)(i))


.........................................................................................



Other: [SPECIFY] ........................................


.........................................................................................

CLAUSE 10 – TIME


.........................................................................................

Program format to be compatible with: (Clause 10.2(e))

[Primavera Suretrak/Microsoft Project] or approved equivalent.

Additional causes of delay entitling Contractor to claim an extension of time: (Clauses 10.5(a) and 10.7(c)(i))

1. Statewide industrial disputation or other industrial disputation caused by the Commonwealth, which in neither case is caused or contributed to by the Contractor or any subcontractor of the Contractor.

2. A change in a Statutory Requirement or in the requirements of local or other authorities after the Award Date.

3. Commonwealth Risks.

4. Unidentified Site Conditions which have been determined by the Contract Administrator to have been encountered under clause 11.1.

5. Unidentified Toxic Agents or Other Materials which have been determined by the Contract Administrator to have been encountered under clause 6.7.

Clause 10.11 [does/does not] apply. (Clause 10.11 applies unless otherwise stated).


Where there are no Stages, the agreed damages for the Remediation Works are:

$.........................per working day.








ATTACHMENT E





.....................% (5% unless otherwise stated).



Monthly on the ……………… day of each month.

OR


.........................................................................................



1. Queensland: 5; or



1. In the case of damages - the Australian Taxation Office-sourced General Interest Charge Rate current at the due date for payment or such other rate nominated in writing from time to time by the Contract Administrator; or




Limits of accuracy for quantities in Schedule of Rates: (Clause 12.19(c))

Upper Limit:

Lower Limit:






2. any other State or Territory, the Chair of the Institute of Arbitrators and Mediators Australia of the Chapter in that State or




ATTACHMENT E

Territory.


.........................................................................................

CLAUSE 13 – REMEDIATION COMPLETION

If there are no Stages, for the Remediation Works is:

$............... per day.



……………………......... $................... per day

Liquidated damages payable by Contractor when Date of Remediation Completion occurs after Date for Remediation Completion: (Clause 13.7)

……………………......... $................... per day

CLAUSE 14 – TERMINATION


.........................................................................................

CLAUSE 15 – DISPUTES

Directions to be subject of an expert determination if disputed: (Clause 15.2)

Directions under clauses: 2.3(b), 8.4(e), 8.18, 9.4, 9.8(b)(i), 9.10, 10.8, 10.9, 10.12(b)(ii)A.1, 11.5(b), 11.5(c)(ii), 11.3(d), 12.4, 13.2(b)(ii), 14.8(a), 17.3(e)


.........................................................................................

Nominating authority for industry expert: (Clause 15.3(a)(ii)) .........................................................................................

(The President for the time being of the Institute of Arbitrators and Mediators Australia unless otherwise stated).

CLAUSE 16 – NOTICES

Commonwealth: ........................................................

......................................................................................

......................................................................................


......................................................................................

......................................................................................


Contractor: ................................................................

......................................................................................

CLAUSE 17 - GENERAL




ATTACHMENT E



Clause 17.2 [does/does not] apply. (Clause 18.2 does not apply unless otherwise stated).









........................... .......................... ........................

CLAUSE 20 - FAIR WORK PRINCIPLES

Applicability of Fair Work Principles: (Clause 20)

Clause 20 [does/does not] apply. (Clause 20 applies unless otherwise stated).



ATTACHMENT F

ADJUSTMENT FORMULA

1. ADJUSTMENT

1.1 The Maximum Rates shall, if subject to annual adjustment in accordance with the Deed, be adjusted in accordance with the following formula:

where:

AUP = Adjusted Price;

EDP = Price at Deed Effective Date, as adjusted for changes to the Deed expressed in Base Date prices;

V = the index number for the quarter 6 months preceding the quarter containing the applicable Adjustment Date; and

Vo = the index number for the quarter containing the Base Date;

and

the index number to be used in the formula is the first published index number for the relevant quarter.

2. INDEX

2.1 The designated index shall be as follows:

Description of Index Table Series

ABS Catalogue 6345.0 Labour Price Indexes

9. b A2639899K (All Industries)

Attachments to Conditions of Deed F-1



ATTACHMENT G

PARTS OF DEED THAT ARE C-I-C INFORMATION

Note to tenderers: Attachment F will consist of an amalgamation of this Attachment and the successful tenderer’s response.

The four below criteria comprise the “Confidentiality Test” which must all be met for a supplier’s commercial information to be considered confidential. These are:

Criterion 1: The information to be protected is specifically identified. A request for inclusion of a provision in a contract that states that all information is confidential does not pass this test. Individual items of information, for example pricing, must be separately considered. However, where an agency contract may be used for future cooperative procurements agencies generally should not include provisions that would prevent other Commonwealth agencies from accessing the terms and conditions, including pricing of the contract.

Criterion 2: The information is commercially ‘sensitive’. The information should not generally be known or ascertainable. The specific information must be commercially ‘sensitive’ and it must not already be in the public domain. A request by a potential supplier to maintain the confidentiality of commercial information would need to show that there is an objective basis for the request and demonstrate that the information is sensitive.

Criterion 3: Disclosure would cause unreasonable detriment to the owner of the information or another party. A potential supplier seeking to maintain confidentiality would normally need to identify a real risk of damage to commercial interests flowing from disclosure which would cause unreasonable detriment. For example, disclosure of internet price lists would not harm the owner, but disclosure of pricing information that reveals a potential supplier’s profit margins may be detrimental.

Criterion 4: The information was provided under an understanding that it would remain confidential. This requires consideration of the circumstances in which the information was provided and a determination of whether there was a mutual, express or implied understanding that confidentiality would be maintained. The terms included in request documentation and in draft contracts will impact on this. For example, a request for tender and draft contract which included specific confidentiality provisions would support an assertion by a potential supplier that the agency has agreed to accept information on the understanding that it would remain confidential.

Further guidance can be obtained at the following link:

http://www.finance.gov.au/procurement/procurement-policy-and-guidance/buying/contract-issues/confidentiality-procurement-cycle/practice.html#content.

Clause number Title of clause Reason for classification

Party for whom the information is

Commercial-in-Confidence

Conditions of contract, for example

Attachments to Conditions of Deed G-1


http://www.finance.gov.au/procurement/procurement-policy-and-guidance/buying/policy-framework/cooperative-agency/principles.html


ATTACHMENT H

CONTROLLED CONTENT REGISTER TEMPLATE

MATERIAL

Ref Description (including version)

Category Owner LicenceDate created

Date supplied

Date entered in register

INTELLECTUAL PROPERTY

Ref Description Category Owner LicenceDate created

Date supplied

Date entered in register

COMMERCIAL-IN-CONFIDENCE INFORMATION

Ref Description Why confidential

Party for whom the information is confidential

Date supplied Date entered in register

SECURITY CLASSIFIED INFORMATION

Ref Description Security classificati

on

Date supplied Date entered in register

EXPORT CONTROLLED ITEMS

Ref Description Country Law Restriction Date entered in register

Attachments to Conditions of Deed H-1



ATTACHMENT I

GLOSSARY

1. ACRONYMS AND ABBREVIATIONS

Abbreviation Description

ABN Australian Business Number

ACN Australian Company Number

ACM Asbestos Containing Material

ADF Australian Defence Force

AIC Australian Industry Capability

AGEST Australian Government Employees Superannuation Trust

ARBN Australian Registered Business Number

ATO Australian Taxation Office

C-I-C Commercial-in-Confidence

CMCA Contractor Managed Commonwealth Assets

COMSEC Communications Security

CPRs Commonwealth Procurement Rules

DEEWR Department of Education, Employment and Workplace Relations

DI(G) Defence Instruction (General)

DMO Defence Materiel Organisation

DPPM Defence Procurement Policy Manual

DSD Defence Signals Directorate

DSM Defence Security Manual

GST Goods and Services Tax

GFF Government Furnished Facilities

GFM Government Furnished Material

ILS Integrated Logistics Support

IM Infrastructure Management website, to be found at http://www.defence.gov.au/im

IOP Australian Government Indigenous Opportunities Policy

IP Intellectual Property

ISO International Standards Organisation

LIA Local Industry Activity

MPP Mandatory Procurement Procedure

RFT Request for Tender

SDS Safety Data Sheet

SOS Scope of Services

SOW Statement of Work

TD Technical Data

Attachments to Conditions of Deed I-1


http://www.defence.gov.au/im


ATTACHMENT I

2. DEFINITIONS

Term Definition

Adjustment means the process by which the Maximum Rates are revised in accordance with Attachment F.

Adjustment Date means each anniversary of the Deed Effective Date, starting from the first anniversary of the Deed Effective

Date

Agency for clause 9.7 of the Deed, has the same meaning as in the Privacy Act 1988.

Allowances means the allowances set out in Attachment B.

Annual Performance Review means the annual performance review process set out in Attachment K.

Approved Privacy Code means an Approved Privacy Code as defined by the Privacy Act 1988.

Asbestos Containing Material or ACM

has the meaning given in subregulation 5(1) of the Work Health and Safety Regulations 2011 (Cth).

ATO means the Australian Taxation Office or any other Commonwealth government agency responsible for the collection of GST.

Attachment means an attachment to the Deed listed in the table of contents.

Australian Government Agency

means an entity that reports under the Financial Management and Accountability Act 1997.

Australian Privacy Principles has the meaning given in the Privacy Act 1988 on and from 12 March 2014;

Authorisations means a licence, accreditation, permit, registration, regulatory approval, agreement, consent, certificate or other documented authority (however described), required by law and necessary for the provision of Services.

Background IP means IP, other than Third Party IP, that:

a. is in existence at the Deed Effective Date or is subsequently brought into existence other than as a result of the performance of the Deed or a Contract; and

b. is embodied in, or attaches to, the Services, or is otherwise necessarily related to the functioning or operation of the Services.

Base Date means 10 February 2014

Building Code means the Building Code 2013 issued under section 27 of the Fair Work (Building Industry) Act 2012. The Building Code can be downloaded from www.deewr.gov.au/BuildingCode

Change of Control means in relation to the Contractor, where a person who did not (directly or indirectly) effectively Control the Contractor at the Deed Effective Date, either alone or together with others, acquires Control of the Contractor.

Code Monitoring Group means the Code Monitoring Group as set out in the Building Code 2013 Supporting Guidelines For Commonwealth Funding Entities.



http://www.deewr.gov.au/BuildingCode


ATTACHMENT I

Term Definition

Commercial-In-Confidence Information

means information (whether or not owned by the Commonwealth) that:

a. is by its nature confidential; or

b. the receiving party knows or ought to know is confidential;

but does not include information which:

a. is or becomes public knowledge other than by breach of the Deed or a Contract;

b. is in the possession of a party without restriction in relation to disclosure before the date of receipt; or

c. has been independently developed or acquired by the receiving party.

Commonwealth Contract Representative

means any person nominated in accordance with clause 2.2 of the Deed, or, if no Commonwealth Contract Representative has been nominated, means the Commonwealth Panel Manger.

Commonwealth Information Systems

means the systems used by the Commonwealth to store or manage information relating to the Services, including the Panel Database, Defence Estate Management System, Garrison Management System and Geographical Facilities Information System.

Commonwealth Mandated GFM

means GFM that the Contractor is required to use in performing the Services and has been listed in the Official Order as ‘Commonwealth Mandated GFM’.

Commonwealth Panel Manager

means the person identified in Item 4 of the Deed Particulars or any other person appointed pursuant to the Deed as the Commonwealth Panel Manager.

Commonwealth Premises means any of the following that is owned or occupied by the Commonwealth:

a. an area of land or any other place (whether or not it is enclosed or built on);

b. a building or other structure; or

c. a vehicle, vessel or aircraft.

Completion means the point in time when, in respect of a Milestone, everything required by the Deed or any Contract to have been completed as a condition precedent to completion of the Milestone has been completed in accordance with the Deed or any Contract.

Consolidated Content Register

means the register created by combining each Contract Content Register and which the Contractor is required to provide to the Commonwealth in accordance with clause 4.4 of the Deed.

Contract means the enforceable contract that is created when an Official Order is placed under the Deed.

Contract Award Date means the date determined in accordance with clause 1.8.9 of the Deed.

Contract Content Register means the register that is required to be maintained by the Contractor in accordance with clause 4.4 of the Deed.




ATTACHMENT I

Term Definition

Contract Material means any Material created by or on behalf of the Contractor for the purpose of or as a result of performing its obligations under the Deed or a Contract.

Contract Price means the amount payable by the Commonwealth under a Contract made pursuant to the Deed, excluding any interest payable under clause 5.7 of the Deed.

Contractor Managed Commonwealth Assets

means any item of goods owned by the Commonwealth in the care, custody or control of the Contractor, its officers, employees, agents or Subcontractors and may include, but is not limited to, GFM, assets stored as spares, assets under repair, or assets loaned to the Contractor.

Contractor Material Change means a change that may adversely impact the Contractor’s ability to perform its obligations under this Deed or a Contract (including its ability to perform Services) and may include:

d. a change to the Contractor’s size, resources, subcontract arrangements, structure, ownership or financial standing;

e. a Change of Control;or

f. litigation, adverse publicity or industrial action affecting the Contractor.

Contractor Panel Representative

means the person identified in Item 5 of the Deed Particulars or any other person appointed pursuant to the Deed as the Commonwealth Panel Manager.

Control means:

a. the ability to exercise or control the exercise of the right to vote in respect of more than 50% of the voting shares or other form of voting equity in a corporation;

b. the ability to dispose or exercise control over the disposal of more than 50% of the shares or other form of equity in a corporation;

c. the ability to appoint or remove all or a majority of the directors of a corporation;

d. the ability to exercise or control the exercise of the casting of a majority of the votes cast at the meetings of the board of directors of a corporation; and

e. any other means, direct or indirect, of dominating the decision making and financial and operating policies of a corporation.

Day means a calendar day.

Deed means the conditions of deed, the Schedule, the Attachments and any document expressly incorporated as part of the Deed.

Deed Effective Date means the date on which the Deed is signed by the parties, or if signed on separate days, the date of the last signature.

Deed Particulars means Schedule 1 of the Deed.

Defence means the Department of Defence or the Australian Defence Force.




ATTACHMENT I

Term Definition

Defence Personnel means an employee of the Department of Defence or a member of the Australian Defence Force (whether of the Permanent Forces or Reserves as defined in the Defence Act 1903 (Cth)) and the equivalents from other organisations on exchange to Defence.

Defence Purposes means any purpose within the power of the Commonwealth with respect to the defence of the Commonwealth and includes purposes that are necessary or incidental to that purpose.

Defence Service Provider means a person, other than Defence Personnel, involved in Defence work or engaged by the Department of Defence or the Australian Defence Force.

Department of Defence Includes the ADF and the DMO

Document Includes:

a. any paper or other materials on which there are writing, marks, figures, symbols or perforations having meaning for persons qualified to interpret them; and

b. any article or material from which sound, images, or writings are capable of being reproduced with or without the aid of any other article or device.

Engagement Performance Review

means the engagement performance review set out in Attachment K.

Environmental Clearance Certificate

The environmental clearance certificate issued by the Commonwealth (if any) specified in the Request for Quotation and Tasking Statement.

Foreground IP means IP which is created under or otherwise in connection with the Deed or a Contract, other than Third Party IP.

Government Furnished Facilities

means the facilities to be provided to the Contract under the Contract as specified in the Official Order.

Government Furnished Material

means the material (including data, equipment and information) to be provided to the Contractor under the Contract as specified in the Official Order.

GST has the same meaning given under the GST Act.

GST Act means A New Tax System (Goods and Services Tax) Act 1999 and associated taxation legislation. The expressions “adjustment note”, “taxable supply” “taxable importation” and “tax invoice” have the meanings given to those expressions in the GST Act.

Imported Content means that part of the Services (measured by value) that is not LIA or Australian Government charges or duties, including GST. This includes that part of the Services that is of overseas (other than New Zealand) origin and comprises all associated costs incurred outside of Australia including, but not limited to, international freight and cartage (by other than Australian and New Zealand industry carriers), agent’s fees, and overseas storage.

Information Privacy Principle has the same meaning as in the Privacy Act 1988.

Initial Expiry Date means the date set out in Item 2 of the Deed Particulars.




ATTACHMENT I

Term Definition

Intellectual Property means all copyright and all rights in relation to inventions (including patent rights), registered and unregistered trademarks (including service marks), registered and unregistered designs, confidential information and circuit layouts, and any other rights resulting from intellectual activity in the industrial, scientific, literary and artistic fields recognised in domestic law anywhere in the world.

IT Equipment means any software, hardware or telecommunications equipment:

a. produced or required to be produced; or

b. provided, or required to be provided, to the Commonwealth,

under, for the purposes of or in connection with the Deed or any Contract by, for or on behalf of the Contractor.

ITES Plan means the Indigenous Training, Employment and Supplier Plan required under the IOP Guidelines.

Key Persons means the persons specified in an Official Order as personnel required to undertake the Services or part of the work constituting the Services.

Latest Expiry Date means the date set out in Item 3 of the Deed Particulars.

Lead Customer means the Department of Defence.

Local Industry Activity means the activities to be undertaken by Australian and New Zealand industry as set out in the AIC Schedule.

Material includes documents, equipment, software (including source code and object code), goods, information and data stored by any means including all copies and extracts of the same.

Maximum Rates means the rates set out in Attachment B.

Month means a calendar month.

Moral Rights means:

a. a right of attribution of authorship

b. a right not to have authorship falsely attributed; or

c. a right of integrity of authorship.

National Privacy Principle has the same meaning as in the Privacy Act 1988.

New Customer Deed means a deed in the form of Attachment J.

Notifiable Incident has the meaning given in sections 35 to 37 of the Work Health and Safety Act 2011 (Cth).

Official Order Official Order means the document to be used by the Commonwealth in the form set out in Attachment E by which the Commonwealth places an order for Services and enters into a Contract with the Contractor.

Official Order Template means the template form of Official Order set out at Attachment E.




ATTACHMENT I

Term Definition

Other Commonwealth Agency

means:

a. a body corporate or an unincorporated body established or constituted for a public purpose by Commonwealth legislation, or an instrument made under that legislation (including a local authority);

b. a body established by the Governor-General or by a Minister of State of the Commonwealth including departments; or

c. an incorporated company over which the Commonwealth exercises control.

Other Provider means a service provider to the Commonwealth that is not the Contractor.

Ozone Depleting Substances means any substance identified as having ozone depleting potential in the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 or any regulations made under that Act.

Panel means a panel of suppliers established by the Commonwealth who may be contracted by the Commonwealth to provide Services of the kind set out in the Deed.

Panel Database means the database established by Defence for the management of the Panel.

Panel Email Address means the email address set out in Item 10 of the Deed Particulars.

Panellist means a person that is on the Panel through having signed with the Commonwealth a ‘Deed of Standing Offer for Defence Environment and Heritage Panel’.

Performance Management and Reporting System

means the system set out in clause 8.2 of the Deed.

Personal Information has the same meaning as in the Privacy Act 1998.

Problematic Substance means:

a. any substance identified as having ozone depleting potential, or any gas identified as a Synthetic Greenhouse Gas, in the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (Cth) or any regulations made under that Act;

b. any dangerous goods as defined in the Australian Code for the Transport of Dangerous Goods by Road and Rail (extant edition and as amended); or

c. any hazardous chemicals as defined in subregulation 5(1) of the Work Health and Safety Regulations 2011 (Cth).

Quotation means the Contractor’s response to a Request for Quotation and Tasking Statement.

Quotation Template means the template form of Quotation at Attachment D.

Region with a Significant Indigenous Population

has the meaning given in the IOP Guidelines.

Related Body Corporate has the meaning given by section 9 of the Corporations Act 2001.




ATTACHMENT I

Term Definition

Request for Quotation and Tasking Statement

means the document by which the Commonwealth Panel Manager or Commonwealth Contract Representative seeks competitive Quotations from one or more Panellists on the Panel if the Commonwealth requires Services from the Panel.

Request for Quotation and Tasking Statement Template

means the template form of Request for Quotation and Tasking Statement at Attachment C.

Schedule of Rates for Contracts that are not priced as a fixed Contract Price, means the Schedule of Rates set out in an Official Order to be used for the purpose of calculating the Contract Price (which rates must not exceed the Maximum Rates).

Scope of Services means the description of the Services at Attachment A.

Service Category means a Service Category in Attachment A.

Services means the services and goods specified in the Deed and provided under the Contract, including documents, equipment, reports, Intellectual Property, Technical Data, plans, charts, drawings, calculations, tables, schedules, models, software, information and data stored by any means, that are:

a. brought, or required to be brought into existence, as part of, or for the purposes of performing the Services;

b. incorporated in, supplied, or required to be supplied along with the Services; or

c. copied or derived from the material provided.

Small Business means an enterprise that employs less than the full time equivalent of 20 persons. If the enterprise forms part of a group, this test is applied to the group as a whole.

Special Condition means an additional term that is incorporated into a Contract in accordance with clause 1.8 of the Deed.

Statutory Requirement means:

a. any law applicable to the carrying out of the Services, including Acts, ordinances, regulations, by-laws and other subordinate legislation;

b. common law; and

c. any authorities, consents, licences, determinations, certificates, approvals, permits, notices or orders required by any authority.

Subcontractor means any person, other than the Commonwealth, that, for the purposes of a Contract, furnishes goods or services to the Contractor or indirectly to the Contractor through another person; and “Subcontract” has a corresponding meaning.

Supporting Guidelines means the Supporting Guidelines for the Building Code 2013. The Supporting Guidelines can be downloaded from www.deewr.gov.au/BuildingCode.




ATTACHMENT I

Term Definition

Technical Data means all technical know-how and information reduced to material form produced, acquired or used by the Contractor or Subcontractors in relation to the Services and includes all data, databases, manuals, handbooks, designs, standards, specifications, reports, writings, models, sketches, plans, drawings, calculations, source code, software design data, test results, software and software updates and other items describing or providing information relating to the Services or their operations.

Term means the period determined in accordance with clause 1.3.

Third Party IP means that IP which is owned by a person other than the Commonwealth or the Contractor and is embodied in the Services, or attached to the Services or is otherwise necessarily related to the functioning or operation of the Services, and is not limited to commercial off the shelf items.

Variation means any change to the Services to be provided under a Contract, including any addition, increase, decrease, omission or deletion to or from the Services.

WHS Legislation means:

a. the Work Health and Safety Act 2011 (Cth) and the Work Health and Safety Regulations 2011 (Cth); and

b. any corresponding WHS law as defined in section 4 of the Work Health and Safety Act 2011 (Cth).

Working Day in relation to the doing of an action in a place means any day other than a Saturday, Sunday or public holiday in that place.

3. REFERENCED DOCUMENTS

Reference Description

CPRs Commonwealth Procurement Rules

DI(ENV) 1/2002 Defence environmental policy and management system

DI(ENV) 2/2005 Department of Defence Ecologically Sustainable Development strategy

DI(ENV) 13/2002 Annual reporting of environmental matters

DI(G) ADMIN 40–2 Environment and Heritage Management in Defence

DI(G) ADMIN 40–3 Assessment and approval of Defence actions under the Environment Protection and Biodiversity Conservation Act 1999

DI(G) ADMIN 46–1 Quarantine

DI(G) CIS 6-1-001 Appropriate and inappropriate use of Information and Communications Technology Resources

DI(G) LOG 4-3-014 Stocktaking of Defence assets

DI(G) PERS 35-3 Managing and Reporting of Unacceptable Behaviour

DPPM Defence Procurement Policy Manual

DSM Defence Security Manual

IOP Guidelines Indigenous Opportunities Policy Guidelines, as amended from time to time. A copy of the IOP Guidelines is available from DEEWR’s IOP website: www.deewr.gov.au/iop



http://www.deewr.gov.au/iop


ATTACHMENT I


Reference Description

WHS Act Work Health and Safety Act 2011 (Cth)

WHS Regulations Work Health and Safety Regulations 2011 (Cth)

A New Tax System (Goods and Services Tax) Act 1999

Auditor-General Act 1997

Australian Code for the Transport of Dangerous Goods by Road and Rail, 7th edition;

Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010)

Australian Industry Capability Toolkit

Criminal Code

Defence and Industry Policy Statement

Designs Act 2003

DMO Cost Principles, as amended from time to time.

Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (Cth)

Privacy Act 1988



ATTACHMENT J

NEW CUSTOMER DEED TEMPLATE

PARTIES

New Customer

Item Detail

Name [Insert]

ABN [Insert]

Address [Insert]

Telephone [Insert]

Fax [Insert]

Email [Insert]

Customer Panel Manager [Insert]

Contractor

Item Detail

Name [Insert]

ABN [Insert]

Address [Insert]

Telephone [Insert]

Fax [Insert]

Email [Insert]

Contractor Panel Representative [Insert]

RECITALS

A. By Deed of Standing Offer (DOSO) dated […INSERT…] the Department of Defence (Lead Customer), as the authorised contracting authority, appointed the Contractor as a Panellist to the Defence Environment and Heritage Panel.

B. The DOSO enables Other Commonwealth Agencies to enter into a deed of standing offer on the same terms as the DOSO for the purpose of enabling those departments or agencies of the Commonwealth to receive Services from the Contractor by executing a New Customer Deed in the form of this New Customer Deed Template.

C. The New Customer wishes to acquire and the Contractor has agreed to supply such Services from the Contractor as it requires from time to time in accordance with the terms of the Contract and this New Customer Deed.

1. NOTICE OF INCLUSION

The parties agree that, in accordance with clause 8.14 of the DOSO, this deed creates an agreement between the New Customer and the Contractor that incorporates:

Attachments to Conditions of Deed J-1



ATTACHMENT J

(a) all terms of the Deed other than those schedules that are specific to the Lead Customer as if those provisions were set out in full in this deed; and

(b) the Specific Customer Requirements set out in this New Customer Deed.

2. NEW CUSTOMER’S PANEL MANAGER

The New Customer’s Panel Manager is the person for the time-being holding, occupying or performing the duties of [insert details of position].

3. KEY PERSONS

[Insert name and title of Key Persons]

4. COMMERCIAL-IN-CONFIDENCE INFORMATION

[Insert relevant items]

5. NEW CUSTOMER’S ADDRESS FOR NOTICES

Physical address [Insert]

Postal address [Insert]

Email [Insert]

Facsimile [Insert]

6. PANEL MEMBER’S ADDRESS FOR NOTICES

Physical address [Insert]

Postal address [Insert]

Email [Insert]

Facsimile [Insert]

7. ISSUING OFFICIAL ORDERS

#Option 1# There are no Specific Customer Requirements relating to issuing Orders.

#Option 2# [Insert New Customer specific requirements]

8. INVOICES

#Option 1# There are no Specific Customer Requirements in relation to invoicing.

#Option 2# [Insert New Customer specific invoicing and/or payment requirements]

9. PAYMENTS

#Option 1# There are no Specific New Customer Requirements in relation to payments.

#Option 2# [Insert New Customer specific payment requirements]

10. REPORTING REQUIREMENTS

#Option 1# There are no Specific Customer Requirements in relation to reporting.

#Option 2# [Insert New Customer specific reporting requirements]

11. PERFORMANCE MEASUREMENT

#Option 1# There are no specified performance measurement methods.




ATTACHMENT J


#Option 2# [Insert New Customer specific performance measurement requirements]

12. SECURITY REQUIREMENTS

#Option 1# There are no Specific Customer Requirements in relation to security.

#Option 2# [Insert New Customer specific fee requirements]



ATTACHMENT J

New Customer Deed Signing Page

Executed as a deed

Dated:

New Customer

SIGNED, SEALED AND DELIVERED by

……………………………………………….. [INSERT INDIVIDUAL’S NAME IN UPPERCASE]

………………………………………………..[INSERT INDIVIDUAL’S POSITION TITLE IN UPPERCASE]

……………………………………………….. [INSERT SIGNATURE OF INDIVIDUAL AND DATE]

who is authorised to execute this deed on behalf of the Commonwealth of Australia represented by

……………………………………………….. [INSERT NAME OF NEW CUSTOMER IN UPPERCASE]

Contractor

EXECUTED by

……………………………………………….. [INSERT PANEL MEMBER’S NAME IN UPPERCASE]

in accordance with section 127(1) of the Corporations Act 2001 (Cwlth) by authority of its directors:

……………………………………………….. [INSERT NAME OF DIRECTOR/COMPANY SECRETARY* IN UPPERCASE]

……………………………………………….. [INSERT POSITION TITLE IN UPPERCASE IE DIRECTOR OR COMPANY SECRETARY ]

……………………………………………….. [INSERT SIGNATURE OF DIRECTOR/COMPANY SECRETARY* AND DATE]

Lead Customer

ACKNOWLEDGED by the Defence Panel Manager

……………………………………………….. [INSERT INDIVIDUAL’S NAME IN UPPERCASE]

………………………………………………..[INSERT INDIVIDUAL’S POSITION TITLE IN UPPERCASE]

……………………………………………….. [INSERT SIGNATURE OF INDIVIDUAL AND DATE]




ATTACHMENT K

PERFORMANCE MANAGEMENT AND REPORTING SYSTEM

1. PERFORMANCE ASSESSMENT

1.1. General

1.1.1. The Contractor shall participate in the structured performance review process, which applies at the following levels:

a. Contract level; and

b. Deed level.

2. CONTRACT LEVEL ASSESSMENT

2.1. Engagement Performance Reviews

2.1.1. The Commonwealth Contract Representative shall undertake, for each Contract, a Engagement Performance Review (EPR).

2.1.2. The EPR will review the Contractor’s performance of the Contract, including in relation to:

a. performance of Contract obligations and quality standards;

b. performance levels; and

c. continuous improvement.

2.1.3. The Commonwealth shall be evaluate the Contractor’s performance of the Contract against the Key Performance Indicators (KPI):

2.1.4. The applicable KPIs for a Contract are:

a. the KPIs set out in the Official Order; or

b. if no KPIs are set out in the Official Order, then:

c. for Service Categories A, B, C and E, the KPIs in Table 1; or

d. for Service Categories D and F, the KPIs in Table 2.

Attachments to Conditions of Deed K



ATTACHMENT K

Table 1: Individual Engagement (Contract) Key Performance Matrix – Service Categories A, B, C, and E

Key Performance Indicator

Measure Rating Total Rating

Demonstrated a comprehensive understanding of the relevant legislation and/or Commonwealth policy for the task

10 Understanding Defence Objectives in the Contract

Effectively consulted with all relevant stakeholders

10

20

Contract deliverables met the requirements of the Contract

20

Contract deliverables were of a quality to meet Commonwealth standards

10

Schedules aligned with the Contract requirements

10

Service Delivery

Contract deliverables provided a value-add to the Commonwealth’s intended outcomes for the Contract

10

50

Payment claims were substantiated in accordance with the Contract

5

All obligations were met in accordance with the Contract

5

Variations were managed in accordance with the Contract

5

Contract administration and compliance

Contract non-compliance was managed effectively

5

20

Key Person changes did not impede the schedule or outcomes of the Contract

5 Key Personnel

Key Person changes involved personnel of equivalent experience, qualifications and expertise

5

10

Rating (out of 100) 100




ATTACHMENT K

Table 2: Individual Engagement (Contract) Key Performance Matrix – Service Categories D and F

Key Performance Indicator

Measure Rating Total Rating

Demonstrated a comprehensive understanding of the relevant legislation and Commonwealth policy for the task

10 Understanding Defence Objectives in the Contract

Effectively consulted with all relevant stakeholders

5

15

Contractor project plans are developed and implemented in accordance with the Contract

15

Contract deliverables met the requirements of the Contract

15

WHS obligations are met 10

Contract deliverables were of a quality to meet Commonwealth standards

10

Service Delivery

Contract deliverables provided a value-add to the Commonwealth’s intended outcomes for the Contract

5

55

Variations were managed in accordance with the Contract

15 Contract administration and compliance

Payment claims were substantiated in accordance with the Contract

10

25

Key Personnel Key Person changes did not impede the schedule or outcomes of the Contract and any changes of personnel were of equivalent experience, qualification and expertise

5 5

Rating (out of 100) 100

2.1.5. The Contractor’s rating for a EPR will be determined in accordance with the Table 3 set out below”




ATTACHMENT K

Table 3: Engagement Performance Review Ratings

Rating Score

Exceptional Standard 90-100

Excellent Standard 75-89

Acceptable Standard 66-74

Minimum Standard 56-65

Unsatisfactory Standard Less than 55

2.1.6. The Contractor agrees that the EPR is critical to the effectiveness of the Contract Review Meeting and the Annual Performance Review (APR).

2.1.7. The Contractor shall ensure that the Commonwealth Contract Manager has finalised and submitted to the Commonwealth Panel Manager all EPRs.

2.2. Contract Review Meetings

2.2.1. The Contractor shall, if required by the Commonwealth:

a. participate in Contract Review Meetings to review its performance of the Services based on the EPR;

b. arrange a time and venue for the Contract Review Meeting; and

c. prepare and distribute to the Commonwealth Contract Representative an appropriate agenda for the Contract Review Meeting at least five (5) Working Days prior to the meeting;

d. prepare and distribute to the Commonwealth Contract Representative draft minutes for the Contract Review Meeting no later than five (5) working days following the meeting.

2.2.2. The Commonwealth Contract Representative may provide comments on the draft minutes no later than five (5) Working Days from receipt. The Contractor shall incorporate the Commonwealth’s comments and the parties shall authorise the minutes. The Contractor shall provide a copy of the authorised minutes to the Commonwealth Panel Manager no later than two (2) days after authorisation.

3. DEED LEVEL ASSESSMENT

3.1. Annual Performance Reviews

3.1.1. The Contractor shall participate in an Annual Performance Review (APR) for each year of the Term.

3.1.2. Each APR will review the Contractor’s performance of

a. Contracts, by reviewing all of the EPRs that relate to Contracts performed in the applicable year; and

b. the Deed.

3.1.3. The APR will review the Contractor’s performance of the Deed and Contracts, including in relation to:

a. assessment of statistical data to identify volume and value of work undertaken;

b. summation of all EPRs completed during the reporting period;

c. provision of the Content Register in accordance with the Deed; and




ATTACHMENT K

d. assessment of the Contractor’s strategic performance.

3.1.4. The Commonwealth Panel Manager will rate the Contractor’s performance under the Deed and Contracts based on the methodology detailed in Table 4.

Table 4: Annual Performance Review Assessment Methodology

Mechanism Criteria Weighting

Statistical Data o Number of contracts won

o Value of contracts won Not scored

Engagement Performance Review Scores

o Average score from EPRs 50%

Content Register o Provided Content Register in accordance with Deed requirements

10%

Annual Performance Review o Approach to performance management (40%)

o Approach to continuous improvement (10%)

o Approach to risk (40%)

o Approach to innovation (10%)

40%

TOTAL 100%

3.1.5. The Contractor’s rating for an APR will be determined in accordance with Table 5 set out below”

Table 5: Final Performance Rating

Final Performance Rating Score

Exceptional standard 90-100

Excellent Standard 75-89

Acceptable Standard 66-74

Minimum Standard 56-65

Unsatisfactory Standard Less than 55

3.2. Deed Review Meetings

3.2.1. The Contractor shall participate in an annual Deed Review Meeting (DRM) to review the Contractor’s performance during the previous 12 month period.

3.2.2. The aim of the DRM is to:

a. review and confirm contract statistics for the 12 month period;

b. conduct a central review of the 12 month performance based on EPRs and the APR;

c. review the effectiveness of panel relationships;

d. discuss any industry advancements or opportunities; and




ATTACHMENT K


e. offer the opportunity for the Contractor to provide input on matters that arose during the relevant period.

3.2.3. The DRM will be chaired by the Commonwealth Panel Manager. The Commonwealth Panel Manager shall provide the Contractor with a minimum of five (5) Working Days notice of the time, venue and agenda of the DRM.

3.2.4. Unless otherwise advised by the Commonwealth Panel Manager, DRMs will be held in Canberra on Commonwealth premises. The Contractor’s costs (including travel costs) related to attendance at the DRM are to be borne by the Contractor.

4. REPORTING

4.1. Contract Progress Reports

4.1.1. The Contractor shall provide written progress reports to the Commonwealth Contract Representative on the dates set out in the Official Order, or if no dates are set out in the Official Order every six months after the Contract Award Dates.

4.1.2. The progress reports shall contain at least the following information:

a. contract progress;

b. actual work conducted;

c. actual costs attributed to the contracted work;

d. comparative analysis of work completed against work contracted;

e. prediction of work effort required to complete the contracted work;

f. complete financial status of the contracted work; and

g. any issues related to the contracted work and possible resolution mechanisms.

4.2. Activity Reports

4.2.1. The Contractor shall maintain auditable records its activities undertaken in connection with the Deed and Contracts, including:

a. all Requests For Quotation And Tasking Statements received;

b. all Quotations submitted;

c. all Official Orders received;

d. all changes made to the Deed or a Contract; and

e. all Engagement Performance Reviews and Annual Performance Reviews.

4.2.2. The Contractor shall produce, and deliver to the Commonwealth Panel Manager, Activity Report setting out all of the information listed in clause 4.2.1.a to 4.2.1.e. The Contractor shall produce Activity Reports for as follows:

Period covered by Activity Report Date by which Activity Report is to be submitted

1 December to 31 May 28 June

1 June to 30 November 10 December

4.2.3. The Contractor shall produce, and deliver to the Commonwealth Panel Manager, additional Activity Reports as requested by the Panel Manager within fifteen (15) Working Days of the request.



ATTACHMENT L

NOT USED




ATTACHMENT M

DEED OF CONFIDENTIALITY AND FIDELITY TEMPLATE

This Deed of Confidentiality and Fidelity is made on 10 February 2014

between

THE COMMONWEALTH OF AUSTRALIA represented by the Department of Defence ABN 68 706 814 312 (’the Commonwealth’)

and

(...INSERT NAME OF CONFIDANT AND ACN/ARBN AND ABN AS APPLICABLE...), having its registered office at (...INSERT DETAILS...) (‘the Confidant’).

RECITALS:

A. The Commonwealth has entered into a contract (...INSERT CONTRACT NUMBER...) dated (...INSERT DATE...) with (…INSERT CONTRACTOR…) (‘the Contractor’) and dated (...INSERT DATE...) (‘the Contract’) for the supply of […INSERT BRIEF DESCRIPTION…].

B. In order to assist the performance of the Contract, the Contractor and the Confidant have entered into a subcontract, employment or agency arrangement for the supply of (…INSERT PURPOSE OF AGREEMENT AND CONTRACT/ORDER NUMBER AS APPROPRIATE…) (‘the Agreement’).

C. In performance of the Agreement, the Confidant may become aware of information belonging to the Commonwealth or a third party that is the subject matter of the Contract. The Confidant agrees to keep the information confidential pursuant to the following terms and conditions.

AGREED TERMS

Attachments to Conditions of Deed M-1



ATTACHMENT M

1. DEFINITIONS

1.1 In the interpretation of this Deed, unless the contrary intention appears:

’Commercial-in-Confidence Information’ means information (whether or not owned by the Commonwealth) that:

a. is by its nature confidential;

b. the Confidant knows or ought to know is confidential,

but does not include information which:

a. is or becomes public knowledge other than by breach of this Deed;

b. is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or

c. has been independently developed or acquired by the receiving party.

‘Documents’ includes:

a. any paper or other material on which there is writing marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and

b. any article or material from which sounds, images or writings are capable of being reproduced with or without the aid of any other article or device.

‘Permitted Purposes’ means the authorised use of protected information.

‘Working Day’ in relation to the doing of an action in a place means any day other than a Saturday, Sunday or public holiday in that place.

2. INTERPRETATION

2.1 In this Deed, unless the contrary intention appears:

a. headings are for the purpose of convenient reference only and do not form part of the Deed;

b. the singular includes the plural and vice-versa;

c. a reference to one gender includes the other;

d. a reference to a person includes a body politic, body corporate or a partnership;

e. where the last day of any period prescribed for the doing of an action falls on a day which is not a Working Day, the action shall be done no later than the end of the next Working Day;

f. a reference to an Act is a reference to an Act of the Commonwealth, State or Territory of Australia, as amended from time to time, and includes a reference to any subordinate legislation made under the Act;

g. a reference to a clause includes a reference to a subclause of that clause;

h. a reference to a ‘dollar’, ‘$’, ‘$A’ or ‘AUD’ means the Australian dollar unless otherwise stated;

i. a reference to a specification, publication, Commonwealth policy or other document is a reference to that specification, publication, Commonwealth policy or document, in effect on the date of entering into this Deed, or alternatively, a reference to another version of the document if agreed in writing between the parties;

j. the word ‘includes’ in any form is not a word of limitation; and

k. a reference to a party includes that party’s administrators, successors, and permitted assigns, including any person to whom that party novates any part of the Deed.

3. CONFIDENTIALITY UNDERTAKINGS




ATTACHMENT M

3.1 The Confidant:

a. acknowledges and agrees that improper use, or disclosure of any Commercial-in-Confidence Information provided to the Confidant pursuant to or in connection with the Agreement would be detrimental to the Commonwealth in the performance of its functions and would cause harm to any third parties with an interest in the Commercial-in-Confidence Information;

b. shall take all reasonable steps to ensure that such Commercial-in-Confidence Information is kept confidential in accordance with this Deed;

c. shall only use the Commercial-in-Confidence Information for the Permitted Purposes; and

d. shall not without the prior written consent of the Commonwealth, disclose or permit any person to disclose any of the Commercial-in-Confidence Information to any person other than to any of its officers, employees, agents, advisers or independent contractors who:

(i) have a need to know the Commercial-in-Confidence Information in order for the Confidant to carry out the Permitted Purposes; and

(ii) if required by the Commonwealth, have executed a similar undertaking to this Deed in favour of the Commonwealth,

and the Commonwealth may grant or withhold its consent in its absolute and unfettered discretion.

4. CONFIDANT’S REPRESENTATIVES

4.1 The Confidant shall ensure that its officers, employees, agents, advisers and independent contractors (whether or not still employed or engaged in that capacity) do not do or omit to do anything which, if done or omitted to be done by the Confidant, would be a breach of the Confidant’s obligations under this Deed.

4.2 The Confidant shall give the Commonwealth all assistance it reasonably requires to take any action or bring any proceedings for breach of the undertaking contained in clause 3.1.

5. RETURN OF COMMERCIAL-IN-CONFIDENCE INFORMATION

5.1 The Confidant agrees to deliver to the Commonwealth or the Contractor, as required by the Commonwealth, all Documents in its possession, power or control which contain or relate to any Commercial-in-Confidence Information on the earlier of:

a. demand by the Commonwealth, and

b. the time the Documents and other material are no longer required for the Permitted Purposes.

5.2 If the Commonwealth makes a demand under this clause 5, and the Confidant has placed or is aware that Documents containing the Commercial-in-Confidence Information are beyond its possession or control, then the Confidant must provide full particulars of the whereabouts of the Documents containing the Commercial-in-Confidence Information, and the identity of the person in whose custody or control they lie.

5.3 The Confidant, when directed by the Commonwealth in writing, agrees to destroy any Document in its possession, power or control which contain or relate to any Commercial-in-Confidence Information.

5.4 Return or destruction of the Documents referred to in this clause does not release the Confidant from its obligations under this Deed.

6. SURVIVAL

6.1 This Deed shall survive the termination or expiry of the Contract and the Agreement.

7. CONFLICT OF INTEREST




ATTACHMENT M

7.1 The Confidant warrants that before entering into this Deed it has disclosed to the Commonwealth all the past, current and anticipated interests of the Confidant which may conflict with or restrict the Confidant in performing the obligations under this Deed for the Commonwealth fairly and independently.

7.2 The Confidant shall not during the course of this Deed engage in any activity or obtain any interest likely to conflict with or restrict the Confidant in providing the obligations under this Deed to the Commonwealth fairly and independently.

8. INDEMNITY

8.1 The Confidant indemnifies the Commonwealth, its officers, employees and agents against all liability or loss (including loss of profits) arising directly or indirectly from, and any costs, charges and expenses (including the cost of settling any action) arising or incurred in connection with:

a. any breach by the Confidant of this Deed; or

b. any act or omission by any of the Confidant’s officers, employees, agents, advisers or independent contractors which, if done or omitted to be done by the Confidant, would breach of the Confidant’s obligations under this Deed.

9. INJUNCTIVE RELIEF

9.1 The Confidant acknowledges that damages may not be a sufficient remedy for the Commonwealth for any breach of this Deed and that the Commonwealth is entitled to injunctive relief (as appropriate) as a remedy for any breach or suspected or threatened breach by the Confidant, in addition to any other remedies available at law or in equity.

10. NO EXCLUSION OF LAW OR EQUITY

10.1 This Deed shall not be construed to exclude the operation of any principle of law or equity intended to protect and preserve the confidentiality of the Commercial-in-Confidence Information.

11. WAIVER

11.1 Failure by either party to enforce a provision of the Deed shall not be construed as in any way affecting the enforceability of that provision or the Deed as a whole.

12. REMEDIES CUMULATIVE

12.1 The rights and remedies provided under this Deed are cumulative and not exclusive of any rights or remedies provided by law or any other such right or remedy.

13. OTHER INSTRUMENTS

13.1 Subject to the other covenants of this Deed, the rights and obligations of the parties pursuant to this Deed are in addition to and not in derogation of any other right or obligation between the parties under any other deed or agreement to which they are parties.

14. VARIATIONS AND AMENDMENTS

14.1 No term or provision of this Deed shall be amended or varied unless such amendment or variation is reduced to writing and signed by the parties hereto in the same manner as this instrument.

15. APPLICABLE LAW

15.1 The laws of relevant States and/or Territories apply to the Deed. The courts of that State or Territory shall have non-exclusive jurisdiction to decide any matter arising out of the Deed.




ATTACHMENT M

16. GOODS AND SERVICES TAX

16.1 In this clause, ’GST’ means a Commonwealth goods and services tax imposed by the A New Tax System (Goods and Services Tax) Act 1999 and the expressions ‘adjustment event’, ‘input tax credits’, ‘taxable supply’ and ‘tax invoice’ have the meaning as in that Act.

16.2 If a party to this Deed (the ‘Supplier’) makes a taxable supply under or in connection with this Deed or in connection with any matter or thing occurring under this Deed to another party to this Deed (the ‘Recipient’) and the consideration otherwise payable for the taxable supply does not include GST, the Supplier will be entitled, in addition to any other consideration recoverable in respect of the taxable supply, to recover from the Recipient the amount of any GST on the taxable supply.

16.3 If the amount paid by the Recipient to the Supplier in respect of GST differs from the GST on the taxable supply (taking into account any adjustment events that occur in relation to the taxable supply), an adjustment shall be made. If the amount paid by the Recipient exceeds the GST on the taxable supply, the Supplier shall refund the excess to the Recipient. If the amount paid by the Recipient is less than the GST on the taxable supply, the Recipient shall pay the deficiency to the Supplier.

16.4 If a party to this Deed is entitled, under or in connection with this Deed or in connection with any matter or thing occurring under this Deed, to recover all or a proportion of its costs or is entitled to be compensated for all or a proportion of its costs, the amount of the recovery or compensation shall be reduced by the amount of (or the same proportion of the amount of) any input tax credits available in respect of those costs.

16.5 A party will not be obliged to pay any amount in respect of GST to the other party unless a valid tax invoice has been issued in respect of that GST.

17. NOTICES

17.1 Unless the contrary intention appears, any notice or other communication under this Deed shall be effective if it is in writing, signed and delivered to the party as the case may be, at the following address

a. Defence Environment and Heritage Panel Manager, 26 Brindabella Circuit, Brindabella Business Park Complex CANBERRA AIRPORT ACT 2609.

17.2 A notice or other communication shall be deemed to have been delivered:

a. by prepaid post, in three Working Days if sent within Australia and in eight Working Days if sent by air mail from one country to another; or

b. by facsimile at the time recorded by the transmitting machine, unless within one Working Day the sender is informed that the transmission was received in incomplete or garbled form.




ATTACHMENT M


SIGNED AND DELIVERED AS A DEED

SIGNED ON BEHALF OF THE COMMONWEALTH OF AUSTRALIA

By:

……………………………………. ……………………………………. …………………………………….

(signature) (print name and position of authorised signatory)

(date)

In the presence of:

……………………………………. ……………………………………. …………………………………….

(signature of witness) (print name of witness) (date)

Note to drafters: Appropriate execution clauses, and instructions on their use, may be found in the ASDEFCON (Support) Handbook.

SIGNED ON BEHALF OF THE CONFIDANT

(…INSERT EXECUTION CLAUSE OF THE CONFIDANT…)

In the presence of:

……………………………………. ……………………………………. …………………………………….

(signature of witness) (print name of witness) (date)



ATTACHMENT N

SPECIAL CONDITIONS

1 LIQUIDATED DAMAGES

1.1 Liquidated Damages and Other Compensation

1.1.1 The parties acknowledge that if the Contractor delays achievement of any milestone or deliverable beyond the relevant date:

a. the Commonwealth will suffer loss and damage; and

b. all such loss and damage will, having regard to the government and non-commercial nature of the Services and their significance to the defence of Australia, be impossible, complex and expensive to quantify accurately in financial terms and the loss and damage arising from such delay may not be able to be precisely calculated or proved, and therefore, the parties agree that the liquidated damages specified in the Official Order are a genuine pre-estimate of the damage which would be suffered by the Commonwealth in such event.

1.1.2 If the Contractor delays achievement of any milestone or deliverable beyond the relevant date, the Commonwealth shall be entitled to recover from the Contractor as liquidated damages and not as a penalty the amount specified in the Official Order for that milestone or deliverable. No amount shall be owing to the Commonwealth until the Commonwealth elects, in accordance with clause 1.1.3, to recover any such liquidated damages.

1.1.3 Upon becoming entitled to recover liquidated damages under clause 1.1.2 the Commonwealth may, within the period determined under clause 1.1.4, elect in respect of the relevant period of delay to do either or both of the following:

a. recover the amount of liquidated damages as a debt due to the Commonwealth under clause 10.4 of the Deed; or

b. accept agreed compensation from the Contractor (such that the agreed compensation together with any liquidated damages that are recovered under 1.1.3a shall be equivalent in value to the total liquidated damages recoverable for that period of delay).

1.1.4 Unless some other period is agreed in writing between the parties, the period within which the Commonwealth may make an election under clause 1.1.3 shall be:

a. any time during the period of a delay;

b. four months after the end of the relevant period of delay, if there is an end to that period; or

c. if any limit on the amount of liquidated damages is reached before the end of the relevant period of delay, four months after the Commonwealth receives written notification from the Contractor that the limit has been reached.

1.1.5 If the Commonwealth makes no election under clause 1.1.3 within the period determined in accordance with clause 1.1.4, the liquidated damages payable by the Contractor shall become payable and be a debt due to the Commonwealth in accordance with clause 10.4 of the Deed on the day after the period referred to in clause 1.1.4 ends. The amount of liquidated damages payable under this clause shall be calculated in accordance with the Official Order.

1.1.6 If the Commonwealth elects to accept compensation in lieu of liquidated damages, the Contractor shall prepare a variation to effect a change to the Contract between the Commonwealth and the Contractor. If any part of the compensation to be provided is in the form of goods and services, the variation shall provide that the goods or services shall be incorporated into the Services under the Contract.

1.1.7 The Commonwealth's right to claim liquidated damages for delay or to recover other compensation as agreed, shall be the Commonwealth's sole right to be compensated for loss or damage suffered by the Commonwealth as a result of the delay during the period in which an entitlement to recover liquidated damages accrues under clause 1.1.2. However,

Attachments to Conditions of Deed N-1



ATTACHMENT N

nothing in this clause 1.1 shall affect, limit or exclude the Commonwealth's rights or remedies in respect of:

a. a delay in delivery of Services for which an entitlement to recover liquidated damages does not accrue under the Deed;

b. loss or damage suffered by the Commonwealth at any time for causes other than the Contractor's delay in providing the Services;

c. termination for default of the Contractor for the delay, whether or not the Commonwealth has been compensated under clause 1.1; or

d. termination for convenience in accordance in clause 10.3 of the Deed.

1.1.8 For the purpose of clause 1.1, the "relevant period of delay" means that the whole period of each delay for which liquidated damages are recoverable by the Commonwealth under clause 1.1.2, or one or more periods within the whole period of delay which the Commonwealth may nominate in writing to the Contractor, as the case requires.

1.1.9 The Commonwealth's entitlement to recover an amount as liquidated damages under clause 1.1.2, is not affected by any variation of the relevant date for a deliverable or compliance with a milestone, and accrues from the first day of any delay under the Contract whether or not the affected date has been changed by amendment of the Contract. To avoid doubt, if the relevant date for a deliverable or compliance with a milestone has been varied by the parties and the Contractor delays achievement of the relevant deliverable or milestone beyond that date, the Commonwealth shall be entitled to recover as liquidated damages under clause 1.1.2 the amount specified at the Official Order for each day of the delay irrespective of whether the Commonwealth has already recovered an amount as liquidated damages for delay in achievement of the relevant deliverable or milestone before the relevant date was valid.

2 ADDITIONAL INSURANCE FOR SPECIFIC CIRCUMSTANCES

2.1 Increased insurance cover

Note to drafters: The increased insurance cover may be a higher level of insurance for public liability or professional indemnity, or a specific form of insurance such as property, industrial special risks, transit, motor vehicle, aviation liability, marine liability or contract works.

2.1.1 In addition to the insurance coverage required pursuant to clause 6.4 of the Deed, the Contractor shall obtain and maintain additional insurance from a reputable insurer as follows:

a. [Insert duration of required insurance];

b. [Insert limit of coverage];

c. [Insert whether policy is per claim/per event];

d. [Insert any special requirements, if applicable, such as notation of the Commonwealth's/Subcontractors' interests, whether any special policy terms are required (e.g. waiver of exclusions or subrogation of rights etc.)]

2.1.2 The Contractor acknowledges that the provisions of clauses 6.4.3 to 6.4.7 of the Deed apply to the insurance policies referred to in clause 2.1.1.

3 OVERTIME

3.1 Overtime

Note to drafters: The default position is that the Contractor is not entitled to charge for overtime work. The default position should only be changed where justified by the specific circumstances of the Contract.

3.1.1 In this clause 3.1, Overtime Work means the hours of work by a person that exceeds eight (8) hours in any one calendar day.




ATTACHMENT N

3.1.2 The Commonwealth shall pay the Contractor an additional pro-rata proportion of the daily rate for the Overtime Work completed by the Contractor, but only if:

a. the Official Order specifically states that the Contractor is entitled to charge an additional amount for Overtime Work;

b. the Commonwealth Contract Representative has given prior approval in writing for the Contractor to perform Overtime Work on the specific task, and undertaking the specific duties, for which the Overtime Work was performed.

3.1.3 For the avoidance of doubt the Commonwealth will not pay overtime for time spent travelling.

4 SUPERANNUATION

(For individuals or sole traders as per the Superannuation Guarantee Act) 4.1 Superannuation Policy

4.1.1 If applicable, superannuation payments will be made in accordance with the Superannuation (Productivity Benefit) Act 1988 (Cth) (PB Act) arrangements and Superannuation (Consequential Amendments) Act 2005 (Cth).

4.2 Superannuation Payment

4.2.1 The Contractor shall provide the Commonwealth with the details of their nominated superannuation fund.

4.2.2 The Commonwealth shall make payments to the nominated superannuation fund on behalf of the Contractor, as indicated on the milestone and or deliverable invoice.

4.3 Limitation of Liability

Note to drafters: If the Limitation of Liability clause is included, a risk assessment should be undertaken by the Commonwealth prior to release of the Request for Quotation and Tasking Statement to determine appropriate caps for inclusion in clause 4.3.

4.3.1 Subject to clause 4.3.3, the liability of the Contractor to the Commonwealth arising out of the Contractor’s performance of this Deed and any Contract will be limited as follows:

a. for liability for obligations and warranties under clause 7 of the Deed, in aggregate […INSERT AMOUNT…]

b. for loss or, or damage to, the Services (including Contract Material), in aggregate to […INSERT AMOUNT…];

c. for loss of, or damage to, Defence property, including CMCA, in aggregate to […INSERT AMOUNT…]; and

d. for a breach of Contract, breach of statute or negligent act or omission not mentioned in clauses 4.3.1a to 4.3.1c in aggregate to […INSERT AMOUNT…]

4.3.2 For liability of a type for which the Contractor is required to maintain insurance under the Deed or the Contract, if the limit of liability in clause 4.3.1 is less than the required limit of indemnity of the insurance policy, the limit of liability in clause 4.3.1 is taken to be increased to the required limit of indemnity of the insurance policy.

4.3.3 The limitation in clause 4.3.1 does not apply to liability of the Contractor, including under an indemnity whether or not expressly referred to in this clause, for:

a. personal injury and death;

b. loss of, or damage to, third party property or Commonwealth property (other than Defence property);

c. breach of IP rights, confidentiality, privacy or security obligations;

d. fraud or dishonesty;

e. unlawful or illegal acts; or




ATTACHMENT N


f. the IP indemnity provided by the Contractor under the Deed or a Contract.

4.3.4 To avoid doubt if more than one limitation mentioned in clauses 4.3.1a to 4.3.1d is capable of applying to a particular liability, and the cap under one limitation is reached, the Commonwealth may recover from the Contractor for the remainder of the liability under the other limitation up to the cap applicable to the other limitation.

4.4 Australian Industry Capability

Note to drafters: if Industry Requirements are identified or if the expected value of the Contract exceeds $50 million, more extensive AIC clauses will be required. In this case drafters should refer to the AIC provisions contained in the ASDEFCON (Support) template or contact the Director AIC Implementation for assistance.

Note to tenderers: the Australian Industry Capability Toolkit is available at http://www.defence.gov.au/dmo/ by following the ‘Contracting’ link.

4.4.1 The Contractor shall comply with and achieve the AIC requirements set out in the Contract (including as et out in the Official Order).

4.4.2 The Contractor shall maintain, develop, deliver and update the AIC Schedule in accordance with the AIC Toolkit.

4.4.3 If the Contractor proposes an update to the AIC Schedule, the Contractor shall propose a contract change in accordance with the Contract.


a. compliance with the AIC requirements shall not relieve the Contractor from responsibility to provide the Services, or from liability for any defect in the Services arising from the design, workmanship or materials provided by ANZ industry; and

b. acceptance of the Services by the Commonwealth, or provision of Services by the Contractor, shall not relieve the Contractor from complying with the AIC requirements.

4.5 Indigenous Opportunity

Note to drafters: Include a requirement to comply with the Indigenous Opportunities Policy if Contract may be valued over $5 million ($6 million for construction) (GST inclusive) and the main location of work under the Contract is a Region with a Significant Indigenous Population


a. comply with the Indigenous Opportunities Policy including by implementing the Contractor’s approved Indigenous Training, Employment and Supplier Plan (ITES Plan) when carrying out work under the Contract, complying with DEEWR’s reporting requirements and maintaining the currency of its plan over the term of the Contract; and

b. provide a ‘Notification of Approval’ (issued by DEEWR) as evidence that DEEWR has approved its ITES Plan, no later than 90 days after the date on which the Contract is formed in accordance with clause 1.7.

4.5.2 If the Contractor’s ITES Plan is suspended by DEEWR, the Contractor shall within 14 days of notice of that suspension, provide a written notice to the Commonwealth Panel Manager and the relevant Commonwealth Contract Representative of the reasons for the suspension and proposed remedial action.


http://www.defence.gov.au/dmo/

ASDEFCON (Standing Offer for Services) PART 2

ATTACHMENT O

GENERAL REMEDIATION CONTRACT TERMS

Note to tenderers: See separate document.

Attachments to Conditions of Deed O-1


ASDEFCON (Standing Offer for Services) PART 2

ATTACHMENT P

TOXIC REMNANTS OF WAR REMEDIATION CONTRACT TERMS

Note to tenderers: See separate document.

Attachments to Conditions of Deed P-1


ATTACHMENT O

GENERAL REMEDIATION CONTRACT

(GRC-1 2013)


Department of Defence - General Remediation Contract (GRC-1 2013)

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Table of Contents

CONDITIONS OF CONTRACT.....................................................................................................................5

1. GLOSSARY OF TERMS, INTERPRETATION AND MISCELLANEOUS ..................................5

1.1 Glossary of Terms...................................................................................................................................... 5 1.2 Interpretation............................................................................................................................................ 19 1.3 Miscellaneous .......................................................................................................................................... 21

2. COMMENCEMENT....................................................................................................................23

2.1 Contractor's Obligations........................................................................................................................... 23 2.2 Commonwealth's Obligations .................................................................................................................. 23 2.3 Delayed Access........................................................................................................................................ 23

3. PERSONNEL.............................................................................................................................24

3.1 Contract Administrator ............................................................................................................................ 24 3.2 Replacement of Contract Administrator .................................................................................................. 24 3.3 Parties' Conduct ....................................................................................................................................... 24 3.4 Contract Administrator's Representative.................................................................................................. 24 3.5 Contractor's Representative ..................................................................................................................... 24 3.6 Key People............................................................................................................................................... 24 3.7 Removal of Persons ................................................................................................................................. 25 3.8 Environmental Consultant........................................................................................................................ 25 3.9 Accredited Environmental Site Auditor................................................................................................... 26 3.10 Technical Advisor.................................................................................................................................... 28 3.11 Industrial Relations .................................................................................................................................. 29 3.12 Project Review......................................................................................................................................... 29

4. SECURITY .................................................................................................................................30

4.1 Form......................................................................................................................................................... 30 4.2 Release ..................................................................................................................................................... 30 4.3 Interest ..................................................................................................................................................... 30 4.4 Related Company Guarantee ................................................................................................................... 30

5. RISKS AND INSURANCE.........................................................................................................32

5.1 Risk of Remediation Works..................................................................................................................... 32 5.2 Other Risks .............................................................................................................................................. 32 5.3 Reinstatement........................................................................................................................................... 32 5.4 Contractor Insurance Obligations ............................................................................................................ 33 5.5 Failure to Insure ....................................................................................................................................... 34 5.6 Period of Insurance .................................................................................................................................. 34 5.7 Notice of Potential Claim......................................................................................................................... 35 5.8 Procedure upon Loss or Damage ............................................................................................................. 35 5.9 Cross Liability.......................................................................................................................................... 35

6. SITE ACCESS AND CONDITIONS...........................................................................................36

6.1 Contractor to Inform Itself ....................................................................................................................... 36 6.2 Site Information ....................................................................................................................................... 36 6.3 Site Access............................................................................................................................................... 36 6.4 Contractor's Obligation to Provide Access .............................................................................................. 36 6.5 Non-Reliance ........................................................................................................................................... 37 6.6 Unexploded Ordnance ............................................................................................................................. 37

7. PLANS AND DOCUMENTATION .............................................................................................39

7.1 Commonwealth's Documents................................................................................................................... 39 7.2 Contractor's Design.................................................................................................................................. 39 7.3 Contract Administrator may review Remediation Design Documentation.............................................. 39 7.4 No Obligation to Review ......................................................................................................................... 39 7.5 Copies of Remediation Design Documentation ....................................................................................... 40 7.6 Fitness for purpose................................................................................................................................... 40



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7.7 Project Plans ............................................................................................................................................ 40 7.8 Availability .............................................................................................................................................. 42 7.9 Licence over Project Documents ............................................................................................................. 42 7.10 Intellectual Property Warranties .............................................................................................................. 42 7.11 Intellectual Property Rights ..................................................................................................................... 43 7.12 Resolution of Ambiguities ....................................................................................................................... 43 7.13 Access to Premises and Project Documents............................................................................................. 43 7.14 DCAP....................................................................................................................................................... 44

8. EXECUTION OF REMEDIATION ACTIVITIES.........................................................................45

8.1 Description of Remediation Works.......................................................................................................... 45 8.2 All Remediation Work Included .............................................................................................................. 45 8.3 Statutory Requirements............................................................................................................................ 45 8.4 Change in Statutory Requirements or Variance with Contract ................................................................ 46 8.5 Subcontracting ......................................................................................................................................... 46 8.6 Subcontractor Warranties......................................................................................................................... 47 8.7 Co-operation with Other Contractors....................................................................................................... 47 8.8 Novation................................................................................................................................................... 48 8.9 Setting Out ............................................................................................................................................... 48 8.10 Survey ...................................................................................................................................................... 48 8.11 Measurements and Dimensions ............................................................................................................... 49 8.12 Safety ....................................................................................................................................................... 49 8.13 Work Health and Safety Management ..................................................................................................... 49 8.14 Plant, Equipment and Work ..................................................................................................................... 51 8.15 Site Maintenance...................................................................................................................................... 51 8.16 The Environment ..................................................................................................................................... 51 8.17 Urgent Protection..................................................................................................................................... 51 8.18 Valuable Objects Found on Site............................................................................................................... 51 8.19 The Commonwealth May Act.................................................................................................................. 52 8.20 Access Hours ........................................................................................................................................... 52 8.21 Salvaged Materials................................................................................................................................... 52 8.22 Contract Administrator's Office ............................................................................................................... 52 8.23 Project Signboards ................................................................................................................................... 52

9. QUALITY OF REMEDIATION WORKS ....................................................................................54

9.1 Remediation Works ................................................................................................................................. 54 9.2 Contract Administrator's Right to Inspect................................................................................................ 54 9.3 Sampling and Analysis ............................................................................................................................ 54 9.4 Costs of Sampling and Analysis .............................................................................................................. 55 9.5 Remediation Defects................................................................................................................................ 55 9.6 Correction of Remediation Defect or Remediation Works Variation ...................................................... 55 9.7 Claim for Correction of Remediation Defect........................................................................................... 55 9.8 Claim for Remediation Works Variation ................................................................................................. 55 9.9 Acceptance of Remediation Work ........................................................................................................... 56 9.10 Extension of Remediation Defects Rectification Period.......................................................................... 56 9.11 Common Law Rights not Affected .......................................................................................................... 56

10. TIME FOR CONTRACTOR'S ACTIVITIES AND REMEDIATION WORKS.............................57

10.1 Progress and Time for Remediation Completion..................................................................................... 57 10.2 Programming ........................................................................................................................................... 57 10.3 Contractor Not Relieved .......................................................................................................................... 57 10.4 Acceleration by Contractor ...................................................................................................................... 57 10.5 Delays Entitling Claim............................................................................................................................. 57 10.6 Claim........................................................................................................................................................ 58 10.7 Conditions Precedent to Extension .......................................................................................................... 58 10.8 Extension of Time.................................................................................................................................... 58 10.9 Reduction in Extension of Time .............................................................................................................. 58 10.10 Unilateral Extensions ............................................................................................................................... 59 10.11 Agreed Damages...................................................................................................................................... 59 10.12 Suspension ............................................................................................................................................... 59 10.13 Instruction to Accelerate .......................................................................................................................... 60



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10.14 Partial Acceleration.................................................................................................................................. 60 10.15 Acceleration ............................................................................................................................................. 60 10.16 Commonwealth's Rights to Liquidated Damages Not Affected............................................................... 61

11. VARIATION TO REMEDIATION WORKS ................................................................................62

11.1 Notice of Unidentified Site Conditions.................................................................................................... 62 11.2 Contractor's Entitlement for Unidentified Site Conditions ...................................................................... 62 11.3 Remediation Works Variation Price Request Initiated by Commonwealth ............................................. 62 11.4 Remediation Works Variation Order ....................................................................................................... 62 11.5 Cost of Remediation Works Variation..................................................................................................... 63 11.6 Omissions................................................................................................................................................. 63 11.7 Remediation Works Variations Requested by Contractor ....................................................................... 63 11.8 Contract Administrator's Determination .................................................................................................. 63 11.9 Remediation Works Variation Approved by Contract Administrator...................................................... 64 11.10 Unidentified Site Conditions and Contract Price ..................................................................................... 64

12. PAYMENT FOR REMEDIATION WORKS................................................................................65

12.1 Payment Obligation ................................................................................................................................. 65 12.2 Payment Claims ....................................................................................................................................... 65 12.3 Conditions Precedent ............................................................................................................................... 65 12.4 Payment Statements ................................................................................................................................. 67 12.5 Payment ................................................................................................................................................... 67 12.6 Payment on Account ................................................................................................................................ 67 12.7 Unfixed Goods and Materials .................................................................................................................. 68 12.8 Release of Additional Approved Security................................................................................................ 68 12.9 Remediation Completion Payment Claim and Notice ............................................................................. 68 12.10 Release after Completion Payment Claim and Notice ............................................................................. 68 12.11 Final Payment Claim and Notice ............................................................................................................. 69 12.12 Release after Final Payment Claim and Notice........................................................................................ 69 12.13 Interest ..................................................................................................................................................... 69 12.14 Correction of Payment Statements........................................................................................................... 70 12.15 Right of Set-Off ....................................................................................................................................... 70 12.16 Payment of Workers and Subcontractors - Option 1 (All Other States and Territories) .......................... 70 12.16 Payment of Workers and Subcontractors - Option 2 (New South Wales Only) ...................................... 70 12.17 GST.......................................................................................................................................................... 71 12.18 Quantities in Schedule of Rates ............................................................................................................... 71 12.19 Limits of Accuracy .................................................................................................................................. 72 12.20 Security of Payment Legislation .............................................................................................................. 72 12.21 Accounting Records................................................................................................................................. 74 12.22 Cost Allocation Advice............................................................................................................................ 74 12.23 Remediation Works Accounting.............................................................................................................. 74 12.24 DEMS and NSIM..................................................................................................................................... 74

13. COMPLETION OF REMEDIATION WORKS............................................................................76

13.1 Contractor to Notify of Remediation Completion.................................................................................... 76 13.2 Contract Administrator to Inspect............................................................................................................ 76 13.3 Unilateral Issue of Remediation Completion Notice ............................................................................... 76 13.4 Hand-Over of Site Upon Completion ...................................................................................................... 76 13.5 Part of the Works or a Stage .................................................................................................................... 76 13.6 Effect of Remediation Completion Notice............................................................................................... 77 13.7 Liquidated Damages ................................................................................................................................ 77

14. TERMINATION ..........................................................................................................................78

14.1 Preservation of Rights.............................................................................................................................. 78 14.2 Contractor Default ................................................................................................................................... 78 14.3 Contents of Notice of Default .................................................................................................................. 78 14.4 Termination for Insolvency or Breach ..................................................................................................... 78 14.5 Commonwealth's Entitlements after Termination.................................................................................... 78 14.6 Contractor's Entitlements after Termination ............................................................................................ 79 14.7 Termination for Convenience .................................................................................................................. 79 14.8 Costs ........................................................................................................................................................ 79



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15. DISPUTES .................................................................................................................................81

15.1 Notice of Dispute ..................................................................................................................................... 81 15.2 Expert Determination............................................................................................................................... 81 15.3 The Expert................................................................................................................................................ 81 15.4 Not Arbitration......................................................................................................................................... 81 15.5 Procedure for Determination.................................................................................................................... 81 15.6 Disclosure of Interest ............................................................................................................................... 82 15.7 Costs ........................................................................................................................................................ 82 15.8 Conclusion of Expert Determination ....................................................................................................... 82 15.9 Agreement with Expert ............................................................................................................................ 82 15.10 Determination of Expert .......................................................................................................................... 82 15.11 Executive Negotiation.............................................................................................................................. 83 15.12 Arbitration Agreement ............................................................................................................................. 83 15.13 Arbitration................................................................................................................................................ 83 15.14 Proportional Liability............................................................................................................................... 84 15.15 Continuation of Contractor's Activities.................................................................................................... 84

16. NOTICES ...................................................................................................................................85

16.1 Notice of Variation .................................................................................................................................. 85 16.2 Notices of Other Claims........................................................................................................................... 85 16.3 Prescribed Notices ................................................................................................................................... 85 16.4 Continuing Events.................................................................................................................................... 86 16.5 Time Bar .................................................................................................................................................. 86 16.6 Other Provisions Unaffected.................................................................................................................... 86 16.7 Address for Service.................................................................................................................................. 86 16.8 Receipt of Notices.................................................................................................................................... 86

17. GENERAL..................................................................................................................................87

17.1 Workplace Gender Equality..................................................................................................................... 87 17.2 Indigenous Opportunities......................................................................................................................... 87 17.3 Safe Base Alert State System................................................................................................................... 87 17.4 Protection of Personal Information ...........................................................Error! Bookmark not defined. 17.5 Freedom of Information........................................................................................................................... 90 17.6 Long Service Leave ................................................................................................................................. 90 17.7 Assignment .............................................................................................................................................. 90 17.8 Publicity ................................................................................................................................................... 90 17.9 Classified Information ............................................................................................................................. 91

18. BUILDING CODE 2013 .............................................................................................................92

18.1 General..................................................................................................................................................... 92 18.2 Responsibility not Affected ..................................................................................................................... 92 18.3 Notice of Effect on Compliance with Building Code 2013 ..................................................................... 92 18.4 Records .................................................................................................................................................... 92 18.5 Access and Documents ............................................................................................................................ 92 18.6 Project Agreements.................................................................................................................................. 93

19. COMMERCIAL-IN-CONFIDENCE INFORMATION..................................................................94

19.1 General..................................................................................................................................................... 94 19.2 Commercial-in-Confidence Information.................................................................................................. 94

CONTRACT PARTICULARS......................................................................................................................95

ANNEXURE 1 - FUNCTIONS ...................................................................................................................108



5

CONDITIONS OF CONTRACT

1. GLOSSARY OF TERMS, INTERPRETATION AND MISCELLANEOUS

1.1 Glossary of Terms

Unless the context otherwise indicates, whenever used in this Contract, each word or phrase in the headings in this clause 1.1 has the meaning given to it under the relevant heading.

Accredited Environmental Site Auditor

The person (if any) named in the Contract Particulars, being a person who is an accredited environmental site auditor (contaminated land) (or equivalent) under:

(a) section 75 Environment Protection Act 1997 (ACT);

(b) Part 4 of the Contaminated Land Management Act 1997 (NSW);

(c) section 67-69 of the Waste Management and Pollution Control Act 1998 (NT);

(d) section 381 of the Environmental Protection Act 1994 (Qld), being an organisation listed under Schedule 8 of the Environmental Protection Regulation 2008 (Qld);

(e) section 103V of the Environment Protection Act 1993 (SA);

(f) section 53S of the Environment Protection Act 1970 (Vic); or

(g) Division 1, Part 7 Contaminated Sites Act 2003 (WA).

Accredited Environmental Site Auditor's Functions

The roles and functions of the Accredited Environmental Site Auditor, as outlined in Annexure 1, Part C.

Act of Prevention

Any one of:

(a) a breach of the Contract by the Commonwealth;

(b) any other act or omission of the Commonwealth, the Contract Administrator or an Other Contractor engaged by the Commonwealth; or

(c) a Remediation Works Variation the subject of a direction by the Contract Administrator, except where the Remediation Works Variation is instructed in the circumstances described in clause 9.8(b).

Approval

Any licence, permit, consent, approval, determination, certificate, notice or other requirement of any Commonwealth, State, Territory or local authority, body or other organisation having any jurisdiction in connection with the Site, the Remediation Works or the Contractor's Activities or under any other applicable Statutory Requirement, which must be obtained or satisfied to:

(a) carry out the Contractor's Activities; or

(b) certify or verify that the Remediation Works, or a completed Stage, have achieved Remediation Completion,

including, without limitation, the recommendation of the Public Works Committee, to the extent to which such recommendation is required.



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Approved Security

An unconditional undertaking (duly stamped) in the form set out in the Schedule of Collateral Documents and otherwise on terms, and given by a financial institution, approved by the Commonwealth.

Award Date

Is the date of the Contract Award Date as determined in accordance with clause 1.8.9 of the Deed.

Building Code 2013

Building Code 2013 in force pursuant to the Fair Work (Building Industry) Act 2012 (Cth).

Change of Control

In relation to the Contractor, where a person who did not (directly or indirectly) effectively Control the Contractor at the Award Date, either alone or together with others, acquires Control of the Contractor.

Claim

Includes any claim for an increase in the Contract Price, for payment of money (including damages) or for an extension of time:

(a) under, arising out of, or in any way in connection with, the Contract, including any direction of the Contract Administrator;

(b) arising out of, or in any way in connection with, the Contractor's Activities, the Remediation Works or either party's conduct before the Contract; or

(c) otherwise at law or in equity including:

(i) by statute;

(ii) in tort for negligence or otherwise, including negligent misrepresentation; or

(iii) for restitution.

Code Monitoring Group

Has the meaning in the Building Code 2013 and the Building Code 2013 - Supporting Guidelines for Commonwealth Funding Entities.

Collateral Warranty

A warranty in the form set out in the Schedule of Collateral Documents.

Commonwealth

Commonwealth of Australia.

Commonwealth Procurement Rules

The Commonwealth Procurement Rules issued under Regulation 7 of the Financial Management and Accountability Regulations 1997 (Cth).

Commonwealth Risks

Any one of:

(a) war, invasion, act of foreign enemies, hostilities (whether war is declared or not), civil war, rebellion, revolution, insurrection or military or usurped powers, martial law or confiscation by order of any government or public authority;



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(b) the use or threat of unlawful violence against persons or property which does not arise out of any individual relationship between the perpetrator and the victim, or for purposes of robbery, but which is directed at victims as members of a class, race, organisation, nationality, religious or ethnic group, or which is intended to intimidate, coerce or inflict revenge upon any civilian population, government, institution or corporation; and

(c) ionising radiations or contamination by radioactivity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel not caused by the Contractor or any subcontractor or any of their employees or agents.


A policy of insurance covering the respective rights, interests and liabilities of the Commonwealth, the Contractor and all subcontractors arising out of or in connection with the works in progress and insuring at a minimum all the things referred to in clause 5.1 for which the Contractor bears the risk of loss or damage resulting from any insurable event.

Consultant

A consultant engaged in building work as defined in the Fair Work (Building Industry) Act 2012 (Cth).

Contamination

The presence in, on or under land, air or water of a substance (whether a solid, liquid, gas, odour, heat, sound, vibration or radiation) at a concentration above the concentration at which the substance is normally present in, on or under land, air or water in the same locality, that presents a risk of Environmental Harm, including harm to human health or any other aspect of the Environment, or could otherwise give rise to a risk of non-compliance with any Statutory Requirement for the protection of the Environment.

Contract

The contractual relationship between the parties constituted in accordance with clause 1.8 of the Deed.

Contract Administrator

The person nominated in the Contract Particulars or any other person nominated by the Commonwealth from time to time under clause 3.2 to replace that person.

The Contract Administrator is taken to be the Commonwealth Contract Representative for the purposes of the Deed.

Contract Administrator's Office

The office provided by the Contractor pursuant to clause 8.22.

Contractor

The person named in the Contract Particulars.

Contractor's Activities

All things or tasks which the Contractor is, or may be, required to do to comply with its Contract obligations.

Contractor's Representative

The person named in the Contract Particulars or any other person from time to time appointed as Contractor's Representative in accordance with clause 3.6.

The Contractor’s Representative is taken to be the Contractor Contract Representative for the purposes of the Deed.

Contract Particulars

The particulars annexed to the Official Order and entitled "Contract Particulars".



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Contract Price

The amount specified in the Contract Particulars as adjusted, subject to clause 16.5, under the Contract.

Control

Includes:

(a) the ability to exercise or control the exercise of the right to vote in respect of more than 50% of the voting shares or other form of voting equity in a corporation;

(b) the ability to dispose or exercise control over the disposal of more than 50% of the shares or other form of equity in a corporation;

(c) the ability to appoint or remove all or a majority of the directors of a corporation;

(d) the ability to exercise or control the exercise of the casting of a majority of the votes cast at the meetings of the board of directors of a corporation; and

(e) any other means, direct or indirect, of dominating the decision making and financial and operating policies of a corporation.

Date for Remediation Completion

In respect of the Remediation Works or a Stage, the date, or period of time, specified in the Contract Particulars, as adjusted under the Contract.

Date of Remediation Completion

The date of Remediation Completion set out in a Remediation Completion Notice.

Deed

The Deed of Standing Offer for Defence Environment and Heritage Panel.

Defence

Department of Defence.

Defence Environmental Management System

The environmental management system applicable to the Site (if any) available from the Commonwealth's regional environmental officer.

Defence Environmental Plan

The environmental plan applicable to the Site (if any) available from the Commonwealth's regional environmental officer.

Defence Environmental Requirements

The Defence Environmental Management System and Defence Environmental Plan which relate to the Site, the Remediation Works or the Contractor's Activities and includes any procedures, instructions, requirements and standing orders which have been developed or issued under the Defence Environmental Management System or Defence Environmental Plan (as the case may be).

Defence Requirements

Includes all policies, plans, manuals, guidelines, instructions (including departmental procurement policy instructions) and other Commonwealth or Department of Defence requirements which are, or may become, applicable to the Site, the Remediation Works or the Contractor's Activities. To the extent that any of the requirements would require or suggest the insertion of provisions into this Contract, then:



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(a) those provisions will be incorporated by reference into this Contract; and

(b) any ambiguity, discrepancy or inconsistency arising out of the incorporation by reference will be resolved by the Contract Administrator in accordance with clause 7.12.

direction

Any agreement, approval, authorisation, certificate, consent, decision, demand, determination, direction, explanation, failure to consent, instruction, notice, notification, order, permission, rejection, request or requirement.

Employees Liability Insurance

A policy of insurance covering the liability of the Contractor towards its employees at common law, for injuries arising out of or in the course of their employment, whether as an extension under Workers Compensation Insurance or otherwise.

Environment

Includes:

(a) ecosystems and their constituent parts, including people and communities;

(b) natural and physical resources;

(c) the qualities and characteristics of locations, places and areas; and

(d) the social, economic, aesthetic and cultural aspects of a thing mentioned in paragraphs (a), (b) or (c).


The Environmental Clearance Certificate issued by the Commonwealth relating to the Remediation Works or the Contractor's Activities and any conditions incorporated in that certificate.

Environmental Consultant


Environmental Consultant's Functions

The roles and functions of the Environmental Consultant, as outlined in Annexure 1, Part A.

Environmental Consultant's Representative

The person appointed by the Environmental Consultant under clause 3.8(c).

Environmental Harm

Any actual or threatened adverse impact on, or damage to, the Environment.

Environmental Incident

Any Environmental Harm or Contamination caused by, in relation to or as a consequence of the Contractor's Activities.

Environmental Management Plan

The environmental management plan prepared by the Contractor and finalised under clause 7.7, which must set out in adequate detail the procedures the Contractor will implement to manage the Contractor's Activities from an environmental perspective and describe how the Contractor proposes to ensure the Contractor's Activities will be performed consistently with:

(a) the Environmental Requirements;

(b) the Statutory Requirements;



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(c) without limiting paragraph (b), the Energy Policy for Commonwealth Agencies, Commonwealth Procurement Rules and Defence Green Procurement Policy; and

(d) the Environmental Objectives.

Environmental Objectives

The Environmental Objectives are to:

(a) encourage best practice environmental management through planning, commitment and continuous improvement;

(b) prevent and minimise adverse impacts on the Environment;

(c) identify the potential for, and respond to, Environmental Incidents, accidents and emergency situations and take corrective action;

(d) identify and control possible environmental hazards associated with the Remediation Works and the Contractor's Activities;

(e) establish procedures to ensure that no hazardous substance is stored on Commonwealth land without approval;

(f) recognise and protect any special environmental characteristics of the Site (including cultural heritage significance);

(g) define roles and responsibilities for personnel;

(h) ensure environmental training and awareness programmes are provided to employees and subcontractors;

(i) ensure subcontractors implement the Environmental Management Plan;

(j) define how the management of the Environment during the Contractor's Activities is reported and performance evaluated;

(k) describe all monitoring procedures required to identify impacts on the Environment as a result of the Remediation Works and the Contractor's Activities;

(l) implement complaint reporting procedures and maintain records of complaints and response to complaints; and

(m) establish and maintain programs and procedures for periodic Environmental Management Plan audits to be carried out.

Environmental Requirements

Includes:

(a) the Environmental Clearance Certificate;

(b) the Defence Environmental Requirements; and

(c) any other matter or requirement specified in the Contract Particulars.


A policy of insurance to cover civil liabilities (not covered under Public Liability Insurance, products liability or umbrella liability insurance) whether arising in tort, contract or under statute, incurred by the Contractor or its subcontractors other than in a professional capacity or the capacity of a corporate director or officer, in carrying out the Contractor's Activities.



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Executive Negotiators

The representatives of the parties nominated in the Contract Particulars or any person nominated by the relevant party to replace that person from time to time by notice in writing to the other party.

Insolvency Event

Any one of the following:

(a) the Contractor becomes, is declared to be, is taken under any applicable law (including the Corporations Act 2001 (Cth)) to be, admits to or informs the Commonwealth in writing or its creditors generally that the Contractor is insolvent, an insolvent under administration, bankrupt, unable to pay its debts or is unable to proceed with the Contract for financial reasons;

(b) execution is levied against the Contractor by a creditor;

(c) a garnishee order, mareva injunction or similar order, attachment, distress or other process is made, levied or issued against or in relation to any asset of the Contractor;

(d) where the Contractor is an individual person or a partnership including an individual person, the Contractor:

(i) commits an act of bankruptcy;

(ii) has a bankruptcy petition presented against him or her or presents his or her own petition;

(iii) is made bankrupt; or

(iv) applies for, agrees to, enters into, calls a meeting for the consideration of, executes or is the subject of an order or declaration in respect of:

A. a moratorium of any debts; or

B. a personal insolvency agreement or any other assignment, composition or arrangement (formal or informal) with creditors,

by which his or her assets are subjected conditionally or unconditionally to the control of a creditor or trustee;

(e) where the Contractor is a corporation, any one of the following:

(i) notice is given of a meeting of creditors with a view to the corporation entering into a deed of company arrangement;

(ii) a liquidator or provisional liquidator is appointed in respect of a corporation;

(iii) the corporation entering a deed of company arrangement with creditors;

(iv) a controller (as defined in section 9 of the Corporations Act 2001 (Cth)), administrator, receiver, receiver and manager, provisional liquidator or liquidator is appointed to the corporation;

(v) an application is made to a court for the winding up of the corporation and not stayed within 14 days;

(vi) any application (not withdrawn or dismissed within 7 days) is made to a court for an order, an order is made, a meeting is convened or a resolution is passed, for the purpose of proposing or implementing a scheme of arrangement other than with the prior approval of the Commonwealth under a solvent scheme of arrangement pursuant to Part 5.1 of the Corporations Act 2001 (Cth);

(vii) a winding up order or deregistration order is made in respect of the corporation;



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(viii) the corporation resolves by special resolution that it be wound up voluntarily (other than for a members' voluntary winding-up);

(ix) as a result of the operation of section 459F(1) of the Corporations Act 2001 (Cth), the corporation is taken to have failed to comply with a statutory demand (as defined in the Corporations Act 2001 (Cth));or

(x) a mortgagee of any property of the corporation takes possession of that property;

(f) the Commissioner of Taxation issues a notice to any creditor of a person under the Taxation Administration Act 1953 (Cth) requiring that creditor to pay any money owing to that person to the Commissioner in respect of any tax or other amount required to be paid by that person to the Commissioner (whether or not due and payable) or the Commissioner advises that creditor that it intends to issue such a notice; or

(g) anything analogous to anything referred to in paragraphs (a) to (f) or which has a substantially similar effect, occurs with respect to a person or corporation under any law of any jurisdiction.

Inspector

A person appointed as a Fair Work Building Industry Inspector or Fair Work Inspector as defined in the Fair Work (Building Industry) Act 2012 (Cth) and the Fair Work Act 2009 (Cth) respectively.

Intellectual Property Rights

All statutory and other proprietary rights in respect of inventions, innovations, patents, utility models, designs, circuit layouts, mask rights, copyrights (including future copyrights), confidential information, trade secrets, know-how, trademarks and all other rights in respect of intellectual property as defined in Article 2 of the Convention establishing the World Intellectual Property Organisation of July 1967.

IT Equipment

Any software, hardware or telecommunications equipment:

(a) produced; or

(b) provided, or required to be provided, to the Commonwealth or the Contract Administrator,

under, for the purposes of or in connection with the Contract, the Contractor's Activities or the Remediation Works by, for or on behalf of the Contractor.

Lump Sum Component

The lump sum component of the Contract Price specified in the Contract Particulars as adjusted, subject to clause 16.5 (if applicable) under the Contract.

Lump Sum Work

That component of the Remediation Works described as such in the Technical Specification for which the lump sum component of the Contract Price (set out in the Contract Particulars) is payable, as varied (if at all) by a Remediation Works Variation.

OHS Accreditation Scheme

The scheme established under the Fair Work (Building Industry) Act 2012 (Cth).

Other Contractor

Any contractor, consultant, artist, tradesperson or other person engaged to do work other than the Contractor and its subcontractors (including the Environmental Consultant and (except for the purposes of paragraph (b) of the definition of 'Act of Prevention' in this clause 1.1) the Accredited Environmental Site Auditor or the Technical Advisor (as the case may be)).



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Plant, Equipment and Work

Those things used, or work undertaken, by the Contractor to undertake the Remediation Works or a Stage but which will not form part of the Remediation Works or the Stage.


A policy of insurance to cover claims made against the insured of civil liability for breach of professional duty (whether owed in contract or otherwise) by the Contractor or its subcontractors in carrying out the Contractor's Activities.

Proforma Building Code 2013 Subcontract Provisions

The proforma tender and subcontract provisions relating to the Building Code 2013, as set out in the Schedule of Collateral Documents.

Project Documents

Includes:

(a) Remediation Design Documentation;

(b) programs;

(c) Project Plans;

(d) Approvals;

(e) operation and maintenance manuals and warranties from subcontractors;

(f) IT Equipment;

(g) the documents which the Contractor is obliged to maintain under clause 12.21;

(h) without limiting paragraphs (a) - (g), any other material:

(i) produced; or

(ii) provided, or required to be provided, to the Commonwealth or the Contract Administrator,

under, for the purposes of or in connection with the Contract, the Contractor's Activities or the Remediation Works by, for or on behalf of the Contractor (including by subcontractors), including all documents, papers, books of account, labour time sheets, invoices (whether for services, materials, plant hire or otherwise), financial accounts, reports, software, databases or other information stored in any electronically-retrievable medium, technical information, plans, drawings (including as-built drawings), specifications, charts, calculations, tables, schedules, correspondence (including correspondence by third parties to the Contractor), internal memoranda, minutes of meetings, diary notes, audio material, visual material, audio-visual material, working papers, draft documents, any material relating to the Contractor's compliance with the WHS Legislation and any other material of a similar nature to those materials relating to or arising out of or in connection with the Contract, the Contractor's Activities or the Remediation Works; and

(i) without limiting paragraphs (a)- (h), all material at any time derived (under, for the purposes of or in connection with the Contract, the Contractor's Activities or the Remediation Works) from, or based on, the material described in paragraphs (a) - (h).

Project Management Meetings

The meetings coordinated and facilitated by the Contract Administrator in relation to the works (including the Remediation Works) to be undertaken on or in relation to the Site, which shall be held at the times and locations specified in the Contract Particulars, and at such other times and locations as may be reasonably directed by the Contract Administrator.



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Project Plans

The:

(a) Environmental Management Plan;

(b) Site Management Plan;

(c) Work Health and Safety Plan; and

(d) the additional plans referred to in the Contract Particulars and prepared and finalised by the Contractor under clause 7.7,

as amended (if at all) with the written consent of the Contract Administrator.


A policy of liability insurance covering the Commonwealth, the Contractor, the Contract Administrator and all subcontractors for their respective liabilities:

(a) to third parties; and

(b) to each other,

for loss of or damage to property and death of or injury to any person, arising out of, or in any way in connection with, the Contractor's Activities. This policy is not required to cover liabilities insured under Construction Risks Insurance, Workers Compensation Insurance, Employees Liability Insurance, Professional Indemnity Insurance or Errors and Omissions Insurance.

Related Body Corporate

Has the meaning given to it in section 9 of the Corporations Act 2001 (Cth).

Related Entity

Has the meaning in the Building Code 2013.

Remediation Completion

The point in time when, in respect of the Remediation Works or a Stage:

(a) the Remediation Works are, or the Stage is, complete except for minor Remediation Defects, which:

(i) do not prevent the Site or the part of the Site relevant to the Stage from being used for the Specified Site Use Objective; and

(ii) can be corrected without prejudicing the convenient use of the Site or the part of the Site relevant to the Stage;

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

(c) all documents and other information referred to in the Contract, including all Approvals, which are required for the satisfactory completion of the Remediation Works or the Stage have been supplied to the Contract Administrator;

(d) without limiting paragraph (c), the Contractor has done everything which the Contract requires it to do as a condition precedent to Remediation Completion, including those things described in the Official Order and in the Contract Particulars;

(e) all documents and other information reasonably required by the Environmental Consultant to prepare the Remediation Validation Report have been supplied to the Environmental Consultant and the Contract Administrator;



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(f) the Remediation Validation Report has been obtained by the Contractor from the Environmental Consultant (and provided to the Commonwealth) in relation to:

(i) in the case of Remediation Completion of the Remediation Works, the Site; or

(ii) in the case of Remediation Completion of the Stage, the part of the Site relevant to that Stage; and

(g) if required by the Commonwealth under clause 8.8(a), the Contractor has executed a deed of novation in accordance with clause 8.8(b).

Remediation Completion Notice

A notice under clause 13.2(b)(i) by the Contract Administrator stating that Remediation Completion of the Remediation Works or a Stage has been achieved.

Remediation Defect

Means:

(a) any defect, fault, failure or omission in the Remediation Works, including any aspect of the Remediation Works which is not in accordance with the requirements of this Contract; and

(b) any damage to any property (whether of the Commonwealth or a third party) resulting from the Contractor's Activities.

Remediation Defects Rectification Period

The period which commences on the Date of Remediation Completion of the Remediation Works or a Stage, and which continues for the period specified in the Contract Particulars, as extended by clause 9.10.

Remediation Design Documentation

All design documentation (including drawings, specifications, reports, models, samples and calculations) in computer readable and written forms necessary for the Contractor to complete any part of the Remediation Works which is not fully designed and documented in the Technical Specification.

Remediation Validation Report

The report prepared by the Environmental Consultant in relation to:

(a) in the case of Remediation Completion of the Remediation Works, the Site; or

(b) in the case of Remediation Completion of a Stage, the part of the Site relevant to that Stage,

which confirms that the Remediation Works or the Stage (as the case may be) have been completed in accordance with:

(c) the Technical Specification; and

(d) the Remediation Design Documentation,

and that the Site or the relevant part of the Site (as applicable) is suitable for use for the Specified Site Use Objective.

Remediation Works

The physical works, a brief description of which is set out in the Contract Particulars and the details of which are set out in the Contract (including the Technical Specification and the Remediation Design Documentation), which the Contractor must undertake, complete and hand over to the Commonwealth in accordance with the Contract, as varied (if at all) by a Remediation Works Variation, including both the Lump Sum Work and the Schedule of Rates Work.



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Remediation Works Variation

Unless otherwise stated in the Contract, means any change to the Remediation Works including any addition, increase, decrease, omission, deletion or removal to or from the Remediation Works.

Schedule of Collateral Documents

The schedule of proforma contracts and other documents applicable to the General Remediation Contract:

(a) posted on the Defence Estate Quality Management System website located at www.defence.gov.au/estatemanagement (or any alternative location notified by the Commonwealth), as amended from time to time by the Commonwealth; and

(b) which as at the Award Date include the contracts and other documents referred to in the Contract Particulars.

Schedule of Rates

The schedule (if any) set out or referred to in the Contract Particulars, containing rates and prices to be used for the purpose of calculating the Contract Price.

Schedule of Rates Component

The schedule of rates component of the Contract Price specified in the Contract Particulars as adjusted, subject to clause 16.5 (if applicable) under the Contract.

Schedule of Rates Work

That component of the Remediation Works described as such in the Technical Specification for which the Schedule of Rates Component of the Contract Price (set out in the Contract Particulars) is payable, as varied (if at all) by a Remediation Works Variation.

Security of Payment Legislation

Means:

(a) Building and Construction Industry Security of Payment Act 1999 (NSW);

(b) Building and Construction Industry Security of Payment Act 2002 (Vic);

(c) Building and Construction Industry Payments Act 2004 (Qld);

(d) Construction Contracts Act 2004 (WA);

(e) Construction Contracts (Security of Payments) Act 2004 (NT);

(f) Building and Construction Industry Security of Payment Act 2009 (Tas);

(g) Building and Construction Industry (Security of Payment) Act 2009 (ACT);

(h) Building and Construction Industry Security of Payment Act 2009 (SA); and

(i) any legislation in any State or Territory of Australia addressing security of payment in the building and construction industry.

Site

The site for the Remediation Works described in the Contract Particulars.

Site Audit Statement

A certificate or statement of environmental audit (or equivalent) issued in relation to the Site certifying that the Site can be used for the Specified Site Use Objective, which certificate or statement has been issued under the:



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(a) Environment Protection Act 1997 (ACT), where the Site is located in the ACT;

(b) Contaminated Land Management Act 1997 (NSW), where the Site is located in NSW;

(c) Waste Management and Pollution Control Act 1998 (NT), where the Site is located in the Northern Territory;

(d) Environmental Protection Act 1994 (Qld), where the Site is located in Queensland;

(e) Environment Protection Act 1993 (SA), where the Site is located in South Australia;

(f) Environment Protection Act 1970 (Vic), where the Site is located in Victoria; or

(g) Contaminated Sites Act 2003 (WA), where the Site is located in Western Australia.

Site Conditions

Any physical conditions on, under or over the surface of, or at or in the vicinity of, the Site including:

(a) ground water, ground water hydrology and the effects of any de-watering;

(b) physical and structural conditions above, upon and below the ground including any in-ground services or works and partially completed structures;

(c) topography, ground surface conditions and geology including seismic conditions, rock, other materials and sub-surface conditions;

(d) climatic and weather conditions, rain, surface water run-off and drainage, water seepage, wind blown dust and sand, and seasons; and

(e) hazardous materials.

Site Information

The documents described in the Contract Particulars.

Site Management Plan

The site management plan prepared by the Contractor and finalised under clause 7.7, which must set out in adequate detail all procedures the Contractor will implement to manage the Contractor's Activities on and near the Site including:

(a) the matters specified in the Contract Particulars; and

(b) any other matters required by the Contract Administrator.

Special Conditions

The document referred to in the Contract Particulars.

Specified Site Use Objective

The Site use objective, if any, specified in the Contract Particulars, being the use for which the Site must be capable of being used following Remediation Completion.

Stage

A stage of the Remediation Works described in the Contract Particulars.

Statutory Requirements

Means:



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(a) any law applicable to the carrying out of the Contractor's Activities, including Acts, ordinances, regulations, by-laws and other subordinate legislation;

(b) Approvals (including any condition or requirement under them);

(c) Defence Requirements; and

(d) Environmental Requirements.

Subcontractor Deed of Covenant

A subcontractor deed of covenant in the form set out in the Schedule of Collateral Documents.

Table of Remediation Works Variation Rates and Prices

The table set out or referred to in the Contract Particulars, containing rates and prices to:

(a) be used for the purposes of valuing Remediation Works Variations under clause 11.5; and

(b) apply where the limits of accuracy specified in the Contract Particulars are exceeded in respect of any items of Schedule of Rates Works for which a corresponding rate exists in the Table of Remediation Works Variation Rates and Prices.

Technical Advisor


Technical Advisor's Certification

A certificate obtained by the Contractor from the Technical Advisor in relation to the Site stating that the Remediation Works have been completed in accordance with:

(a) the Technical Specification; and

(b) the Remediation Design Documentation,

and that the Site is suitable for use for the Specified Site Use Objective, but which certificate is not a Site Audit Statement.

Technical Advisor's Functions

The roles and functions of the Technical Advisor, at outlined in Annexure 1, Part B.

Technical Specification

The documents referred to in the Contract Particulars.

Unidentified Site Conditions

Any ground conditions at the Site (including any groundwater conditions), which differ materially from those which should have been anticipated by a prudent, competent and experienced contractor if it had done those things which the Contractor is deemed to have done under clause 6.1.

Unexploded Ordnance

Any sort of military ammunition or explosive on or under the Site which has failed to explode including sea mines or shells used by the Navy, mortar bombs, mines, artillery shells or hand grenades used by the Army, bombs, rockets or missiles used by the Air Force, and other types of ammunition and explosives including training munitions.

WHS Legislation

Means:

(a) Work Health and Safety Act 2011 (NSW) and Work Health and Safety Regulation 2011 (NSW);



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(b) Work Health and Safety Act 2011 (QLD) and Work Health and Safety Regulation 2011 (QLD);

(c) Work Health and Safety Act 2011 (ACT) and Work Health and Safety Regulation 2011 (ACT);

(d) Work Health and Safety (National Uniform Legislation) Act 2011 (NT) and Work Health and Safety (National Uniform Legislation) Regulations 2011 (NT);

(e) Work Health and Safety Act 2011 (Cth) and Work Health and Safety Regulations 2011 (Cth);

(f) Work Health and Safety Act 2012 (SA) and Work Health and Safety Regulations 2012 (SA);

(g) Work Health and Safety Act 2012 (TAS) and Work Health and Safety Regulations 2012 (TAS); and

(h) any legislation in any State or Territory of Australia addressing work health and safety.

Work Health and Safety Plan

The work health and safety plan prepared by the Contractor and finalised under clause 7.7, which can be either Contract specific or site specific, and must:

(a) set out in adequate detail the procedures the Contractor will implement to manage the Contractor's Activities from a work health and safety perspective;

(b) describe how the Contractor proposes to ensure the Contractor's Activities are performed consistently with Statutory Requirements in relation to work health and safety; and

(c) address the matters specified in the Contract Particulars.


A policy of insurance in the form prescribed by Statutory Requirements in each State and Territory in which the Contractor's Activities are to be performed or the Contractor's employees are employed or normally reside, to insure against liability for death of or injury to persons employed by the Contractor as required by the Statutory Requirements, and including Employees Liability Insurance, if applicable.

1.2 Interpretation

In this Contract, unless the context otherwise indicates:

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

(b) references to a person include an individual, firm, corporation or unincorporated body;

(c) except in clause 1.1, headings are for convenience only and do not affect the interpretation of this Contract;

(d) references to any party to this Contract include its successors or permitted assigns;

(e) a reference to a party, clause, Annexure, Schedule, or exhibit is a reference to a party, clause, Annexure, Schedule or exhibit of or to this Contract;

(f) references to this Contract and any deed, agreement or instrument are deemed to include references to this Contract or such other deed, agreement or instrument as amended, novated, supplemented, varied or replaced from time to time;

(g) words denoting any gender include all genders;

(h) references to any legislation or to any section or provision of any legislation include any:

(i) statutory modification or re-enactment of or any statutory provision substituted for that legislation, section or provision; and

(ii) ordinances, by-laws, regulations and other statutory instruments issued under that legislation, section or provision;



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(i) no rule of construction applies to the disadvantage of a party on the basis that the party put forward the Contract or any part;

(j) a reference to "$" is to Australian currency;

(k) where under the Contract:

(i) a direction is required to be given or must be complied with; or

(ii) payment of money must be made (other than under clause 12.5),

within a period of 7 days or less from a specified event, then Saturdays, Sundays and public holidays in the place in which the Site is situated will not be counted in computing the number of days;

(l) for the purposes of clauses 10.8, 10.9, 10.10 and 10.11:

(i) any extension of time stated in days; or

(ii) any reference to "day",

will exclude public holidays and include only those days which are stated in the Contractor's approved program under clause 10.2 as working days;

(m) for the purposes of clauses 12.4 and 12.5, to the extent that the Contractor's Activities are to be carried out:

(i) in any jurisdiction other than the State of Victoria, the State of South Australia, the State of Tasmania, the Northern Territory or the Australian Capital Territory, references to "business days" are to days other than:

A. a Saturday or Sunday or the 27th, 28th, 29th, 30th or 31st day of December; or

B. a public holiday in the State or Territory in which the Site is situated;

(ii) in the State of Victoria, references to "business days" are to days other than:

A. a Saturday or Sunday; or

B. a day that is partly or wholly observed as a public holiday throughout Victoria;

(iii) in the Northern Territory, references to "business days" are to days other than:


B. a public holiday in the Northern Territory;

(iv) in the State of South Australia, references to "business days" are to days other than:

A. a Saturday or Sunday or the 27th, 28th, 29th, 30th or 31st day of December;

B. a public holiday in the State of South Australia; or

C. any other day on which there is a State-wide shutdown of the operations of the building and construction industry;

(v) in the State of Tasmania, references to "business days" are to days other than:

A. a Saturday or Sunday;

B. a statutory holiday as defined in the Statutory Holidays Act 2000 (Tas); or

(vi) in the Australian Capital Territory, references to "business days" are to days other than:




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B. a public or bank holiday in the Australian Capital Territory under the Holidays Act 1958 (ACT);

(n) other than as set out in paragraphs (k), (l) and (m) references to "day" are references to calendar days;

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

(p) the word "subcontractor" will include subcontractors, suppliers and consultants and the word "subcontract" will include a contract with a subcontractor;

(q) where a clause contains two options, the option specified in the Contract Particulars will apply;

(r) derivatives of a word or expression which has been defined in clause 1.1 will have a corresponding meaning to that assigned to it in clause 1.1; and

(s) unless agreed or notified in writing by the Contract Administrator, a reference to Standards Australia standards, overseas standards or other similar reference documents in the Technical Specification is a reference to the edition last published prior to the Award Date. If requested by the Contract Administrator, the Contractor must make copies of all Standards Australia standards, overseas standards or other similar reference documents referred to in the Technical Specification available to the Contract Administrator.

1.3 Miscellaneous

(a) This Contract is subject to and is to be construed in accordance with the laws of the State or Territory set out in the Contract Particulars.

(b) None of the terms of the Contract can be waived, discharged or released at law or in equity unless:

(i) to the extent that the term involves a right of the party seeking to waive the term or one party seeking to waive an obligation of the other party - this is done by written notice to the other party; or

(ii) otherwise, both parties agree in writing.

(c) This Contract constitutes the entire agreement and understanding between the parties and will take effect according to its tenor despite:

(i) any prior agreement in conflict or at variance with the Contract; or

(ii) any correspondence or other documents relating to the subject matter of the Contract which may have passed between the parties prior to the Award Date and which are not included in the Contract.

(d) Where a party comprises two or more persons, each person will be jointly and severally bound by the party's obligations under the Contract.

(e) Any provision in this Contract which is illegal, void or unenforceable will be ineffective to the extent only of such illegality, voidness or unenforceability and such illegality, voidness or unenforceability will not invalidate any other provision of the Contract.

(f) This Contract and the Project Documents are confidential. The Contractor must:

(i) not disclose any of the Contract or the Project Documents without the prior written consent of the Commonwealth, except to the extent that the disclosure is required for the Contractor to carry out its obligations under the Contract; and

(ii) ensure that any subcontract made in connection with this Contract contains enforceable obligations requiring the subcontractor to comply with the Contractor's obligations arising under this clause 1.3(f) as if the subcontractor were the Contractor.

(g) The Contractor must indemnify the Commonwealth against:



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(i) any liability to or claim by a third party including a subcontractor or Other Contractor; and

(ii) all costs, losses and damages suffered or incurred by the Commonwealth,

arising out of or in connection with any breach by the Contractor of a term of this Contract.

(h) All obligations to indemnify under this Contract survive termination of the Contract.



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2. COMMENCEMENT

2.1 Contractor's Obligations

The Contractor must:

(a) immediately commence to carry out the Contractor's Activities;

(b) subject to clause 2.2(a), commence the Remediation Works on Site by no later than the date specified in the Contract Particulars; and

(c) unless otherwise stated, carry out the Contractor's Activities at its cost.

2.2 Commonwealth's Obligations

The Commonwealth must:

(a) give the Contractor sufficient access to the Site to allow it to commence work on the Site on the later of:

(i) satisfaction of the following conditions precedent to access:

A. the Contractor having provided to the Contract Administrator:

1) the Approved Security required under clause 4.1; and

2) evidence satisfactory to the Contract Administrator under clause 5.4(c) that the Contractor has effected the insurances required in accordance with clause 5.4;

B. the Site Management Plan and the Work Health and Safety Plan having been finalised under clause 7.7; and

C. any other conditions set out in the Contract Particulars; and

(ii) the date specified in the Contract Particulars; and

(b) subject to other provisions of the Contract affecting access, continue to allow the Contractor sufficient access to the Site to enable it to carry out the Contractor's Activities.

2.3 Delayed Access

Failure by the Commonwealth to give access as required by clause 2.2(a) will not be a breach of the Contract but will entitle the Contractor to:

(a) an extension of time to any relevant Date for Remediation Completion where it is otherwise so entitled under clause 10.7; and

(b) have the Contract Price increased by any extra costs reasonably incurred by it which arise directly out of the Commonwealth's delay in giving the Contractor access to the Site, as determined by the Contract Administrator.



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3. PERSONNEL

3.1 Contract Administrator

The Contract Administrator will give directions and carry out all of the other functions of the Contract Administrator under the Contract as the agent of the Commonwealth (and not as an independent certifier, assessor or valuer).


(a) comply with any direction by the Contract Administrator given or purported to be given under a provision of this Contract; and

(b) not comply with any direction of the Commonwealth other than as expressly stated in the Contract.

Except where the Contract otherwise provides, the Contract Administrator may give a direction orally but will as soon as practicable confirm it in writing.

3.2 Replacement of Contract Administrator

The Commonwealth may at any time replace the Contract Administrator, in which event the Commonwealth will appoint another person as the Contract Administrator and notify the Contractor of that appointment.

Any substitute Contract Administrator appointed under this clause 3.2 will be bound by anything done by the former Contract Administrator to the same extent as the former Contract Administrator would have been bound.

3.3 Parties' Conduct

Without limiting any of the rights or obligations of the Commonwealth and Contractor under the Contract, the Commonwealth and Contractor must co-operate with each other in carrying out their obligations under the Contract.

3.4 Contract Administrator's Representative

The Contract Administrator may:

(a) by written notice to the Contractor appoint persons to exercise any of the Contract Administrator's functions under the Contract;

(b) not appoint more than one person to exercise a specific function under the Contract; and

(c) revoke any appointment under paragraph (a) by notice in writing to the Contractor.

As at the Award Date, the Contract Administrator is deemed to have appointed the persons set out in the Contract Particulars to carry out the functions set out in the Contract Particulars.

All references in the Contract to Contract Administrator include a reference to a representative appointed under this clause 3.4.

3.5 Contractor's Representative

The Contractor must ensure that the Contractor's Representative is present on the Site at all times reasonably necessary to ensure that the Contractor is complying with its obligations under the Contract.

A direction is deemed to be given to the Contractor if it is given to the Contractor's Representative.

3.6 Key People


(a) employ those people specified in the Contract Particulars, including the Contractor's Representative, in the jobs specified in the Contract Particulars;

(b) subject to paragraph (c), not replace the people referred to in paragraph (a) without the Contract Administrator's prior written approval; and



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(c) if any of the people referred to in paragraph (a) die, become seriously ill or resign from the employment of the Contractor, replace them with persons approved by the Contract Administrator of at least equivalent experience, ability and expertise.

3.7 Removal of Persons

The Contract Administrator may by notice in writing instruct the Contractor to remove any person from the Site or the Contractor's Activities who in the reasonable opinion of the Contract Administrator is guilty of misconduct or is incompetent or negligent.

The Contractor must ensure that this person is not again employed in the Contractor's Activities.

3.8 Environmental Consultant

(a) The Commonwealth may appoint an Environmental Consultant to carry out the Environmental Consultant's Functions.

(b) The Contractor acknowledges and agrees that:

(i) the Environmental Consultant may confer with the Contractor but will report directly to the Contract Administrator; and

(ii) except to the extent required for the purposes of paragraph (i), the Contractor must not comply with any direction of the Environmental Consultant given directly by the Environmental Consultant to the Contractor (whether purported to be given under a provision of this Contract or otherwise) unless that direction is given to the Contractor as part of a direction by the Contract Administrator under clause 3.1(a).

(c) The Environmental Consultant may, from time to time, by written notice to the Contractor appoint a person to:

(i) represent the Environmental Consultant during the carrying out of the Contractor's Activities; and

(ii) perform the Environmental Consultant's Functions under this Contract as the Environmental Consultant's Representative.

All references to the Environmental Consultant include a reference to a representative appointed under this subparagraph (c).

(d) The Contract Administrator may revoke any appointment under subparagraph (c) by notice in writing to the Contractor.

(e) The Commonwealth may, in its absolute discretion and at any time, terminate the services of the Environmental Consultant and:

(i) the Commonwealth's decision to terminate the services of the Environmental Consultant is final and conclusive;

(ii) the Commonwealth is not under any obligation to give the Contractor any reason or explanation for its decision to terminate the Environmental Consultant;

(iii) the Contractor acknowledges that it is not entitled to, and agrees that it will not seek to, restrain or otherwise intervene in or interfere with the termination of the services of the Environmental Consultant; and

(iv) the Contractor acknowledges that it will not be entitled to make any Claim against the Commonwealth arising out of, or in any way in connection with, the termination of the Environmental Consultant's services.

(f) If the Commonwealth terminates the services of the Environmental Consultant, or if the Environmental Consultant ceases to act for any reason, the Contract Administrator will:

(i) promptly notify the Contractor in writing; and



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(ii) as soon as reasonably practicable, appoint another Environmental Consultant and notify the Contractor of that appointment.

(g) Any substitute Environmental Consultant appointed under clause 3.8(f) will be bound by anything done by the former Environmental Consultant to the same extent as the former Environmental Consultant would have been bound.

(h) No report given by the Environmental Consultant, including the Remediation Validation Report, will have any force or effect unless it is given in writing.

(i) The Contractor must:

(i) co-operate with the Environmental Consultant;

(ii) assist the Environmental Consultant in the performance of the Environmental Consultant's Functions (including the provision, in a timely fashion, of all information the Environmental Consultant may reasonably require);

(iii) co-ordinate the Contractor's Activities with the work of the Environmental Consultant; and

(iv) facilitate the execution of the Environmental Consultant's Functions, including the timely provision of all information and documents the Environmental Consultant may reasonably require in preparing the Remediation Validation Report.

(j) If the Contractor has any concern which a prudent, competent and experienced contractor would have in relation to the performance of the Environmental Consultant, it must:

(i) promptly notify the Contract Administrator; and

(ii) consult with the Contract Administrator and provide such information and take all such other steps as the Contract Administrator may require to resolve the Contractor's concern.

(k) The Commonwealth and the Contract Administrator do not assume or owe any duty to the Contractor to review or comment on any of the Environmental Consultant's activities or functions.

(l) No review of or comment upon, or failure to review or comment upon, the Environmental Consultant's activities by the Commonwealth or Contract Administrator will relieve the Contractor from, or alter or affect, the Contractor's liabilities or responsibilities under, the Contract or otherwise.

(m) The Contractor acknowledges and agrees that the Remediation Validation Report:

(i) does not constitute acceptance by the Commonwealth of the Contractor's performance of its Contract obligations; and

(ii) is not an audit under the relevant Statutory Requirements of the State or Territory in which the Remediation Works are carried out.

(n) The Contractor acknowledges and agrees that it will not be entitled to bring or maintain, and that the Commonwealth will not be liable upon, any Claim arising out of or in connection with any act or omission of the Environmental Consultant (including any requirement that the Contractor provide information or documents or otherwise cooperate or coordinate with or assist the Environmental Consultant for the purposes of paragraph (i)) except to the extent that the act or omission (other than a requirement that the Contractor provide information or documents or otherwise cooperate or coordinate with or assist the Environmental Consultant for the purposes of paragraph (i)) has caused a delay to the Contractor's Activities, in which case, the Contractor may be entitled to an extension of time in accordance with clause 10.

3.9 Accredited Environmental Site Auditor

(a) If the Contract Particulars provide that a Site Audit Statement is required in relation to the Site:

(i) the Commonwealth will appoint the Accredited Environmental Site Auditor to carry out the Accredited Environmental Site Auditor's Functions; and



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(ii) the Commonwealth will ensure that the Accredited Environmental Site Auditor is accredited (or, if no process exists for accreditation, recognised) under the relevant Statutory Requirements in the State or Territory in which the Remediation Works are being carried out.


(i) the Accredited Environmental Site Auditor may confer with the Contractor but will report directly to the Contract Administrator; and

(ii) except to the extent required for the purposes of paragraph (i), the Contractor must not comply with any direction of the Accredited Environmental Site Auditor given directly by the Accredited Environmental Site Auditor to the Contractor (whether purported to be given under a provision of this Contract or otherwise) unless that direction is given to the Contractor as part of a direction by the Contract Administrator under clause 3.1(a).

(c) No certification or report given by the Accredited Environmental Site Auditor will have any force or effect unless it is given in writing.

(d) The Commonwealth may, in its absolute discretion, terminate the services of the Accredited Environmental Site Auditor and:

(i) the Commonwealth's decision to terminate the services of the Accredited Environmental Site Auditor is final and conclusive;

(ii) the Commonwealth is not under any obligation to give the Contractor any reason or explanation for its decision to terminate the Accredited Environmental Site Auditor;

(iii) the Contractor acknowledges that it is not entitled to, and agrees that it will not seek to, restrain or otherwise intervene in or interfere with the termination of the services of the Accredited Environmental Site Auditor; and

(iv) the Contractor acknowledges that it will not be entitled to make any Claim against the Commonwealth arising out of, or in any way in connection with, the termination of the Accredited Environmental Site Auditor's services.

(e) If the Commonwealth terminates the services of the Accredited Environmental Site Auditor, or if the Accredited Environmental Site Auditor ceases to act for any reason, the Contract Administrator will:


(ii) as soon as reasonably practicable, appoint another Accredited Environmental Site Auditor and notify the Contractor of that appointment.

(f) The Contractor must assist the Accredited Environmental Site Auditor in the performance of the Accredited Environmental Site Auditor's Functions, including the timely provision of all information and documents the Accredited Environmental Site Auditor may reasonably require.

(g) The Commonwealth and the Contract Administrator do not assume or owe any duty to the Contractor to review or comment upon any of the Accredited Environmental Site Auditor's activities, including:

(i) any Site Audit Statement issued by the Accredited Environmental Site Auditor;

(ii) a decision of the Accredited Environmental Site Auditor not to issue any Site Audit Statement; or

(iii) the issue of a Site Audit Statement subject to conditions.

(h) No comment upon or review of, or failure to comment upon or review, the Accredited Environmental Site Auditor's activities by the Commonwealth or Contract Administrator will relieve the Contractor from, or alter or affect, the Contractor's liabilities or responsibilities under the Contract or otherwise.

(i) The Contractor acknowledges and agrees that it will not be entitled to bring or maintain, and that the Commonwealth will not be liable upon, any Claim arising out of or in connection with any act or



28

omission of the Accredited Environmental Site Auditor (including any requirement that the Contractor provide information or documents or otherwise cooperate or coordinate with or assist the Accredited Environmental Site Auditor for the purposes of paragraph (i)).

3.10 Technical Advisor

(a) If the Contract Particulars provide that a Technical Advisor's Certification is required in relation to the Site then the Commonwealth will appoint the Technical Advisor to carry out the functions of the Technical Advisor.


(i) the Technical Advisor may confer with the Contractor, but will report directly to the Contract Administrator; and

(ii) except to the extent required for the purposes of paragraph (i), the Contractor must not comply with any direction of the Technical Advisor given directly by the Technical Advisor to the Contractor (whether purported to be given under a provision of this Contract or otherwise) unless that direction is given to the Contractor as part of a direction by the Contract Administrator under clause 3.1(a).

(c) No certification given by the Technical Advisor will have any force or effect unless it is given in writing.

(d) The Commonwealth may, in its absolute discretion, terminate the services of the Technical Advisor and:

(i) the Commonwealth's decision to terminate the services of the Technical Advisor is final and conclusive;

(ii) the Commonwealth is not under any obligation to give the Contractor any reason or explanation for its decision to terminate the Technical Advisor;

(iii) the Contractor acknowledges that it is not entitled to, and agrees that it will not seek to, restrain or otherwise intervene in or interfere with the termination of the services of the Technical Advisor; and

(iv) the Contractor acknowledges that it will not be entitled to make any Claim against the Commonwealth arising out of, or in any way in connection with, the termination of the Technical Advisor's services.

(e) If the Commonwealth terminates the services of the Technical Advisor, or if the Technical Advisor ceases to act for any reason, the Contract Administrator will:


(ii) as soon as reasonably practicable, appoint another Technical Advisor and notify the Contractor of that appointment.

(f) Any Technical Advisor appointed under clause 3.10(e)(ii) is bound by any direction given by any former Technical Advisor to the same extent as the relevant former Technical Advisor would have been bound by that direction.

(g) The Contractor must assist the Technical Advisor in the performance of the Technical Advisor's Functions, including the timely provision of all documents and information the Technical Advisor may reasonably require.

(h) The Commonwealth and the Contract Administrator do not assume or owe any duty to the Contractor to review or comment upon any of the Technical Advisor's activities, including:

(i) any Technical Advisor's Certification issued by the Technical Advisor; or

(ii) the decision of the Technical Advisor not issue any Technical Advisor's Certification.



29

(i) No comment upon or review of, or failure to comment upon or review, the Technical Advisor's activities by the Commonwealth or Contract Administrator will relieve the Contractor from, or alter or affect, the Contractor's liabilities or responsibilities under the Contract or otherwise.

(j) The Contractor acknowledges and agrees that it will not be entitled to bring or maintain, and that the Commonwealth will not be liable upon, any Claim arising out of or in connection with any act or omission of the Technical Advisor (including any requirement that the Contractor provide information or documents or otherwise cooperate or coordinate with or assist the Technical Advisor for the purposes of paragraph (i)).

3.11 Industrial Relations

Without limiting the Contractor's obligations under clause 18, the Contractor must in carrying out the Contractor's Activities:

(a) assume sole responsibility for and manage all aspects of industrial relations;

(b) ensure that the rates of pay and conditions of employment specified in all relevant industrial awards and enterprise agreements and any relevant Statutory Requirements, for all employees engaged by any person, are always observed in full;

(c) keep the Contract Administrator fully and promptly informed of industrial relations problems or issues which affect or are likely to affect the carrying out of the Contractor's Activities; and

(d) comply with all other requirements of the Contract relating to industrial relations.

3.12 Project Review


(a) meet monthly (or at such other times as the Contract Administrator may require) with the Contract Administrator and any other persons whom the Contract Administrator nominates, including the:

(i) Environmental Consultant;

(ii) Technical Advisor; or

(iii) Accredited Environmental Site Auditor;

(b) discuss the reports it has prepared under clauses 7.7 and 8.13 and such other matters as the Contract Administrator may from time to time require;

(c) promptly and fully respond to any questions which the Contract Administrator asks in relation to any report; and

(d) if it requires instructions from the Commonwealth, make all necessary recommendations as to the action required.

The Contract Administrator must:

(e) before each meeting – prepare an agenda for that meeting; and

(f) after each meeting – prepare minutes of the meeting and distribute them to all attendees of the meeting.



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4. SECURITY

4.1 Form

The Contractor must provide security to the Commonwealth:

(a) in the form of Approved Security;

(b) in the amount set out in the Contract Particulars; and

(c) within 14 days of the Award Date.

4.2 Release


(a) within 14 days of the issue of a Remediation Completion Notice for the Remediation Works or for each and every Stage, release from the security held under clause 4.1, 50% of the security required under clause 4.1;

(b) within 14 days of the expiration of the last Remediation Defects Rectification Period (excluding any extensions under clause 9.10), release such amount of the security under clause 4.1 then held, as the Contract Administrator determines to be reasonable, having regard to the work to which the remaining Remediation Defects Rectification Periods apply, to ensure the Commonwealth's interests are not prejudiced; and

(c) release the balance of the security under clause 4.1 then held when:

(i) the last Remediation Defects Rectification Period has expired; and

(ii) the Contractor has complied with all its obligations under the Contract.

4.3 Interest

(a) The Commonwealth:

(i) is not obliged to pay the Contractor interest on:

A. the Approved Security; or

B. subject to paragraph (b), the proceeds of the Approved Security if it is converted into cash; and

(ii) does not hold the proceeds or money referred to in subparagraph (i) on trust for the Contractor.

(b) If the Commonwealth makes a call upon any security held under clause 4.1 and obtains cash as a consequence:

(i) the Commonwealth will pay simple interest, at the rate applying to damages for the purpose of clause 12.13, on the amount of any cash obtained in excess of the sum to which the Commonwealth is entitled at the time of such call; and

(ii) the sum attracting interest pursuant to subparagraph (i) will be further reduced by any unsatisfied amounts which subsequently become payable (whether as a debt, by way of damages or otherwise) by the Contractor to the Commonwealth at the time such amounts become payable.

4.4 Related Company Guarantee

The Contractor must, if so requested in writing by the Commonwealth, provide to the Commonwealth on the date set out in the request a deed of guarantee, undertaking and substitution:

(a) in the form set out in the Schedule of Collateral Documents; and



31

(b) duly executed by the Contractor and the Related Body Corporate of the Contractor nominated in the Commonwealth's request.



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5. RISKS AND INSURANCE

5.1 Risk of Remediation Works

Except to the extent that it arises from a Commonwealth Risk, the Contractor will bear the risk of and indemnify the Commonwealth against:

(a) any loss of or damage to:

(i) the Remediation Works or a Stage;

(ii) Plant, Equipment and Work; and

(iii) unfixed goods and materials (whether on or off Site), including anything provided by the Commonwealth to the Contractor or brought onto Site by a subcontractor, used or to be used in carrying out the Contractor's Activities,

until:

(iv) in the case of loss of or damage to the Remediation Works or a Stage, a Notice of Remediation Completion is issued for the Remediation Works or the Stage; and

(v) otherwise, a Remediation Completion Notice is issued for the Remediation Works or the last Stage to reach Remediation Completion; and

(b) after the issue of a Remediation Completion Notice for the Remediation Works or a Stage, any loss of or damage to the Remediation Works or the Stage arising from any act or omission of the Contractor during the Remediation Defects Rectification Period or from any event which occurred prior to the issue of the Remediation Completion Notice for the Remediation Works or the Stage.

5.2 Other Risks

Except to the extent that it arises from a Commonwealth Risk, the Contractor will indemnify the Commonwealth against:

(a) any loss of or damage to property of the Commonwealth (other than property referred to in clause 5.1(a)); and

(b) any liability to or claims by a third party in respect of loss of or damage to property or injury to or death of persons,

caused by, or arising out of, or in any way in connection with, the Contractor's Activities provided that the Contractor's responsibility to indemnify the Commonwealth will be reduced to the extent that an act or omission of the Commonwealth, the Contract Administrator or an Other Contractor may have contributed to the loss, damage, injury or death.

5.3 Reinstatement

During the period during which the Contractor bears the risk of loss or damage under clause 5.1, the Contractor must:

(a) subject to paragraph (b), promptly replace or otherwise make good any loss of, or repair the damage to, the Remediation Works or a Stage, any Plant, Equipment and Work or any unfixed goods and materials used or to be used in carrying out the Contractor's Activities; and

(b) where the loss or damage arises from a:

(i) Commonwealth Risk; or

(ii) breach of the Contract by the Commonwealth,

only comply with paragraph (a) to the extent directed by the Contract Administrator.



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The Contractor will bear the cost of such replacement, making good or repair except to the extent that the loss or damage arises from a:

(c) Commonwealth Risk; or

(d) breach of the Contract by the Commonwealth,

in which event this replacement, making good or repair will, to the extent the loss or damage arises from a cause referred to in paragraphs (c) and (d) (but subject to paragraph (b)), be treated as if it were a Remediation Works Variation the subject of a direction by the Contract Administrator and clause 11.5 applied.

5.4 Contractor Insurance Obligations


(a) from the Award Date effect and maintain the following insurance:

(i) Public Liability Insurance;

(ii) Construction Risks Insurance, if the Contract Particulars provide that Construction Risks Insurance is required;

(iii) Workers Compensation Insurance in each State and Territory in which the Contractor's Activities are to be performed or the Contractor's employees are employed or normally reside;

(iv) whichever of Errors and Omissions Insurance or Professional Indemnity Insurance has an amount included for it in the Contract Particulars; and

(v) such other insurances on such terms as are set out in the Contract Particulars,

each of which is to be:

(vi) for the respective amount referred to in the Contract Particulars;

(vii) with reputable insurers having a Standard and Poors, Moodys, A M Best, Fitch's or equivalent rating agency's financial strength rating of A- or better; and

(viii) on terms which are satisfactory to the Contract Administrator (confirmation of which must not be unreasonably withheld or delayed);

(b) in relation to the Workers Compensation Insurance:

(i) ensure that to the extent permitted by law, the insurance policy extends to provide indemnity to the Commonwealth in respect of any statutory liability to the Contractor's employees; and

(ii) ensure that each of its subcontractors legally required to do so, has Workers Compensation Insurance covering the subcontractor in respect of its statutory liability to employees, in the same manner as the Contractor is required to do so under paragraph (a)(iii);

(c) provide the Contract Administrator with evidence satisfactory to the Contract Administrator that each policy is current as required by the Contract Administrator from time to time;

(d) ensure that:

(i) if the insurer gives the Contractor notice of expiry, cancellation or rescission of any required insurance policy, the Contractor as soon as possible informs the Commonwealth in writing that the notice has been given and effects replacement insurance on terms and subject to limits acceptable to the Contract Administrator, whose acceptance will not be unreasonably withheld; and

(ii) if the Contractor cancels, rescinds or fails to renew any required insurance policy, the Contractor as soon as possible obtains replacement insurance as required by this Contract and informs the Commonwealth in writing as soon as possible of the identity of the



34

replacement insurer, and provides such evidence as the Contract Administrator reasonably requires that the replacement insurance complies in all relevant respects with the requirements of this Contract;

(e) ensure that it:

(i) does not do or omit to do anything whereby any insurance may be prejudiced;

(ii) if necessary, takes all possible steps to rectify any situation which might prejudice any insurance;

(iii) renews any required insurance policy if it expires during the relevant period, unless appropriate replacement insurance is obtained;

(iv) does not cancel or allow an insurance policy to lapse during the period for which it is required by the Contract without the prior written consent of the Contract Administrator;

(v) immediately notifies the Contract Administrator (in writing) of any event which may result in a required insurance policy lapsing, being cancelled or rescinded; and

(vi) complies fully with its duty of disclosure and obligations of utmost good faith toward the insurer and in connection with all of the required insurance policies; and

(f) ensure that any subcontractors that perform any design work forming part of the Contractor's Activities also maintain Professional Indemnity Insurance or Errors and Omissions Insurance in the same manner and on the same terms as those required to be obtained by the Contractor under clause 5.4(a)(iv), for not less than the amount referred to in the Contract Particulars.

The obtaining of insurance as required under this clause 5.4 will not in any way limit, reduce or otherwise affect any of the obligations, responsibilities and liabilities of the Contractor under any other provisions of the Contract or otherwise at law or in equity.

5.5 Failure to Insure

If the Contractor fails to:

(a) provide evidence satisfactory to the Contract Administrator that a policy is current; or

(b) obtain insurance in accordance with clause 5.4,

the Commonwealth may, without prejudice to any other rights it may have, take out the relevant insurance and the cost will be a debt due from the Contractor to the Commonwealth.

5.6 Period of Insurance

The insurance which the Contractor is required to obtain under this clause 5 must be maintained:

(a) in the case of Construction Risks Insurance, until the Contractor ceases to bear the risk of loss of or damage to anything under clause 5.1;

(b) in the case of Public Liability Insurance and Workers Compensation Insurance, until the latest of:

(i) the end of the last Remediation Defects Rectification Period;

(ii) the date upon which all Defects have been rectified in accordance with the Contract; and

(iii) the date upon which the Contractor ceases to carry out the Contractor's Activities; and

(c) in the case of Professional Indemnity Insurance or Errors and Omissions Insurance, until the expiration of the period specified in the Contract Particulars following the latest of:

(i) the last Date of Remediation Completion; and

(ii) the date upon which the Contractor ceases to carry out the Contractor's Activities.



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5.7 Notice of Potential Claim


(a) as soon as possible inform the Commonwealth in writing of any occurrence that may give rise to a claim under an insurance policy required by the Contract;

(b) keep the Commonwealth informed of all significant developments concerning the claim, except in circumstances where the Commonwealth is making a claim against the Contractor; and

(c) ensure that its subcontractors similarly inform the Contractor and the Commonwealth in respect of occurrences which may give rise to claims by them,

provided that, in respect of Professional Indemnity Insurance, the Contractor:

(d) subject to paragraph (e), is not required to provide details of individual claims; and

(e) must notify the Commonwealth if the estimated total combined value of claims made against the Contractor and claims which may arise from circumstances reported by the Contractor to its insurer in a policy year would potentially reduce the available limit of policy indemnity for that year below the amount required by the Contract.

5.8 Procedure upon Loss or Damage

If loss of or damage to any part of the Remediation Works or a Stage occurs whilst the Contractor bears the risk of loss of or damage to the Remediation Works or the Stage under clause 5.1 the Contractor must:

(a) make the Remediation Works or the Stage and the Site safe and secure;

(b) notify the relevant insurers and comply with their instructions; and

(c) promptly consult with the Contract Administrator to discuss the steps to be taken to:

(i) comply with its obligations under clause 5.3; and

(ii) ensure that, to the greatest extent possible, the Contractor continues to comply with its other obligations under this Contract.

5.9 Cross Liability

This clause 5.9 does not apply to Professional Indemnity Insurance, Errors and Omissions Insurance or Workers Compensation Insurance.

Where the Contract requires insurance to provide cover to more than one insured, the Contractor must ensure that the insurance policy provides that:

(a) the insurance (with the exception of limits of liability) will operate in the same manner as if there were a separate policy of insurance covering each named insured;

(b) the insurer waives all rights, remedies or relief to which it might become entitled by subrogation against any of the parties to whom coverage extends and that failure by any insured to observe and fulfil the terms of the policy will not prejudice the insurance in regard to any other insured; and

(c) a notice to the insurer by one insured will be deemed to be notice on behalf of all insured.



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6. SITE ACCESS AND CONDITIONS

6.1 Contractor to Inform Itself

The Contractor warrants that it has, and it will be deemed to have, done everything that would be expected of a prudent, competent and experienced contractor in:

(a) assessing the risks which it is assuming under the Contract, including:

(i) in relation to the Site; and

(ii) conducting a detailed review of the Site Information; and

(b) ensuring that the Contract Price contains sufficient allowances to protect it against any of these risks eventuating.

6.2 Site Information

Without limiting clause 6.5:

(a) the Commonwealth has made available the Site Information to the Contractor for the purposes of the Contractor assessing the conditions on, in, under or in the vicinity of the Site;

(b) the Commonwealth does not warrant, guarantee or make any representation about the accuracy or adequacy of any information, data and documents made available to the Contractor (including the Site Information);

(c) the Contractor acknowledges that such information, data and documents do not form part of the Contract and that clause 6.5 applies to the information, data and documents; and

(d) to the extent permitted by law, will not be liable upon any Claim by the Contractor arising out of or in connection with any such information, data or documents.

6.3 Site Access

The Commonwealth:

(a) must, subject to clause 2.2 and subclause 6.3(b), provide the Contractor with such access to the Site as the Contractor reasonably requires to undertake the Contractor's Activities;

(b) is not obliged to:

(i) provide the Contractor with sole access to the Site; or

(ii) carry out any work or provide any facilities to the Contractor (other than as stated in the Contract) which may be necessary to enable the Contractor to obtain adequate access to carry out the Contractor's Activities;

(c) may engage Other Contractors to work upon or in the vicinity of the Site at the same time as the Contractor; and

(d) must use reasonable endeavours to ensure that any Other Contractors engaged by the Commonwealth comply with the reasonable requirements of the Contractor as to matters concerning industrial relations, insurance and hours of working.

6.4 Contractor's Obligation to Provide Access

In carrying out the Contractor's Activities, the Contractor must:

(a) minimise disruption or inconvenience to the Commonwealth and any person authorised by the Commonwealth or the Contract Administrator to occupy, use or attend upon the Site in their occupation or use of, or attendance upon, any part of the Site, including any occupation or use of a part of the Remediation Works or a Stage under clause 13.5;



37

(b) at all reasonable times give the Commonwealth, the Contract Administrator and any person authorised by either the Commonwealth or the Contract Administrator access to the Remediation Works, the Site or any areas off-Site where the Contractor's Activities are being carried out; and

(c) provide the Commonwealth and the Contract Administrator with every reasonable facility necessary for the supervision, examination and testing of the Contractor's Activities.

6.5 Non-Reliance

The Contractor:

(a) warrants that it did not in any way rely upon:

(i) any information, data, representation, statement or document made by or provided to the Contractor by the Commonwealth or anyone on behalf of the Commonwealth (including any information, data and documents provided under clause 6.2(a)); or

(ii) the accuracy or adequacy of any such information, data, representation, statement or document,

for the purposes of entering into the Contract, except to the extent that any such information, data, representation, statement or document forms part of the Contract;

(b) warrants that it enters into this Contract and will carry out the Contractor's Activities based on its own investigations, interpretations, deductions, information and determinations; and

(c) acknowledges that it is aware that the Commonwealth has entered into the Contract relying upon the warranties in paragraphs (a) and (b).

6.6 Unexploded Ordnance

(a) If the Contractor considers it has or is likely to have encountered an Unexploded Ordnance, it must:

(i) suspend the Remediation Works and any other Contractor Activities in the vicinity of the Unexploded Ordnance;

(ii) clearly mark the location of the Unexploded Ordnance;

(iii) protect the Unexploded Ordnance and not touch or disturb it further;

(iv) ensure all persons and materials, plant and equipment are kept clear of the Unexploded Ordnance;

(v) immediately give the Contract Administrator notice in writing of the Unexploded Ordnance, its features and location;

(vi) comply with any instructions of the Contract Administrator in relation to the Unexploded Ordnance; and

(vii) comply with clause 8.13.

(b) The Contract Administrator must, within 14 days of receipt of the Contractor's notice under clause 6.6(a)(v):

(i) determine (in its absolute discretion) whether an Unexploded Ordnance has been encountered; and

(ii) notify the Contractor and the Commonwealth of the Contract Administrator's determination.

(c) If the Contract Administrator determines that an Unexploded Ordnance has been encountered, the Contractor will be entitled to:

(i) an extension of time to any relevant Date for Remediation Completion where it is otherwise so entitled under clause 10.8; and



38

(ii) be paid by the Commonwealth any extra costs reasonably incurred by the Contractor after the giving of a notice under subparagraph 6.6(a)(v) arising from the Unexploded Ordnance, as determined by the Contract Administrator and added to the Contract Price, subject to the Contractor taking all steps possible to mitigate those extra costs.

(d) If the Contract Administrator determines that an Unexploded Ordnance has not been encountered, then the Contractor:

(i) must immediately recommence the suspended Remediation Works and other Contractor Activities; and

(ii) will not be entitled to bring any Claim against the Commonwealth arising out of or in connection with any action the Contractor was required to take to comply with paragraph (a)).



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7. PLANS AND DOCUMENTATION

7.1 Commonwealth's Documents

The Commonwealth must provide to the Contractor the documents and number of copies of those documents specified in the Contract Particulars.

7.2 Contractor's Design


(a) prepare Remediation Design Documentation in accordance with the Technical Specification and the other requirements of the Contract, if:

(i) the Contract Particulars state that the Contractor must prepare Remediation Design Documentation; or

(ii) directed to do so under clause 11.4 or 11.8(b);

(b) where clause 7.2(a)(i) applies:

(i) as part of the program it is to prepare under clause 10.2, submit to the Contract Administrator for approval a documentation program which makes allowance for the Remediation Design Documentation to be submitted to the Contract Administrator in a manner and at a rate which will give the Contract Administrator a reasonable opportunity to review the Remediation Design Documentation within the period of time within which the Contract Administrator may review the Design Documentation under clause 7.3; and

(ii) submit the Remediation Design Documentation it prepares to the Contract Administrator in accordance with the documentation program approved by the Contract Administrator under subclause 7.2(b)(i).

7.3 Contract Administrator may review Remediation Design Documentation

(a) The Contract Administrator may:

(i) review any Remediation Design Documentation, or any resubmitted Remediation Design Documentation, prepared and submitted by the Contractor; and

(ii) within 10 Business Days of the submission by the Contractor of such Remediation Design Documentation or resubmitted Remediation Design Documentation, reject the Remediation Design Documentation if in the Contract Administrator's reasonable opinion the Remediation Design Documentation does not comply with the requirements of the Contract.

(b) If any Remediation Design Documentation is rejected, the Contractor must submit amended Remediation Design Documentation to the Contract Administrator.

(c) The Contractor must not commence execution of any part of the Remediation Works to which any Remediation Design Documentation which it has submitted to the Contract Administrator applies, unless the Contract Administrator has had the number of days set out in subclause 7.3(a) to review the Remediation Design Documentation and has not rejected the Remediation Design Documentation.

7.4 No Obligation to Review

(a) The Contract Administrator does not assume or owe any duty of care to the Contractor to review, or in reviewing, the Remediation Design Documentation submitted by the Contractor for errors, omissions or compliance with the Contract.

(b) No review of, comments upon, consent to or rejection of, or failure to review or comment upon or consent to or reject, any Remediation Design Documentation prepared by the Contractor or any other direction by the Contract Administrator about, or any other act or omission by the Contract Administrator or otherwise by or on behalf of the Commonwealth in relation to, the Remediation Design Documentation will:



40

(i) relieve the Contractor from, or alter or affect, the Contractor's liabilities or responsibilities whether under the Contract or otherwise according to law; or

(ii) prejudice the Commonwealth's rights against the Contractor whether under the Contract or otherwise according to law.

7.5 Copies of Remediation Design Documentation

For the purposes of clauses 7.2(b)(i) and 7.3, the Contractor must submit or resubmit to the Contract Administrator the number of copies specified in the Contract Particulars of any Remediation Design Documentation in:

(a) hard copy; and

(b) electronic copy,

in each case in accordance with the requirements set out in the Contract Particulars.

7.6 Fitness for Purpose

The Contractor warrants that:

(a) the Remediation Design Documentation it prepares will be fit for its intended purpose; and

(b) upon Remediation Completion, the Remediation Works or each Stage will, to the extent that they have been designed by the Contractor, be fit for their intended purpose.

7.7 Project Plans

(a) The Contractor must:

(i) carry out the Contractor's Activities in accordance with, and otherwise implement, the Project Plans;

(ii) for the purposes of clause 7.7(a)(i), must prepare draft Project Plans:

A. based on the outline approach to preparing the Project Plans, and performing the Contractor's Activities to be covered by the Project Plans, submitted by the Contractor in its tender for the Contractor's Activities, and otherwise in accordance with the requirements of the Contract; and

B. so that they are accurate, comprehensive, coordinated and complete so that the Contractor's Activities can commence and be completed without the need for further clarification or information;

(iii) submit its draft Project Plans to the Contract Administrator so as to ensure that there is no delay or disruption to the Contractor's Activities and in any event no later than the number of days set out in the Contract Particulars after the Award Date for each Project Plan;

(iv) if required by the Contract Administrator, make available the appropriate personnel to meet with the Contract Administrator to explain any draft Project Plans or to provide information on such matters in relation to the draft Project Plans as the Contract Administrator may request, and in such form and substance as the Contract Administrator may request;

(v) within 10 business days of:

A. submission of the draft Project Plans in accordance with clause 7.7(a)(iii); or

B. if a meeting referred to in clause 7.7(a)(iv) has occurred, that meeting,

the Contract Administrator may comment on the draft Project Plans in writing to the Contractor, in which case the Contractor must:

C. update the draft Project Plans to address such comments; and



41

D. within 5 business days of receipt of the Contract Administrator's comments, resubmit such updated draft Project Plans to the Contract Administrator, together with a report which identifies how any comments from the Contract Administrator have been addressed in the draft Project Plans;

(vi) if, within 10 business of the receipt by the Contract Administrator of the updated Project Plans referred to in clause 7.7(a) (v)D the Contract Administrator forms the opinion that the draft Project Plans are not in accordance with the requirements of the Contract and otherwise to the satisfaction of the Contract Administrator, the Contract Administrator may reject the draft Project Plans by notice in writing to the Contractor;

(vii) if the Contract Administrator rejects the draft Project Plans in accordance with clause 7.7(a)(vi), the Contract Administrator may (in its absolute discretion) direct the Contractor:

A. to promptly (and in any event, within 5 business day of the Contract Administrator's direction) amend and resubmit the draft Project Plans in accordance with clause 7.7(a)(v) and the process in this clause 7.7(a)(iv) - (vii) will be reapplied to the amended Project Plans, until the draft Project Plans are finalised in accordance with the Contract and to the satisfaction of the Contract Administrator; or

B. without limiting the Commonwealth's other rights and remedies (whether under this Contractor or otherwise at law or in equity) that the Commonwealth will (either itself or by a third party) finalise the relevant Project Plans, in which case paragraph (b) and clause 8.19 will apply;

(viii) not commence any of the Contractor's Activities to which any Project Plan applies, unless:

A. the Contract Administrator has had 5 business days to review the draft Project Plans and has not rejected them; or

B. the Project Plans have been finalised (either by or on behalf of the Commonwealth) under clause 7.7(a)(vii)B;

(ix) at all times take every step required under this clause 7.7(a) to finalise each Project Plan:

A. so as to ensure that there is no delay or disruption to the Contractor's Activities; and

B. in accordance with the requirements of the Contract to the satisfaction of the Contract Administrator;

(x) after the Project Plans have been finalised (whether by the Contractor or by or on behalf of the Commonwealth), continue to correct any defects in or omissions from a Project Plan (whether identified by the Contract Administrator or the Contractor) and submit an amended draft of the Project Plan to the Contract Administrator, after which:

A. the Contractor must continue to comply with the requirements of the then current Project Plan until the process in subparagraph 7.7(a)(iii) - (ix) (to the extent applicable) has been completed in respect of the amended draft Project Plan; and

B. sub-paragraphs (iii) - (ix) will re-apply to the amended draft of the Project Plan (to the extent applicable); and

(xi) document and maintain detailed records of inspections or audits undertaken as part of any Project Plan.

(b) The Contractor will not be relieved from compliance with any of its Contract obligations or from any of its liabilities whether under the Contract or otherwise according to law as a result of:

(i) the implementation of, and compliance with, the requirements of any Project Plan;



42

(ii) any direction by the Contract Administrator concerning a Project Plan or the Contractor's compliance or non-compliance with a Project Plan;

(iii) any audit or other monitoring by the Contract Administrator of the Contractor's compliance with a Project Plan;

(iv) any failure by the Contract Administrator, or anyone else acting on behalf of the Commonwealth, to detect any defect in or omission from a Project Plan including where any such failure arises from any negligence on the part of the Commonwealth, Contract Administrator or other person; or

(v) the finalisation of any Project Plans by or on behalf of the Commonwealth under clause 7.7(a)(a)(vii) as a result of the Contractor's failure to do so.

7.8 Availability

The Contractor must keep available for the use of the Contract Administrator, the Commonwealth and any person authorised by either the Contract Administrator or the Commonwealth:

(a) on the Site, one complete set of the Technical Specification, any documents provided by the Commonwealth under clause 7.1 and all Project Documents; and

(b) at any area off-Site where the Contractor's Activities are being carried out, one complete set of each of those items specified in paragraph (a) insofar as they are relevant to the Contractor's Activities being carried out in that area.

7.9 Licence over Project Documents

The Contractor grants to the Commonwealth a perpetual, royalty-free, irrevocable, non-exclusive, worldwide licence to exercise all rights of the owner of the Intellectual Property Rights in the Project Documents, including to use, re-use, reproduce, communicate to the public, modify and adapt any of the Project Documents.

This licence:

(a) arises, for each Project Document, immediately the Project Document is:

(i) produced; or


under, for the purposes of or in connection with the Contract, the Contractor's Activities or the Remediation Works by, for or on behalf of the Contractor;

(b) includes an unlimited right to sub-licence;

(c) without limitation, extends to:

(i) any subsequent operation, maintenance or servicing of, or additions, alterations or repairs to the Remediation Works; and

(ii) use in any way for any other Commonwealth project; and

(d) survives the termination of this Contract on any basis.

7.10 Intellectual Property Warranties


(a) the Contractor owns all Intellectual Property Rights in the Project Documents or, to the extent that it does not, is entitled to grant the assignments and licences contemplated by this Contract;

(b) use by the Commonwealth or any sublicensee or subsublicensee of the Project Documents in accordance with this Contract will not infringe the rights (including Intellectual Property Rights) of any third party;



43

(c) neither the Commonwealth nor any sublicensee or subsublicensee is liable to pay any third party any licence or other fee in respect of the use of the Project Documents, whether by reason of Intellectual Property Rights of that third party or otherwise; and

(d) the use by the Commonwealth or by any sublicensee or subsublicensee of the Project Documents in accordance with this Contract will not breach any laws (including any laws in respect of Intellectual Property Rights).

7.11 Intellectual Property Rights


(a) ensure that the Contractor's Activities do not infringe any patent, registered design, trade mark or name, copyright or other protected right; and

(b) indemnify the Commonwealth against any claims against, or costs, losses or damages suffered or incurred by, the Commonwealth arising out of, or in any way in connection with, any actual or alleged infringement of any patent, registered design, trade mark or name, copyright or other protected right.

7.12 Resolution of Ambiguities

If there is any ambiguity, discrepancy or inconsistency in the documents which make up the Contract or between the Contract and any Remediation Design Documentation or any other Project Document:

(a) the order of precedence that applies is the order of precedence as determined in accordance with clause 1.8.10 of the Deed;

(b) where the ambiguity, discrepancy or inconsistency is between the Contract and any part of the Remediation Design Documentation or any other Project Document, the higher standard, quality or quantum will prevail but if this does not resolve the ambiguity, discrepancy or inconsistency, the Contract will prevail;

(c) if it is discovered by the Contractor or the Contract Administrator, then the party discovering it must promptly give notice to the other; and

(d) the Contract Administrator must instruct the Contractor as to the course it must adopt within 14 days of the notice under paragraph (c).

7.13 Access to Premises and Project Documents


(a) at the request of the Contract Administrator at any time during the execution of the Contractor's Activities and the period of 10 years following the issue of a Remediation Completion Notice for the Remediation Works:

(i) provide access to its premises and make the Project Documents available for inspection and copying by the Contract Administrator or any other person nominated by the Contract Administrator;

(ii) provide to the Contract Administrator such copies of the Project Documents as the Contract Administrator or any nominated person may require;

(iii) provide all such facilities and assistance and answer all questions of the Contract Administrator or any nominated person; and

(iv) make available any officers, employees, agents or subcontractors for interviews with the Contract Administrator or any nominated person;

(b) as a condition precedent to Remediation Completion of each Stage or the Remediation Works, deliver to the Contract Administrator a copy of the installed version of each item of software comprising the IT Equipment incorporated in that Stage or the Remediation Works, in a storage medium reasonably



44

satisfactory to the Commonwealth, together with a copy of all documentation, including licence terms, warranty terms and operating manuals associated with each item of such software; and

(c) ensure that any subcontract made in connection with this Contract contains enforceable obligations requiring the subcontractor to comply with the Contractor's obligations arising under this clause 7.13 as if the subcontractor were the Contractor.

7.14 DCAP

The Contractor:

(a) warrants that:

(i) the DCAP complies with the requirements of this Contract;

(ii) preparation of the Remediation Design Documentation in accordance with the DCAP will ensure that the Remediation Design Documentation complies with the requirements of this Contract and that the Contractor otherwise discharges its obligations under the Contract; and

(iii) execution of the Remediation Works in accordance with the DCAP will ensure that the Remediation Works achieve Remediation Completion in accordance with, and will otherwise enable the Contractor to discharge its obligations under, the Contract;

(b) acknowledges that the DCAP:

(i) does not limit the Contractor's obligations under this Contract; and

(ii) may require updating and refining throughout the execution of the Contractor's Activities:

A. to the extent that it does not reflect all the tasks and other things to be done or provided to perform the Contractor's Activities in accordance with the Contract; and

B. without limiting subsubparagraph A, on account of Remediation Works Variations;

(c) must update and refine the DCAP as required by paragraph (b)(ii) with the written approval of the Contract Administrator;

(d) will not be entitled to bring any Claim against the Commonwealth arising out of or in connection with any work which the Contractor is required to carry out arising out of or in connection with paragraph (b) or (c); and

(e) acknowledges that the Commonwealth has not made and does not make any representation or give any warranty as to any of the matters referred to in subparagraphs (i) - (iii) of paragraph (a).



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8. EXECUTION OF REMEDIATION WORKS

8.1 Description of Remediation Works

Subject to clause 7.12, the Contractor must undertake and execute the Remediation Works in accordance with:

(a) the Technical Specification;

(b) any Remediation Design Documentation prepared by the Contractor in accordance with the requirements of the Contract;

(c) any direction of the Contract Administrator given or purported to be given under a provision of the Contract, including any Remediation Works Variation directed by the Contract Administrator by a document titled "Remediation Works Variation Order"; and

(d) the other requirements of the Contract.

8.2 All Remediation Work Included

(a) The Contractor has allowed for the provision of all Plant, Equipment and Work, materials and other work necessary for the Contractor's Activities, whether or not expressly mentioned in the Technical Specification or any Remediation Design Documentation.

(b) Any such Plant, Equipment and Work, materials and other work:

(i) must be undertaken and provided by the Contractor; and

(ii) forms part of the Contractor's Activities and will not entitle the Contractor to make a Claim except as otherwise provided for in the Contract.

(c) To the extent that any such Plant, Equipment and Work, materials and other work necessary for the Contractor's Activities are not covered by the Schedule of Rates Component, the Contractor will:

(i) be deemed to have allowed for the undertaking or provision of those Plant, Equipment and Work, materials and other work in its Lump Sum Component; and

(ii) not be entitled to any adjustment to the Lump Sum Component or to make any other Claim against the Commonwealth, arising out of or in connection with the undertaking or provision of those Plant, Equipment and Work, materials and other work, unless:

A. the Contractor is otherwise so entitled under clause 6.6(c);

B. the Contractor is otherwise so entitled under clause 11.10(a); or

C. expressly directed by the Commonwealth under a Variation Order under clause 11.4.

8.3 Statutory Requirements

The Contract Particulars describe the Approvals which exist at the Award Date or which the Commonwealth will obtain after the Award Date.


(a) unless otherwise specified in the Contract Particulars, comply with all applicable Statutory Requirements;

(b) without limiting paragraph (a):

(i) apply for and obtain all Approvals other than those referred to in the Contract Particulars; and

(ii) give all notices and pay all fees and other amounts which it is required to pay in respect of the carrying out of its Contract obligations; and



46

(c) promptly give the Contract Administrator copies of all documents (including Approvals and other notices) that any authority, body or organisation having jurisdiction over the Remediation Works or the carrying out of the Contractor's Activities issues to the Contractor.

8.4 Change in Statutory Requirements or Variance with Contract

If:

(a) there is any change in a Statutory Requirement after the Award Date; or

(b) a Statutory Requirement is at variance with the Contract,

then:

(c) the party discovering this must promptly notify the other;

(d) the Contract Administrator will instruct the Contractor as to the course it is to adopt insofar as the Contractor's Activities are affected by the change or variance (as the case may be); and

(e) the Contract Price will be:

(i) increased by any extra costs reasonably incurred by the Contractor, but only to the extent to which a variance of a Statutory Requirement with the Contract was not reasonably foreseeable by the Contractor as at the Award Date; or

(ii) decreased by any saving made by the Contractor,

in carrying out the Contractor's Activities after the giving of the notice under paragraph (c) and arising directly from the change or variance (as the case may be) or the Contract Administrator's instruction, in either case as determined by the Contract Administrator.

8.5 Subcontracting

The Contractor:

(a) must not without the prior written approval of the Contract Administrator, subcontract any work described in the Contract Particulars except to a subcontractor named in the Contract Particulars;

(b) will:

(i) not be relieved of any of its liabilities or obligations under the Contract, including those under clause 2.1; and

(ii) remain responsible for all subcontractors and for all work which is or may be subcontracted, as if it was itself executing the work, whether or not any subcontractors default or otherwise fail to observe any of the requirements of the relevant subcontract;

(c) will be vicariously liable to the Commonwealth for all acts, omissions and defaults of its subcontractors (and those of the employees and agents of its subcontractors) relating to, or in any way connected with, the Contractor's Activities;

(d) must ensure that each subcontract contains provisions:

(i) which bind the subcontractor to participate in any novation required by the Commonwealth under clause 14.5(a)(ii); and

(ii) as otherwise required by this Contract; and

(e) must, if requested by the Contract Administrator:

(i) execute;

(ii) procure the relevant subcontractor to execute; and



47

(iii) deliver to the Contract Administrator,

a Subcontractor Deed of Covenant duly completed with all relevant particulars:

(iv) as a condition precedent to seeking the prior written approval of the Contract Administrator under paragraph (a); or

(v) when such approval is not required, within the time required by the Contract Administrator and in any event before commencement of work by the relevant subcontractor.

No Subcontractor Deed of Covenant will be construed in any way to modify or limit any of the rights, powers or remedies of the Commonwealth against the Contractor whether under the Contract or otherwise.

8.6 Subcontractor Warranties

The Contractor must, as a condition precedent to Remediation Completion of the Remediation Works or any Stage specified in the Contract Particulars, procure and provide the Commonwealth with the warranties described in the Contract Particulars:

(a) from the relevant subcontractor undertaking or supplying the work or item the subject of the warranty; and

(b) in the form of the Collateral Warranty.

No Collateral Warranty will be construed in any way to modify or limit any of the rights, powers or remedies of the Commonwealth against the Contractor whether under the Contract or otherwise.

If the Contractor is unable to or fails for any reason to provide any Collateral Warranty required by this Contract:

(c) the Contractor is deemed to have provided the Collateral Warranty itself on like terms;

(d) the Commonwealth will be entitled to elect to take an assignment of all the right, title and interest in the Contractor's rights against the subcontractor in relation to the Contractor's Activities; and

(e) for the purpose of paragraph (d), the Contractor irrevocably appoints the Commonwealth as its lawful attorney to execute any instrument necessary to give effect to the assignment.

No assignment under this clause will be construed in any way to modify or limit any of the rights, powers or remedies of the Commonwealth against the Contractor whether under the Contract or otherwise.

8.7 Co-operation with Other Contractors

(a) The Contractor:

(i) acknowledges that the Contractor's Activities may be part of a program of works being undertaken by the Commonwealth, which includes the projects specified in the Contract Particulars; and

(ii) must perform the Contractor's Activities in a manner which:

A. maximises the Commonwealth's objectives for the delivery of the Contractor's Activities and the program of works; and

B. avoids any delay or disruption to, or any other adverse effect on, the program of works including attending such meetings, providing such documentation and information, and considering and responding to such proposals as the Commonwealth or the Contract Administrator may reasonably require.

(b) Without limiting paragraph (a) or 8.13(a)(iii), the Contractor must:

(i) permit Other Contractors to carry out their work;

(ii) fully co-operate with Other Contractors, including by:



48

A. attending all Project Management Meetings; and

B. providing such assistance to the Contract Administrator as is reasonably required to facilitate the timely, efficient and effective execution of the Remediation Works, and other works occurring in relation to the Site;

(iii) carefully plan, co-ordinate, program and interface the performance of the Contractor's Activities with:

A. the work carried out or to be carried out by Other Contractors;

B. the activities of public or private utilities, statutory and other government agencies and others who may be engaged on the Site or who are on or carry out work on the Site; and

C. any others entitled to access the Site;

(iv) at all times carry out the Contractor's Activities so as to avoid damaging, interfering with or hindering the work of Other Contractors;

(v) where such damage, interference or hindrance referred to in subparagraph (iv) is the unavoidable consequence of the Contractor's Activities being properly carried out on the Site, give reasonable advance notice in writing to the Contract Administrator (with a copy to those Other Contractors reasonably likely to be affected) with a view to reaching an agreed procedure to prevent or minimise any such damage, interference or hindrance; and

(vi) without limiting clause 11, as soon as practicable after becoming aware of any other matter or circumstance which may adversely affect or which has adversely affected the performance of the Contractor's Activities or the work carried out or to be carried out by Other Contractors, give written notice to the Commonwealth detailing the matter or circumstance and its anticipated affect.

8.8 Novation

(a) The Contractor acknowledges and agrees that the Commonwealth may:

(i) dispose of the Site to a third party; and

(ii) at any time (whether on or after Remediation Completion), without the consent of the Contractor, novate the Contract to that third party after Remediation Completion or its nominees (whether in whole or in part).

(b) If the Commonwealth elects to novate the Contract under paragraph (a)(i), the Contractor must execute a deed of novation on the terms required by the Commonwealth to give effect to the novation within 7 days of receipt of the deed of novation from the Commonwealth.

8.9 Setting Out


(a) set out the Remediation Works in accordance with the requirements of the Contract; and

(b) carry out any survey which may be necessary for this purpose.

8.10 Survey

The Contractor must as a condition precedent to Completion of the Remediation Works or of any Stage specified in the Contract Particulars, submit to the Contract Administrator a certificate signed by a licensed surveyor stating that:

(a) the whole of the Remediation Works or the Stage are within any particular boundaries stipulated in the Contract except only for parts of the Remediation Works or Stage specifically required by the Contract to be outside those boundaries; and



49

(b) where so required by the Technical Specification, specified elements of the Remediation Works or the Stage are within the tolerances specified.

8.11 Measurements and Dimensions


(a) the Contractor must obtain and check all relevant measurements and dimensions on Site before proceeding with the Contractor's Activities;

(b) the layout of plant, equipment, ductwork, pipework and cabling shown in the Technical Specification (if any) is to be taken as diagrammatic only and all measurements and dimension information concerning the Site required to carry out the Contractor's Activities must be obtained and checked by the Contractor; and

(c) the Commonwealth will not be liable upon any Claim by the Contractor resulting from the Contractor's failure to obtain and check measurements and dimension information concerning the Site as required by this clause.

8.12 Safety

(a) The Contractor must carry out the Contractor's Activities safely and in a manner that does not put the health and safety of persons at risk.

(b) The Contractor must carry out the Contractor's Activities in a manner that protects property.

(c) If the Contract Administrator reasonably considers there is a risk to the health and safety of people or damage to property arising from the Contractor's Activities, the Contract Administrator may direct the Contractor to change its manner of working or to cease working.

8.13 Work Health and Safety Management


(a) ensure that in carrying out the Contractor's Activities:

(i) it complies with all Statutory Requirements and other requirements of the Contract for work health and safety management;

(ii) all subcontractors comply with the requirements referred to in this clause 8.13; and

(iii) it complies with its duty under the WHS Legislation to consult, cooperate and coordinate activities with all other persons who have a work health and safety duty in relation to the same matter;

(b) without limiting the Contractor's obligations under this Contract or at law, notify the Contract Administrator immediately (and in any event within 12 hours of such matter arising) of all work health and safety matters arising out of, or in any way in connection with, the Contractor's Activities, including the occurrence of notifiable incidents within the meaning of the WHS Legislation;

(c) if applicable, comply with all requirements of and maintain accreditation under the OHS Accreditation Scheme;

(d) regularly review its Work Health and Safety Plan, continue to update and amend its Work Health and Safety Plan and submit it (as necessary) in accordance with clause 7.2 and the WHS Legislation;

(e) institute systems to obtain regular written assurances from each Other Contractor and subcontractor about their ongoing compliance with the WHS Legislation including the due diligence obligation contained in the WHS Legislation;

(f) provide the written assurances obtained under paragraph (e), together with written assurances from the Contractor about the Contractor's ongoing compliance with the WHS Legislation, to the Contract Administrator;



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(g) provide the Contract Administrator with a written report at each meeting in accordance with clause 3.12 on all work health and safety matters (including matters concerning or arising out of, or in connection with, this clause 8.13), or any other relevant matters as the Contract Administrator may require from time to time, including a summary of the Contractor's compliance with the WHS Legislation;

(h) exercise a duty of the utmost good faith to the Commonwealth in carrying out the Contractor's Activities to enable the Commonwealth to discharge the Commonwealth's duties under the WHS Legislation;

(i) ensure its subcontracts include provisions equivalent to the obligations of the Contractor in this clause 8.13;

(j) ensure that, if any Statutory Requirement, including in the State or Territory in which the Remediation Works are situated or the Contractor's Activities are carried out (as the case may be), requires that:

(i) a person:

A. be authorised or licensed (in accordance with the WHS Legislation) to carry out any work at that workplace, that person is so authorised or licensed, and complies with any conditions of such authorisation or licence; or

B. has prescribed qualifications or experience, or if not, is to be supervised by a person who has prescribed qualifications or experience (as defined in the WHS Legislation), that person has the required qualifications or experience or is so supervised; or

(ii) a workplace, plant or substance (or design), or work (or class of work) be authorised or licensed, that workplace, plant or substance, or work is so authorised or licensed;

(k) not direct or allow a person to carry out work, or use plant or a substance at a workplace unless the authorisation, licensing, prescribed qualifications or experience required by any Statutory Requirement and paragraph (j) are met;

(l) without limiting the Contractor's obligations under this Contract or at law:

(i) provide any information or copies of documentation held by the Contractor or a subcontractor to the Contract Administrator within 14 days of a request by the Contract Administrator (and in the case of notifiable incidents, immediately and if not immediately, as soon as that information is in the possession of the Contractor), to enable the Commonwealth to comply with its obligations under the WHS Legislation; and

(ii) provide copies of:

A. all notices and communications issued by a regulator, agent of the regulator or a health and safety representative to the Contractor or a subcontractor; and

B. all notices, communications and undertakings given by the Contractor or a subcontractor to the regulator, agent of the regulator or a health and safety representative,

in connection with or related to the Contractor's Activities or the Remediation Works to the Contract Administrator within 14 days of receipt or submission of the notice, communication or undertaking by the Contractor or subcontractor (as the case may be); and

(m) if requested by the Contract Administrator or required by the WHS Legislation, produce evidence of any Approvals including any authorisations, licences, prescribed qualifications or experience, or any other information relevant to work health and safety (as the case may be) to the satisfaction of the Contract Administrator before the Contractor or any subcontractor commences such work.



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8.14 Plant, Equipment and Work

(a) The Contractor warrants that there will be, on Site at all times, adequate Plant, Equipment and Work required by the Contractor to carry out the Contractor's Activities in accordance with the Contract.

(b) The Contractor must not remove from the Site any Plant, Equipment and Work specified in the Contract Particulars without the Contract Administrator's prior written approval except for the purpose of achieving Remediation Completion as contemplated under clause 8.15(b).

8.15 Site Maintenance


(a) in carrying out the Contractor's Activities, and as far as practicable, ensure that the Site is maintained so that it is tidy and free of refuse; and

(b) as a condition precedent to Remediation Completion of each Stage, remove all rubbish, materials and Plant, Equipment and Work from the part of the Site relevant to the Remediation Works or the Stage.

8.16 The Environment



(i) other than to the extent identified in writing by the Contract Administrator, it complies with all Statutory Requirements and other requirements of the Contract for the protection of the Environment;

(ii) it does not cause any Environmental Incident;

(iii) without limiting subparagraph (ii), it does not cause or contribute to Contamination of the Site or any other land, air or water, or cause or contribute to any Contamination emanating to or from the Site;

(iv) it immediately notifies the Contract Administrator of:

A. any non-compliance with the requirements of this clause 8.16;

B. a breach of any Statutory Requirement for the protection of the Environment;

C. any Environmental Incident; or

D. the receipt of any notice, order or communication received from an authority for the protection of the Environment; and

(v) its subcontractors comply with the requirements referred to in this clause 8.16; and

(b) clean up and restore the Environment, including any Contamination or Environmental Harm, arising out of, or in any way in connection with, the Contractor's Activities, whether or not it has complied with all Statutory Requirements or other requirements of the Contract for the protection of the Environment.

8.17 Urgent Protection

The Commonwealth may take any action necessary to protect the Remediation Works, other property, the Environment, or to prevent or minimise risks to the health and safety of persons, which the Contractor must take but does not take.

8.18 Valuable Objects Found on Site

Any things of value or archaeological or special interest found on or in the Site will, as between the parties, be the property of the Commonwealth.



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Where such an item is found the Contractor must:

(a) immediately notify the Contract Administrator;

(b) protect it and not disturb it further; and

(c) comply with any instructions of the Contract Administrator in relation to the item.

The Contract Price will be increased by the extra costs reasonably incurred by the Contractor in complying with the Contract Administrator's instructions, as determined by the Contract Administrator.

8.19 The Commonwealth May Act

The Commonwealth may, either itself or by a third party, carry out an obligation under the Contract which the Contractor was obliged to carry out but which it failed to carry out within the time required in accordance with the Contract.

The costs, expenses and damages suffered or incurred by the Commonwealth in so carrying out such a Contract obligation will be a debt due from the Contractor to the Commonwealth.

8.20 Access Hours

Unless otherwise agreed in writing between the Contractor and the Contract Administrator, the hours of access applicable to the Contractor's Activities to be carried out on Site are those set out in the Contract Particulars.

8.21 Salvaged Materials

Subject to clause 8.18, unless expressly stated to the contrary in the Contract or directed by the Contract Administrator, all materials, plant, equipment, fixtures and other things salvaged from the Site or from the Remediation Works, and which do not form part of the Site, are the property of the Contractor.

8.22 Contract Administrator's Office

(a) The Contractor must, within 14 days of the commencement of the Contractor's Activities on Site, provide and erect on the Site, where directed by the Contract Administrator, the temporary office and associated facilities and services specified in the Contract Particulars for the sole use of the Contract Administrator and the Contract Administrator's Representatives.

(b) The Contract Administrator's Office will remain the property of the Contractor.

8.23 Project Signboards

(a) The Contractor must provide the number of project signboards specified in the Contract Particulars, each of which must:

(i) be in the dimensions specified in the Contract Particulars;

(ii) set out:

A. the name of the project;

B. the names of the parties to the Contract;

C. the name of the Contract Administrator;

D. a general description of the Remediation Works;

E. a contact name and phone number (including after hours number) for the principal contractor pursuant to the WHS Legislation;

F. the Date for Remediation Completion;

G. the location of the Site office (if any); and



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H. any other information specified in the Contract Particulars.

(b) The Contractor must, within 14 days of the commencement of the Contractor's Activities on Site, submit the proposed layout of the project signboards to the Contract Administrator for approval.

(c) Once approved by the Contract Administrator, the Contractor must:

(i) fix the project signboards in the locations directed by the Contract Administrator;

(ii) maintain the project signboards until the last Date of Remediation Completion; and

(iii) dismantle and remove the project signboards within 7 days of the last Date of Remediation Completion.



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9. QUALITY OF REMEDIATION WORKS

9.1 Remediation Works

The Contractor must in carrying out the Contractor's Activities:

(a) use workmanship of:

(i) the standard prescribed in the Contract; or

(ii) to the extent it is not so prescribed, a standard consistent with the best industry standards and practice for work of a nature similar to the Remediation Works; and

(b) use materials which:

(i) comply with the requirements of the Contract; or

(ii) if not fully described in the Contract, are new and consistent with the best industry standards for work of a nature similar to the Remediation Works; and

(iii) are of merchantable quality, which are fit for their purpose and consistent with the nature and character of the Remediation Works; and

(c) carry out the Contractor's Activities in accordance with the requirements of the Contract and, to the extent they are not inconsistent, best industry practice and the requirements of all relevant standards of Standards Australia.

9.2 Contract Administrator's Right to Inspect

The Contract Administrator may at any time inspect the Contractor's Activities and the Remediation Works.

The Contractor however acknowledges that:

(a) the Contract Administrator owes no duty to the Contractor to:

(i) inspect the Contractor's Activities; or

(ii) review the Remediation Works for errors, omissions or compliance with the requirements of this Contract if it does so inspect; and

(b) no inspection of the Contractor's Activities or review of the Remediation Works by the Contract Administrator will in any way lessen or otherwise affect:

(i) the Contractor's obligations whether under this Contract or otherwise according to law; or

(ii) the Commonwealth's rights against the Contractor whether under this Contract or otherwise according to law.

9.3 Sampling and Analysis

The Contractor must carry out all sampling and analysis required by the Contract or directed by the Contract Administrator. All sampling and analysis is to be carried out in accordance with any procedure:

(a) set out in the Contract which may apply to the tests; or

(b) if no procedure exists, as reasonably directed by the Contract Administrator.



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9.4 Costs of Sampling and Analysis

If:

(a) the Contract Administrator directs the Contractor to carry sampling and analysis which is not otherwise required by the Contract; and

(b) the results of the sampling and analysis show the Contractor's Activities are in accordance with the Contract,

the reasonable costs incurred by the Contractor in carrying out the sampling and analysis will be determined by the Contract Administrator and added to the Contract Price.

9.5 Remediation Defects

Subject to paragraphs (b) and (c), the Contractor must correct all Remediation Defects.

If, prior to the expiration of the Remediation Defects Rectification Period for the Remediation Works or a Stage, the Contract Administrator discovers or believes there is a Remediation Defect, the Contract Administrator may give the Contractor an instruction specifying the Remediation Defect and doing one or more of the following:

(a) requiring the Contractor to correct the Remediation Defect, or any part of it, and specifying the time within which this must occur;

(b) requiring the Contractor to carry out a Remediation Works Variation to overcome the Remediation Defect, or any part of it, and specifying the time within which this must be carried out; or

(c) advising the Contractor that the Commonwealth will accept the work, or any part of it, despite the Remediation Defect.

9.6 Correction of Remediation Defect or Remediation Works Variation

If an instruction is given under clause 9.5(a) or (b), the Contractor must correct the Remediation Defect or carry out the Remediation Works Variation:

(a) within the time specified in the Contract Administrator's instruction; and

(b) if after Remediation Completion, at times and in a manner which cause as little inconvenience to the occupants of the Site as is reasonably possible.

9.7 Claim for Correction of Remediation Defect

Where an instruction is given under clause 9.5(a):

(a) the Contractor will only be entitled to make a Claim for correcting the Remediation Defect (or the relevant part) if the Remediation Defect (or the relevant part) is something for which the Contractor is not responsible; and

(b) where the Contractor is so entitled to make a Claim, the work involved in the correction of the Remediation Defect will be treated as if it were a Remediation Works Variation the subject of a direction by the Contract Administrator, and clause 11.5 will apply.

9.8 Claim for Remediation Works Variation

Where a Remediation Works Variation has been instructed under clause 9.5(b) and:

(a) the Contractor is not responsible for the Remediation Defect (or the relevant part):

(i) the Contract Price will be adjusted in accordance with clause 11.5; and

(ii) the Contractor will be entitled to an extension of time to any relevant Date for Remediation Completion where it is otherwise so entitled under clause 10.7; or

(b) the Contractor is responsible for the Remediation Defect (or the relevant part):



56

(i) the Contract Administrator will determine:

A. the value of the Remediation Works Variation in accordance with clause 11.5; and

B. the cost of correcting the Remediation Defect (or the relevant part) as if clause 9.7(b) applied;

(ii) the Contract Price will be adjusted by the difference between the valuations under subparagraph (i) as follows:

A. if the value under subparagraph (i)A is greater than the cost under subparagraph (i)B, the Contract Price will be increased by the excess; or

B. if the value under subparagraph (i)B is greater than the cost under subparagraph (i)A, the Contract Price will be decreased by the difference and will be a debt due from the Contractor to the Commonwealth; and

(iii) the Contractor may not claim an extension of time to any Date for Remediation Completion.

9.9 Acceptance of Remediation Work

If:

(a) an instruction is given under clause 9.5(c) prior to the expiration of the Remediation Defects Rectification Period; and

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

the amount determined by the Contract Administrator which represents the cost of correcting the Remediation Defect (or the relevant part) will be a debt due from the Contractor to the Commonwealth.

9.10 Extension of Remediation Defects Rectification Period

If:

(a) the Contract Administrator gives the Contractor an instruction under clause 9.5(a) or (b) during the Remediation Defects Rectification Period; and


the Remediation Defects Rectification Period will be extended for the work required by the instruction by the period set out in the Contract Particulars, commencing upon completion of the correction of the Remediation Defect (or the relevant part) or completion of the Remediation Works Variation.

9.11 Common Law Rights not Affected

Neither the Commonwealth's rights, nor the Contractor's liability, whether under the Contract or otherwise according to law in respect of Remediation Defects, whether before or after the expiration of the Remediation Defects Rectification Period, will be affected or limited by:

(a) the rights conferred upon the Commonwealth or Contract Administrator by this clause 9 or any other provision of the Contract;

(b) the failure by the Commonwealth or the Contract Administrator to exercise any such rights; or

(c) any instruction of the Contract Administrator under clause 9.5.



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10. TIME FOR CONTRACTOR'S ACTIVITIES AND REMEDIATION WORKS

10.1 Progress and Time for Remediation Completion


(a) regularly and diligently progress the Contractor's Activities; and

(b) achieve Remediation Completion of the Remediation Works or each Stage by the relevant Date for Remediation Completion.

10.2 Programming


(a) within 14 days of the Award Date, prepare a program of the Contractor's Activities which must contain the details required by the Contract or which the Contract Administrator otherwise reasonably directs;

(b) update the program periodically at least at intervals of no less than that specified in the Contract Particulars to take account of:

(i) changes to the program; or

(ii) delays which may have occurred, including any for which the Contractor is granted an extension of time under clause 10.8;

(c) give the Contract Administrator copies of all programs for approval;

(d) ensure that the subcontractors adhere to the program; and

(e) provide all programs in a format compatible with the software described in the Contract Particulars.

10.3 Contractor Not Relieved

Any review of, comments upon or approval of, or any failure to review or comment upon, a program by the Contract Administrator will not:

(a) relieve the Contractor from or alter its liabilities or obligations under the Contract, especially (without limitation) the obligation to achieve Remediation Completion by each Date for Remediation Completion;

(b) evidence or constitute the granting of an extension of time or an instruction by the Contract Administrator to accelerate, disrupt, prolong or vary any or all of the Contractor's Activities; or

(c) affect the time for the carrying out of the Commonwealth's or Contract Administrator's Contract obligations.

10.4 Acceleration by Contractor

If the Contractor chooses to accelerate progress, then despite clause 3.3:

(a) neither the Commonwealth nor the Contract Administrator will be obliged to take any action to assist or enable the Contractor to achieve Remediation Completion before any Date for Remediation Completion; and

(b) the time for the carrying out of the Commonwealth's or the Contract Administrator's obligations will not be affected.

10.5 Delays Entitling Claim

If the Contractor is, or is likely to be, delayed prior to the Date for Remediation Completion of the Remediation Works or a Stage, by:



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(a) an Act of Prevention or a cause described in the Contract Particulars in a manner which will prevent it from achieving Remediation Completion of the Remediation Works or the Stage by the relevant Date for Remediation Completion; or

(b) after the Date for Remediation Completion of the Remediation Works or a Stage, by an Act of Prevention in a manner which will delay it in achieving Remediation Completion of the Remediation Works or the Stage,

the Contractor may claim an extension of time.

10.6 Claim

To claim an extension of time the Contractor must:

(a) within 14 days of the commencement of the occurrence causing the delay submit a written claim to the Contract Administrator for an extension to the relevant Date for Remediation Completion which:

(i) gives detailed particulars of the delay and the occurrence causing the delay; and

(ii) states the number of days extension of time claimed together with the basis of calculating that period, including evidence that it will be delayed in achieving Remediation Completion in the manner set out in clause 10.7(c); and

(b) if the effects of the delay continue beyond the period of 14 days after the commencement of the occurrence causing the delay and the Contractor wishes to claim an extension of time in respect of the further delay, submit a further written claim to the Contract Administrator:

(i) every 14 days after the first written claim until 7 days after the end of the effects of the delay; and

(ii) containing the information required by paragraph (a).

10.7 Conditions Precedent to Extension

Subject to clause 10.14, it is a condition precedent to the Contractor's entitlement to an extension of time that:

(a) the Contractor must give the written claim required by clause 10.6 as required by that clause;

(b) the cause of the delay was beyond the reasonable control of the Contractor;

(c) the Contractor must have actually been, or be likely to be, delayed by:

(i) prior to the Date for Remediation Completion of the Remediation Works or the Stage, an Act of Prevention or a cause described in the Contract Particulars in a manner which will prevent it from achieving Remediation Completion of the Remediation Works or the Stage by the relevant Date for Remediation Completion unless that date is extended; or

(ii) after the Date for Remediation Completion of the Remediation Works or the Stage, an Act of Prevention in a manner which will delay it in achieving Remediation Completion of the Remediation Works or the Stage; and

(d) the Contractor must not have been given an instruction under clause 10.13.

10.8 Extension of Time

Subject to clause 10.9, if the conditions precedent in clause 10.7 have been satisfied, the relevant Date for Remediation Completion will be extended by a reasonable period determined by the Contract Administrator and notified to the Commonwealth and the Contractor within 21 days of the Contractor's written claim under clause 10.6.

10.9 Reduction in Extension of Time

The Contract Administrator will reduce any extension to the relevant Date for Remediation Completion it would otherwise have notified to the Commonwealth and the Contractor under clause 10.8 to the extent that the Contractor:



59

(a) contributed to the delay; or

(b) failed to take all steps necessary both to preclude the cause of the delay and to avoid or minimise the consequences of the delay.

10.10 Unilateral Extensions

Whether or not the Contractor has made, or is entitled to make, a claim for an extension of time under this clause 10, the Commonwealth may, in the Commonwealth's absolute discretion at any time and from time to time by written notice to the Contractor and the Contract Administrator, unilaterally extend any Date for Remediation Completion.

The parties acknowledge that:

(a) the Commonwealth is not required to exercise the Commonwealth's discretion under this clause 10.10 for the benefit of the Contractor;

(b) this clause 10.10 does not give the Contractor any rights; and

(c) the exercise or failure to exercise the Commonwealth's discretion under this clause 10.10 is not capable of being the subject of a dispute or difference for the purposes of clause 15.1 or otherwise subject to review.

10.11 Agreed Damages

This clause 10.11 applies unless the Contract Particulars state that it does not apply.

The Contractor will be entitled to be paid the amount in the Contract Particulars for each day by which the Date for Remediation Completion of the Remediation Works or a Stage is extended due to a breach of the Contract by the Commonwealth.

This amount:

(a) is the agreed damages which will be payable by the Commonwealth in these circumstances; and

(b) will be a limitation upon the Commonwealth's liability to the Contractor for any delay or disruption which:

(i) the Contractor encounters in carrying out the Contractor's Activities; and

(ii) arises out of, or in any way in connection with, the breach of the Contract by the Commonwealth,

and the Contractor will not be entitled to make, nor will the Commonwealth be liable upon, any Claim in these circumstances other than for the amount which is payable by the Commonwealth under this clause 10.11.

10.12 Suspension

(a) The Contract Administrator:

(i) may instruct the Contractor to suspend and, after a suspension has been instructed, to re-commence, the carrying out of all or a part of the Contractor's Activities; and

(ii) is not required to exercise the Contract Administrator's power under subparagraph (i) for the benefit of the Contractor.

(b) If a suspension under this clause 10.12 arises as a result of:

(i) the Contractor's failure to carry out its obligations in accordance with the Contract, the Contractor will not be entitled to make any Claim against the Commonwealth arising out of, or in any way in connection with, the suspension; or

(ii) a cause other than the Contractor's failure to carry out its obligations in accordance with the Contract:



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A. an instruction to suspend under this clause 10.12 will entitle the Contractor to:

1) be paid by the Commonwealth the extra costs reasonably incurred by it as a result of the suspension as determined by the Contract Administrator; and

2) an extension of time to any relevant Date for Remediation Completion where it is otherwise so entitled under clause 10.7;

B. the Contractor must take all steps possible to mitigate the extra costs incurred by it as a result of the suspension; and

C. the Contractor will not be entitled to make any Claim against the Commonwealth arising out of, or in any way in connection with, the suspension other than under this subparagraph (ii).

(c) Except to the extent permitted by the relevant Security of Payment Legislation, the Contractor may only suspend the Contractor's Activities when instructed to do so under this clause 10.12.

10.13 Instruction to Accelerate

If the Contractor gives the Contract Administrator a claim under clause 10.6, the Contract Administrator may:

(a) instruct the Contractor to accelerate the Contractor's Activities by taking those measures which are necessary to overcome or minimise the extent and effects of some or all of the delay including, if required, in order to achieve Remediation Completion of the Remediation Works or the Stage by the relevant Date for Remediation Completion; and

(b) give such an instruction whether or not the cause of delay for which the Contractor has given its claim under clause 10.6 otherwise entitles the Contractor to an extension of time to any relevant Date for Remediation Completion.

10.14 Partial Acceleration

If the Contract Administrator gives the Contractor an instruction to accelerate under clause 10.13 requiring it to accelerate the Contractor's Activities and it only applies to part of the delay, the Contractor's entitlement to any extension of time which it otherwise would have had will only be reduced to the extent to which the instruction to accelerate requires the Contractor to accelerate to overcome the delay.

10.15 Acceleration

If the Contract Administrator gives an instruction to the Contractor under clause 10.13:

(a) the Contractor must accelerate the Contractor's Activities to overcome or minimise the extent and effect of some or all of the delay as instructed, including, if required, in order to achieve Remediation Completion of the Remediation Works or the Stage by the relevant Date for Remediation Completion;

(b) if the Contractor would, but for the instruction, have been entitled to an extension of time to the relevant Date for Remediation Completion for the cause of delay, the Contractor will be entitled to be paid:

(i) the extra costs reasonably incurred by it and directly attributable to accelerating the Contractor's Activities; and

(ii) that percentage of the amount under subparagraph (i) stipulated in the Contract Particulars; and

(c) subject to clause 10.14, the Contractor will not be entitled to make any Claim against the Commonwealth, arising out of, or in any way in connection with, the cause of delay and the instruction other than for the amount which is payable by the Commonwealth under this clause 10.15.



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10.16 Commonwealth's Rights to Liquidated Damages Not Affected

The Commonwealth's rights to liquidated damages under clause 13.7 for a failure by the Contractor to achieve Remediation Completion of the Remediation Works or a Stage by any relevant Date for Remediation Completion are not affected by the Contract Administrator giving the Contractor an instruction to accelerate under clause 10.13.



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11. VARIATION TO REMEDIATION WORKS

11.1 Notice of Unidentified Site Conditions

If the Contractor considers it has encountered an Unidentified Site Condition, it must immediately give the Contract Administrator notice in writing.

After receipt of a notice from the Contractor, the Contract Administrator must within 21 days of receipt of the Contractor's notice:

(a) determine whether an Unidentified Site Condition has been encountered; and

(b) notify the Contractor and the Commonwealth of the Contract Administrator's determination.

11.2 Contractor's Entitlement for Unidentified Site Conditions

If the Contract Administrator determines that an Unidentified Site Condition has been encountered, the Contractor will be entitled to:

(a) claim an extension of time to any relevant Date for Remediation Completion under clause 10.6 where it is otherwise so entitled under clause 10.8; and

(b) to the extent to which it is reasonably required by the Contractor, request a Remediation Works Variation under clause 11.7.

To the extent permitted by law, the Contractor's entitlement under this clause 11.2 will be its only right to make a Claim arising out of, or in any way in connection with, the Unidentified Site Condition.

11.3 Remediation Works Variation Price Request Initiated by Commonwealth

At any time prior to the Date of Remediation Completion of the Remediation Works or a Stage (but without limiting clauses 5.3 and 9.5), the Contract Administrator may issue a document titled "Remediation Works Variation Price Request" to the Contractor which will set out details of a proposed Remediation Works Variation which the Commonwealth is considering with respect to the Remediation Works or a Stage.

The Contractor must immediately take all action required under any relevant subcontract in relation to each subcontractor that would be involved in carrying out the proposed Remediation Works Variation.

Within 14 days of the receipt of a "Remediation Works Variation Price Request", the Contractor must provide the Contract Administrator with a written notice in which the Contractor sets out:

(a) the adjustment (if any) to the Contract Price to carry out the proposed Remediation Works Variation; and

(b) the effect (if any) which the proposed Remediation Works Variation will have on the then approved program, including each Date for Remediation Completion.

11.4 Remediation Works Variation Order

Whether or not the Contract Administrator has issued a "Remediation Works Variation Price Request" under clause 11.3, the Contract Administrator may at any time prior to the Date of Remediation Completion of the Remediation Works or a Stage (but without limiting clauses 5.3 and 9.5), instruct the Contractor to carry out a Remediation Works Variation by a written document titled "Remediation Works Variation Order" in which the Contract Administrator will state one of the following:

(a) the proposed adjustment to the Contract Price as set out in the Contractor's notice under clause 11.3 (if any) is agreed and the Contract Price will be adjusted accordingly; or

(b) any adjustment to the Contract Price will be determined under clauses 11.5(b) and 11.5(c).

No Remediation Works Variation will invalidate the Contract irrespective of the nature, extent or value of the work the subject of the Remediation Works Variation.



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11.5 Cost of Remediation Works Variation

Subject to clauses 9.8(b) and 11.9, the Contract Price will be increased or decreased for all Remediation Works Variations which have been the subject of a direction by the Contract Administrator:

(a) as agreed under clause 11.4(a);

(b) if paragraph (a) does not apply, in accordance with the rates or prices included in the Schedule of Rates, if and insofar as the Contract Administrator determines that those rates or prices are applicable to or it is reasonable to use them for valuing, the Remediation Works Variation, to which will be added any reasonable costs and expenses incurred by the Contractor arising from the Remediation Works Variation delaying the Contractor; or

(c) to the extent paragraph 11.5(b) does not apply, by a reasonable amount:

(i) to be agreed between the parties; or

(ii) failing agreement, determined by the Contract Administrator,

to which will be added any reasonable costs and expenses incurred by the Contractor arising from the Remediation Works Variation delaying the Contractor.

11.6 Omissions

If a Remediation Works Variation the subject of a direction by the Contract Administrator omits any part of the Remediation Works or a Stage, the Commonwealth may thereafter carry out this omitted work either itself or by engaging Other Contractors.

11.7 Remediation Works Variations Requested by Contractor

(a) The Contractor may request the Contract Administrator to direct a Remediation Works Variation:

(i) where it reasonably considers that a Remediation Works Variation is necessary or desirable (including to minimise costs); or

(ii) without limiting paragraph (i), as a consequence of an Unidentified Site Condition which has been determined by the Contract Administrator under clause 11.1(a) to have been encountered.

(b) Any request under clause 11.7(a) must be in writing and must contain the following details:

(i) a description of the Remediation Works Variation;

(ii) the reason or reasons why the Remediation Works Variation is required;

(iii) the additional or reduced costs or time involved in the Remediation Works Variation and any proposal for sharing any savings in costs with the Commonwealth, including the amount;

(iv) any benefits which will flow to the Commonwealth from the Remediation Works Variation; and

(v) the effect which the Remediation Works Variation will have upon the future cost of operating and maintaining the Remediation Works.

11.8 Contract Administrator's Determination

After a request is made by the Contractor in accordance with clause 11.7, the Contract Administrator will, in the Contract Administrator's absolute discretion, give a written notice to the Contractor:

(a) rejecting the request; or



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(b) approving the request either conditionally or unconditionally and, if clause 11.7(a)(ii) applies, outlining any change to the requirements for Remediation Completion as a consequence of the Unidentified Site Condition.

The Contract Administrator will not be obliged to exercise the Contract Administrator's discretion for the benefit of the Contractor.

11.9 Remediation Works Variation Approved by Contract Administrator

Subject to clause 11.10, if the Contract Administrator issues a written notice under clause 11.8(b) approving the Contractor's request under clause 11.7:

(a) unless otherwise agreed, the Contractor will not be entitled to make a Claim against the Commonwealth arising out of, or in any way in connection with, the Remediation Works Variation;

(b) if the Contractor's request offered to share savings in cost with the Commonwealth, the Contract Price will be reduced by or adjusted in accordance with the Contractor's offer; and

(c) the Contractor will be responsible for all parts of the Remediation Works which are in any way affected by the Remediation Works Variation.

11.10 Unidentified Site Conditions and Contract Price

If the Contract Administrator issues a written notice under clause 11.8 approving the Contractor's request under clause 11.7 in relation to a Remediation Works Variation which has been requested as a consequence of an Unidentified Site Condition determined by the Contract Administrator under clause 11.1(a) to have been encountered:

(a) the Contract Price will be increased or decreased in accordance with clause 11.5(a), clause 11.5(b) or clause 11.5(c) (as appropriate); and

(b) the requirements for Remediation Completion will be varied as reasonably determined by the Contract Administrator and set out in the Contract Administrator's notice under clause 11.8.



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12. PAYMENT FOR REMEDIATION WORKS

12.1 Payment Obligation

(a) Subject to clause 12.15 and to any other right to set-off which the Commonwealth may have, the Commonwealth will pay the Contractor:

(i) the Contract Price; and

(ii) any other amounts which are payable by the Commonwealth to the Contractor under the Contract.

(b) The Contract Price comprises the:

(i) Lump Sum Component; and

(ii) Schedule of Rates Component.

12.2 Payment Claims

Subject to clause 12.3, the Contractor must give the Contract Administrator claims for payment on account of the Contract Price and all other amounts then payable by the Commonwealth to the Contractor under the Contract:

(a) at the times stated in the Contract Particulars until Remediation Completion or termination of the Contract (whichever is earlier);

(b) unless terminated earlier, after Remediation Completion or the Remediation Defects Rectification Period (as the case may be), within the time required by clause 12.9 or 12.11 (as the case may be);

(c) in the format set out in the Schedule of Collateral Documents or in any other format which the Contract Administrator reasonably requires;

(d) which are based on the Table of Remediation Works Variation Rates and Prices or the Schedule of Rates to the extent these are relevant;

(e) which show separately the amounts (if any) claimed on account of:

(i) the Lump Sum Component;

(ii) the Schedule of Rates Component; and

(iii) all other amounts then payable by the Commonwealth to the Contractor under the Contract; and

(f) which set out or attach sufficient details, calculations, supporting documentation and other information in respect of all amounts claimed by the Contractor:

(i) to enable the Contract Administrator to fully and accurately determine (without needing to refer to any other documentation or information) the amounts then payable by the Commonwealth to the Contractor under the Contract; and

(ii) including any such documentation or information which the Contract Administrator may by written notice from time to time require the Contractor to set out or attach, whether in relation to a specific payment claim or all payment claims generally.

12.3 Conditions Precedent

(a) The Contractor's entitlement to submit a payment claim under clause 12.2 is conditional upon the Contractor having:

(i) provided the Commonwealth with Approved Security for the amount (if any) required under clause 4.1 and any related company guarantee required under clause 4.4;



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(ii) obtained the insurance required by clause 5.4 and (if requested) provided evidence of this to the Contract Administrator;

(iii) complied with its programming obligations under clause 10.2;

(iv) finalised all relevant Project Plans in accordance with clause 7.7 at the time of submission of the payment claim;

(v) complied with clause 12.16;

(vi) complied with clause 12.22;

(vii) complied with clause 12.23;

(viii) complied with clause 12.24;

(ix) provided the Contract Administrator with duly executed copies of any Subcontractor Deed of Covenant or Contractor Deed of Covenant that the Contractor is required to obtain under the Contract;

(x) if clause 14.8(b)(ii) applies - complied with clause 14.8(b)(ii); and

(xi) provided all relevant information as required under the WHS Legislation or under this Contract arising out of or in connection with work health and safety.

(b) If the Contractor has not satisfied the conditions in paragraph (a) at the time of submitting a payment claim, then:

(i) the payment claim is deemed to have been invalidly submitted under clause 12.2;

(ii) the Contract Administrator will not be obliged to include in any payment statement under clause 12.4 any amount included in the payment claim; and

(iii) the Commonwealth will not be liable to pay any amount included in the payment claim.

(c) If the Contractor:

(i) submits a payment claim; and

(ii) has failed to comply with the requirements of clause 12.2(f) in relation to any amount (or portion of any amount) claimed in the payment claim,

then:

(iii) the Contractor will not be entitled to payment of;

(iv) the Contract Administrator will not be obliged to include in any payment statement under clause 12.4; and

(v) the Commonwealth will not be liable to pay,

the amount (or the portion of the amount) claimed in the payment claim in relation to which the Contractor has failed to comply with the requirements of clause 12.2(f), unless:

(vi) the Contract Administrator (in its absolute discretion and without being under any obligation to exercise this discretion for the benefit of the Contractor) issues a written notice to the Contractor identifying the documentation or information which the Contractor has failed to provide under clause 12.2(f); and

(vii) the Contractor provides that documentation or information to the Contract Administrator within the time required in the Contract Administrator's notice.



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12.4 Payment Statements

The Contract Administrator:

(a) must, within 10 business days of receiving a payment claim submitted or purported to be submitted in accordance with clause 12.2; or

(b) may, if the Contractor fails to submit any such claim in accordance with clause 12.2, at any time,

give the Contractor (with a copy to the Commonwealth), on behalf of the Commonwealth, a payment statement which is in the form set out in the Schedule of Collateral Documents and which states:

(c) the payment claim to which it relates (if any);

(d) the Contractor's total value of entitlement to payment under the Contract;

(e) the amount already paid to the Contractor;

(f) the amount (if any) which the Contract Administrator believes to be then payable by the Commonwealth to the Contractor on account of the Contract Price and otherwise in accordance with the Contract and which the Commonwealth proposes to pay to the Contractor; and

(g) if the amount in paragraph (f) is less than the amount claimed in the payment claim:

(i) the reason why the amount in paragraph (f) is less than the amount claimed in the payment claim; and

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

Any evaluation, or issue of a payment statement, by the Contract Administrator will not:

(h) constitute approval of any work nor will it be taken as an admission or evidence that the part of the Remediation Works covered by the payment statement has been satisfactorily carried out in accordance with the Contract; or

(i) constitute a waiver of the requirements of clauses 12.2 and 12.3 in relation to any payment claim other than to the extent (if any) to which the Commonwealth expressly waives such requirements in respect of the payment claim the subject of the payment statement.

12.5 Payment

Within the number of business days stated in the Contract Particulars of the Commonwealth receiving a payment statement under clause 12.4, the Commonwealth will pay the Contractor the amounts set out as then payable in the payment statement.

12.6 Payment on Account

Any payment of moneys under clause 12.5 is not:

(a) evidence of the value of work or that work has been satisfactorily carried out in accordance with the Contract;

(b) an admission of liability; or

(c) approval by the Commonwealth or the Contract Administrator of the Contractor's performance or compliance with the Contract,

but is only to be taken as payment on account.



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12.7 Unfixed Goods and Materials

Unfixed goods or materials will not be included in the value of work in a payment statement under clause 12.4 unless:

(a) the Contract Administrator is satisfied that the unfixed goods and materials have not been prematurely ordered and are necessary to enable the Contractor to comply with its obligations under the Contract;

(b) the Contractor gives the Contract Administrator with its payment claim under clause 12.2:

(i) additional Approved Security equal to the payment claimed for the unfixed goods and materials; and

(ii) such evidence as may be required by the Contract Administrator that title to the unfixed goods and materials will vest in the Commonwealth upon payment;

(c) the unfixed goods and materials are clearly marked as the property of the Commonwealth and are on the Site or available for immediate delivery to the Site; and

(d) the unfixed goods and materials are properly stored in a place approved by the Contract Administrator.

Upon payment of a payment statement which includes unfixed goods and materials, title in the unfixed goods and materials will vest in the Commonwealth.

12.8 Release of Additional Approved Security

If the Contractor has given the Commonwealth additional Approved Security for payment for unfixed goods and materials, the Commonwealth must release it to the Contractor once those goods and materials are incorporated into the Remediation Works.

12.9 Remediation Completion Payment Claim and Notice

Within 28 days (or such longer period agreed in writing by the Contract Administrator) after the issue of a Notice of Remediation Completion for the Remediation Works or a Stage, the Contractor must give the Contract Administrator:

(a) a payment claim which complies with clause 12.2 and which must include all amounts which the Contractor claims from the Commonwealth on account of all amounts payable under the Contract; and

(b) notice of any other amounts which the Contractor claims from the Commonwealth,

in respect of any fact, matter or thing arising out of, or in any way in connection with, the Contractor's Activities or the Contract which:

(c) in the case of the Remediation Works, occurred prior to the Date of Remediation Completion of the Remediation Works; or

(d) in the case of a Stage, occurred prior to the Date of Remediation Completion of the Stage, insofar as the fact, matter or thing relates to the Stage.

The payment claim and notice required under this clause 12.9 are in addition to the other notices which the Contractor must give to the Contract Administrator under the Contract in order to preserve its entitlements to make any such Claims.

Without limiting the previous paragraph, the Contractor cannot include in this payment claim or notice any Claims which are barred by clause 16.5.

12.10 Release after Completion Payment Claim and Notice

After the date for submitting the payment claim and notice under clause 12.9 has passed, the Contractor releases the Commonwealth from any Claim in respect of any fact, matter or thing arising out of, or in any way in connection with, the Contractor's Activities or the Contract which:



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(a) in the case of the Remediation Works, occurred prior to the Date of Remediation Completion of the Remediation Works; or

(b) in the case of a Stage, occurred prior to the Date of Remediation Completion of the Stage, insofar as the fact, matter or thing relates to the Stage,

except for any Claim included in a payment claim or notice under clause 12.9 which is given to the Contract Administrator within the time required by, and in accordance with the terms of, clause 12.9.

12.11 Final Payment Claim and Notice

Within 28 days (or such longer period agreed in writing by the Contract Administrator) after the end of the Remediation Defects Rectification Period for the Remediation Works or a Stage, the Contractor must give the Contract Administrator:




(c) in the case of the Remediation Works, occurred during the Remediation Defects Rectification Period for the Remediation Works; or

(d) in the case of a Stage, occurred during the Remediation Defects Rectification Period for the Stage, insofar as the fact, matter or thing relates to the Stage.



12.12 Release after Final Payment Claim and Notice


(a) in the case of the Remediation Works, occurred during the Remediation Defects Rectification Period for the Remediation Works; or

(b) in the case of a Stage, occurred during the Remediation Defects Rectification Period for the Stage, insofar as the fact, matter or thing relates to the Stage,


12.13 Interest

The Commonwealth will pay simple interest at the rate stated in the Contract Particulars on any:

(a) amount which has been set out as payable by the Contract Administrator in a payment statement under clause 12.4, but which is not paid by the Commonwealth within the time required by the Contract; and

(b) damages (excluding any agreed damages payable under clause 10.11).

This will be the Contractor's sole entitlement to interest including damages for loss of use of, or the cost of borrowing, money.



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12.14 Correction of Payment Statements

The Contract Administrator may, in any payment statement:

(a) correct any error in any previous payment statement; and

(b) modify any previous payment statement,

issued by the Contract Administrator.

12.15 Right of Set-Off

The Commonwealth may:

(a) deduct from moneys otherwise due to the Contractor:

(i) any debt or other moneys due from the Contractor to the Commonwealth; and

(ii) any claim to money which the Commonwealth may have against the Contractor whether for damages (including liquidated damages) or otherwise,

whether under the Contract or otherwise at law relating to the Remediation Works or the Contractor's Activities; and

(b) without limiting paragraph (a), deduct any debt or claim referred to in paragraphs (a)(i) or (a)(ii) from any moneys which may be or thereafter become payable to the Contractor by the Commonwealth in respect of any Remediation Variation the subject of a "Remediation Works Variation Order" under clause 11.4.

12.16 Payment of Workers and Subcontractors - Option 1 (All Other States and Territories)

The Contractor must with each payment claim under clause 12.2 provide the Contract Administrator with:

(a) a statutory declaration, together with any supporting evidence which may be reasonably required by the Contract Administrator, duly signed by the Contractor or, where the Contractor is a corporation, by a representative of the Contractor who is in a position to know the facts declared, that, except to the extent disclosed in the statutory declaration (such disclosure to specify all relevant amounts, workers and subcontractors):

(i) all workers who have at any time been employed by the Contractor in connection with the Contractor's Activities have at the date of the payment claim been paid all moneys due and payable to them in respect of their employment in connection with the Contractor's Activities; and

(ii) all subcontractors have been paid all moneys due and payable to them in respect of the Contractor's Activities; and

(b) documentary evidence that, except to the extent otherwise disclosed (such disclosure to specify all relevant amounts and workers), as at the date of the payment claim, all workers who have been employed by a subcontractor have been paid all moneys due and payable to them in respect of their employment in connection with the Contractor's Activities.

The Commonwealth is entitled to withhold from any payment which would otherwise be due to the Contractor under the Contract the amount disclosed as unpaid under this clause 12.16.

12.16 Payment of Workers and Subcontractors - Option 2 (New South Wales Only)

The Contractor is not entitled to give the Contract Administrator a payment claim under clause 12.2 and the Commonwealth is not obliged to make any payment under clause 12.5 unless the Contractor has provided the Contract Administrator with:



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(a) a supporting statement (as defined in section 13(9) of the Building and Construction Industry Security of Payment Act 1999 (NSW)) and prescribed by the Building and Construction Industry Security of Payment Regulation 2008 (NSW);

(b) a written statement for the purposes of, and which complies with, section 127 of the Industrial Relations Act 1996 (NSW), section 175B of the Workers Compensation Act 1987 (NSW) and section 31H of the Pay-Roll Tax Act 1971 (NSW), which is in a form approved by the Contract Administrator and covers the period of the relevant payment claim; and

(c) copies of all relevant certificates of currency in respect of Workers Compensation Insurance which the Contractor has in place in connection with the Contractor's Activities.


12.17 GST

(a) Subject to paragraph (b), where any supply occurs under or in connection with the Contract or the Remediation Works for which GST is not otherwise provided, the party making the supply (Supplier) will be entitled to increase the amount payable for the supply by the amount of any applicable GST.

(b) Where an amount is payable to the Supplier for a supply under or in connection with the Contract or the Remediation Works which is based on the actual or reasonable costs incurred by the Supplier, the amount payable for the supply will be reduced by the amount of any input tax credits available to the Supplier (or a representative member on the Supplier 's behalf) in respect of such costs before being increased for any applicable GST under paragraph (a).

(c) As a condition precedent to any amount on account of GST being due from the recipient to the Supplier in respect of a taxable supply, the Supplier must provide a tax invoice to the recipient in respect of that supply.

(d) If the amount paid to the Supplier in respect of the GST (whether because of an adjustment or otherwise):

(i) is more than the GST on the supply, then the Supplier shall refund the excess to the recipient; or

(ii) is less than the GST on the supply, then the recipient shall pay the deficiency to the Supplier.

(e) In this clause:

(i) GST means the tax payable on taxable supplies under the GST Legislation;

(ii) GST Legislation means A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any related Act imposing such tax or legislation that is enacted to validate, recapture or recoup such tax; and

(iii) terms defined in GST Legislation have the meaning given to them in GST Legislation.

12.18 Quantities in Schedule of Rates

(a) The items of work and quantities in any Schedule of Rates are estimated and not guaranteed. The Contractor will not be entitled to make any Claim against the Commonwealth if the items of work or quantities are incorrect in that they:

(i) contain an incorrect quantity (subject to sub-paragraph (b));

(ii) contain an item which should not have been included; or

(iii) omit an item which should have been included.

(b) The Contractor acknowledges as agrees that:



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(i) the Schedule of Rates Work cannot include work which forms part of the Lump Sum Work; and

(ii) the relevant quantity of work performed by the Contractor in respect of each line item in the Schedule of Rates cannot exceed the quantity in the Schedule of Rates unless:

A. the Contractor has provided reasonable prior written notice to the Contract Administrator together with a detailed explanation of the need to exceed that quantity (including the estimated excess quantity) and such further information as the Contract Administrator may require; and

B. the Contract Administrator has provided written agreement to the excess quantity, in which case the relevant quantity in the Schedule of Rates will be adjusted accordingly and this paragraph (ii) will reapply to that adjusted quantity.

(c) The Contractor must carry out all Schedule of Rates Work so as to:

(i) ensure, to the maximum extent possible, that the quantities in the Schedule of Rates are not exceeded; and

(ii) minimise the cost to Defence.

12.19 Limits of Accuracy

If a Schedule of Rates exists and:

(a) the actual quantity of an item required to carry out the Contractor's Activities is greater or less than the quantity shown in the Schedule of Rates;

(b) the Commonwealth has accepted a rate for the item referred to in paragraph (a); and

(c) the actual quantity of the item referred to in paragraph (a) is outside the limits of accuracy stated in the Contract Particulars,

the rate will only apply to the quantities within those limits of accuracy and (subject to clause 12.18(b)) quantities outside those limits of accuracy will have their value determined by:

(d) where the Table of Remediation Works Variation Rates and Prices contains a corresponding item to the relevant item in the Schedules of Rates for which the quantity required is greater or less than the quantity shown in the Schedule of Rates - the Table of Remediation Works Variation Rates and Prices; and

(e) where the Table of Remediation Works Variation Rates and Prices does not contain a corresponding item to the relevant item in the Schedules of Rates for which the quantity required is greater or less than the quantity shown in the Schedule of Rates:

(i) agreement between the Contractor and the Contract Administrator; or

(ii) failing agreement, the Contract Administrator using reasonable rates.

12.20 Security of Payment Legislation

(a) The Contractor agrees with the Commonwealth that:

(i) a payment claim submitted to the Contract Administrator under clause 12.2 which also purports to be (or is by law) a payment claim under the relevant Security of Payment Legislation is received by the Contract Administrator as agent for the Commonwealth;

(ii) unless otherwise notified to the Contractor by the Commonwealth in writing, the Contract Administrator will give payment statements and carry out all other functions of the Commonwealth under the relevant Security of Payment Legislation as the agent of the Commonwealth;



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(iii) to the extent permitted by and for the purposes of the relevant Security of Payment Legislation, the "reference dates" are those of the dates prescribed in clauses 12.2(a) and 12.2(b) on which the Contractor has satisfied the requirements of clause 12.3(a); and

(iv) a reference to a "payment statement" is also a reference to a "payment schedule" for the purposes of the relevant Security of Payment Legislation.

(b) Failure by the Contract Administrator to set out in a payment statement issued under the relevant Security of Payment Legislation or otherwise an amount which the Commonwealth is entitled to retain, deduct, withhold or set-off from the amount which would otherwise be payable to the Contractor by the Commonwealth will not prejudice:

(i) the Contract Administrator's ability or power to set out in a subsequent payment statement an amount which the Commonwealth is entitled to retain, deduct, withhold or set-off from the amount which would otherwise be payable to the Contractor by the Commonwealth; or

(ii) the Commonwealth's right to subsequently exercise its right to retain, deduct, withhold or set-off any amount under this Contract.

(c) The Contractor agrees that the amount set out in the payment statement in accordance with clause 12.4(f) is, to the extent permitted by and for the purposes of the relevant Security of Payment Legislation, the amount of the "progress payment" calculated in accordance with the terms of this Contract, which the Contractor is entitled to in respect of the Contract.

(d) The Contractor irrevocably chooses the person set out in the Contract Particulars as, to the extent permitted by and for the purposes of the relevant Security of Payment Legislation and to the extent that the relevant Contractor's Activities are to be carried out in:

(i) the Northern Territory or Western Australia, the appointed adjudicator or, where there is no appointed adjudicator, the prescribed appointer; or

(ii) any other State or Territory in which Security of Payment Legislation applies, the authorised nominating authority.

(e) The Contractor must not at any time, without the written consent of the Commonwealth, divulge or suffer or permit its servants, subcontractors or agents to divulge to any person any communication, submission or statement made or evidence or information used by or relied upon by the Commonwealth or any details thereof in respect of an adjudication application made under the relevant Security of Payment Legislation (in this paragraph, the Information).

For the avoidance of doubt:

(i) the Contractor's obligation in respect of the Information applies in respect of any subsequent proceedings before a court, arbitrator, expert or tribunal save where the Contractor is unable by requirement of law to comply with its obligation in respect of the Information;

(ii) notwithstanding the Contractor's obligation in respect of the Information, the Commonwealth has sole and unfettered discretion to divulge or suffer or permit its servants, subcontractors or agents to divulge to any person the Information;

(iii) the Commonwealth may divulge or suffer or permit its servants, subcontractors or agents to divulge to any person any communication, submission or statement made or evidence or information used by or relied upon by the Contractor or any details thereof in respect of an adjudication application made under the relevant Security of Payment Legislation; and

(iv) any Information which the Commonwealth provides or relies upon in respect of an adjudication application made under the relevant Security of Payment Legislation is made without prejudice to the Commonwealth's right to vary, modify, supplement or withdraw the Information in any subsequent proceedings before a court, arbitrator, expert or tribunal.



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12.21 Accounting Records

The Contractor must keep accurate and up to date accounting records including books of account, labour time sheets, invoices for materials, plant hire, final accounts and any other documents or papers which show all details in relation to

(a) all Remediation Works Variations; and

(b) all other amounts payable to the Contractor other than on account of the original Contract Price specified in the Contract Particulars.

12.22 Cost Allocation Advice

Without limiting clause 12.2, for the purposes of assisting the Commonwealth to report on an accrual basis, the Contractor must, with each payment claim under clause 12.2, provide the Contract Administrator with accurate information which apportions monthly costs against expenses for all work completed in the previous month, in a format approved by the Contract Administrator.

12.23 Remediation Works Accounting

Without limiting clause 12.2, for the purposes of assisting the Commonwealth to bring all completed Remediation Works to account, as a condition precedent to Completion of the Remediation Works or a Stage, the Contractor must provide a cost report to the Contract Administrator which sets out:

(a) details of the Contract Price (or part) paid in respect of the Remediation Works or the Stage;

(b) the matters specified in the Contract Particulars; and

(c) any other matters required by the Contract Administrator.

12.24 DEMS and NSIM


(a) assist the Commonwealth to comply with its Defence Estate Management System (DEMS) obligations by providing information regarding the maintenance and operation of plant and equipment (including costs for replacement, maintenance requirements, the design life of the asset and warranties) (DEMS Information) to the Contract Administrator as follows:

(i) as a condition precedent to Remediation Completion of the Remediation Works or a Stage - DEMS Information representing incorporated work supplied to the Commonwealth, such information being 100% complete and to the standard required by the Commonwealth; and

(ii) within 30 days of the end of the Remediation Defects Rectification Period for the Remediation Works or a Stage - DEMS Information representing incorporated work supplied to the Commonwealth and all post-Remediation Completion work, such information being 100% complete and to the standard required by the Commonwealth;

(b) assist the Commonwealth to comply with its National Spatial Information Management System (NIMS) obligations by providing information regarding the maintenance and operation of plant and equipment (including Site plans for all DSG controlled properties showing the physical location of all services, property details and topography) (Spatial Data Information) to the Contract Administrator as follows:

(i) as a condition precedent to Remediation Completion of the Remediation Works or a Stage - the Spatial Data Information representing incorporated work supplied to the Commonwealth, such information being 100% complete and to the standard required by the Commonwealth; and

(ii) within 30 days of the end of the Remediation Defects Rectification Period for the Remediation Works or a Stage - the Spatial Data Information representing incorporated work supplied to the Commonwealth, such information being 100% complete and to the standard required by the Commonwealth; and



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(c) if DEMS or NIMS is replaced by another Commonwealth Information System, assist the Commonwealth to comply with its obligations in connection with the replacement Commonwealth Information System by providing information of the type recorded in the replacement Commonwealth Information System, such information being 100% complete and to the standard required by the Commonwealth.



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13. COMPLETION OF REMEDIATION WORKS

13.1 Contractor to Notify of Remediation Completion

The Contractor must give the Contract Administrator written notice 28 days, and then again 14 days, before it anticipates achieving Remediation Completion of the Remediation Works or a Stage.

13.2 Contract Administrator to Inspect


(a) promptly, and in any event no later than 14 days after receiving the Contractor's second written notice under clause 13.1 or a notice under paragraph (d) (as the case may be), inspect the Remediation Works or the Stage; and

(b) if:

(i) satisfied that Remediation Completion has been achieved, issue a notice to the Commonwealth and the Contractor:

A. stating the date upon which the Contract Administrator determines Remediation Completion was achieved; and

B. containing a list of any minor Remediation Defects of the type described in paragraph (a) of the definition of "Remediation Completion" in clause 1.1; or

(ii) not satisfied that Remediation Completion has been achieved, issue a notice so advising the Contractor and the Commonwealth.

If the Contract Administrator issues a notice under paragraph (b)(ii), the Contractor must:

(c) proceed to bring the Remediation Works or the Stage to Remediation Completion; and

(d) when it considers it has achieved Remediation Completion, give the Contract Administrator written notice to that effect (after which this clause 13.2 will reapply).

13.3 Unilateral Issue of Remediation Completion Notice

If at any time a notice required to be given by the Contractor to the Contract Administrator under clause 13.1 or 13.2 is not given by the Contractor yet the Contract Administrator is of the opinion that Remediation Completion of the Remediation Works or a Stage has been achieved, the Contract Administrator may issue a Remediation Completion Notice under clause 13.2(b)(i) for the Remediation Works or the Stage.

13.4 Hand-Over of Site Upon Completion

Upon the issue of a Remediation Completion Notice, the Contractor must:

(a) hand over the Site to the Commonwealth; and

(b) correct all Remediation Defects listed in the Remediation Completion Notice as soon as possible.

13.5 Part of the Works or a Stage

The Commonwealth may, after written notice is given to the Contractor by the Contract Administrator, occupy or use any part of the Site although the whole of the Remediation Works or the Stage has not reached Remediation Completion.

If any such notice is given by the Contract Administrator:

(a) the Commonwealth must allow the Contractor reasonable access to the part of the Site referred to in the notice and being occupied or used by the Commonwealth, to enable the Contractor to bring the Remediation Works or the relevant Stage of which the area being occupied or used forms part to Remediation Completion; and



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(b) this will not limit or affect the obligations of the Contractor under the Contract (except to the extent that an act or omission of the Commonwealth, the Contract Administrator or an Other Contractor engaged by the Commonwealth under this clause 13.5 constitutes an Act of Prevention, in which case, the Contractor may be entitled to an extension of time under clause 10.8), including the obligation of the Contractor to achieve Remediation Completion of the Remediation Works or the relevant Stage of which the area being occupied or used forms part by the relevant Date for Remediation Completion.

13.6 Effect of Remediation Completion Notice

A Remediation Completion Notice will not:

(a) constitute approval by the Commonwealth of the Contractor's performance of its Contract obligations;

(b) be taken as an admission or evidence that the Remediation Works or the Stage complies with the Contract; or

(c) prejudice any rights or powers of the Commonwealth or Contract Administrator.

13.7 Liquidated Damages

If the Date of Remediation Completion of the Remediation Works or a Stage has not occurred by the Date for Remediation Completion for the Remediation Works or the Stage, the Contractor must pay liquidated damages at the rate specified in the Contract Particulars for every day after the Date for Remediation Completion until the Date of Remediation Completion or the Contract is terminated, whichever is first.

This amount is an agreed genuine pre-estimate of the Commonwealth's damages if the Date of Remediation Completion does not occur by the Date for Remediation Completion.

The amount payable under this clause 13.7 will be a debt due from the Contractor to the Commonwealth.



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14. TERMINATION

14.1 Preservation of Rights

Subject to clause 14.6, nothing in this clause 14 or that the Commonwealth does or fails to do pursuant to this clause 14 will prejudice the right of the Commonwealth to exercise any right or remedy (including recovering damages) which it may have where the Contractor breaches (including repudiates) the Contract.


The Commonwealth may give a written notice under clause 14.3 to the Contractor if the Contractor:

(a) does not commence the Contractor's Activities in accordance with the requirements of the Contract;

(b) suspends the Contractor's Activities in breach of clause 10.12 or otherwise does not proceed with the Contractor's Activities regularly and diligently;

(c) fails to provide security as required by clause 4.1 or the related company guarantee as required under clause 4.4;

(d) fails to comply with any of its obligations under clause 5.4 or 5.6;

(e) fails to comply with any of its obligations under clause 8.11 or 8.13;

(f) fails to comply with any of its obligations under clause 18;

(g) fails to use the materials or standards of workmanship required by the Contract;

(h) does not comply with any direction of the Contract Administrator made in accordance with the Contract; or

(i) is otherwise in substantial breach of the Contract.

14.3 Contents of Notice of Default

A notice under this clause 14.3 must state:

(a) that it is a notice under clause 14.3;

(b) the breach relied upon; and

(c) that the Commonwealth requires the Contractor to remedy the breach within the number of days set out in the Contract Particulars of receiving the notice.

14.4 Termination for Insolvency or Breach

If:

(a) an Insolvency Event occurs to the Contractor, or where the Contractor comprises 2 or more persons, to any one of those persons; or

(b) the Contractor does not remedy a breach of Contract the subject of a notice under clause 14.3 within the number of days set out in the Contract Particulars of receiving the notice under clause 14.3,

then the Commonwealth may by written notice to the Contractor terminate the Contract.

14.5 Commonwealth's Entitlements after Termination

Subject to clause 14.1, if the Commonwealth terminates the Contract under clause 14.4, or if the Contractor repudiates the Contract and the Commonwealth otherwise terminates the Contract:

(a) the Commonwealth will:



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(i) be entitled to take over and use, or require the Contractor to remove from the Site, the Plant, Equipment and Work and all materials, equipment and other things intended for the Remediation Works;

(ii) be entitled to require the Contractor to novate to the Commonwealth or the Commonwealth's nominee, any or all subcontracts between the Contractor and its subcontractors as required by the Commonwealth;

(iii) to the extent permitted by the relevant Security of Payment Legislation, not be obliged to make any further payments to the Contractor, including any money the subject of a payment claim under clause 12.2 or a payment statement under clause 12.4; and

(iv) be entitled to recover from the Contractor any costs, losses or damages incurred or suffered by it as a result of, or arising out of, or in any way in connection with, such termination; and

(b) the Contractor must immediately hand over to the Commonwealth all copies of:

(i) documents provided by the Commonwealth in connection with the Contractor's Activities; and

(ii) Project Documents prepared by the Contractor to the date of termination (whether complete or not).

14.6 Contractor's Entitlements after Termination

If the Commonwealth repudiates the Contract and the Contractor terminates the Contract, the Contractor will:

(a) be entitled to claim an amount determined in accordance with clause 14.8 as if the Commonwealth had terminated the Contract under clause 14.7; and

(b) not be entitled to a quantum meruit.

This clause 14.6 will survive the termination of the Contract.

14.7 Termination for Convenience

Without prejudice to any of the Commonwealth's other rights under this Contract, the Commonwealth may:

(a) at any time for its sole convenience, and for any reason, by written notice to the Contractor terminate the Contract effective from the time stated in the Commonwealth's notice or if no such 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 either itself or by engaging Other Contractors.

14.8 Costs

If the Commonwealth terminates the Contract under clause 14.7, the Contractor:

(a) will be entitled to payment of the following amounts as determined by the Contract Administrator:

(i) 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 submitted a payment claim for work carried out to the date of termination;

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

A. the value of the goods or materials is not included in the amount payable under subparagraph (i); and

B. title in the goods and materials will vest in the Commonwealth upon payment; and



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(iii) the reasonable cost of removing from the Site all labour, Plant, Equipment and Work and other things used in the Contractor's Activities; and

(b) must:

(i) take all steps possible to mitigate the costs referred to in paragraphs (a)(ii) and (a)(iii); and

(ii) immediately hand over to the Commonwealth all copies of:

A. documents provided by the Commonwealth in connection with the Contractor's Activities; and

B. Project Documents prepared by the Contractor to the date of termination (whether complete or not).

The amount to which the Contractor is entitled under this clause 14.8 will be a limitation upon the Commonwealth's liability to the Contractor arising out of, or in any way in connection with, the termination of the Contract (whether under clause 14.7 or deemed to be under clause 14.7 through the operation of clause 14.6(a)) and the Contractor will not be entitled to make any Claim against the Commonwealth arising out of, or in any way in connection with, the termination of the Contract other than for the amount payable under this clause 14.8.

This clause 14.8 will survive the termination of the Contract by the Commonwealth under clause 14.7 or by the Contractor following repudiation by the Commonwealth.



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15. DISPUTES

15.1 Notice of Dispute

If a dispute or difference arises between the Contractor and the Commonwealth or between the Contractor and the Contract Administrator in respect of any fact, matter or thing arising out of, or in any way in connection with, the Contractor's Activities, the Remediation Works or the Contract, or either party's conduct before the Contract, the dispute or difference must be determined in accordance with the procedure in this clause 15.

Where such a dispute or difference arises, either party may give a notice in writing to the Contract Administrator and the other party specifying:

(a) the dispute or difference;

(b) particulars of the party's reasons for being dissatisfied; and

(c) the position which the party believes is correct.

15.2 Expert Determination

If the dispute or difference is in relation to a direction of the Contract Administrator under one of the clauses referred to in the Contract Particulars and is not resolved within 14 days after a notice is given under clause 15.1, the dispute or difference must be submitted to expert determination.

15.3 The Expert

(a) The expert determination under clause 15.2 is to be conducted by:

(i) the independent industry expert specified in the Contract Particulars; or

(ii) where no such independent industry expert is specified or paragraph (b) applies, an independent industry expert appointed by the person specified in the Contract Particulars.

(b) If the expert appointed under this clause 15.3:

(i) is unavailable;

(ii) declines to act;

(iii) does not respond within 14 days to a request by one or both parties for advice as to whether he or she is able to conduct the determination;

(iv) does not enter into the agreement in accordance with clause 15.9(b) within 14 days of his or her appointment under this clause 15; or

(v) does not make a determination within the time required by clause 15.8,

the jurisdiction of the expert shall lapse and a further expert must be appointed under paragraph (a).

(c) If there has been an appointment under paragraph (a) and one of the events in paragraph (b) has occurred, the further expert appointed under paragraph (a) shall not be an expert previously appointed under paragraph (a) in respect of the same dispute or difference.

15.4 Not Arbitration

An expert determination conducted under this clause 15 is not an arbitration and the expert is not an arbitrator. The expert may reach a decision from his or her own knowledge and expertise.

15.5 Procedure for Determination

The expert will:

(a) act as an expert and not as an arbitrator;



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(b) proceed in any manner he or she thinks fit;

(c) conduct any investigation which he or she considers necessary to resolve the dispute or difference;

(d) examine such documents, and interview such persons, as he or she may require; and

(e) make such directions for the conduct of the determination as he or she considers necessary.

15.6 Disclosure of Interest

The expert must:

(a) disclose to the parties any:

(i) interest he or she has in the outcome of the determination;

(ii) conflict of interest;

(iii) conflict of duty;

(iv) personal relationship which the expert has with either party, or either party's representatives, witnesses or experts; and

(v) other fact, matter or thing which a reasonable person may regard as giving rise to the possibility of bias; and

(b) not communicate with one party to the determination without the knowledge of the other.

15.7 Costs

Each party will:

(a) bear its own costs in respect of any expert determination; and

(b) pay one-half of the expert's costs.

15.8 Conclusion of Expert Determination

Unless otherwise agreed between the parties, the expert must notify the parties of his or her decision upon an expert determination conducted under this clause 15 within 28 days from the acceptance by the expert of his or her appointment.

15.9 Agreement with Expert

(a) The expert will not be liable to the parties arising out of, or in any way in connection with, the expert determination process, except in the case of fraud.

(b) The parties must enter into an agreement with the appointed expert on the terms set out in the Schedule of Collateral Documents or such other terms as the parties and the expert may agree.

15.10 Determination of Expert

The determination of the expert:

(a) must be in writing;

(b) will be substituted for the relevant direction of the Contract Administrator unless a party gives notice of appeal to the other party within 21 days of receiving such determination in which case, subject to clauses 15.11 and 15.12, any such appeal will be by way of a hearing de novo; and

(c) will be final and binding, unless a party gives notice of appeal to the other party within 21 days of receiving such determination.



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15.11 Executive Negotiation

(a) If:

(i) clause 15.2 applies, and a notice of appeal is given under clause 15.10; or

(ii) clause 15.2 does not apply,

the dispute or difference is to be referred to the Executive Negotiators.

(b) The Executive Negotiators must within:

(i) 21 days of:

A. if the dispute or difference is not one which is to be referred to expert determination under clause 15.2, the notice of dispute given under clause 15.1; or

B. otherwise, the notice of appeal given under clause 15.10; or

(ii) such longer period of time as the Executive Negotiators may agree in writing,

meet and undertake genuine and good faith negotiations with a view to resolving the dispute or difference and, if they cannot resolve the dispute or difference, endeavour to agree upon a procedure to resolve the dispute or difference (such as mediation or further expert determination).

15.12 Arbitration Agreement

If, within:

(a) 21 days of:

(i) if the dispute or difference is not one which is to be referred to expert determination under clause 15.2, the notice of dispute given under clause 15.1; or

(ii) otherwise, the notice of appeal given under clause 15.10; or

(b) such longer period of time as the Executive Negotiators may agree in writing,

the Executive Negotiators:

(c) or either party refuse or fail to meet and undertake genuine and good faith negotiations with a view to resolving the dispute or difference;

(d) cannot resolve the dispute or difference; or

(e) have not reached agreement upon a procedure to resolve the dispute or difference,

the dispute or difference will be referred to arbitration by a written notice by either party to the other party.

15.13 Arbitration

(a) Arbitration pursuant to this clause will be conducted in accordance with the Rules of Arbitration of the International Chamber of Commerce (ICC Rules) current at the time of the reference to arbitration and as otherwise set out in this clause.

(b) The seat of the arbitration will be Melbourne, Australia and hence the proper law of the arbitration shall be Victoria.

(c) Nothing in this clause is intended to modify or vary the rights of appeal contained in the Commercial Arbitration Act 1984 (Vic). For the avoidance of doubt, the second sentence of Article 34(6) of the ICC Rules (in force from 1 January 1998) or its equivalent in any subsequent version of the ICC Rules shall not apply.



84

(d) The parties agree that:

(i) they have entered into the arbitration agreement under this clause 15 for the purposes of achieving a just, quick and cheap resolution of any dispute or difference;

(ii) any arbitration conducted pursuant to this clause 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) One arbitrator will be appointed.

(f) All evidence in chief will be in writing unless otherwise ordered by the arbitrator.

(g) Discovery will be governed by the substantive and procedural rules and practices adopted by the Federal Court of Australia at the time of arbitration.

(h) The oral hearing will be conducted as follows:

(i) the oral hearing will take place in Melbourne, Australia and all outstanding issues must be addressed at the oral hearing;

(ii) the date and duration of the oral hearing will 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 good cause;

(iv) the oral hearing will be conducted on a stop clock basis with the effect that the time available to the parties will be split equally between the parties so that each party will have the same time to conduct its case unless, in the opinion of the arbitrator, such a split would breach the rules of natural justice or is otherwise unfair to one of the parties;

(v) not less than 28 days prior to the date fixed for the oral hearing, each party will 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).

(i) Unless otherwise ordered, each party may only rely upon one expert witness in respect of any recognised area of specialisation.

15.14 Proportional Liability

Notwithstanding anything else, to the extent permissible by law, the expert or the arbitrator (as the case may be) will have no power to apply or to have regard to the provisions of any proportional liability legislation which might, in the absence of this provision, have applied to any dispute referred to arbitration or expert determination pursuant to this clause.

15.15 Continuation of Contractor's Activities

Despite the existence of a dispute or difference between the parties the Contractor must:

(a) continue to carry out the Contractor's Activities; and

(b) otherwise comply with its obligations under the Contract.



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16. NOTICES

16.1 Notice of Variation

If a direction by the Contract Administrator, other than a "Remediation Works Variation Order" under clause 11.4, constitutes or involves a Remediation Works Variation, the Contractor must, if it wishes to make a Claim against the Commonwealth arising out of, or in any way in connection with, the direction:

(a) within 7 days of receiving the direction and before commencing work on the subject matter of the direction, give notice to the Contract Administrator that it considers the direction constitutes or involves a Variation;

(b) within 21 days after giving the notice under paragraph (a), submit a written claim to the Contract Administrator which includes the details required by clause 16.3(b); and

(c) continue to carry out the Contractor's Activities in accordance with the Contract and all directions of the Contract Administrator, including any direction in respect of which notice has been given under this clause 16.1.

16.2 Notices of Other Claims

Except for claims for:

(a) an extension of time under clause 10.6;

(b) payment under clause 12.2 of the original Contract Price specified in the Contract Particulars; or

(c) a Remediation Works Variation instructed in accordance with clause 11.4 or to which clause 16.1 applies,

the Contractor must give the Contract Administrator the notices required by clause 16.3 if it wishes to make a Claim against the Commonwealth in respect of any direction by the Contract Administrator or any other fact, matter or thing (including a breach of the Contract by the Commonwealth) under, arising out of, or in any way in connection with, the Contractor's Activities or the Contract, including anything in respect of which:

(d) it is otherwise given an express entitlement under the Contract; or

(e) the Contract expressly provides that:

(i) specified costs are to be added to the Contract Price; or

(ii) the Contract Price will be otherwise increased or adjusted,

as determined by the Contract Administrator.

16.3 Prescribed Notices

The notices referred to in clause 16.2 are:

(a) a written notice within 21 days of the first occurrence of the direction or other fact, matter or thing upon which the Claim is based, expressly specifying:

(i) that the Contractor proposes to make a Claim; and

(ii) the direction or other fact, matter or thing upon which the Claim will be based; and

(b) a written Claim within 21 days of giving the written notice under paragraph (a), which must include:

(i) detailed particulars concerning the direction or other fact, matter or thing upon which the Claim is based;

(ii) the legal basis for the Claim, whether based on a term of the Contract or otherwise, and if based on a term of the Contract, clearly identifying the specific term;



86

(iii) the facts relied upon in support of the Claim in sufficient detail to permit verification; and

(iv) details of the amount claimed and how it has been calculated.

16.4 Continuing Events

If the direction or fact, matter or thing upon which the Claim under clause 16.1(b) or 16.2 is based or the consequences of the direction or fact, matter or thing are continuing, the Contractor must continue to give the information required by clause 16.3(b) every 28 days after the written claim under clause 16.1(b) or 16.3(b) (as the case may be) was submitted or given to the Contract Administrator, until after the direction or fact, matter or thing upon which the Claim is based has, or the consequences thereof have, ceased.

16.5 Time Bar

If the Contractor fails to comply with clause 16.1, 16.2, 16.3 or 16.4:

(a) the Commonwealth will not be liable (insofar as it is possible to exclude such liability) upon any Claim by the Contractor; and

(b) the Contractor will be absolutely barred from making any Claim against the Commonwealth,

arising out of, or in any way in connection with, the relevant direction or fact, matter or thing (as the case may be) to which clause 16.1 or 16.2 applies.

16.6 Other Provisions Unaffected

Nothing in clauses 16.1 - 16.5 will limit the operation or effect of any other provision of the Contract which requires the Contractor to give notice to the Contract Administrator in order to preserve an entitlement to make a Claim against the Commonwealth.

16.7 Address for Service

Any notice to be given or served under or arising out of a provision of this Contract must:

(a) be in writing;

(b) be delivered by hand, sent by prepaid post or sent by fax, as the case may be, to the relevant address or fax number:

(i) stated in the Contract Particulars; or

(ii) last notified in writing to the party giving or serving the notice,

for the party to whom or upon which the notice is to be given or served; and

(c) be signed by the party giving or serving the notice or (on the party's behalf) by the solicitor for or attorney, director, secretary or authorised agent of the party giving or serving the notice.

16.8 Receipt of Notices

(a) A notice given or served in accordance with clause 16.7 is taken to be received by the party to whom or upon whom the notice is given or served on the date determined in accordance with clause 2.5.3 of the Deed.



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17. GENERAL



(a) comply with its obligations under the Workplace Gender Equality Act 2012 (Cth); and

(b) not enter into a subcontract made in connection with this Contract with a subcontractor named by the Workplace Gender Equality Agency as an employer currently not complying with the Workplace Gender Equality Act 2012 (Cth).

17.2 Indigenous Opportunities

This clause 17.2 does not apply unless the Contract Particulars state that it does apply.


(i) comply with its current, approved ITES Plan;

(ii) maintain a current, approved ITES Plan for the duration of the Contract;

(iii) report annually to the Commonwealth or any person authorised by the Commonwealth (including the Department of Prime Minister and Cabinet) (in a format required by the IOP) on the implementation of and outcomes achieved under its ITES Plan;

(iv) provide the Commonwealth or any person authorised by the Commonwealth (including the Department of Prime Minister and Cabinet) with access to documents concerning the IOP and its ITES Plan (and copies of the documents requested in writing); and

(v) co-operate with the Commonwealth or any person authorised by the Commonwealth (including the Department of Prime Minister and Cabinet) in an audit and review of its compliance with the IOP and its ITES Plan.

(b) The Contractor acknowledges and agrees to the Commonwealth or any person authorised by the Commonwealth (including the Department of Prime Minister and Cabinet) publicising or reporting:

(i) on its performance concerning and compliance with its ITES Plan; and

(ii) any information contained in its ITES Plan or any report submitted in accordance with clause 17.2(a).

(c) For the purposes of this clause:

(i) ITES Plan means an Indigenous Training, Employment and Supplier Plan; and

(ii) IOP means the Indigenous Opportunities Policy and associated guidelines.


(a) Nothing that the Contractor is or may be required to do under this clause 17.3 will derogate from, or otherwise limit, the Contractor's other obligations under this Contract.

(b) The Contractor must be, and must ensure that its subcontractors are, fully familiar with the requirements of the SAFE BASE Alert State System (SAFE BASE).

(c) The Contractor must attend, and must arrange for its subcontractors to attend, a security briefing as requested by the Contract Administrator from time to time.

(d) In carrying out the Contractor's Activities, the Contractor must, and must ensure that its subcontractors, comply with the requirements of SAFE BASE, including:

(i) subject to subparagraph (ii), at the level specified in the Contract Particulars; and



88

(ii) at any alternative level (or individual measure from a higher alert state to meet a specific threat or threats) applicable to the Site from time to time.

(e) The Contractor will be entitled to have the Contract Price increased by any extra costs reasonably incurred by the Contractor which arise directly from a change to the SAFE BASE level or individual measure in accordance with paragraph (d)(ii), as determined by the Contract Administrator.

(f) The Contractor's entitlement (if any) under paragraph (e) will be a limitation on the Commonwealth's liability to the Contractor arising out of, or in any way in connection with:

(i) the Contract Administrator's direction; or

(ii) the application of the alternative level or individual measure of SAFE BASE to the Contractor's Activities,

and the Contractor will not be entitled to make, nor will the Commonwealth be liable upon, any Claim in these circumstances other than for the amount (if any) which is payable by the Commonwealth under paragraph (e).

(g) The Contractor must, and must ensure that its subcontractors, participate in a rehearsal of SAFE BASE as directed by the Contract Administrator from time to time.

17.4 Privacy


(i) comply with its obligations under the Privacy Act;

(ii) comply with the Australian Privacy Principles when doing any act or engaging in any practice for the purposes of this Contract, as if it were an agency as defined in the Privacy Act;

(iii) use Personal Information received, created or held by the Contractor for the purposes of this Contract only for the purposes of fulfilling its obligations under this Contract;

(iv) not disclose Personal Information received, created or held by the Contractor for the purposes of this Contract without the prior written approval of the Contract Administrator;

(v) not collect, transfer, store or otherwise use Personal Information received, created or held by the Contractor for the purposes of this Contract outside Australia, or allow parties outside Australia to have access to it, without the prior written approval of the Contract Administrator;

(vi) co-operate with demands or inquiries made by the Federal Privacy Commissioner or the Contract Administrator in relation to the management of Personal Information in connection with this Contract;

(vii) ensure that any person whom the Contractor allows to access Personal Information which is received, created or held by the Contractor for the purposes of this Contract is made aware of, and undertakes in writing to observe, the Australian Privacy Principles, as if the person was an agency as defined in the Privacy Act;

(viii) comply with policy guidelines laid down by the Commonwealth or issued by the Federal Privacy Commissioner from time to time relating to Personal Information;

(ix) ensure that records (as defined in the Privacy Act) containing Personal Information received, created or held by the Contractor for the purposes of this Contract are, at the expiration or earlier termination of this Contract, at the Contract Administrator's election, to be either returned to the Commonwealth or deleted or destroyed in the presence of a person duly authorised by the Contract Administrator to oversee such deletion or destruction;

(x) agree to the naming or other identification of the Contractor in reports by the Federal Privacy Commissioner;



89

(xi) ensure that any subcontract made in connection with this Contract contains enforceable obligations requiring the subcontractor to comply with the Contractor's obligations arising out of this clause Error! Reference source not found., as if the subcontractor were the Contractor;

(xii) enforce the obligations referred to in subparagraph (xi) in accordance with such directions as the Contract Administrator may give;

(xiii) not use Personal Information collected by the Contractor in connection with the Contract for, or in any way relating to, any direct marketing purpose; and

(xiv) indemnify the Commonwealth against any loss, liability or expense suffered or incurred by the Commonwealth arising out of, or in connection with:

A. a breach of the obligations of the Contractor under this clause Error! Reference source not found.;

B. a breach of a subcontractor's obligations under a subcontract as contemplated by subparagraph (xi);

C. the misuse of Personal Information held in connection with this Contract by the Contractor or a subcontractor; or

D. the disclosure of Personal Information held in connection with this Contract by the Contractor or a subcontractor in breach of an obligation of confidence.

(b) For the purposes of paragraph (a)(xiv), loss, liability or expense includes any compensation paid to a person by or on behalf of the Commonwealth to settle a complaint arising out of, or in any way in connection with, a breach of this clause Error! Reference source not found. by the Contractor.

(c) The Contractor must immediately notify the Commonwealth in writing if the Contractor:

(i) becomes aware of a breach of the obligations under clause Error! Reference source not found. by itself or by a subcontractor;

(ii) becomes aware of a breach of a subcontractor's obligations under a subcontract as contemplated by paragraph (a)(xi);

(iii) becomes aware that a disclosure of Personal Information may be required by law; or

(iv) is approached or contacted by, or becomes aware that a subcontractor has been approached or contacted by, the Federal Privacy Commissioner or by a person claiming that their privacy has been interfered with.

(d) The Contractor acknowledges that, in addition to the requirements of this clause Error! Reference source not found., the Contractor may also be obliged to comply with other obligations in relation to the handling of Personal Information, including State and Territory legislation.

(e) Nothing in this clause Error! Reference source not found. limits any of the Contractor's other obligations or liabilities under the Contract.

(f) In this clause Error! Reference source not found.:

(i) Australian Privacy Principle has the meaning given in the Privacy Act;

(ii) Personal Information has the meaning given in the Privacy Act;

(iii) Privacy Act means the Privacy Act 1988 (Cth); and

(iv) received includes collected.



90


The Freedom of Information Act 1982 (Cth) (FOI Act) gives members of the public rights of access to official documents of the Commonwealth Government and its agencies. The FOI Act extends, as far as possible, rights to access information (generally documents) in the possession of the Commonwealth Government, limited only by considerations for the protection of essential public interest and of the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities.

The Contractor acknowledges that Commonwealth requirements and policies will require certain identifying details of the Contract to be made available to the public via the internet.

17.6 Long Service Leave

Clause 17.6 only applies if any relevant Long Service Leave Legislation applies to the Contractor's Activities.

(a) Without limiting its other obligations or liabilities under this Contract or otherwise, the Contractor must comply with its obligations under any relevant Long Service Leave Legislation.

(b) If required by any relevant Long Service Leave Legislation, the Contractor must pay any levy, charge, contribution or associated amount in respect of the Contractor's Activities.

(c) Any amount paid by the Contractor under paragraph (b) is deemed to be included in the Contract Price and the Contractor will have no Claim against the Commonwealth arising out of or in connection with its obligations under this clause 17.6 or any other obligation under the relevant Long Service Leave Legislation.

(d) In this clause 17.6, Long Service Leave Legislation means:

(i) Long Service Leave (Portable Schemes) Act 2009 (ACT);

(ii) Building and Construction Industry Long Service Payments Act 1986 (NSW);

(iii) Construction Industry Long Service Leave and Benefits Act 2005 (NT);

(iv) Building and Construction Industry (Portable Long Service Leave) Act 1991 (Qld);

(v) Construction Industry Long Service Leave Act 1987 (SA);

(vi) Construction Industry (Long Service) Act 1997 (Tas);

(vii) Construction Industry Long Service Leave Act 1997 (Vic);

(viii) Construction Industry Portable Paid Long Service Leave Act 1985 (WA);

(ix) the long service leave obligations in the National Employment Standards in the Fair Work Act 2009 (Cth); and

(x) any legislation in any State or Territory of Australia addressing long service leave in the building and construction industry.

17.7 Assignment

(a) The Contractor must not, without the prior written approval of the Commonwealth and except on the terms and conditions determined in writing by the Commonwealth, assign, mortgage, charge or encumber the Contract or any part or any benefit or moneys or interest under the Contract.

(b) For the purpose of but without limiting paragraph (a), an assignment of this Contract will be deemed to have occurred where there has been a Change of Control.

17.8 Publicity

Without limiting clause 1.3(f), the Contractor must:



91

(a) not furnish any information or issue any document or other written or printed material concerning the Contractor's Activities or the Remediation Works for publication in the media without the prior written approval of the Contract Administrator; and

(b) refer any enquiries from the media concerning the Contractor's Activities or the Remediation Works to the Contract Administrator.

17.9 Classified Information

(a) At the request of the Commonwealth, the Contractor must:

(i) comply with the Commonwealth's security clearance process;

(ii) obtain the level of security clearance requested by the Commonwealth; and

(iii) comply with all security policies and procedures notified by the Commonwealth from time to time.

(b) Without limiting clause 1.3(f), the Contractor must not disclose any Classified Information unless the disclosure:

(i) is strictly in accordance with the provisions of the Defence Security Manual; and

(ii) has first been approved in writing by the Contract Administrator.

(c) In giving any approval to the Contractor under paragraph (b), the Contract Administrator may impose such conditions as the Contract Administrator thinks fit, including conditions requiring any recipient of Classified Information to obtain a level of security clearance and to enter into a deed in a form acceptable to the Commonwealth.

(d) Without limiting clause 1.3(f), the Contractor must handle and store any Classified Information in its possession or control strictly in accordance with the provisions of the Defence Security Manual.

(e) The Contractor must ensure that any subcontract made in connection with this Contract contains enforceable obligations requiring the subcontractor to comply with the Contractor's obligations arising under this clause 17.9 as if the subcontractor were the Contractor.

(f) For the purposes of this clause 17.9:

(i) Classified Information includes:

A. any Commonwealth document marked with a national security classification; and

B. any information or document that the Contractor knows or ought to know is subject to, or ought to be treated in accordance with, the provisions of the Defence Security Manual; and

(ii) Defence Security Manual is a reference to that document as amended from time to time.



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18. BUILDING CODE 2013

18.1 General


(a) comply with the Building Code 2013 from the time of submitting its registration of interest or if no registration was submitted, from the time of submitting its tender for the Remediation Works;

(b) require compliance with the Building Code 2013 by its Related Entities from the time of submitting its registration of interest or if no registration was submitted, from the time of submitting its tender for the Remediation Works;

(c) ensure compliance with the Building Code 2013 by all subcontractors and Consultants engaged in the Remediation Works, including by confirming compliance at all site and project meetings;

(d) ensure that all contracts (including subcontracts) expressly require compliance with the Building Code 2013 and impose obligations equivalent to the obligations under this clause 18, in the form set out in the Proforma Building Code 2013 Subcontract Provisions; and

(e) not appoint a subcontractor or Consultant in relation to the Works where:

(i) the appointment would breach a sanction imposed by the Code Monitoring Group, the Minister for Employment or the Commonwealth; or

(ii) the subcontractor or Consultant has had an adverse Court or Tribunal decision (not including decisions under appeal) for a breach of workplace relations laws, work health and safety law, or workers' compensation law and the subcontractor or Consultant has not fully complied, or is not fully complying, with the order.

18.2 Responsibility not Affected

Compliance with the Building Code 2013 shall not relieve the Contractor from its other obligations under the Contract or otherwise arising out of or in connection with the Remediation Works or the Contractor's Activities.

18.3 Notice of Effect on Compliance with Building Code 2013

If a change to the Contract is proposed which would affect the Contractor's compliance with the Building Code 2013, the Contractor must immediately give the Commonwealth a report in writing specifying the extent to which the Contractor's compliance with the Building Code 2013 will be affected.

18.4 Records

The Contractor must maintain adequate records of compliance with the Building Code 2013 by the Contractor, its Related Entities, its subcontractors and its Consultants.

18.5 Access and Documents


(i) provide; and

(ii) ensure that its Related Entities, subcontractors and Consultants provide,

the Commonwealth or any person authorised by the Commonwealth (including an Inspector) with access to:

(iii) inspect any work, material, machinery, appliance, article or facility;

(iv) inspect and copy any record relevant to the project, the Remediation Works or the Contractor's Activities the subject of the Contract; and

(v) interview any person,



93

as is necessary to demonstrate compliance with the Building Code 2013.

(b) The Contractor must:

(i) produce; and

(ii) ensure its Related Entities, its subcontractors and Consultants produce,

any document requested by the Commonwealth or any person authorised by the Commonwealth (including an Inspector) within the specified period, in person, by fax or by post.

18.6 Project Agreements

The Contractor acknowledges and agrees that:

(a) it will not (nor will it seek to) enter or take any steps towards entering any project agreements, nor will any such project agreements apply in relation to, the whole or any part of the Remediation Works or the Contractor's Activities;

(b) the bargaining for and making of unregistered written agreements is not permitted unless the agreement falls within one of the exemptions specified in section 10(3) of the Building Code 2013;

(c) the Commonwealth will not be requested or required to approve the negotiation or the application of any project agreement or unregistered written agreements; and

(d) it will not (nor will it seek to) have any subcontractor or Consultant comply with, or apply the terms of any project agreements entered into by the Contractor that are inconsistent with the Building Code 2013 or unregistered written agreements entered into by the Contractor unless the unregistered written agreement falls within one of the exceptions specified in section 10(3) of the Building Code 2013.



94


19.1 General

The Contractor acknowledges that the Commonwealth is and will be subject to a number of Commonwealth requirements and policies which support internal and external scrutiny of its tendering and contracting processes and the objectives of transparency, accountability and value-for-money including requirements to:

(a) publish details of agency agreements, Commonwealth contracts, amendments and variations to any agreement or contract and standing offers with an estimated value of $10,000 or more on AusTender (the Commonwealth's business opportunity website located at www.tenders.gov.au);

(b) report and post on the internet a list of contracts valued at $100,000 or more and identify confidentiality requirements in accordance with the Senate Order on Department and Agency Contracts; and

(c) report and post on the internet information about its contracts in other ways pursuant to its other reporting and disclosure obligations, including annual reporting requirements and disclosure to any House or Committee of the Parliament of the Commonwealth of Australia.


Clause 8.5 of the Deed applies in relation to Commercial-in-Confidence information that is provided or produced by any person in connection with this Contract.



95

CONTRACT PARTICULARS


Accredited Environmental Site Auditor (Clause 1.1)

.........................................................................................


.........................................................................................


.........................................................................................


.........................................................................................


.............................................................................................

Contract Price: (Clauses 1.1, 12.21, and 16.2(b))




Contractor's Representative: (Clause 1.1) .............................................................................................


.........................................................................................


Stage Date for Completion

.............................................. ..............................................

.............................................. ..............................................


.............................................. ..............................................

Environmental Consultant (Clause 1.1)

.............................................................................................

Environmental Requirements (additional): (Clause 1.1)

.........................................................................................



96



Contractor: ....................................................................


............................................

..........................................


.............................................................................................



[INSERT BRIEF DESCRIPTION OF REMEDIATION WORKS]







6. Payment Claim




.........................................................................................

Site: (Clause 1.1)

.........................................................................................

Site Information (Clause 1.1)

.........................................................................................


Security procedures



Safety procedures






97



Approval procedures






.........................................................................................


.........................................................................................


.........................................................................................


.........................................................................................


.........................................................................................


[LIST DOCUMENTS DESCRIBING THE REMEDIATION WORKS]

1. ……………………………

2. ……………………………

3. ……………………………

4. ……………………………

5. ……………………………

.........................................................................................




(b) the arrangements in place, or to be implemented, between any persons conducting a business or undertaking at the workplace where the Contractor's Activities are being undertaken, for



98

consultation, cooperation and coordination of activities in relation to compliance with their duties under the WHS Legislation;




(f) ensuring that work health and safety is a compulsory agenda item at all meetings in accordance with clause 3.12 of the Conditions of Contract and ensuring that the outcomes of those agenda items are communicated to the Contract Administrator.


3. Management of work health and safety generally, including any work health and safety policy, details of any work health and safety management system (including certification, inspection and audit programs), training and induction programs (including work health and safety generally, emergency procedures and use of emergency equipment), the process of communication, information-



99

sharing and provision of assurances to the Contract Administrator under clause 8.13 of the Conditions of Contract, and dispute resolution on work health and safety matters.




(a) fall hazards;


(c) demolition;




(g) excavation deeper than 1.5 metres;

(h) tunnels;









100

(o) roadways or railways used by road or rail traffic;




(s) diving;








CLAUSE 2 - COMMENCEMENT


.........................................................................................


.........................................................................................

CLAUSE 3 - PERSONNEL


............................................ ............................................


............................................ ............................................

Person Position

............................................ ............................................


............................................ ............................................

CLAUSE 4 - SECURITY




This Contract is not subject to the condition that would otherwise be implied by section 67K(2) of the



101

Queensland Building Services Authority Act 1991 (Qld). Section 67K(2) implies a condition into building contracts that the total value of security is not to be more than 5% of the Contract Price of the Contract, unless the Contract expressly provides otherwise. Under this Contract, the parties agree that the amount of the security provided by the Contractor is governed by clause 4.















[FOR WHICHEVER OF ERRORS AND OMISSIONS INSURANCE AND PROFESSIONAL INDEMNITY INSURANCE DOES NOT APPLY, INSERT "N/A" AFTER THE $ REFERENCE]



………………………………………………………….





Amount of Cover: $……. per claim and $…… in the



102

aggregate, all claims during the period of insurance.

[FOR WHICHEVER OF ERRORS AND OMISSIONS INSURANCE AND PROFESSIONAL INDEMNITY INSURANCE DOES NOT APPLY, INSERT "N/A" AFTER THE $ REFERENCE]



Otherwise: 7 years.


Contractor to prepare Remediation Design Documentation

(Clause 7.2(a)(i))

[YES/NO]

Documents and number of copies to be provided by the Commonwealth to the Contractor: (Clause 7.1)

Document Copies

Number of copies of Design Documentation to be submitted by the Contractor to the Contract Administrator: (Clause 7.5)

............................................

Design Documentation hard copy requirements: (Clause 7.5(a))


To scale


Design Documentation electronic copy requirements: (Clause 7.5(b))




........................................



........................................

Number of days for submission of Project Plans: (Clause 7.7(a)(ii))

Other: [SPECIFY] ........................................

CLAUSE 8 - EXECUTION OF REMEDIATION ACTIVITIES


.........................................................................................

Statutory Requirements with which the Contractor does not need to comply:

.........................................................................................



103

(Clause 8.3(a))

Work or Goods Subcontractors

............................................ ............................................

Remediation Work which requires approval to subcontract or which must be let to one of the named subcontractors: (Clause 8.5(a))

............................................ ............................................


.........................................................................................


.........................................................................................



.........................................................................................

Plant, Equipment and Work which must not be removed from the Site without the Contract Administrator's consent

(Clause 8.14)


.........................................................................................


.........................................................................................


.........................................................................................

Project signboard dimensions: (Clause 8.23(a)(i))

.........................................................................................


.........................................................................................



Other: [SPECIFY] ........................................


.........................................................................................



104

CLAUSE 10 - TIME


.........................................................................................

Program format to be compatible with: (Clause 10.2(e))

[PRIMAVERA SURETRAK/MICROSOFT PROJECT] or approved equivalent

Additional causes of delay entitling Contractor to claim an extension of time: (Clauses 10.5(a) and 10.7(c))

1. State-wide industrial disputation or other industrial disputation caused by the Commonwealth, which in neither case is caused or contributed to by the Contractor or any subcontractor of the Contractor

2. A change in a Statutory Requirement or in the requirements of local or other authorities after the Award Date

3. Commonwealth Risks

4. Unidentified Site Conditions which have been determined by the Contract Administrator to have been encountered under clause 11.1.

Clause 10.11 [DOES/DOES NOT] apply. (Clause 10.11 applies unless otherwise stated)


Where there are no Stages, the agreed damages for the Works are:

$.........................per working day









.....................% (5% unless otherwise stated)



Monthly on the ……………… day of each month

[OR]


.........................................................................................



105



1. Queensland or New South Wales: 5; or



1. In the case of damages - the Australian Taxation Office-sourced General Interest Charge Rate current at the due date for payment or such other rate nominated in writing from time to time by the Contract Administrator; or




Option for payment of workers and subcontractors: (Clause 12.16)

[OPTION 1/ OPTION 2] applies.

(Option 1 applies unless otherwise stated)

Limits of accuracy for quantities in Schedule of Rates

(Clause 12.19(c))

Upper Limit:

(115% unless otherwise stated)

Lower Limit:

(85% unless otherwise stated)






2. any other State or Territory, the Chair of the Institute of Arbitrators and Mediators Australia of the Chapter in that State or Territory.


.........................................................................................

CLAUSE 13 – COMPLETION

Liquidated damages payable by Contractor If there are no Stages, for the Remediation Works is:



106

$............... per day.



……………………......... $................... per day

when Date of Remediation Completion occurs after Date for Remediation Completion: (Clause 13.7)

……………………......... $................... per day

CLAUSE 14 - TERMINATION


.........................................................................................

CLAUSE 15 - DISPUTES

Directions to be subject of an expert determination if disputed: (Clause 15.2)

Directions under clauses: 2.3(b), 8.4(e), 8.18, 9.4, 9.8(b)(i), 9.10, 10.8, 10.9, 10.12(b)(ii)A.1), 11.5(a), 11.5(c)(ii), 11.3(d), , 12.4, 13.2(b)(ii), 14.8(a), 17.3(e)


.........................................................................................

Nominating authority for industry expert: (Clause 15.3(a)(ii)) .........................................................................................

(The President for the time being of the Institute of Arbitrators and Mediators Australia unless otherwise stated)

CLAUSE 16 - NOTICES

Commonwealth: ........................................................

......................................................................................

......................................................................................


......................................................................................

......................................................................................


Contractor: ................................................................

......................................................................................

...............................................................................................

CLAUSE 17 - GENERAL


Clause 17.2 [DOES/DOES NOT] apply. (Clause 17.2 does not apply unless otherwise stated)





107



Clause 19.2 [DOES/DOES NOT] apply. (Clause 19.2 does not apply unless otherwise stated)




........................... .......................... ........................



108

ANNEXURE 1 - FUNCTIONS

PART A - ENVIRONMENTAL CONSULTANT FUNCTIONS

The functions of the Environmental Consultant are to:

1. inspect the Remediation Works;

2. collect samples from the Site, and analyse those samples;

3. construct, maintain and access groundwater monitoring wells;

4. oversee the Remediation Works, having regard to the Technical Specification, Remediation Design Documentation and such other matters as the Environmental Consultant considers relevant;

5. provide such advice to the Contract Administrator as the Contract Administrator requires, or which the Environmental Consultant considers necessary,

6. produce the Remediation Validation Report which confirms whether the Specified Site Use Objective has been achieved in relation to the Site; and

7. perform such other tasks as specified in the Technical Specification as being the responsibility of the Environmental Consultant.

PART B - TECHNICAL ADVISOR'S FUNCTIONS

The functions of the Technical Advisor are to:

1. undertake a review of:


(b) Project Plans;

(c) Remediation Design Documentation;

(d) Site Information; and

(e) the Remediation Validation Report;

2. inspect the Site, the Contractor's Activities and the Remediation Works from time to time;

3. provide such advice to the Contract Administrator and/or the Environmental Consultant as they may require, or which the Technical Advisor considers necessary;

4. provide the Technical Advisor's Certification stating whether or not the Technical Advisor considers that the Specified Site Use Objective has been achieved in relation to the Site; and

5. perform such other tasks as specified in the Technical Specification as being the responsibility of the Technical Advisor.

PART C - ACCREDITED ENVIRONMENTAL SITE AUDITOR'S FUNCTIONS

The functions of the Accredited Environmental Site Auditor are to:



(b) Project Plans;




109


(e) the Remediation Validation Report;


3. provide the Site Audit Statement in relation to the Site; and

4. perform such other tasks as specified in the Technical Specification as being the responsibility of the Accredited Environmental Site Auditor.


ATTACHMENT P

TOXIC REMNANTS OF WAR REMEDIATION CONTRACT TERMS


i

Table of Contents

1. GLOSSARY OF TERMS, INTERPRETATION AND MISCELLANEOUS ..................................5

1.1 Glossary of Terms...................................................................................................................................... 5 1.2 Interpretation............................................................................................................................................ 21 1.3 Miscellaneous .......................................................................................................................................... 22

2. COMMENCEMENT....................................................................................................................24

2.1 Contractor's Obligations........................................................................................................................... 24 2.2 Commonwealth's Obligations .................................................................................................................. 24 2.3 Delayed Access........................................................................................................................................ 24

3. PERSONNEL.............................................................................................................................25

3.1 Contract Administrator ............................................................................................................................ 25 3.2 Replacement of Contract Administrator .................................................................................................. 25 3.3 Parties' Conduct ....................................................................................................................................... 25 3.4 Contract Administrator's Representative.................................................................................................. 25 3.5 Contractor's Representative ..................................................................................................................... 25 3.6 Key People............................................................................................................................................... 25 3.7 Removal of Persons ................................................................................................................................. 26 3.8 Environmental Consultant........................................................................................................................ 26 3.9 Accredited Environmental Site Auditor................................................................................................... 27 3.10 Technical Advisor.................................................................................................................................... 29 3.11 Toxic Agent Specialist and Toxic Agents................................................................................................ 30 3.12 Industrial Relations .................................................................................................................................. 31 3.13 Project Review......................................................................................................................................... 31

4. SECURITY .................................................................................................................................33

4.1 Form......................................................................................................................................................... 33 4.2 Release ..................................................................................................................................................... 33 4.3 Interest ..................................................................................................................................................... 33 4.4 Related Company Guarantee ................................................................................................................... 33

5. RISKS AND INSURANCE.........................................................................................................35

5.1 Risk of Remediation Works..................................................................................................................... 35 5.2 Other Risks .............................................................................................................................................. 35 5.3 Reinstatement........................................................................................................................................... 35 5.4 Contractor Insurance Obligations ............................................................................................................ 36 5.5 Failure to Insure ....................................................................................................................................... 37 5.6 Period of Insurance .................................................................................................................................. 37 5.7 Notice of Potential Claim......................................................................................................................... 38 5.8 Procedure upon Loss or Damage ............................................................................................................. 38 5.9 Cross Liability.......................................................................................................................................... 38 5.10 Liability for Toxic Agents........................................................................................................................ 38

6. SITE ACCESS AND CONDITIONS...........................................................................................40

6.1 Contractor to Inform Itself ....................................................................................................................... 40 6.2 Site Information ....................................................................................................................................... 40 6.3 Site Access............................................................................................................................................... 40 6.4 Contractor's Obligation to Provide Access .............................................................................................. 40 6.5 Non-Reliance ........................................................................................................................................... 41 6.6 Unexploded Ordnance ............................................................................................................................. 41 6.7 Unidentified Toxic Agents and Other Materials ...................................................................................... 42

7. PLANS AND DOCUMENTATION .............................................................................................44

7.1 Commonwealth's Documents................................................................................................................... 44 7.2 Contractor's Design.................................................................................................................................. 44 7.3 Contract Administrator may review Remediation Design Documentation.............................................. 44 7.4 No Obligation to Review ......................................................................................................................... 44 7.5 Copies of Remediation Design Documentation ....................................................................................... 45


ii

7.6 Fitness for purpose................................................................................................................................... 45 7.7 Project Plans ............................................................................................................................................ 45 7.8 Availability .............................................................................................................................................. 47 7.9 Licence over Project Documents ............................................................................................................. 47 7.10 Intellectual Property Warranties .............................................................................................................. 47 7.11 Intellectual Property Rights ..................................................................................................................... 48 7.12 Resolution of Ambiguities ....................................................................................................................... 48 7.13 Access to Premises and Project Documents............................................................................................. 48 7.14 DCAP....................................................................................................................................................... 49

8. EXECUTION OF REMEDIATION WORKS...............................................................................50

8.1 Description of Remediation Works.......................................................................................................... 50 8.2 All Remediation Work Included .............................................................................................................. 50 8.3 Statutory Requirements............................................................................................................................ 50 8.4 Change in Statutory Requirements or Variance with Contract ................................................................ 51 8.5 Subcontracting ......................................................................................................................................... 51 8.6 Subcontractor Warranties......................................................................................................................... 52 8.7 Co-operation with Other Contractors....................................................................................................... 52 8.8 Novation................................................................................................................................................... 53 8.9 Setting Out ............................................................................................................................................... 53 8.10 Survey ...................................................................................................................................................... 53 8.11 Measurements and Dimensions ............................................................................................................... 54 8.12 Safety ....................................................................................................................................................... 54 8.13 Work Health and Safety Management ..................................................................................................... 54 8.14 Plant, Equipment and Work ..................................................................................................................... 55 8.15 Cleaning Up ............................................................................................................................................. 56 8.16 The Environment ..................................................................................................................................... 56 8.17 Urgent Protection..................................................................................................................................... 56 8.18 Valuable Objects Found on Site............................................................................................................... 56 8.19 The Commonwealth May Act.................................................................................................................. 57 8.20 Access Hours ........................................................................................................................................... 57 8.21 Salvaged Materials................................................................................................................................... 57 8.22 Contract Administrator's Office ............................................................................................................... 57 8.23 Project Signboards ................................................................................................................................... 57 8.24 Chemical Weapons Convention, OPCW and ASNO............................................................................... 58

9. QUALITY OF REMEDIATION WORKS ....................................................................................59

9.1 Remediation Works ................................................................................................................................. 59 9.2 Contract Administrator's Right to Inspect................................................................................................ 59 9.3 Sampling and Analysis ............................................................................................................................ 59 9.4 Costs of Sampling and Analysis .............................................................................................................. 60 9.5 Remediation Defects................................................................................................................................ 60 9.6 Correction of Remediation Defect or Remediation Works Variation ...................................................... 60 9.7 Claim for Correction of Remediation Defect........................................................................................... 60 9.8 Claim for Remediation Works Variation ................................................................................................. 60 9.9 Acceptance of Remediation Work ........................................................................................................... 61 9.10 Extension of Remediation Defects Rectification Period.......................................................................... 61 9.11 Common Law Rights not Affected .......................................................................................................... 61

10. TIME FOR CONTRACTOR'S ACTIVITIES AND REMEDIATION WORKS.............................62

10.1 Progress and Time for Remediation Completion..................................................................................... 62 10.2 Programming ........................................................................................................................................... 62 10.3 Contractor Not Relieved .......................................................................................................................... 62 10.4 Acceleration by Contractor ...................................................................................................................... 62 10.5 Delays Entitling Claim............................................................................................................................. 62 10.6 Claim........................................................................................................................................................ 63 10.7 Conditions Precedent to Extension .......................................................................................................... 63 10.8 Extension of Time.................................................................................................................................... 64 10.9 Reduction in Extension of Time .............................................................................................................. 64 10.10 Unilateral Extensions ............................................................................................................................... 64 10.11 Agreed Damages...................................................................................................................................... 64


iii

10.12 Suspension ............................................................................................................................................... 64 10.13 Instruction to Accelerate .......................................................................................................................... 65 10.14 Partial Acceleration.................................................................................................................................. 65 10.15 Acceleration ............................................................................................................................................. 65 10.16 Commonwealth's Rights to Liquidated Damages Not Affected............................................................... 66

11. VARIATION TO REMEDIATION WORKS ................................................................................67

11.1 Notice of Unidentified Site Conditions.................................................................................................... 67 11.2 Contractor's Entitlement for Unidentified Site Conditions ...................................................................... 67 11.3 Remediation Works Variation Price Request Initiated by Commonwealth ............................................. 67 11.4 Remediation Works Variation Order ....................................................................................................... 67 11.5 Cost of Remediation Works Variation..................................................................................................... 68 11.6 Omissions................................................................................................................................................. 68 11.7 Remediation Works Variations Requested by Contractor ....................................................................... 68 11.8 Contract Administrator's Determination .................................................................................................. 68 11.9 Remediation Works Variation Approved by Contract Administrator...................................................... 69 11.10 Unidentified Site Conditions, Toxic Agent Specialist Directions and Contract Price ............................. 69

12. PAYMENT FOR REMEDIATION WORKS................................................................................70

12.1 Payment Obligation ................................................................................................................................. 70 12.2 Payment Claims ....................................................................................................................................... 70 12.3 Conditions Precedent ............................................................................................................................... 70 12.4 Payment Statements ................................................................................................................................. 72 12.5 Payment ................................................................................................................................................... 72 12.6 Payment on Account ................................................................................................................................ 72 12.7 Unfixed Goods and Materials .................................................................................................................. 73 12.8 Release of Additional Approved Security................................................................................................ 73 12.9 Remediation Completion Payment Claim and Notice ............................................................................. 73 12.10 Release after Completion Payment Claim and Notice ............................................................................. 73 12.11 Final Payment Claim and Notice ............................................................................................................. 74 12.12 Release after Final Payment Claim and Notice........................................................................................ 74 12.13 Interest ..................................................................................................................................................... 74 12.14 Correction of Payment Statements........................................................................................................... 75 12.15 Right of Set-Off ....................................................................................................................................... 75 12.16 Payment of Workers and Subcontractors ................................................................................................. 75 12.17 GST.......................................................................................................................................................... 75 12.18 Quantities in Schedule of Rates ............................................................................................................... 76 12.19 Limits of Accuracy .................................................................................................................................. 77 12.20 Security of Payment Legislation .............................................................................................................. 77 12.21 Accounting Records................................................................................................................................. 78 12.22 Cost Allocation Advice............................................................................................................................ 78 12.23 Remediation Works Accounting.............................................................................................................. 78 12.24 DEMS and NSIMS .................................................................................................................................. 79

13. COMPLETION OF REMEDIATION WORKS............................................................................80

13.1 Contractor to Notify of Remediation Completion.................................................................................... 80 13.2 Contract Administrator to Inspect............................................................................................................ 80 13.3 Unilateral Issue of Remediation Completion Notice ............................................................................... 80 13.4 Hand-Over of Site Upon Completion ...................................................................................................... 80 13.5 Part of the Works or a Stage .................................................................................................................... 80 13.6 Effect of Remediation Completion Notice............................................................................................... 81 13.7 Liquidated Damages ................................................................................................................................ 81

14. TERMINATION ..........................................................................................................................82

14.1 Preservation of Rights.............................................................................................................................. 82 14.2 Contractor Default ................................................................................................................................... 82 14.3 Contents of Notice of Default .................................................................................................................. 82 14.4 Termination for Insolvency or Breach ..................................................................................................... 82 14.5 Commonwealth's Entitlements after Termination.................................................................................... 82 14.6 Contractor's Entitlements after Termination ............................................................................................ 83 14.7 Termination for Convenience .................................................................................................................. 83


iv

14.8 Costs ........................................................................................................................................................ 83

15. DISPUTES .................................................................................................................................85

15.1 Notice of Dispute ..................................................................................................................................... 85 15.2 Expert Determination............................................................................................................................... 85 15.3 The Expert................................................................................................................................................ 85 15.4 Not Arbitration......................................................................................................................................... 85 15.5 Procedure for Determination.................................................................................................................... 85 15.6 Disclosure of Interest ............................................................................................................................... 86 15.7 Costs ........................................................................................................................................................ 86 15.8 Conclusion of Expert Determination ....................................................................................................... 86 15.9 Agreement with Expert ............................................................................................................................ 86 15.10 Determination of Expert .......................................................................................................................... 86 15.11 Executive Negotiation.............................................................................................................................. 87 15.12 Arbitration Agreement ............................................................................................................................. 87 15.13 Arbitration................................................................................................................................................ 87 15.14 Proportional Liability............................................................................................................................... 88 15.15 Continuation of Contractor's Activities.................................................................................................... 88

16. NOTICES ...................................................................................................................................89

16.1 Notice of Remediation Works Variation.................................................................................................. 89 16.2 Notices of Other Claims........................................................................................................................... 89 16.3 Prescribed Notices ................................................................................................................................... 89 16.4 Continuing Events.................................................................................................................................... 90 16.5 Time Bar .................................................................................................................................................. 90 16.6 Other Provisions Unaffected.................................................................................................................... 90 16.7 Address for Service.................................................................................................................................. 90 16.8 Receipt of Notices.................................................................................................................................... 90

17. GENERAL..................................................................................................................................91

17.1 Workplace Gender Equality..................................................................................................................... 91 17.2 Indigenous Opportunities......................................................................................................................... 91 17.3 Safe Base Alert State System................................................................................................................... 91 17.4 Protection of Personal Information .......................................................................................................... 92 17.5 Freedom of Information........................................................................................................................... 94 17.6 Long Service Leave ................................................................................................................................. 94 17.7 Assignment .............................................................................................................................................. 95 17.8 Publicity ................................................................................................................................................... 95 17.9 Classified Information ............................................................................................................................. 95

18. BUILDING CODE 2013 .............................................................................................................97

18.1 General..................................................................................................................................................... 97 18.2 Responsibility not Affected ..................................................................................................................... 97 18.3 Notice of Effect on Compliance with Building Code 2013 ..................................................................... 97 18.4 Records .................................................................................................................................................... 97 18.5 Access and Documents ............................................................................................................................ 97 18.6 Project Agreements.................................................................................................................................. 98

19. COMMERCIAL-IN-CONFIDENCE INFORMATION..................................................................99

19.1 General..................................................................................................................................................... 99 19.2 Commercial-in-Confidence Information.................................................................................................. 99

20. FAIR WORK PRINCIPLES......................................................................................................100

20.1 General................................................................................................................................................... 100 20.2 Responsibility not Affected ................................................................................................................... 100

ANNEXURE 1 - FUNCTIONS ...................................................................................................................102


5

1. GLOSSARY OF TERMS, INTERPRETATION AND MISCELLANEOUS

1.1 Glossary of Terms

Unless the context otherwise indicates, whenever used in this Contract, each word or phrase in the headings in this clause 1.1 has the meaning given to it under the relevant heading.

Accredited Environmental Site Auditor

The person (if any) named in the Contract Particulars, being a person who is an accredited environmental site auditor (contaminated land) (or equivalent) under:

(a) (Australian Capital Territory) section 75 Environment Protection Act 1997 (ACT);

(b) (New South Wales) Part 4 of the Contaminated Land Management Act 1997 (NSW);

(c) (Northern Territory) section 67-69 of the Waste Management and Pollution Control Act 1998 (NT);

(d) (Queensland) section 381 of the Environmental Protection Act 1994 (Qld), being an organisation listed under Schedule 8 of the Environmental Protection Regulation 2008 (Qld);

(e) (South Australia) section 103V of the Environment Protection Act 1993 (SA);

(f) (Victoria) section 53S of the Environment Protection Act 1970 (Vic); or

(g) (Western Australia) Division 1, Part 7 Contaminated Sites Act 2003 (WA).

Accredited Environmental Site Auditor's Functions

The roles and functions of the Accredited Environmental Site Auditor, as outlined in Annexure 1, Part C.

Act of Prevention

Any one of:

(a) a breach of the Contract by the Commonwealth;

(b) any other act or omission of the Commonwealth, the Contract Administrator or an Other Contractor engaged by the Commonwealth; or

(c) a Remediation Works Variation the subject of a direction by the Contract Administrator, except where the Remediation Works Variation is instructed in the circumstances described in clause 9.8(b).

Approval

Any licence, permit, consent, approval, determination, certificate, notice or other requirement of any Commonwealth, State, Territory or local authority, body or other organisation having any jurisdiction in connection with the Site, the Remediation Works or the Contractor's Activities or under any other applicable Statutory Requirement, which must be obtained or satisfied to:

(a) carry out the Contractor's Activities; or

(b) certify or verify that the Remediation Works, or a completed Stage, have achieved Remediation Completion,

including the recommendation of the Public Works Committee, to the extent to which such recommendation is required.

Approved Security

An unconditional undertaking (duly stamped) in the form set out in the Schedule of Collateral Documents and otherwise on terms, and given by a financial institution, approved by the Commonwealth.


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ARPANSA Requirements

Means the requirements contained in the Australian Radiation Protection and Nuclear Safety Act 1998 (Cth).

ASNO

The Australian Safeguards and Non-Proliferation Office.

Award Date

Is the date of the Contract Award Date as determined in accordance with clause 1.8.9 of the Deed.

Building Code 2013

Building Code 2013 in force pursuant to the Fair Work (Building Industry) Act 2012 (Cth).

Change of Control

In relation to the Contractor, where a person who did not (directly or indirectly) effectively Control the Contractor at the Award Date, either alone or together with others, acquires Control of the Contractor.

Chemical Weapons Convention

Means the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, as varied or amended from time to time.

Claim

Includes any claim for an increase in the Contract Price, for payment of money (including damages) or for an extension of time:

(a) under, arising out of, or in any way in connection with, the Contract, including any direction of the Contract Administrator;

(b) arising out of, or in any way in connection with, the Contractor's Activities, the Remediation Works or either party's conduct before the Contract; or

(c) otherwise at law or in equity including:

(i) by statute;

(ii) in tort for negligence or otherwise, including negligent misrepresentation; or

(iii) for restitution.

Code Monitoring Group

Has the meaning in the Building Code 2013 and the Building Code 2013 - Supporting Guidelines for Commonwealth Funding Entities.

Collateral Warranty

A warranty in the form set out in the Schedule of Collateral Documents.

Commonwealth

Commonwealth of Australia.

Commonwealth Procurement Rules

The Commonwealth Procurement Rules issued under Regulation 7 of the Financial Management and Accountability Regulations 1997 (Cth).


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Commonwealth Risks

Any one of:

(a) war, invasion, act of foreign enemies, hostilities (whether war is declared or not), civil war, rebellion, revolution, insurrection or military or usurped powers, martial law or confiscation by order of any government or public authority;

(b) the use or threat of unlawful violence against persons or property which does not arise out of any individual relationship between the perpetrator and the victim, or for purposes of robbery, but which is directed at victims as members of a class, race, organisation, nationality, religious or ethnic group, or which is intended to intimidate, coerce or inflict revenge upon any civilian population, government, institution or corporation; and

(c) ionising radiations or contamination by radioactivity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel not caused by the Contractor or any subcontractor or any of their employees or agents.

Communications Plan

The communications plan prepared by the Contractor and finalised under clause 7.7, which must set out in adequate detail the practices and procedures the Contractor will implement in communicating any matters arising under this Contract, including:




A policy of insurance covering the respective rights, interests and liabilities of the Commonwealth, the Contractor and all subcontractors arising out of or in connection with the works in progress and insuring at a minimum all the things referred to in clause 5.1 for which the Contractor bears the risk of loss or damage resulting from any insurable event.

Consultant

A consultant engaged in building work as defined in the Fair Work (Building Industry) Act 2012 (Cth).

Contamination

The presence in, on or under land, air or water of a substance (whether a solid, liquid, gas, odour, heat, sound, vibration or radiation) at a concentration above the concentration at which the substance is normally present in, on or under land, air or water in the same locality, that presents a risk of Environmental Harm, including harm to human health or any other aspect of the Environment, or could otherwise give rise to a risk of non-compliance with any Statutory Requirement for the protection of the Environment.

Contract

The contractual relationship between the parties constituted in accordance with clause 1.8 of the Deed.

Contract Administrator

The person nominated in the Contract Particulars or any other person nominated by the Commonwealth from time to time under clause 3.2 to replace that person.

The Contract Administrator is taken to be the Commonwealth Contract Representative for the purposes of the Deed.

Contract Administrator's Office

The office provided by the Contractor pursuant to clause 8.22.


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Contractor


Contractor's Activities

All things or tasks which the Contractor is, or may be, required to do to comply with its Contract obligations.

Contractor's Representative

The person named in the Contract Particulars or any other person from time to time appointed as Contractor's Representative in accordance with clause 3.6.

The Contractor’s Representative is taken to be the Contractor Contract Representative for the purposes of the Deed.

Contract Particulars

The particulars annexed to the Official Order and entitled "Contract Particulars".

Contract Price

The amount specified in the Contract Particulars as adjusted, subject to clause 16.5, under the Contract.

Control

Includes:

(a) the ability to exercise or control the exercise of the right to vote in respect of more than 50% of the voting shares or other form of voting equity in a corporation;

(b) the ability to dispose or exercise control over the disposal of more than 50% of the shares or other form of equity in a corporation;

(c) the ability to appoint or remove all or a majority of the directors of a corporation;

(d) the ability to exercise or control the exercise of the casting of a majority of the votes cast at the meetings of the board of directors of a corporation; and

(e) any other means, direct or indirect, of dominating the decision making and financial and operating policies of a corporation.

Date for Remediation Completion

In respect of the Remediation Works or a Stage, the date, or period of time, specified in the Contract Particulars, as adjusted under the Contract.

Date of Remediation Completion

The date of Remediation Completion set out in a Remediation Completion Notice.

Deed

The Deed of Standing Offer for Defence Environment and Heritage Panel.

Defence

Department of Defence.

Defence Environmental Management System

The environmental management system applicable to the Site (if any) available from the Commonwealth's regional environmental officer.

Defence Environmental Plan


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The environmental plan applicable to the Site (if any) available from the Commonwealth's regional environmental officer.

Defence Environmental Requirements

The Defence Environmental Management System and Defence Environmental Plan which relate to the Site, the Remediation Works or the Contractor's Activities and includes any procedures, instructions, requirements and standing orders which have been developed or issued under the Defence Environmental Management System or Defence Environmental Plan (as the case may be).

Defence Requirements

Includes all policies, plans, manuals, guidelines, instructions (including departmental procurement policy instructions) and other Commonwealth or Defence requirements which are, or may become, applicable to the Site, the Remediation Works or the Contractor's Activities. To the extent that any of the requirements would require or suggest the insertion of provisions into this Contract, then:

(a) those provisions will be incorporated by reference into this Contract; and

(b) any ambiguity, discrepancy or inconsistency arising out of the incorporation by reference will be resolved by the Contract Administrator in accordance with clause 7.12.

direction

Any agreement, approval, authorisation, certificate, consent, decision, demand, determination, direction, explanation, failure to consent, instruction, notice, notification, order, permission, rejection, request or requirement.

Employees Liability Insurance

A policy of insurance covering the liability of the Contractor towards its employees at common law, for injuries arising out of or in the course of their employment, whether as an extension under Workers Compensation Insurance or otherwise.

Environment

Includes:

(a) ecosystems and their constituent parts, including people and communities;

(b) natural and physical resources;

(c) the qualities and characteristics of locations, places and areas; and

(d) the social, economic, aesthetic and cultural aspects of a thing mentioned in paragraphs (a), (b) or (c).


The Environmental Clearance Certificate issued by the Commonwealth relating to the Remediation Works or the Contractor's Activities and any conditions incorporated in that certificate.


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Environmental Consultant


Environmental Consultant's Functions

The roles and functions of the Environmental Consultant, as outlined in Annexure 1, Part A.

Environmental Consultant's Representative

The person appointed by the Environmental Consultant under clause 3.8(c).

Environmental Harm

Any actual or threatened adverse impact on, or damage to, the Environment.

Environmental Incident

Any Environmental Harm or Contamination caused by, in relation to or as a consequence of the Contractor's Activities.

Environmental Management Plan

The environmental management plan prepared by the Contractor and finalised under clause 7.7, which must set out in adequate detail the procedures the Contractor will implement to manage the Contractor's Activities from an environmental perspective and describe how the Contractor proposes to ensure the Contractor's Activities will be performed consistently with:

(a) the Environmental Requirements;

(b) the Statutory Requirements;

(c) any requirements of the Toxic Agent Specialist (as notified by the Contract Administrator to the Contractor from time to time); and

(d) the Environmental Objectives.

Environmental Objectives

The Environmental Objectives are to:

(a) encourage best practice environmental management through planning, commitment and continuous improvement;

(b) prevent and minimise adverse impacts on the Environment;

(c) identify the potential for, and respond to, Environmental Incidents, accidents and emergency situations and take corrective action;

(d) identify and control possible environmental hazards associated with the Remediation Works and the Contractor's Activities;

(e) establish procedures to ensure that no hazardous substance is stored on Commonwealth land without approval;

(f) recognise and protect any special environmental characteristics of the Site (including cultural heritage significance);

(g) define roles and responsibilities for personnel;

(h) ensure environmental training and awareness programmes are provided to employees and subcontractors;

(i) ensure subcontractors implement the Environmental Management Plan;


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(j) define how the management of the Environment during the Contractor's Activities is reported and performance evaluated;

(k) describe all monitoring procedures required to identify impacts on the Environment as a result of the Remediation Works and the Contractor's Activities;

(l) implement complaint reporting procedures and maintain records of complaints and response to complaints;

(m) ensure the protection of all persons on the Site and the public from exposure to hazardous substances, including Toxic Agents and Other Materials;

(n) establish and maintain procedures and arrangements for carefully managing the risks associated with Unexploded Ordnances, Toxic Agents and Other Materials; and

(o) establish and maintain programs and procedures for periodic Environmental Management Plan audits to be carried out.

Environmental Requirements

Includes:

(a) the Environmental Clearance Certificate;

(b) the Defence Environmental Requirements; and

(c) any other matter or requirement specified in the Contract Particulars.


A policy of insurance to cover civil liabilities (not covered under Public Liability Insurance, products liability or umbrella liability insurance) whether arising in tort, contract or under statute, incurred by the Contractor or its subcontractors other than in a professional capacity or the capacity of a corporate director or officer, in carrying out the Contractor's Activities.

Executive Negotiators

The representatives of the parties nominated in the Contract Particulars or any person nominated by the relevant party to replace that person from time to time by notice in writing to the other party.

Fair Work Principles

The Fair Work Principles and User Guide available at www.deewr.gov.au/fairworkprinciples.

Insolvency Event

Any one of the following:

(a) the Contractor becomes, is declared to be, is taken under any applicable law (including the Corporations Act 2001 (Cth)) to be, admits to or informs the Commonwealth in writing or its creditors generally that the Contractor is insolvent, an insolvent under administration, bankrupt, unable to pay its debts or is unable to proceed with the Contract for financial reasons;

(b) execution is levied against the Contractor by a creditor;

(c) a garnishee order, mareva injunction or similar order, attachment, distress or other process is made, levied or issued against or in relation to any asset of the Contractor;

(d) where the Contractor is an individual person or a partnership including an individual person, the Contractor:

(i) commits an act of bankruptcy;

(ii) has a bankruptcy petition presented against him or her or presents his or her own petition;


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(iii) is made bankrupt; or

(iv) applies for, agrees to, enters into, calls a meeting for the consideration of, executes or is the subject of an order or declaration in respect of:

A. a moratorium of any debts; or

B. a personal insolvency agreement or any other assignment, composition or arrangement (formal or informal) with creditors,

by which his or her assets are subjected conditionally or unconditionally to the control of a creditor or trustee;

(e) where the Contractor is a corporation, any one of the following:

(i) notice is given of a meeting of creditors with a view to the corporation entering into a deed of company arrangement;

(ii) a liquidator or provisional liquidator is appointed in respect of a corporation;

(iii) the corporation entering a deed of company arrangement with creditors;

(iv) a controller (as defined in section 9 of the Corporations Act 2001 (Cth)), administrator, receiver, receiver and manager, provisional liquidator or liquidator is appointed to the corporation;

(v) an application is made to a court for the winding up of the corporation and not stayed within 14 days;

(vi) any application (not withdrawn or dismissed within 7 days) is made to a court for an order, an order is made, a meeting is convened or a resolution is passed, for the purpose of proposing or implementing a scheme of arrangement other than with the prior approval of the Commonwealth under a solvent scheme of arrangement pursuant to Part 5.1 of the Corporations Act 2001 (Cth);

(vii) a winding up order or deregistration order is made in respect of the corporation;

(viii) the corporation resolves by special resolution that it be wound up voluntarily (other than for a members' voluntary winding-up);

(ix) as a result of the operation of section 459F(1) of the Corporations Act 2001 (Cth), the corporation is taken to have failed to comply with a statutory demand (as defined in the Corporations Act 2001 (Cth));or

(x) a mortgagee of any property of the corporation takes possession of that property;

(f) the Commissioner of Taxation issues a notice to any creditor of a person under the Taxation Administration Act 1953 (Cth) requiring that creditor to pay any money owing to that person to the Commissioner in respect of any tax or other amount required to be paid by that person to the Commissioner (whether or not due and payable) or the Commissioner advises that creditor that it intends to issue such a notice; or

(g) anything analogous to anything referred to in paragraphs (a) to (f) or which has a substantially similar effect, occurs with respect to a person or corporation under any law of any jurisdiction.

Inspector

A person appointed as a Fair Work Building Industry Inspectorate Inspector or Fair Work Inspector as defined in the Fair Work (Building Industry) Act 2012 (Cth) and the Fair Work Act 2009 (Cth) respectively.

Intellectual Property Rights

All statutory and other proprietary rights in respect of inventions, innovations, patents, utility models, designs, circuit layouts, mask rights, copyrights (including future copyrights), confidential information, trade secrets, know-


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how, trademarks and all other rights in respect of intellectual property as defined in Article 2 of the Convention establishing the World Intellectual Property Organisation of July 1967.

IT Equipment

Any software, hardware or telecommunications equipment:

(a) produced; or

(b) provided, or required to be provided, to the Commonwealth or the Contract Administrator,

under, for the purposes of or in connection with the Contract, the Contractor's Activities or the Remediation Works by, for or on behalf of the Contractor.

Lump Sum Component

The lump sum component of the Contract Price specified in the Contract Particulars as adjusted, subject to clause 16.5 (if applicable) under the Contract.

Lump Sum Work

That component of the Remediation Works described as such in the Technical Specification for which the lump sum component of the Contract Price (set out in the Contract Particulars) is payable, as varied (if at all) by a Remediation Works Variation.

NOHSC Guidelines

The Guidance Notes issued by the National Occupational Health and Safety Commission, being NOHSC 1008-2004: "Approved Criteria for Classifying Hazardous Substances", and NOHSC 10005-1999: "List of Designated Hazardous Substances".

OHS Accreditation Scheme

The scheme established under the Fair Work (Building Industry) Act 2012 (Cth).

OPCW

The Organisation for the Prohibition of Chemical Weapons that is responsible for overseeing the implementation of the Chemical Weapons Convention.

OPCW Inspector

An inspector appointed by or on behalf of the OPCW.

Other Contractor

Any contractor, consultant, artist, tradesperson or other person engaged to do work other than the Contractor and its subcontractors (including the Environmental Consultant and (except for the purposes of paragraph (b) of the definition of 'Act of Prevention' in this clause 1.1) the Accredited Environmental Site Auditor or the Technical Advisor (as the case may be)).

Other Materials

Any materials:

(a) that the Contractor reasonably suspects pose a serious risk of harm to human health, including a material suspected of containing or that is likely to contain a substance listed in the NOHSC Guidelines; or

(b) as specified in the Contract Particulars,

but does not include Toxic Agents.


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Plant, Equipment and Work

Those things used, or work undertaken, by the Contractor to undertake the Remediation Works or a Stage but which will not form part of the Remediation Works or the Stage.


A policy of insurance to cover claims made against the insured of civil liability for breach of professional duty (whether owed in contract or otherwise) by the Contractor or its subcontractors in carrying out the Contractor's Activities.

Proforma Building Code 2013 Subcontract Provisions

The proforma tender and subcontract provisions relating to the Building Code 2013, as set out in the Schedule of Collateral Documents.

Project Documents

Includes:

(a) Remediation Design Documentation;

(b) programs;

(c) Project Plans;

(d) Approvals;

(e) operation and maintenance manuals and warranties from subcontractors;

(f) IT Equipment;

(g) the documents which the Contractor is obliged to maintain under clause 12.21;

(h) without limiting paragraphs (a) - (g), any other material:

(i) produced; or


under, for the purposes of or in connection with the Contract, the Contractor's Activities or the Remediation Works by, for or on behalf of the Contractor (including by subcontractors), including all documents, papers, books of account, labour time sheets, invoices (whether for services, materials, plant hire or otherwise), financial accounts, reports, software, databases or other information stored in any electronically-retrievable medium, technical information, plans, drawings (including as-built drawings), specifications, charts, calculations, tables, schedules, correspondence (including correspondence by third parties to the Contractor), internal memoranda, minutes of meetings, diary notes, audio material, visual material, audio-visual material, working papers, draft documents, any material relating to the Contractor's compliance with the WHS Legislation and any other material of a similar nature to those materials relating to or arising out of or in connection with the Contract, the Contractor's Activities or the Remediation Works; and

(i) without limiting paragraphs (a) - (h), all material at any time derived (under, for the purposes of or in connection with the Contract, the Contractor's Activities or the Remediation Works) from, or based on, the material described in paragraphs (a) - (h).

Project Management Meetings

The meetings coordinated and facilitated by the Contract Administrator in relation to the works (including the Remediation Works) to be undertaken on or in relation to the Site, which shall be held at the times and locations as specified in the Contract Particulars, and at such other times and locations as may be reasonably directed by the Contract Administrator.


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Project Plans

The:

(a) Environmental Management Plan;

(b) Site Management Plan;

(c) Work Health and Safety Plan;

(d) the Communications Plan; and

(e) the additional plans referred to in the Contract Particulars and prepared and finalised by the Contractor under clause 7.7(a)(ii),

as amended (if at all) with the written consent of the Contract Administrator.


A policy of liability insurance covering the Commonwealth, the Contractor, the Contract Administrator and all subcontractors for their respective liabilities:

(a) to third parties; and

(b) to each other,

for loss of or damage to property and death of or injury to any person, arising out of, or in any way in connection with, the Contractor's Activities. This policy is not required to cover liabilities insured under Construction Risks Insurance, Workers Compensation Insurance, Employees Liability Insurance, Professional Indemnity Insurance or Errors and Omissions Insurance.

DCAP

The Detailed Contractor's Activities Proposal referred to in the Contract Particulars, as amended from time to time in accordance with clause 7.14.

Related Body Corporate

Has the meaning given to it in section 9 of the Corporations Act 2001 (Cth).

Related Entity

Has the meaning in the Building Code 2013.

Remediation Completion

The point in time when, in respect of the Remediation Works or a Stage:

(a) the Remediation Works are, or the Stage is, complete except for minor Remediation Defects, which:

(i) do not prevent the Site or the part of the Site relevant to the Stage from being used for the Specified Site Use Objective; and

(ii) can be corrected without prejudicing the convenient use of the Site or the part of the Site relevant to the Stage;

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

(c) all documents and other information referred to in the Contract, including all Approvals, which are required for the satisfactory completion of the Remediation Works or the Stage have been supplied to the Contract Administrator;


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(d) without limiting paragraph (c), the Contractor has done everything which the Contract requires it to do as a condition precedent to Remediation Completion, including those things described in the Contract Particulars;

(e) all documents and other information reasonably required by the Environmental Consultant to prepare the Remediation Validation Report have been supplied to the Environmental Consultant and the Contract Administrator;

(f) the Remediation Validation Report has been obtained by the Contractor from the Environmental Consultant (and provided to the Commonwealth) in relation to:

(i) in the case of Remediation Completion of the Remediation Works, the Site; or

(ii) in the case of Remediation Completion of the Stage, the part of the Site relevant to that Stage; and

(g) if required by the Commonwealth under clause 8.8(a), the Contractor has executed a deed of novation in accordance with clause 8.8(b).

Remediation Completion Notice

A notice under clause 13.2(b)(i) by the Contract Administrator stating that Remediation Completion of the Remediation Works or a Stage has been achieved.

Remediation Defect

Means:

(a) any defect, fault, failure or omission in the Remediation Works, including any aspect of the Remediation Works which is not in accordance with the requirements of this Contract; and

(b) any damage to any property (whether of the Commonwealth or a third party) resulting from the Contractor's Activities.

Remediation Defects Rectification Period

The period which commences on the Date of Remediation Completion of the Remediation Works or a Stage, and which continues for the period specified in the Contract Particulars, as extended by clause 9.10.

Remediation Design Documentation

All design documentation (including drawings, specifications, reports, models, samples and calculations) in computer readable and written forms necessary for the Contractor to complete any part of the Remediation Works which is not fully designed and documented in the Technical Specification.

Remediation Validation Report

The report prepared by the Environmental Consultant in relation to:

(a) in the case of Remediation Completion of the Remediation Works, the Site; or

(b) in the case of Remediation Completion of a Stage, the part of the Site relevant to that Stage,

which confirms that the Remediation Works or the Stage (as the case may be) have been completed in accordance with:

(c) the Technical Specification; and

(d) the Remediation Design Documentation,

and that the Site or the relevant part of the Site (as applicable) is suitable for use for the Specified Site Use Objective.


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Remediation Works

The physical works, a brief description of which is set out in the Contract Particulars and the details of which are set out in the Contract (including the Technical Specification and the Remediation Design Documentation), which the Contractor must undertake, complete and hand over to the Commonwealth in accordance with the Contract, as varied (if at all) by a Remediation Works Variation, including both the Lump Sum Work and the Schedule of Rates Work.

Remediation Works Variation

Unless otherwise stated in the Contract, means any change to the Remediation Works including any addition, increase, decrease, omission, deletion or removal to or from the Remediation Works.

Schedule of Collateral Documents

The schedule of proforma contracts and other documents applicable to the General Remediation Contract:

(a) posted on the Defence Estate Quality Management System website located at www.defence.gov.au/im/ (or any alternative location notified by the Commonwealth), as amended from time to time by the Commonwealth; and

(b) which as at the Award Date include the contracts and other documents referred to in the Contract Particulars.

Schedule of Rates

The schedule (if any) set out or referred to in the Contract Particulars, containing rates and prices to be used for the purpose of calculating the Contract Price.

Schedule of Rates Component

The schedule of rates component of the Contract Price specified in the Contract Particulars as adjusted, subject to clause 16.5 (if applicable) under the Contract.

Schedule of Rates Work

That component of the Remediation Works described as such in the Technical Specification for which the schedule of rates component of the Contract Price (set out in the Contract Particulars) is payable, as varied (if at all) by a Remediation Works Variation.

Security of Payment Legislation

Means:

(a) Building and Construction Industry Security of Payment Act 1999 (NSW);

(b) Building and Construction Industry Security of Payment Act 2002 (Vic);

(c) Building and Construction Industry Payments Act 2004 (Qld);

(d) Construction Contracts Act 2004 (WA);

(e) Construction Contracts (Security of Payments) Act 2004 (NT);

(f) Building and Construction Industry Security of Payment Act 2009 (Tas);

(g) Building and Construction Industry (Security of Payment) Act 2009 (ACT);

(h) Building and Construction Industry Security of Payment Act 2009 (SA); and

(i) any legislation in other States and Territories of Australia addressing security of payment in the building and construction industry.


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Site

The site for the Remediation Works described in the Contract Particulars.

Site Audit Statement

A certificate or statement of environmental audit (or equivalent) issued in relation to the Site certifying that the Site can be used for the Specified Site Use Objective, which certificate or statement has been issued under the:

(a) Environment Protection Act 1997 (ACT), where the Site is located in the ACT;

(b) Contaminated Land Management Act 1997 (NSW), where the Site is located in NSW;

(c) Waste Management and Pollution Control Act 1998 (NT), where the Site is located in the Northern Territory;

(d) Environmental Protection Act 1994 (Qld), where the Site is located in Queensland;

(e) Environment Protection Act 1993 (SA), where the Site is located in South Australia;

(f) Environment Protection Act 1970 (Vic), where the Site is located in Victoria; or

(g) Contaminated Sites Act 2003 (WA), where the Site is located in Western Australia.

Site Conditions

Any physical conditions on, under or over the surface of, or at or in the vicinity of, the Site including:

(a) ground water, ground water hydrology and the effects of any de-watering;

(b) physical and structural conditions above, upon and below the ground including any in-ground services or works and partially completed structures;

(c) topography, ground surface conditions and geology including seismic conditions, rock, other materials and sub-surface conditions;

(d) climatic and weather conditions, rain, surface water run-off and drainage, water seepage, wind blown dust and sand, and seasons; and

(e) hazardous materials.

Site Information

The documents described in the Contract Particulars.

Site Management Plan

The site management plan prepared by the Contractor and finalised under clause 7.7, which must set out in adequate detail all procedures the Contractor will implement to manage the Contractor's Activities on and near the Site including:



Special Conditions

The document referred to in the Contract Particulars.

Specified Site Use Objective

The Site use objective, if any, specified in the Contract Particulars, being the use for which the Site must be capable of being used following Remediation Completion.


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Stage

A stage of the Remediation Works described in the Contract Particulars.

Statutory Requirements

Means:

(a) any law applicable to the carrying out of the Contractor's Activities, including Acts, ordinances, regulations, by-laws and other subordinate legislation;

(b) Approvals (including any condition or requirement under them);

(c) Defence Requirements;

(d) Environmental Requirements; and

(e) the ARPANSA Requirements.

Subcontractor Deed of Covenant

A subcontractor deed of covenant in the form set out in the Schedule of Collateral Documents.

Table of Remediation Works Variation Rates and Prices

The table (if any) so described in the Contract Particulars, containing rates and prices to:

(a) be used for the purposes of valuing Remediation Works Variations under clause 11.5; and

(b) apply where the limits of accuracy specified in the Contract Particulars are exceeded in respect of any items of Schedule of Rates Works for which a corresponding rate exists in the Table of Remediation Works Variation Rates and Prices.

Technical Advisor


Technical Advisor's Certification

A certificate obtained by the Contractor from the Technical Advisor in relation to the Site stating that the Remediation Works have been completed in accordance with:

(a) the Technical Specification; and

(b) the Remediation Design Documentation,

and that the Site is suitable for use for the Specified Site Use Objective, but which certificate is not a Site Audit Statement.

Technical Advisor's Functions

The roles and functions of the Technical Advisor, as outlined in Annexure 1, Part B.

Technical Specification

The documents referred to in the Contract Particulars.

Toxic Agent

Means a chemical compound (including experimental compounds, and includes a chemical agent, nerve agent and biological agent) that, through its chemical properties, produces or may produce lethal or other damaging effects on human beings, and is intended to kill, seriously injure, or incapacitate persons through its physiological effects.


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Toxic Agent Specialist

The person or organisation (as the case may be) specified in the Contract Particulars.

Toxic Agent Specialist's Functions

The functions of the Toxic Agent Specialist, as outlined in Annexure 1, Part D.

Unidentified Site Conditions

Any ground conditions at the Site (including any groundwater conditions), which differ materially from those which should have been anticipated by a prudent, competent and experienced contractor if it had done those things which the Contractor is deemed to have done under clause 6.1.

Unidentified Toxic Agents or Other Materials

Any Toxic Agent or Other Material which differs materially from those which should have been anticipated by a prudent, competent and experienced contractor if it had done those things which the Contractor is deemed to have done under clause 6.1.

Unexploded Ordnance

Any sort of military ammunition or explosive on or under the Site which has failed to explode including sea mines or shells used by the Navy, mortar bombs, mines, artillery shells or hand grenades used by the Army, bombs, rockets or missiles used by the Air Force, and other types of ammunition and explosives including training munitions.

WHS Legislation

Means:

(a) Work Health and Safety Act 2011 (NSW) and Work Health and Safety Regulation 2011 (NSW);

(b) Work Health and Safety Act 2011 (QLD) and Work Health and Safety Regulation 2011 (QLD);

(c) Work Health and Safety Act 2011 (ACT) and Work Health and Safety Regulation 2011 (ACT);

(d) Work Health and Safety (National Uniform Legislation) Act 2011 (NT) and Work Health and Safety (National Uniform Legislation) Regulations 2011 (NT);

(e) Work Health and Safety Act 2011 (Cth) and Work Health and Safety Regulations 2011 (Cth);

(f) Work Health and Safety Act 2012 (SA) and Work Health and Safety Regulations 2012 (SA);

(g) Work Health and Safety Act 2012 (TAS) and Work Health and Safety Regulations 2012 (TAS); and

(h) any legislation in other States and Territories of Australia addressing work health and safety.

Work Health and Safety Plan

The work health and safety plan prepared by the Contractor and finalised under clause 7.7, which can be either Contract specific or site specific, and must:

(a) set out in adequate detail the procedures the Contractor will implement to manage the Contractor's Activities from a work health and safety perspective;

(b) describe how the Contractor proposes to ensure the Contractor's Activities are performed consistently with Statutory Requirements in relation to work health and safety; and

(c) address the matters specified in the Contract Particulars.


A policy of insurance in the form prescribed by Statutory Requirements in each State and Territory in which the Contractor's Activities are to be performed or the Contractor's employees are employed or normally reside, to insure


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against liability for death of or injury to persons employed by the Contractor as required by the Statutory Requirements, and including Employees Liability Insurance, if applicable.

1.2 Interpretation

In this Contract, unless the context otherwise indicates:

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

(b) references to a person include an individual, firm, corporation or unincorporated body;

(c) except in clause 1.1, headings are for convenience only and do not affect the interpretation of this Contract;

(d) references to any party to this Contract include its successors or permitted assigns;

(e) a reference to a party, clause, Annexure, Schedule, or exhibit is a reference to a party, clause, Annexure, Schedule or exhibit of or to this Contract;

(f) references to this Contract and any deed, agreement or instrument are deemed to include references to this Contract or such other deed, agreement or instrument as amended, novated, supplemented, varied or replaced from time to time;

(g) words denoting any gender include all genders;

(h) references to any legislation or to any section or provision of any legislation include any:

(i) statutory modification or re-enactment of or any statutory provision substituted for that legislation, section or provision; and

(ii) ordinances, by-laws, regulations and other statutory instruments issued under that legislation, section or provision;

(i) no rule of construction applies to the disadvantage of a party on the basis that the party put forward the Contract or any part;

(j) a reference to "$" is to Australian currency;

(k) where under the Contract:

(i) a direction is required to be given or must be complied with; or

(ii) payment of money must be made (other than under clause 12.5),

within a period of 7 days or less from a specified event, then Saturdays, Sundays and public holidays in the place in which the Site is situated will not be counted in computing the number of days;

(l) for the purposes of clauses 10.8, 10.9, 10.10 and 10.11:

(i) any extension of time stated in days; or

(ii) any reference to "day",

will exclude public holidays and include only those days which are stated in the Contractor's approved program under clause 10.2 as working days;

(m) for the purposes of clauses 12.4 and 12.5, to the extent that the Contractor's Activities are to be carried out:

(i) in any jurisdiction other than the State of Victoria, the State of South Australia, the State of Tasmania, the Northern Territory or the Australian Capital Territory, references to "business days" are to days other than:



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B. a public holiday in the State or Territory in which the Site is situated;

(ii) in the State of Victoria, references to "business days" are to days other than:


B. a day that is partly or wholly observed as a public holiday throughout Victoria;

(iii) in the Northern Territory, references to "business days" are to days other than:


B. a public holiday in the Northern Territory;

(iv) in the State of South Australia, references to "business days" are to days other than:

A. a Saturday or Sunday or the 27th, 28th, 29th, 30th or 31st day of December;

B. a public holiday in the State of South Australia; or

C. any other day on which there is a Statewide shutdown of the operations of the building and construction industry;

(v) in the State of Tasmania, references to "business days" are to days other than:

A. a Saturday or Sunday;

B. a statutory holiday as defined in the Statutory Holidays Act 2000 (Tas); or

(vi) in the Australian Capital Territory, references to "business days" are to days other than:


B. a public or bank holiday in the Australian Capital Territory under the Holidays Act 1958 (ACT);

(n) other than as set out in paragraphs (k), (l) and (m) references to "day" are references to calendar days;

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

(p) the word "subcontractor" will include subcontractors, suppliers and consultants and the word "subcontract" will include a contract with a subcontractor;

(q) where a clause contains two options, the option specified in the Contract Particulars will apply;

(r) derivatives of a word or expression which has been defined in clause 1.1 will have a corresponding meaning to that assigned to it in clause 1.1; and

(s) unless agreed or notified in writing by the Contract Administrator, a reference to Standards Australia standards, overseas standards or other similar reference documents in the Technical Specification is a reference to the edition last published prior to the Award Date. If requested by the Contract Administrator, the Contractor must make copies of all Standards Australia standards, overseas standards or other similar reference documents referred to in the Technical Specification available to the Contract Administrator.

1.3 Miscellaneous

(a) This Contract is subject to and is to be construed in accordance with the laws of the State or Territory set out in the Contract Particulars.

(b) None of the terms of the Contract can be waived, discharged or released at law or in equity unless:


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(i) to the extent that the term involves a right of the party seeking to waive the term or one party seeking to waive an obligation of the other party - this is done by written notice to the other party; or

(ii) otherwise, both parties agree in writing.

(c) This Contract constitutes the entire agreement and understanding between the parties and will take effect according to its tenor despite:

(i) any prior agreement in conflict or at variance with the Contract; or

(ii) any correspondence or other documents relating to the subject matter of the Contract which may have passed between the parties prior to the Award Date and which are not included in the Contract.

(d) Where a party comprises two or more persons, each person will be jointly and severally bound by the party's obligations under the Contract.

(e) Any provision in this Contract which is illegal, void or unenforceable will be ineffective to the extent only of such illegality, voidness or unenforceability and such illegality, voidness or unenforceability will not invalidate any other provision of the Contract.

(f) This Contract and the Project Documents are confidential. The Contractor must:

(i) not disclose any of the Contract or the Project Documents without the prior written consent of the Commonwealth, except to the extent that the disclosure is required for the Contractor to carry out its obligations under the Contract;

(ii) ensure that any communications with any third party in relation to this Contract or the Project Documents is undertaken in accordance with or otherwise complies with the Communications Plan; and

(iii) ensure that any subcontract made in connection with this Contract contains enforceable obligations requiring the subcontractor to comply with the Contractor's obligations arising under this clause 1.3(f) as if the subcontractor were the Contractor.

(g) The Contractor must indemnify the Commonwealth against:

(i) any liability to or claim by a third party including a subcontractor or Other Contractor; and

(ii) all costs, losses and damages suffered or incurred by the Commonwealth,

(iii) arising out of or in connection with any breach by the Contractor of a term of this Contract.

(h) All obligations to indemnify under this Contract survive termination of the Contract.


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2. COMMENCEMENT

2.1 Contractor's Obligations


(a) immediately commence to carry out the Contractor's Activities;

(b) subject to clause 2.2(a), commence the Remediation Works on Site by no later than the date specified in the Contract Particulars; and

(c) unless otherwise stated, carry out the Contractor's Activities at its cost.

2.2 Commonwealth's Obligations


(a) give the Contractor sufficient access to the Site to allow it to commence work on the Site on the later of:

(i) satisfaction of the following conditions precedent to access:

A. the Contractor having provided to the Contract Administrator:

1) the Approved Security required under clause 4.1; and

2) evidence satisfactory to the Contract Administrator under clause 5.4(c) that the Contractor has effected the insurances required in accordance with clause 5.4;

B. the Site Management Plan and the Work Health and Safety Plan having been finalised under clause7.7; and

C. any other conditions set out in the Contract Particulars; and

(ii) the date specified in the Contract Particulars; and

(b) subject to other provisions of the Contract affecting access, continue to allow the Contractor sufficient access to the Site to enable it to carry out the Contractor's Activities.

2.3 Delayed Access

Failure by the Commonwealth to give access as required by clause 2.2(a) will not be a breach of the Contract but will entitle the Contractor to:

(a) an extension of time to any relevant Date for Remediation Completion where it is otherwise so entitled under clause 10.7; and

(b) have the Contract Price increased by any extra costs reasonably incurred by it which arise directly out of the Commonwealth's delay in giving the Contractor access to the Site, as determined by the Contract Administrator.


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3. PERSONNEL

3.1 Contract Administrator

The Contract Administrator will give directions and carry out all of the other functions of the Contract Administrator under the Contract as the agent of the Commonwealth (and not as an independent certifier, assessor or valuer).


(a) comply with any direction by the Contract Administrator given or purported to be given under a provision of this Contract; and

(b) not comply with any direction of the Commonwealth other than as expressly stated in the Contract.

Except where the Contract otherwise provides, the Contract Administrator may give a direction orally but will as soon as practicable confirm it in writing.

3.2 Replacement of Contract Administrator

The Commonwealth may at any time replace the Contract Administrator, in which event the Commonwealth will appoint another person as the Contract Administrator and notify the Contractor of that appointment.

Any substitute Contract Administrator appointed under this clause 3.2 will be bound by anything done by the former Contract Administrator to the same extent as the former Contract Administrator would have been bound.

3.3 Parties' Conduct

Without limiting any of the rights or obligations of the Commonwealth and Contractor under the Contract, the Commonwealth and Contractor must co-operate with each other in carrying out their obligations under the Contract.

3.4 Contract Administrator's Representative

The Contract Administrator may:

(a) by written notice to the Contractor appoint persons to exercise any of the Contract Administrator's functions under the Contract;

(b) not appoint more than one person to exercise a specific function under the Contract; and

(c) revoke any appointment under paragraph (a) by notice in writing to the Contractor.

As at the Award Date, the Contract Administrator is deemed to have appointed the persons set out in the Contract Particulars to carry out the functions set out in the Contract Particulars.

All references in the Contract to Contract Administrator include a reference to a representative appointed under this clause 3.4.

3.5 Contractor's Representative

The Contractor must ensure that the Contractor's Representative is present on the Site at all times reasonably necessary to ensure that the Contractor is complying with its obligations under the Contract.

A direction is deemed to be given to the Contractor if it is given to the Contractor's Representative.

3.6 Key People


(a) employ those people specified in the Contract Particulars, including the Contractor's Representative, in the jobs specified in the Contract Particulars;

(b) subject to paragraph (c), not replace the people referred to in paragraph (a) without the Contract Administrator's prior written approval; and


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(c) if any of the people referred to in paragraph (a) die, become seriously ill or resign from the employment of the Contractor, replace them with persons approved by the Contract Administrator of at least equivalent experience, ability and expertise.

3.7 Removal of Persons

The Contract Administrator may by notice in writing instruct the Contractor to remove any person from the Site or the Contractor's Activities who in the reasonable opinion of the Contract Administrator is guilty of misconduct or is incompetent or negligent.

The Contractor must ensure that this person is not again employed in the Contractor's Activities.

3.8 Environmental Consultant

(a) The Commonwealth may appoint an Environmental Consultant to carry out the Environmental Consultant's Functions.


(i) the Environmental Consultant may confer with the Contractor but will report directly to the Contract Administrator; and

(ii) except to the extent required for the purposes of paragraph (i), the Contractor must not comply with any direction of the Environmental Consultant given directly by the Environmental Consultant to the Contractor (whether purported to be given under a provision of this Contract or otherwise) unless that direction is given to the Contractor as part of a direction by the Contract Administrator under clause 3.1(a).

(c) The Environmental Consultant may, from time to time, by written notice to the Contractor appoint a person to:

(i) represent the Environmental Consultant during the carrying out of the Contractor's Activities; and

(ii) perform the Environmental Consultant's Functions under this Contract as the Environmental Consultant's Representative.

All references to the Environmental Consultant include a reference to a representative appointed under this subparagraph (c).


(e) The Commonwealth may, in its absolute discretion and at any time, terminate the services of the Environmental Consultant and:

(i) the Commonwealth's decision to terminate the services of the Environmental Consultant is final and conclusive;

(ii) the Commonwealth is not under any obligation to give the Contractor any reason or explanation for its decision to terminate the Environmental Consultant; and

(iii) the Contractor acknowledges that it is not entitled to, and agrees that it will not, seek to restrain or otherwise intervene in or interfere with the termination of the services of the Environmental Consultants; and

(iv) the Contractor acknowledges that it will not be entitled to make any Claim against the Commonwealth arising out of, or in any way in connection with, the termination of the Environmental Consultant's services.

(f) If the Commonwealth terminates the services of the Environmental Consultant, or if the Environmental Consultant ceases to act for any reason, the Contract Administrator will:



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(ii) as soon as reasonably practicable, appoint another Environmental Consultant and notify the Contractor of that appointment.

(g) Any substitute Environmental Consultant appointed under clause 3.8(f) will be bound by anything done by the former Environmental Consultant to the same extent as the former Environmental Consultant would have been bound.

(h) No report given by the Environmental Consultant, including the Remediation Validation Report, will have any force or effect unless it is given in writing.


(i) co-operate with the Environmental Consultant;

(ii) assist the Environmental Consultant in the performance of the Environmental Consultant's Functions (including the timely provision of all information the Environmental Consultant may reasonably require);

(iii) co-ordinate the Contractor's Activities with the work of the Environmental Consultant; and

(iv) facilitate the execution of the Environmental Consultant's Functions, including the timely provision of all information and documents the Environmental Consultant may reasonably require in preparing the Remediation Validation Report.

(j) If the Contractor has any concern which a prudent, competent and experienced contractor would have in relation to the performance of the Environmental Consultant, it must:


(ii) consult with the Contract Administrator and provide such information and take all such other steps as the Contract Administrator may require to resolve the Contractor's concern.

(k) The Commonwealth and the Contract Administrator do not assume or owe any duty to the Contractor to review or comment on any of the Environmental Consultant's activities or functions.

(l) No review of or comment upon, or failure to review or comment upon, the Environmental Consultant's activities by the Commonwealth or Contract Administrator will relieve the Contractor from, or alter or affect, the Contractor's liabilities or responsibilities under the Contract or otherwise.

(m) The Contractor acknowledges and agrees that the Remediation Validation Report:

(i) does not constitute acceptance by the Commonwealth of the Contractor's performance of its Contract obligations; and

(ii) is not an audit under the relevant Statutory Requirements of the State or Territory in which the Remediation Works are carried out.

(n) The Contractor acknowledges and agrees that it will not be entitled to bring or maintain, and that the Commonwealth will not be liable upon, any Claim arising out of or in connection with any act or omission of the Environmental Consultant(including any requirement that the Contractor provide information or documents or otherwise cooperate or coordinate with or assist the Environmental Consultant for the purposes of paragraph (i)) except to the extent that the act or omission (other than a requirement that the Contractor provide information or documents or otherwise cooperate or coordinate with or assist the Environmental Consultant for the purposes of paragraph (i)) has caused a delay to the Contractor's Activities, in which case, the Contractor may be entitled to an extension of time in accordance with clause 10.

3.9 Accredited Environmental Site Auditor

(a) If the Contract Particulars provide that a Site Audit Statement is required in relation to the Site:

(i) the Commonwealth will appoint the Accredited Environmental Site Auditor to carry out the Accredited Environmental Site Auditor's Functions; and


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(ii) the Commonwealth will ensure that the Accredited Environmental Site Auditor is accredited (or, if no process exists for accreditation, recognised) under the relevant Statutory Requirements in the State or Territory in which the Remediation Works are being carried out.


(i) Accredited Environmental Site Auditor may confer with the Contractor but will report directly to the Contract Administrator; and

(ii) except to the extent required for the purposes of paragraph (i), the Contractor must not comply with any direction of the Accredited Environmental Site Auditor given directly by the Accredited Environmental Site Auditor to the Contractor (whether purported to be given under a provision of this Contract or otherwise) unless that direction is given to the Contractor as part of a direction by the Contract Administrator under clause 3.1(a).

(c) No certification or report given by the Accredited Environmental Site Auditor will have any force or effect unless it is given in writing.

(d) The Commonwealth may, in its absolute discretion, terminate the services of the Accredited Environmental Site Auditor and:

(i) the Commonwealth's decision to terminate the services of the Accredited Environmental Site Auditor is final and conclusive;

(ii) the Commonwealth is not under any obligation to give the Contractor any reason or explanation for its decision to terminate the Accredited Environmental Site Auditor; and

(iii) the Contractor acknowledges that it is not entitled to, and agrees that it will not, seek to restrain or otherwise intervene in or interfere with the termination of the services of the Accredited Environmental Site Auditor; and

(iv) the Contractor acknowledges that it will not be entitled to make any Claim against the Commonwealth arising out of, or in any way in connection with, the termination of the Accredited Environmental Site Auditor's services.

(e) If the Commonwealth terminates the services of the Accredited Environmental Site Auditor, or if the Accredited Environmental Site Auditor ceases to act for any reason, the Contract Administrator will:


(ii) as soon as reasonably practicable, appoint another Accredited Environmental Site Auditor and notify the Contractor of that appointment.

(f) The Contractor must assist the Accredited Environmental Site Auditor in the performance of the Accredited Environmental Site Auditor's Functions, including the timely provision of all information and documents the Accredited Environmental Site Auditor may reasonably require.

(g) The Commonwealth and the Contract Administrator do not assume or owe any duty to the Contractor to review or comment upon any of the Accredited Environmental Site Auditor's activities, including:

(i) any Site Audit Statement issued by the Accredited Environmental Site Auditor;

(ii) a decision of the Accredited Environmental Site Auditor not to issue any Site Audit Statement; or

(iii) the issue of a Site Audit Statement subject to conditions.

(h) No comment upon or review of, or failure to comment upon or review, the Accredited Environmental Site Auditor's activities by the Commonwealth or Contract Administrator will relieve the Contractor from, or alter or affect, the Contractor's liabilities or responsibilities under the Contract or otherwise.

(i) The Contractor acknowledges and agrees that it will not be entitled to bring or maintain, and that the Commonwealth will not be liable upon, any Claim arising out of or in connection with any act or


29

omission of the Accredited Environmental Site Auditor (including any requirement that the Contractor provide information or documents or otherwise cooperate or coordinate with or assist the Accredited Environmental Site Auditor for the purposes of paragraph (i)).

3.10 Technical Advisor

(a) If the Contract Particulars provide that a Technical Advisor's Certification is required in relation to the Site, the Commonwealth will appoint the Technical Advisor to carry out the functions of the Technical Advisor.


(i) the Technical Advisor may confer with the Contractor, but will report directly to the Contract Administrator; and

(ii) except to the extent required for the purposes of paragraph (i), the Contractor must not comply with any direction of the Technical Advisor given directly by the Technical Advisor to the Contractor (whether purported to be given under a provision of this Contract or otherwise) unless that direction is given to the Contractor as part of a direction by the Contract Administrator under clause 3.1(a).

(c) No certification given by the Technical Advisor will have any force or effect unless it is given in writing.

(d) The Commonwealth may, in its absolute discretion, terminate the services of the Technical Advisor and:

(i) the Commonwealth's decision to terminate the services of the Technical Advisor is final and conclusive;

(ii) the Commonwealth is not under any obligation to give the Contractor any reason or explanation for its decision to terminate the Technical Advisor;

(iii) the Contractor acknowledges that it is not entitled to, and agrees that it will not, seek to restrain or otherwise intervene in or interfere with the termination of the services of the Technical Advisor; and

(iv) the Contractor acknowledges that it will not be entitled to make any Claim against the Commonwealth arising out of, or in any way in connection with, the termination of the Technical Advisor's services.

(e) If the Commonwealth terminates the services of the Technical Advisor, or if the Technical Advisor ceases to act for any reason, the Contract Administrator will:


(ii) as soon as reasonably practicable, appoint another Technical Advisor and notify the Contractor of that appointment.

(f) Any Technical Advisor appointed under clause 3.10(e)(ii) is bound in respect of any direction given by any former Technical Advisor to the same extent as the relevant former Technical Advisor would have been bound by that direction.

(g) The Contractor must assist the Technical Advisor in the performance of the Technical Advisor's Functions, including the timely provision of all documents and information the Technical Advisor may reasonably require.

(h) The Commonwealth and the Contract Administrator do not assume or owe any duty to the Contractor to review or comment upon any of the Technical Advisor's activities, including:

(i) any Technical Advisor's Certification issued by the Technical Advisor; or

(ii) the decision of the Technical Advisor not to issue a Technical Advisor's Certification.


30

(i) No comment upon or review of, or failure to review or comment upon, the Technical Advisor's activities by the Commonwealth or Contract Administrator will relieve the Contractor from, or alter or affect, the Contractor's liabilities or responsibilities under the Contract or otherwise.

(j) The Contractor acknowledges and agrees that it will not be entitled to bring or maintain, and that the Commonwealth will not be liable upon, any Claim arising out of or in connection with any act or omission of the Technical Advisor (including any requirement that the Contractor provide information or documents or otherwise cooperate or coordinate with or assist the Technical Advisor for the purposes of paragraph (i)).

3.11 Toxic Agent Specialist and Toxic Agents

(a) The Commonwealth will appoint the Toxic Agent Specialist to carry out the Toxic Agent Specialist's Functions.


(i) the Toxic Agent Specialist may confer with the Contractor but will report directly to the Contract Administrator; and

(ii) except to the extent required for the purposes of paragraph (i), the Contractor must not comply with any direction of the Toxic Agent Specialist given directly by the Toxic Agent Specialist to the Contractor (whether purported to be given under a provision of this Contract or otherwise) unless that direction is given to the Contractor as part of a direction by the Contract Administrator under clause 3.1(a).

(c) The Toxic Agent Specialist may, from time to time, by written notice to the Contractor appoint a person to:

(i) represent the Toxic Agent Specialist during the carrying out of the Contractor's Activities; and

(ii) perform the Toxic Agent Specialist's Functions under this Contract as Toxic Agent Specialist's Representative.

All references to the Toxic Agent Specialist include a reference to a representative appointed under this subparagraph (c).


(e) The Commonwealth may, in its absolute discretion, terminate the services of the Toxic Agent Specialist and:

(i) the Commonwealth's decision to terminate the services of the Toxic Agent Specialist is final and conclusive;

(ii) the Commonwealth is not under any obligation to give the Contractor any reason or explanation for its decision to terminate the Toxic Agent Specialist;

(iii) the Contractor acknowledges that it is not entitled to, and agrees that it will not, seek to restrain or otherwise intervene in or interfere with the termination of the services of the Toxic Agent Specialist; and

(iv) the Contractor acknowledges that it will not be entitled to make any Claim against the Commonwealth arising out of, or in any way in connection with, the termination of the Toxic Agent Specialist's services.

(f) If the Commonwealth terminates the services of the Toxic Agent Specialist, or if the Toxic Agent Specialist ceases to act for any reason, the Contract Administrator will:



31

(ii) as soon as reasonably practicable, appoint another Toxic Agent Specialist and notify the Contractor of that appointment.

(g) Any substitute Toxic Agent Specialist appointed under clause 3.11(f)(ii)will be bound by anything done by the former Toxic Agent Specialist to the same extent as the former Toxic Agent Specialist would have been bound.

(h) No report given by the Toxic Agent Specialist will have any force or effect unless it is given in writing.


(i) co-operate with the Toxic Agent Specialist;

(ii) assist the Toxic Agent Specialist in the performance of the Toxic Agent Specialist's Functions (including the timely provision of all documents and information the Toxic Agent Specialist may reasonably require);

(iii) co-ordinate the Contractor's Activities with the work of the Toxic Agent Specialist; and

(iv) facilitate the execution of the Toxic Agent Specialist's Functions, including the timely provision of such information ,documents, personnel, labour and equipment the Toxic Agent Specialist may reasonably require.

(j) If the Contractor has any concern which a prudent, competent and experienced contractor would have in relation to the performance of the Toxic Agent Specialist, it must:


(ii) consult with the Contract Administrator and provide such information and take all such other steps as the Contract Administrator may require to resolve the concern.

(k) The Commonwealth and the Contract Administrator do not assume or owe any duty to the Contractor to review or comment on any of the Toxic Agent's Specialists activities or functions.

(l) No review of or comment upon, or failure to review or comment upon, the Toxic Agent Specialist's activities by the Commonwealth or Contract Administrator will relieve the Contractor from, or alter or affect, the Contractor's liabilities or responsibilities under the Contract or otherwise.

(m) The Contractor acknowledges and agrees that it will not be entitled to bring or maintain, and that the Commonwealth will not be liable upon, any Claim arising out of or in connection with any act or omission of the Toxic Agent Specialist (including any requirement that the Contractor provide information or documents or otherwise cooperate or coordinate with or assist the Toxic Agent Specialist for the purposes of paragraph (i)).

3.12 Industrial Relations

Without limiting the Contractor's obligations under clause 18, the Contractor must in carrying out the Contractor's Activities:

(a) assume sole responsibility for and manage all aspects of industrial relations;

(b) ensure that the rates of pay and conditions of employment specified in all relevant industrial awards and enterprise agreements and any relevant Statutory Requirements, for all employees engaged by any person, are always observed in full;

(c) keep the Contract Administrator fully and promptly informed of industrial relations problems or issues which affect or are likely to affect the carrying out of the Contractor's Activities; and

(d) comply with all other requirements of the Contract relating to industrial relations.

3.13 Project Review



32

(a) meet monthly (or at such other times as the Contract Administrator may require) with the Contract Administrator and any other persons whom the Contract Administrator nominates, including the:

(i) Environmental Consultant;

(ii) Technical Advisor; or

(iii) Accredited Environmental Site Auditor;

(b) discuss the reports it has prepared under clauses 7.7 and 8.13 and such other matters as the Contract Administrator may from time to time require;

(c) promptly and fully respond to any questions which the Contract Administrator asks in relation to any report;

(d) if it requires instructions from the Commonwealth, make all necessary recommendations as to the action required; and

(e) provide weekly reports to the Contract Administrator in relation to activities undertaken on Site, including copies of any change of custody papers and evidence (including, where appropriate, photographs and other documentation) of items removed from the Site for disposal.


(f) before each meeting – prepare an agenda for that meeting; and

(g) after each meeting – prepare minutes of the meeting and distribute them to all attendees of the meeting.


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4. SECURITY

4.1 Form

The Contractor must provide security to the Commonwealth:

(a) in the form of Approved Security;

(b) in the amount set out in the Contract Particulars; and

(c) within 14 days of the Award Date.

4.2 Release


(a) within 14 days of the issue of a Remediation Completion Notice for the Remediation Works or for each and every Stage, release from the security held under clause 4.1, 50% of the security required under clause 4.1;

(b) within 14 days of the expiration of the last Remediation Defects Rectification Period (excluding any extensions under clause 9.10), release such amount of the security under clause 4.2 then held, as the Contract Administrator determines to be reasonable, having regard to the work to which the remaining Remediation Defects Rectification Periods apply, to ensure the Commonwealth's interests are not prejudiced; and

(c) release the balance of the security under clause 4.1 then held when:

(i) the last Remediation Defects Rectification Period has expired; and

(ii) the Contractor has complied with all its obligations under the Contract.

4.3 Interest

(a) The Commonwealth:

(i) is not obliged to pay the Contractor interest on:

A. the Approved Security; or

B. subject to paragraph (b), the proceeds of the Approved Security if it is converted into cash; and

(ii) does not hold the proceeds or money referred to in subparagraph (i) on trust for the Contractor.

(b) If the Commonwealth makes a call upon any security held under clause 4.1 and obtains cash as a consequence:

(i) the Commonwealth will pay simple interest, at the rate applying to damages for the purpose of clause 12.13, on the amount of any cash obtained in excess of the sum to which the Commonwealth is entitled at the time of such call; and

(ii) the sum attracting interest pursuant to subparagraph (i) will be further reduced by any unsatisfied amounts which subsequently become payable (whether as a debt, by way of damages or otherwise) by the Contractor to the Commonwealth at the time such amounts become payable.

4.4 Related Company Guarantee

The Contractor must, if so requested in writing by the Commonwealth, provide to the Commonwealth on the date set out in the request a deed of guarantee, undertaking and substitution:

(a) in the form set out in the Schedule of Collateral Documents; and


34

(b) duly executed by the Contractor and the Related Body Corporate of the Contractor nominated in the Commonwealth's request.


35

5. RISKS AND INSURANCE

5.1 Risk of Remediation Works

Except to the extent that it arises from a Commonwealth Risk, the Contractor will bear the risk of and indemnify the Commonwealth against:

(a) any loss of or damage to:

(i) the Remediation Works or a Stage;

(ii) Plant, Equipment and Work; and

(iii) unfixed goods and materials (whether on or off Site), including anything provided by the Commonwealth to the Contractor or brought onto Site by a subcontractor, used or to be used in carrying out the Contractor's Activities,

until:

(iv) in the case of loss of or damage to the Remediation Works or a Stage, a Remediation Completion Notice is issued for the Remediation Works or the Stage; and

(v) otherwise, a Remediation Completion Notice is issued for the Remediation Works or the last Stage to reach Remediation Completion; and

(b) after the issue of a Remediation Completion Notice for the Remediation Works or a Stage, any loss of or damage to the Remediation Works or the Stage arising from any act or omission of the Contractor during the Remediation Defects Rectification Period or from any event which occurred prior to the issue of the Remediation Completion Notice for the Remediation Works or the Stage.

5.2 Other Risks

Except to the extent that it arises from a Commonwealth Risk, and subject to clause 5.10, the Contractor will indemnify the Commonwealth against:

(a) any loss of or damage to property of the Commonwealth (other than property referred to in clause 5.1(a)); and

(b) any liability to or claims by a third party in respect of loss of or damage to property or injury to or death of persons,

caused by, or arising out of, or in any way in connection with, the Contractor's Activities provided that the Contractor's responsibility to indemnify the Commonwealth will be reduced to the extent that an act or omission of the Commonwealth, the Contract Administrator or an Other Contractor may have contributed to the loss, damage, injury or death.

5.3 Reinstatement

During the period during which the Contractor bears the risk of loss or damage under clause 5.1, the Contractor must:

(a) subject to paragraph (b), promptly replace or otherwise make good any loss of, or repair the damage to, the Remediation Works or a Stage, any Plant, Equipment and Work or any unfixed goods and materials used or to be used in carrying out the Contractor's Activities; and

(b) where the loss or damage arises from a:

(i) Commonwealth Risk; or

(ii) breach of the Contract by the Commonwealth,

only comply with paragraph (a) to the extent directed by the Contract Administrator.


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The Contractor will bear the cost of such replacement, making good or repair except to the extent that the loss or damage arises from a:

(c) Commonwealth Risk; or

(d) breach of the Contract by the Commonwealth,

in which event this replacement, making good or repair will, to the extent the loss or damage arises from a cause referred to in paragraphs (c) and (d) (but subject to paragraph (b)), be treated as if it were a Remediation Works Variation the subject of a direction by the Contract Administrator and clause 11.5 applied.

5.4 Contractor Insurance Obligations


(a) from the Award Date effect and maintain the following insurance:

(i) Public Liability Insurance;

(ii) Construction Risks Insurance, if the Contract Particulars provide that Construction Risks Insurance is required;

(iii) Workers Compensation Insurance in each State and Territory in which the Contractor's Activities are to be performed or the Contractor's employees are employed or normally reside;

(iv) whichever of Errors and Omissions Insurance or Professional Indemnity Insurance has an amount included for it in the Contract Particulars; and

(v) such other insurances on such terms as are set out in the Contract Particulars,

each of which is to be:

(vi) for the respective amount referred to in the Contract Particulars;

(vii) with reputable insurers having a Standard and Poors, Moody's, A M Best, Fitch's or equivalent rating agency's financial strength rating of A- or better; and

(viii) on terms which are satisfactory to the Contract Administrator (confirmation of which must not be unreasonably withheld or delayed);

(b) in relation to the Workers Compensation Insurance:

(i) ensure that to the extent permitted by law, the insurance policy extends to provide indemnity to the Commonwealth in respect of any statutory liability to the Contractor's employees; and

(ii) ensure that each of its subcontractors legally required to do so, has Workers Compensation Insurance covering the subcontractor in respect of its statutory liability to employees, in the same manner as the Contractor is required to do so under paragraph (a)(iii);

(c) provide the Contract Administrator with evidence satisfactory to the Contract Administrator that each policy is current as required by the Contract Administrator from time to time;

(d) ensure that:

(i) if the insurer gives the Contractor notice of expiry, cancellation or rescission of any required insurance policy, the Contractor as soon as possible informs the Commonwealth in writing that the notice has been given and effects replacement insurance on terms and subject to limits acceptable to the Contract Administrator, whose acceptance will not be unreasonably withheld; and

(ii) if the Contractor cancels, rescinds or fails to renew any required insurance policy, the Contractor as soon as possible obtains replacement insurance as required by this Contract and informs the Commonwealth in writing as soon as possible of the identity of the


37

replacement insurer, and provides such evidence as the Contract Administrator reasonably requires that the replacement insurance complies in all relevant respects with the requirements of this Contract;

(e) ensure that it:

(i) does not do or omit to do anything whereby any insurance may be prejudiced;

(ii) if necessary, takes all possible steps to rectify any situation which might prejudice any insurance;

(iii) renews any required insurance policy if it expires during the relevant period, unless appropriate replacement insurance is obtained;

(iv) does not cancel or allow an insurance policy to lapse during the period for which it is required by the Contract without the prior written consent of the Contract Administrator;

(v) immediately notifies the Contract Administrator (in writing) of any event which may result in a required insurance policy lapsing, being cancelled or rescinded; and

(vi) complies fully with its duty of disclosure and obligations of utmost good faith toward the insurer and in connection with all of the required insurance policies; and

(f) ensure that any subcontractors that perform any design work forming part of the Contractor's Activities also maintain Professional Indemnity Insurance or Errors and Omissions Insurance in the same manner and on the same terms as those required to be obtained by the Contractor under clause 5.4(a)(iv), for not less than the amount referred to in the Contract Particulars.

The obtaining of insurance as required under this clause 5.4 will not in any way limit, reduce or otherwise affect any of the obligations, responsibilities and liabilities of the Contractor under any other provisions of the Contract or otherwise at law or in equity.

5.5 Failure to Insure

If the Contractor fails to:

(a) provide evidence satisfactory to the Contract Administrator that a policy is current; or

(b) obtain insurance in accordance with clause 5.4,

the Commonwealth may, without prejudice to any other rights it may have, take out the relevant insurance and the cost will be a debt due from the Contractor to the Commonwealth.

5.6 Period of Insurance

The insurance which the Contractor is required to obtain under this clause 5 must be maintained:

(a) in the case of Construction Risks Insurance, until the Contractor ceases to bear the risk of loss of or damage to anything under clause 5.1;

(b) in the case of Public Liability Insurance and Workers Compensation Insurance, until the latest of:

(i) the end of the last Remediation Defects Rectification Period;

(ii) the date upon which all Remediation Defects have been rectified in accordance with the Contract; and

(iii) the date upon which the Contractor ceases to carry out the Contractor's Activities; and

(c) in the case of Professional Indemnity Insurance or Errors and Omissions Insurance, until the expiration of the period specified in the Contract Particulars following the latest of:

(i) the last Date of Remediation Completion; and


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(ii) the date upon which the Contractor ceases to carry out the Contractor's Activities.

5.7 Notice of Potential Claim


(a) as soon as possible inform the Commonwealth in writing of any occurrence that may give rise to a claim under an insurance policy required by the Contract;

(b) keep the Commonwealth informed of all significant developments concerning the claim, except in circumstances where the Commonwealth is making a claim against the Contractor; and

(c) ensure that its subcontractors similarly inform the Contractor and the Commonwealth in respect of occurrences which may give rise to claims by them,

provided that, in respect of Professional Indemnity Insurance, the Contractor:

(d) subject to paragraph (e), is not required to provide details of individual claims; and

(e) must notify the Commonwealth if the estimated total combined value of claims made against the Contractor and claims which may arise from circumstances reported by the Contractor to its insurer in a policy year would potentially reduce the available limit of policy indemnity for that year below the amount required by the Contract.

5.8 Procedure upon Loss or Damage

If loss of or damage to any part of the Remediation Works or a Stage occurs whilst the Contractor bears the risk of loss of or damage to the Remediation Works or the Stage under clause 5.1 the Contractor must:

(a) make the Remediation Works or the Stage and the Site safe and secure;

(b) notify the relevant insurers and comply with their instructions; and

(c) promptly consult with the Contract Administrator to discuss the steps to be taken to:

(i) comply with its obligations under clause 5.3; and

(ii) ensure that, to the greatest extent possible, the Contractor continues to comply with its other obligations under this Contract.

5.9 Cross Liability

This clause 5.9 does not apply to Professional Indemnity Insurance, Errors and Omissions Insurance or Workers Compensation Insurance.

Where the Contract requires insurance to provide cover to more than one insured, the Contractor must ensure that the insurance policy provides that:

(a) the insurance (with the exception of limits of liability) will operate in the same manner as if there were a separate policy of insurance covering each named insured;

(b) the insurer waives all rights, remedies or relief to which it might become entitled by subrogation against any of the parties to whom coverage extends and that failure by any insured to observe and fulfil the terms of the policy will not prejudice the insurance in regard to any other insured; and

(c) a notice to the insurer by one insured will be deemed to be notice on behalf of all insureds.

5.10 Liability for Toxic Agents

(a) Notwithstanding clause 5.2, the Contractor will not be liable for any costs, losses or damage arising out of or in connection with:

(i) the presence of a Toxic Agent on or emanating from the Site; or


39

(ii) the exposure of the Contractor's personnel to a Toxic Agent on or emanating from the Site,

other than to the extent to which such costs, loss or damage is caused or contributed to by:

(iii) the Contractor's negligence, or the negligence of its personnel;

(iv) a breach of this Contract by the Contractor; or

(v) a failure by the Contractor to comply with any Project Plans.


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6. SITE ACCESS AND CONDITIONS

6.1 Contractor to Inform Itself

The Contractor warrants that it has, and it will be deemed to have, done everything that would be expected of a prudent, competent and experienced contractor in:

(a) assessing the risks which it is assuming under the Contract, including:

(i) in relation to the Site; and

(ii) conducting a detailed review of the Site Information; and

(b) ensuring that the Contract Price contains sufficient allowances to protect it against any of these risks eventuating.

6.2 Site Information


(a) the Commonwealth has made available the Site Information to the Contractor for the purposes of the Contractor assessing the conditions on, in, under or in the vicinity of the Site;

(b) the Commonwealth does not warrant, guarantee or make any representation about the accuracy or adequacy of any information, data and documents made available to the Contractor (including the Site Information);

(c) the Contractor acknowledges that such information, data and documents do not form part of the Contract and that clause 6.5 applies to the information, data and documents; and

(d) to the extent permitted by law, will not be liable upon any Claim by the Contractor arising out of or in connection with any such information, data or documents.

6.3 Site Access

The Commonwealth:

(a) must subject to clause 2.2 and subclause (b) provide the Contractor with such access to the Site as the Contractor reasonably requires to undertake the Contractor's Activities;

(b) is not obliged to:

(i) provide the Contractor with sole access to the Site; or

(ii) carry out any work or provide any facilities to the Contractor (other than as stated in the Contract) which may be necessary to enable the Contractor to obtain adequate access to carry out the Contractor's Activities;

(c) may engage Other Contractors to work upon or in the vicinity of the Site at the same time as the Contractor; and

(d) must use reasonable endeavours to ensure that any Other Contractors engaged by the Commonwealth comply with the reasonable requirements of the Contractor as to matters concerning industrial relations, insurance and hours of working.

6.4 Contractor's Obligation to Provide Access


(a) minimise disruption or inconvenience to the Commonwealth and any person authorised by the Commonwealth or the Contract Administrator to occupy, use or attend upon the Site in their occupation or use of, or attendance upon, any part of the Site, including any occupation or use of a part of the Remediation Works or a Stage under clause 13.5;


41

(b) at all reasonable times give:

(i) the Commonwealth, the Contract Administrator and any person authorised by either the Commonwealth or the Contract Administrator access to the Remediation Works, the Site or any areas off-Site where the Contractor's Activities are being carried out; and

(ii) the Toxic Agent Specialist access to the Remediation Works, the Site or any areas off-Site where the Contractor's Activities are being carried out, subject to the Toxic Agent Specialist agreeing at all times to comply with the Project Plans; and

(c) provide the Commonwealth and the Contract Administrator with every reasonable facility necessary for the supervision, examination and testing of the Contractor's Activities.

6.5 Non-Reliance

The Contractor:

(a) warrants that it did not in any way rely upon:

(i) any information, data, representation, statement or document made by or provided to the Contractor by the Commonwealth or anyone on behalf of the Commonwealth; or

(ii) the accuracy or adequacy of any such information, data, representation, statement or document,

for the purposes of entering into the Contract, except to the extent that any such information, data, representation, statement or document forms part of the Contract;

(b) warrants that it enters into this Contract based on its own investigations, interpretations, deductions, information and determinations; and

(c) acknowledges that it is aware that the Commonwealth has entered into the Contract relying upon the warranties in paragraphs (a) and (b).

6.6 Unexploded Ordnance

(a) If the Contractor considers it has or is likely to have encountered an Unexploded Ordnance, it must:

(i) suspend the Remediation Works and any other Contractor Activities in the vicinity of the Unexploded Ordnance;

(ii) clearly mark the location of the Unexploded Ordnance;

(iii) protect the Unexploded Ordnance and not touch or disturb it further;

(iv) ensure all persons and materials, plant and equipment are kept clear of the Unexploded Ordnance;

(v) immediately give the Contract Administrator notice in writing of the Unexploded Ordnance, its features and precise location;

(vi) comply with any instructions of the Contract Administrator in relation to the Unexploded Ordnance; and

(vii) comply with clause 8.13.

(b) The Contract Administrator must, within 14 days of receipt of the Contractor's notice under clause 6.6(a)(v):

(i) determine (in its absolute discretion) whether an Unexploded Ordnance has been encountered; and



42

(c) If the Contract Administrator determines that an Unexploded Ordnance has been encountered, then the Contractor will be entitled to:

(i) an extension of time to any relevant Date for Remediation Completion where it is otherwise so entitled under clause 10.7; and

(ii) be paid by the Commonwealth any extra costs reasonably incurred by the Contractor after the giving of a notice under subparagraph 6.6(a)(v)arising from the Unexploded Ordnance, as determined by the Contract Administrator and added to the Contract Price, subject to the Contractor taking all steps possible to mitigate those extra costs.

(d) If the Contract Administrator determines that an Unexploded Ordnance has not been encountered, then the Contractor:

(i) must immediately recommence the suspended Remediation Works and other Contractor Activities; and


6.7 Unidentified Toxic Agents and Other Materials

(a) If the Contractor considers that it has encountered Unidentified Toxic Agents or Other Materials, it must:

(i) suspend the Remediation Works and any other Contractor Activities in the vicinity of the Toxic Agents or Other Materials;

(ii) note the location of the Toxic Agents or Other Materials;

(iii) ensure all persons and materials, plant and equipment are kept clear of the Toxic Agents or Other Materials and are not exposed to the Toxic Agents or Other Materials;

(iv) immediately give the Contract Administrator notice of the discovery of the Toxic Agents or Other Materials;

(v) comply with any instructions of the Contract Administrator in relation to the Toxic Agents or Other Materials; and

(vi) comply with clause 8.13.

(b) The Contract Administrator must, within 14 days of receipt of the Contractor's notice under clause 6.7(a)(iv):

(i) determine (in its absolute discretion) whether Toxic Agents or Other Materials have been encountered; and


(c) If the Contract Administrator determines that Unidentified Toxic Agents or Other Materials have been encountered the Contract Administrator will (to the extent applicable) engage the Toxic Agent Specialist, on behalf the Commonwealth, to manage, handle, remove or otherwise deal with the Toxic Agents.

(d) If the Contract Administrator determines that Unidentified Toxic Agents or Other Materials have been encountered, then the Contractor will be entitled to:

(i) an extension of time to any relevant Date for Remediation Completion where it is otherwise so entitled under clause 10.7;

(ii) to the extent to which it is reasonably required by the Contractor, request a Remediation Works Variation under clause 11.7; and


43

(iii) be paid by the Commonwealth any extra costs reasonably incurred by the Contractor after the giving of a notice under subparagraph 6.7(a)(iv) arising from the Other Materials, as determined by the Contract Administrator and added to the Contract Price, subject to the Contractor taking all steps possible to mitigate those extra costs.

To the extent permitted by law, the Contractor's entitlement under this clause 6.7(d) will be its only right to make a Claim arising out of, or in any way in connection with, the Unidentified Toxic Agents or Other Materials.

(e) If the Contract Administrator determines that Unidentified Toxic Agents or Other Materials have not been encountered, then the Contractor:

(i) must immediately recommence the suspended Remediation Works and other Contractor's Activities; and



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7. PLANS AND DOCUMENTATION

7.1 Commonwealth's Documents

The Commonwealth must provide to the Contractor the documents and number of copies of those documents specified in the Contract Particulars.

7.2 Contractor's Design


(a) prepare Remediation Design Documentation in accordance with the Technical Specification and the other requirements of the Contract, if:

(i) the Contract Particulars state that the Contractor must prepare Remediation Design Documentation; or

(ii) directed to do so under clause 11.4 or 11.8(b);

(b) where clause 7.2(a)(i) applies:

(i) as part of the program it is to prepare under clause 10.2, submit to the Contract Administrator for approval a documentation program which makes allowance for the Remediation Design Documentation to be submitted to the Contract Administrator in a manner and at a rate which will give the Contract Administrator a reasonable opportunity to review the Remediation Design Documentation within the period of time within which the Contract Administrator may review the Design Documentation under clause 7.3; and

(ii) submit the Remediation Design Documentation it prepares to the Contract Administrator in accordance with the documentation program approved by the Contract Administrator under subclause 7.2(b)(i).

7.3 Contract Administrator may review Remediation Design Documentation

(a) The Contract Administrator may:

(i) review any Remediation Design Documentation, or any resubmitted Remediation Design Documentation, prepared and submitted by the Contractor; and

(ii) within 10 Business Days of the submission by the Contractor of such Remediation Design Documentation or resubmitted Remediation Design Documentation, reject the Remediation Design Documentation if in the Contract Administrator's reasonable opinion the Remediation Design Documentation does not comply with the requirements of the Contract.

(b) If any Remediation Design Documentation is rejected, the Contractor must submit amended Remediation Design Documentation to the Contract Administrator.

(c) The Contractor must not commence execution of any part of the Remediation Works to which any Remediation Design Documentation which it has submitted to the Contract Administrator applies, unless the Contract Administrator has had the number of days set out in subclause 7.3(a)(ii) to review the Remediation Design Documentation and has not rejected the Remediation Design Documentation.

7.4 No Obligation to Review

(a) The Contract Administrator does not assume or owe any duty of care to the Contractor to review, or in reviewing, the Remediation Design Documentation submitted by the Contractor for errors, omissions or compliance with the Contract.

(b) No review of, comments upon, consent to or rejection of, or failure to review or comment upon or consent to or reject, any Remediation Design Documentation prepared by the Contractor or any other direction by the Contract Administrator about, or any other act or omission by the Contract Administrator or otherwise by or on behalf of the Commonwealth in relation to, the Remediation Design Documentation will:


45

(i) relieve the Contractor from, or alter or affect, the Contractor's liabilities or responsibilities whether under the Contract or otherwise according to law; or

(ii) prejudice the Commonwealth's rights against the Contractor whether under the Contract or otherwise according to law.

7.5 Copies of Remediation Design Documentation

For the purposes of clauses 7.2(b)(i) and 7.3, the Contractor must submit or resubmit to the Contract Administrator the number of copies specified in the Contract Particulars of any Remediation Design Documentation in:

(a) hard copy; and

(b) electronic copy,

in each case in accordance with the requirements set out in the Contract Particulars.

7.6 Fitness for purpose


(a) the Remediation Design Documentation it prepares will be fit for its intended purpose; and

(b) upon Remediation Completion, the Remediation Works or each Stage will, to the extent that they have been designed by the Contractor, be fit for their intended purpose.

7.7 Project Plans


(i) carry out the Contractor's Activities in accordance with, and otherwise implement, the Project Plans; and

(ii) for the purposes of clause 7.7(a)(i), must prepare draft Project Plans:

A. based on the outline approach to preparing the Project Plans and performing the Contractor's Activities to be covered by the Project Plans, submitted by the Contractor in its tender for the Contractor's Activities and otherwise in accordance with the requirements of the Contract;

B. so that they are accurate, comprehensive, coordinated and complete so that the Contractor's Activities can commence and be completed without the need for further clarification or information; and

C. in consultation with the Toxic Agent Specialist, and, to the extent applicable, ensure any comments of the Toxic Agent Specialist are reflected in the draft Project Plans;

(iii) submit its draft Project Plans to the Contract Administrator so as to ensure that there is no delay or disruption to the Contractor's Activities and in any event no later than the number of days set out in the Contract Particulars after the Award Date for each Project Plan;

(iv) if required by the Contract Administrator, make available the appropriate personnel to meet with the Contract Administrator to explain any draft Project Plans or to provide information on such matters in relation to the draft Project Plans as the Contract Administrator may request, and in such form and substance as the Contract Administrator may request;

(v) within 10 business days of:

A. submission of the draft Project Plans in accordance with clause 7.7(a)(iii); or

B. if a meeting referred to in clause 7.7(a)(iv) has occurred, that meeting,


46

the Contract Administrator may comment on the draft Project Plans in writing to the Contractor, in which case the Contractor must:

C. update the draft Project Plans to address such comments; and

D. within 5 business days of receipt of the Contract Administrator's comments, resubmit such updated draft Project Plans to the Contract Administrator, together with a report which identifies how any comments from the Contract Administrator have been addressed in the draft Project Plans;

(vi) if, within 10 business of the receipt by the Contract Administrator of the updated Project Plans referred to in clause 7.7(a)(v)D the Contract Administrator forms the opinion that the draft Project Plans are not in accordance with the requirements of the Contract and otherwise to the satisfaction of the Contract Administrator, the Contract Administrator may reject the draft Project Plans by notice in writing to the Contractor;

(vii) if the Contract Administrator rejects the draft Project Plans in accordance with clause 7.7(a)(vi), the Contract Administrator may (in its absolute discretion) direct the Contractor:

A. to promptly (and in any event, within 5 business day of the Contract Administrator's direction) amend and resubmit the draft Project Plans in accordance with clause 7.7(a)(v)D and the process in this clause 7.7(a)(iii) - (vii) will be reapplied to the amended Project Plans, until the draft Project Plans are finalised in accordance with the Contract and to the satisfaction of the Contract Administrator; or

B. without limiting the Commonwealth's other rights and remedies (whether under this Contractor or otherwise at law or in equity) that the Commonwealth will (either itself or by a third party) finalise the relevant Project Plans, in which case paragraph (b) and clause 8.19 will apply;

(viii) not commence any of the Contractor's Activities to which any Project Plan applies, unless:

A. the Contract Administrator has had 10 business days to review the draft Project Plans and has not rejected them; or

B. the Project Plans have been finalised (either by or on behalf of the Commonwealth) under clause 7.7(a)(vii)B;

(ix) at all times take every step required under this clause 7.7(a) to finalise each Project Plan:

A. so as to ensure that there is no delay or disruption to the Contractor's Activities; and

B. in accordance with the requirements of the Contract to the satisfaction of the Contract Administrator;

(x) after the Project Plans have been finalised (whether by the Contractor or by or on behalf of the Commonwealth), continue to correct any defects in or omissions from a Project Plan (whether identified by the Contract Administrator or the Contractor) and submit an amended draft of the Project Plan to the Contract Administrator, after which:

A. the Contractor must continue to comply with the requirements of the then current Project Plan until the process in clause subparagraph (iii) - (ix) (to the extent applicable) has been completed in respect of the amended draft Project Plan;

B. sub-paragraphs (iii) - (ix) will re-apply to the amended draft of the Project Plan (to the extent applicable); and

(xi) must document and maintain detailed records of inspections or audits undertaken as part of any Project Plan.


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(b) The Contractor will not be relieved from compliance with any of its Contract obligations or from any of its liabilities whether under the Contract or otherwise according to law, as a result of:

(i) the implementation of, and compliance with, the requirements of any Project Plan;

(ii) any direction by the Contract Administrator concerning a Project Plan or the Contractor's compliance or non-compliance with a Project Plan;

(iii) any comment by the Toxic Agent Specialist on any Project Plan under clause 7.7(a)(ii)C;

(iv) any audit or other monitoring by the Contract Administrator of the Contractor's compliance with a Project Plan; or

(v) any failure by the Contract Administrator, or anyone else acting on behalf of the Commonwealth, to detect any defect in or omission from a Project Plan including where any such failure arises from any negligence on the part of the Commonwealth, the Contract Administrator or other person; or

(vi) the finalisation of any Project Plans by or on behalf of the Commonwealth under clause 7.7(a)(vii)B as a result of the Contractor's failure to do so.

7.8 Availability

The Contractor must keep available for the use of the Contract Administrator, the Commonwealth and any person authorised by either the Contract Administrator or the Commonwealth:

(a) on the Site, one complete set of the Technical Specification any documents provided by the Commonwealth under clause 7.1 and all Project Documents; and

(b) at any area off-Site where the Contractor's Activities are being carried out, one complete set of each of those items specified in paragraph (a) insofar as they are relevant to the Contractor's Activities being carried out in that area.

7.9 Licence over Project Documents

The Contractor grants to the Commonwealth a perpetual, royalty-free, irrevocable, non-exclusive, worldwide licence to exercise all rights of the owner of the Intellectual Property Rights in the Project Documents, including to use, re-use, reproduce, communicate to the public, modify and adapt any of the Project Documents.

This licence:

(a) arises, for each Project Document, immediately the Project Document is:

(i) produced; or


under, for the purposes of or in connection with the Contract, the Contractor's Activities or the Remediation Works by, for or on behalf of the Contractor;

(b) includes an unlimited right to sub-licence;

(c) without limitation, extends to:

(i) any subsequent operation, maintenance or servicing of, or additions, alterations or repairs to the Remediation Works; and

(ii) use in any way for any other Commonwealth project; and

(d) survives the termination of this Contract on any basis.

7.10 Intellectual Property Warranties



48

(a) the Contractor owns all Intellectual Property Rights in the Project Documents or, to the extent that it does not, is entitled to grant the assignments and licences contemplated by this Contract;

(b) use by the Commonwealth or any sublicensee or subsublicensee of the Project Documents in accordance with this Contract will not infringe the rights (including Intellectual Property Rights) of any third party;

(c) neither the Commonwealth nor any sublicensee or subsublicensee is liable to pay any third party any licence or other fee in respect of the use of the Project Documents, whether by reason of Intellectual Property Rights of that third party or otherwise; and

(d) the use by the Commonwealth or by any sublicensee or subsublicensee of the Project Documents in accordance with this Contract will not breach any laws (including any laws in respect of Intellectual Property Rights).

7.11 Intellectual Property Rights


(a) ensure that the Contractor's Activities do not infringe any patent, registered design, trade mark or name, copyright or other protected right; and

(b) indemnify the Commonwealth against any claims against, or costs, losses or damages suffered or incurred by, the Commonwealth arising out of, or in any way in connection with, any actual or alleged infringement of any patent, registered design, trade mark or name, copyright or other protected right.

7.12 Resolution of Ambiguities

If there is any ambiguity, discrepancy or inconsistency in the documents which make up the Contract or between the Contract and any Remediation Design Documentation or any other Project Document:

(a) the order of precedence that applies is the order of precedence as determined in accordance with clause 1.8.10 of the Deed;

(b) where the ambiguity, discrepancy or inconsistency is between the Contract and any part of the Remediation Design Documentation or any other Project Document, the higher standard, quality or quantum will prevail but if this does not resolve the ambiguity, discrepancy or inconsistency, the Contract will prevail;

(c) if it is discovered by the Contractor or the Contract Administrator, then the party discovering it must promptly give notice to the other; and

(d) the Contract Administrator must instruct the Contractor as to the course it must adopt within 14 days of the notice under paragraph (c).

7.13 Access to Premises and Project Documents


(a) at the request of the Contract Administrator at any time during the execution of the Contractor's Activities and the period of 10 years following the issue of a Remediation Completion Notice for the Remediation Works:

(i) provide access to its premises and make the Project Documents available for inspection and copying by the Contract Administrator or any other person nominated by the Contract Administrator;

(ii) provide to the Contract Administrator such copies of the Project Documents as the Contract Administrator or any nominated person may require;

(iii) provide all such facilities and assistance and answer all questions of the Contract Administrator or any nominated person; and


49

(iv) make available any officers, employees, agents or subcontractors for interviews with the Contract Administrator or any nominated person;

(b) as a condition precedent to Remediation Completion of each Stage or the Remediation Works, deliver to the Contract Administrator a copy of the installed version of each item of software comprising the IT Equipment incorporated in that Stage or the Remediation Works, in a storage medium reasonably satisfactory to the Commonwealth, together with a copy of all documentation, including licence terms, warranty terms and operating manuals associated with each item of such software; and

(c) ensure that any subcontract made in connection with this Contract contains enforceable obligations requiring the subcontractor to comply with the Contractor's obligations arising under this clause 7.13 as if the subcontractor were the Contractor.

7.14 DCAP

The Contractor:

(a) warrants that:

(i) the DCAP complies with the requirements of this Contract;

(ii) preparation of the Remediation Design Documentation in accordance with the DCAP will ensure that the Remediation Design Documentation complies with the requirements of this Contract and that the Contractor otherwise discharges its obligations under the Contract; and

(iii) execution of the Remediation Works in accordance with the DCAP will ensure that the Remediation Works achieve Remediation Completion in accordance with, and will otherwise enable the Contractor to discharge its obligations under, the Contract;

(b) acknowledges that the DCAP:

(i) does not limit the Contractor's obligations under this Contract; and

(ii) may require updating and refining throughout the execution of the Contractor's Activities:

A. to the extent that it does not reflect all the tasks and other things to be done or provided to perform the Contractor's Activities in accordance with the Contract; and

B. without limiting subsubparagraph A, on account of a Remediation Works Variation;

(c) must update and refine the DCAP as required by paragraph (b)(ii) with the written approval of the Contract Administrator;

(d) will not be entitled to bring any Claim against the Commonwealth arising out of or in connection with any work which the Contractor is required to carry out arising out of or in connection with paragraph (b) or (c); and

(e) acknowledges that the Commonwealth has not made and does not make any representation or give any warranty as to any of the matters referred to in subparagraphs (i) - (iii) of paragraph (a)


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8. EXECUTION OF REMEDIATION WORKS

8.1 Description of Remediation Works

Subject to clause 7.12, the Contractor must undertake and execute the Remediation Works in accordance with:


(b) any Remediation Design Documentation prepared by the Contractor in accordance with the requirements of the Contract;

(c) any direction of the Contract Administrator given or purported to be given under a provision of the Contract, including any Remediation Works Variation directed by the Contract Administrator by a document titled "Remediation Works Variation Order"; and

(d) the other requirements of the Contract.

8.2 All Remediation Work Included

(a) The Contractor has allowed for in the lump sum component of its Contract Price the provision of all Plant, Equipment and Work, materials and other work necessary for the Contractor's Activities, whether or not expressly mentioned in the Technical Specification or any Remediation Design Documentation.

(b) Any such Plant, Equipment and Work, materials and other work:

(i) must be undertaken and provided by the Contractor; and

(ii) forms part of the Contractor's Activities and will not entitle the Contractor to make a Claim except as otherwise provided for in the Contract.

(c) To the extent that any such Plant, Equipment and Work, materials and other work necessary for the Contractor's Activities are not covered by the Schedule of Rates component of the Contract Price, the Contractor will:

(i) be deemed to have allowed for the undertaking or provision of those Plant, Equipment and Work, materials and other work in its Lump Sum Component; and

(ii) not be entitled to any adjustment to the Lump Sum Component or to make any other Claim against the Commonwealth, arising out of or in connection with the undertaking or provision of those Plant, Equipment and Work, materials and other work, unless:

A. the Contractor is otherwise so entitled under clause 6.6(c) or 6.7(d);

B. the Contractor is otherwise so entitled under clause 0; or

C. expressly directed by the Commonwealth under a Remediation Works Variation Order under clause 11.4.

8.3 Statutory Requirements

The Contract Particulars describe the Approvals which exist at the Award Date or which the Commonwealth will obtain after the Award Date.


(a) unless otherwise specified in the Contract Particulars, comply with all applicable Statutory Requirements;

(b) without limiting paragraph (a):

(i) apply for and obtain all Approvals other than those referred to in the Contract Particulars; and


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(ii) give all notices and pay all fees and other amounts which it is required to pay in respect of the carrying out of its Contract obligations; and

(c) promptly give the Contract Administrator copies of all documents (including Approvals and other notices) that any authority, body or organisation having jurisdiction over the Remediation Works or the carrying out of the Contractor's Activities issues to the Contractor.

8.4 Change in Statutory Requirements or Variance with Contract

If:

(a) there is any change in a Statutory Requirement after the Award Date; or

(b) a Statutory Requirement is at variance with the Contract,

then:

(c) the party discovering this must promptly notify the other;

(d) the Contract Administrator will instruct the Contractor as to the course it is to adopt insofar as the Contractor's Activities are affected by the change or variance (as the case may be); and

(e) the Contract Price will be:

(i) increased by any extra costs reasonably incurred by the Contractor, but only to the extent to which a variance of a Statutory Requirement with the Contract was not reasonably foreseeable by the Contractor as at the Award Date; or

(ii) decreased by any saving made by the Contractor,

in carrying out the Contractor's Activities after the giving of the notice under paragraph (c) and arising directly from the change or variance (as the case may be) or the Contract Administrator's instruction, in either case as determined by the Contract Administrator.

8.5 Subcontracting

The Contractor:

(a) must not without the prior written approval of the Contract Administrator, subcontract any work described in the Contract Particulars except to a subcontractor named in the Contract Particulars;

(b) will:

(i) not be relieved of any of its liabilities or obligations under the Contract, including those under clause 2.1; and

(ii) remain responsible for all subcontractors and for all work which is or may be subcontracted, as if it was itself executing the work, whether or not any subcontractors default or otherwise fail to observe any of the requirements of the relevant subcontract;

(c) will be vicariously liable to the Commonwealth for all acts, omissions and defaults of its subcontractors (and those of the employees and agents of its subcontractors) relating to, or in any way connected with, the Contractor's Activities;

(d) must ensure that each subcontract contains provisions:

(i) which bind the subcontractor to participate in any novation required by the Commonwealth under clause 14.5(a)(ii); and

(ii) as otherwise required by this Contract; and

(e) must, if requested by the Contract Administrator:

(i) execute;


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(ii) procure the relevant subcontractor to execute; and

(iii) deliver to the Contract Administrator,

a Subcontractor Deed of Covenant duly completed with all relevant particulars:

(iv) as a condition precedent to seeking the prior written approval of the Contract Administrator under paragraph (a); or

(v) when such approval is not required, within the time required by the Contract Administrator and in any event before commencement of work by the relevant subcontractor.

No Subcontractor Deed of Covenant will be construed in any way to modify or limit any of the rights, powers or remedies of the Commonwealth against the Contractor whether under the Contract or otherwise.

8.6 Subcontractor Warranties

The Contractor must, as a condition precedent to Remediation Completion of the Remediation Works or any Stage specified in the Contract Particulars, procure and provide the Commonwealth with the warranties described in the Contract Particulars:

(a) from the relevant subcontractor undertaking or supplying the work or item the subject of the warranty; and

(b) in the form of the Collateral Warranty.

No Collateral Warranty will be construed in any way to modify or limit any of the rights, powers or remedies of the Commonwealth against the Contractor whether under the Contract or otherwise.

If the Contractor is unable to or fails for any reason to provide any Collateral Warranty required by this Contract:

(c) the Contractor is deemed to have provided the Collateral Warranty itself on like terms;

(d) the Commonwealth will be entitled to elect to take an assignment of all the right, title and interest in the Contractor's rights against the subcontractor in relation to the Contractor's Activities; and

(e) for the purpose of paragraph (d), the Contractor irrevocably appoints the Commonwealth as its lawful attorney to execute any instrument necessary to give effect to the assignment.

No assignment under this clause will be construed in any way to modify or limit any of the rights, powers or remedies of the Commonwealth against the Contractor whether under the Contract or otherwise.

8.7 Co-operation with Other Contractors

(a) The Contractor:

(i) acknowledges that the Contractor's Activities may be part of a program of works being undertaken by the Commonwealth, which includes the projects specified in the Contract Particulars; and

(ii) must perform the Contractor's Activities in a manner which:

A. maximises the Commonwealth's objectives for the delivery of the Contractor's Activities and the program of works; and

B. avoids any delay or disruption to, or any other adverse effect on, the program of works including attending such meetings, providing such documentation and information, and considering and responding to such proposals as the Commonwealth or the Contract Administrator may reasonably require.

(b) Without limiting clause 8.13(a)(iii), the Contractor must:

(i) permit Other Contractors to carry out their work;


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(ii) fully co-operate with Other Contractors, including by:

A. attending all Project Management Meetings; and

B. providing such assistance to the Contract Administrator as is reasonably required to facilitate the timely, efficient and effective execution of the Remediation Works, and other works occurring in relation to the Site;

(iii) carefully plan, co-ordinate, program and interface the performance of the Contractor's Activities with:

A. the work carried out or to be carried out by Other Contractors;

B. the activities of public or private utilities, statutory and other government agencies and others who may be engaged on the Site or who are on or carry out work on the Site; and

C. any others entitled to access the Site;

(iv) at all times carry out the Contractor's Activities so as to avoid damaging, interfering with or hindering the work of Other Contractors;

(v) where such damage, interference or hindrance referred to in subparagraph (iv) is the unavoidable consequence of the Contractor's Activities being properly carried out on the Site, give reasonable advance notice in writing to the Contract Administrator (with a copy to those Other Contractors reasonably likely to be affected) with a view to reaching an agreed procedure to prevent or minimise any such damage, interference or hindrance; and

(vi) without limiting clause 11.7, as soon as practicable after becoming aware of any other matter or circumstance which may adversely affect or which has adversely affected the performance of the Contractor's Activities or the work carried out or to be carried out by Other Contractors, give written notice to the Commonwealth detailing the matter or circumstance and its anticipated affect.

8.8 Novation

(a) The Contractor acknowledges and agrees that the Commonwealth may:

(i) dispose of the Site to a third party; and

(ii) at any time (whether on or after Remediation Completion), without the consent of the Contractor, novate the Contract to that third party after Remediation Completion or its nominees (whether in whole or in part).

(b) If the Commonwealth elects to novate the Contract under paragraph (a)(i), the Contractor must execute a deed of novation on the terms required by the Commonwealth to give effect to the novation within 7 days of receipt of the deed of novation from the Commonwealth.

8.9 Setting Out


(a) set out the Remediation Works in accordance with the requirements of the Contract; and

(b) carry out any survey which may be necessary for this purpose.

8.10 Survey

The Contractor must as a condition precedent to Completion of the Remediation Works or of any Stage specified in the Contract Particulars, submit to the Contract Administrator a certificate signed by a licensed surveyor stating that:

(a) the whole of the Remediation Works or the Stage are within any particular boundaries stipulated in the Contract except only for parts of the Remediation Works or Stage specifically required by the Contract to be outside those boundaries; and


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(b) where so required by the Technical Specification, specified elements of the Remediation Works or the Stage are within the tolerances specified.

8.11 Measurements and Dimensions


(a) the Contractor must obtain and check all relevant measurements and dimensions on Site before proceeding with the Contractor's Activities;

(b) the layout of plant, equipment, ductwork, pipework and cabling shown in the Technical Specification (if any) is to be taken as diagrammatic only and all measurements and dimension information concerning the Site required to carry out the Contractor's Activities must be obtained and checked by the Contractor; and

(c) the Commonwealth will not be liable upon any Claim by the Contractor resulting from the Contractor's failure to obtain and check measurements and dimension information concerning the Site as required by this clause.

8.12 Safety

(a) The Contractor must carry out the Contractor's Activities safely and in a manner that does not put the health and safety of persons at risk.

(b) The Contractor must carry out the Contractor's Activities in a manner that protects property.

(c) If the Contract Administrator reasonably considers there is a risk to the health and safety of people or damage to property arising from the Contractor's Activities, the Contract Administrator may direct the Contractor to change its manner of working or to cease working.

8.13 Work Health and Safety Management



(i) it complies with all Statutory Requirements and other requirements of the Contract for work health and safety management;

(ii) all subcontractors comply with the requirements referred to in this clause 8.13; and

(iii) it complies with its duty under the WHS Legislation to consult, cooperate and coordinate activities with all other persons who have a work health and safety duty in relation to the same matter;

(b) without limiting the Contractor's obligations under this Contract or at law, notify the Contract Administrator immediately (and in any event within 12 hours of such matter arising) of all work health and safety matters arising out of, or in any way in connection with, the Contractor's Activities, including the occurrence of notifiable incidents within the meaning of the WHS Legislation;

(c) if applicable, comply with all requirements of and maintain accreditation under the OHS Accreditation Scheme;

(d) regularly review its Work Health and Safety Plan, continue to update and amend its Work Health and Safety Plan and submit it (as necessary) in accordance with clause 7.7 and the WHS Legislation;

(e) institute systems to obtain regular written assurances from each Other Contractor and subcontractor about their ongoing compliance with the WHS Legislation including the due diligence obligation contained in the WHS Legislation;

(f) provide the written assurances obtained under paragraph (e), together with written assurances from the Contractor about the Contractor's ongoing compliance with the WHS Legislation, to the Contract Administrator;


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(g) provide the Contract Administrator with a written report at each meeting in accordance with clause 3.13 on all work health and safety matters (including matters concerning or arising out of, or in connection with, this clause 8.13), or any other relevant matters as the Contract Administrator may require from time to time, including a summary of the Contractor's compliance with the WHS Legislation;

(h) exercise a duty of the utmost good faith to the Commonwealth in carrying out the Contractor's Activities to enable the Commonwealth to discharge the Commonwealth's duties under the WHS Legislation;

(i) ensure its subcontracts include provisions equivalent to the obligations of the Contractor in this clause 8.13;

(j) ensure that, if any Statutory Requirement, including in the State or Territory in which the Remediation Works are situated or the Contractor's Activities are carried out (as the case may be), requires that:

(i) a person:

A. be authorised or licensed (in accordance with the WHS Legislation) to carry out any work at that workplace, that person is so authorised or licensed, and complies with any conditions of such authorisation or licence; or

B. has prescribed qualifications or experience, or if not, is to be supervised by a person who has prescribed qualifications or experience (as defined in the WHS Legislation), that person has the required qualifications or experience or is so supervised; or

(ii) a workplace, plant or substance (or design), or work (or class of work) be authorised or licensed, that workplace, plant or substance, or work is so authorised or licensed;

(k) not direct or allow a person to carry out work, or use plant or a substance at a workplace unless the authorisation, licensing, prescribed qualifications or experience required by any Statutory Requirement and paragraph (j) are met;

(l) without limiting the Contractor's obligations under this Contract or at law:

(i) provide any information or copies of documentation held by the Contractor or a subcontractor to the Contract Administrator within 14 days of a request by the Contract Administrator (and in the case of notifiable incidents, immediately and if not immediately, as soon as that information is in the possession of the Contractor), to enable the Commonwealth to comply with its obligations under the WHS Legislation; and

(ii) provide copies of:

A. all notices and communications issued by a regulator, agent of the regulator or a health and safety representative to the Contractor or a subcontractor; and

B. all notices, communications and undertakings given by the Contractor or a subcontractor to the regulator, agent of the regulator or a health and safety representative,

in connection with or related to the Contractor's Activities or the Remediation Works to the Contract Administrator within 14 days of receipt or submission of the notice, communication or undertaking by the Contractor or subcontractor (as the case may be); and

(m) if requested by the Contract Administrator or required by the WHS Legislation, produce evidence of any Approvals including any authorisations, licences, prescribed qualifications or experience, or any other information relevant to work health and safety (as the case may be) to the satisfaction of the Contract Administrator before the Contractor or any subcontractor commences such work.

8.14 Plant, Equipment and Work

(a) The Contractor warrants that there will be, on Site at all times, adequate Plant, Equipment and Work required by the Contractor to carry out the Contractor's Activities in accordance with the Contract.


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(b) The Contractor must not remove from the Site any Plant, Equipment and Work specified in the Contract Particulars without the Contract Administrator's prior written approval except for the purpose of achieving Remediation Completion as contemplated under clause 8.15(b).

8.15 Cleaning Up


(a) in carrying out the Contractor's Activities, and as far as practicable, ensure that the Site is maintained so that it is tidy and free of refuse; and

(b) as a condition precedent to Remediation Completion of each Stage, remove all rubbish, materials and Plant, Equipment and Work from the part of the Site relevant to the Remediation Works or the Stage.

8.16 The Environment



(i) other than to the extent identified in writing by the Contract Administrator, it complies with all Statutory Requirements and other requirements of the Contract for the protection of the Environment;

(ii) it does not cause any Environmental Incident;

(iii) without limiting subparagraph (ii), it does not cause or contribute to Contamination of the Site or any other land, air or water, or cause or contribute to any Contamination emanating to or from the Site;

(iv) it immediately notifies the Contract Administrator of:

A. any non-compliance with the requirements of this clause 8.16;

B. a breach of any Statutory Requirement for the protection of the Environment;

C. any Environmental Incident; or

D. the receipt of any notice, order or communication received from an authority for the protection of the Environment; and

(v) its subcontractors comply with the requirements referred to in this clause 8.16; and

(b) clean up and restore the Environment, including any Contamination or Environmental Harm, arising out of, or in any way in connection with, the Contractor's Activities, whether or not it has complied with all Statutory Requirements or other requirements of the Contract for the protection of the Environment.

8.17 Urgent Protection

The Commonwealth may take any action necessary to protect the Remediation Works, other property, the Environment, or to prevent or minimise risks to the health and safety of persons, which the Contractor must take but does not take.

8.18 Valuable Objects Found on Site

Any things of value or archaeological or special interest found on or in the Site will, as between the parties, be the property of the Commonwealth.

Where such an item is found the Contractor must:

(a) immediately notify the Contract Administrator;

(b) protect it and not disturb it further; and


57

(c) comply with any instructions of the Contract Administrator in relation to the item.

The Contract Price will be increased by the extra costs reasonably incurred by the Contractor in complying with the Contract Administrator's instructions, as determined by the Contract Administrator.

8.19 The Commonwealth May Act

The Commonwealth may, either itself or by a third party, carry out an obligation under the Contract which the Contractor was obliged to carry out but which it failed to carry out within the time required in accordance with the Contract.

The costs, expenses and damages suffered or incurred by the Commonwealth in so carrying out such a Contract obligation will be a debt due from the Contractor to the Commonwealth.

8.20 Access Hours

Unless otherwise agreed in writing between the Contractor and the Contract Administrator, the hours of access applicable to the Contractor's Activities to be carried out on Site are those set out in the Contract Particulars.

8.21 Salvaged Materials

(a) Subject to clause 8.18 and clause 8.21(b), unless expressly stated to the contrary in the Contract or directed by the Contract Administrator, all materials, plant, equipment, fixtures and other things salvaged from the Site or from the Remediation Works, and which do not form part of the Site, are the property of the Contractor.

(b) The parties acknowledge and agree that:

(i) clause 8.21(a) does not apply to Toxic Agents and Unexploded Ordnance;

(ii) as between the Commonwealth and the Contractor, Toxic Agents and Unexploded Ordnance are and at all times remain the property of the Commonwealth; and

(iii) unless expressly stated to the contrary in the Contract or directed in writing by the Contract Administrator, the Contractor must not remove any Toxic Agents or Unexploded Ordnance from the Site.

8.22 Contract Administrator's Office

(a) The Contractor must, within 14 days of the commencement of the Contractor's Activities on Site, provide and erect on the Site, where directed by the Contract Administrator, the temporary office and associated facilities and services specified in the Contract Particulars for the sole use of the Contract Administrator and the Contract Administrator's Representatives.

(b) The Contract Administrator's Office will remain the property of the Contractor.

8.23 Project Signboards

(a) The Contractor must provide the number of project signboards specified in the Contract Particulars, each of which must:

(i) be in the dimensions specified in the Contract Particulars;

(ii) set out:

A. the name of the project;

B. the names of the parties to the Contract;

C. the name of the Contract Administrator;

D. a general description of the Remediation Works;


58

E. a contact name and phone number (including after hours number) for the principal contractor pursuant to the WHS Legislation;

F. the Date for Remediation Completion;

G. the location of the Site office (if any); and

H. any other information specified in the Contract Particulars.

(b) The Contractor must, within 14 days of the commencement of the Contractor's Activities on Site, submit the proposed layout of the project signboards to the Contract Administrator for approval.

(c) Once approved by the Contract Administrator, the Contractor must:

(i) fix the project signboards in the locations directed by the Contract Administrator;

(ii) maintain the project signboards until the last Date of Remediation Completion; and

(iii) dismantle and remove the project signboards within 7 days of the last Date of Remediation Completion.

8.24 Chemical Weapons Convention, OPCW and ASNO


(a) perform the Contractor's Activities in a manner which:

(i) is consistent with the Commonwealth's obligations under the Chemical Weapons Convention, including the requirements of the OPCW and ASNO; and

(ii) complies with all relevant Statutory Requirements;

(b) provide all such assistance as the Contract Administrator or the Commonwealth may require to ensure that the Commonwealth complies with its obligations under the Chemical Weapons Convention, including any requirements of the OPCW or ASNO;

(c) not do or omit to do anything which may cause the Commonwealth to be in breach of its obligations under the Chemical Weapons Convention, including the requirements of the OPCW or ASNO;

(d) notify the Contract Administrator immediately upon becoming aware of any fact, matter or circumstance that may result in the Commonwealth not complying with its obligations under the Chemical Weapons Convention, including any requirements of the OPCW or ASNO;

(e) cooperate with any OPCW Inspector and allow any OPCW Inspector to inspect the Site and the Remediation Works (to the extent to which such inspection is required, having regard to the requirements of the Chemical Weapons Convention); and

(f) ensure that any subcontract made in connection with this Contract contains enforceable obligations requiring the subcontractor to comply with the Contractor's obligations under this clause 8.24, as if it were the Contractor.


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9. QUALITY OF REMEDIATION WORKS

9.1 Remediation Works

The Contractor must in carrying out the Contractor's Activities:

(a) use workmanship of:

(i) the standard prescribed in the Contract; or

(ii) to the extent it is not so prescribed, a standard consistent with the best industry standards and practice for work of a nature similar to the Remediation Works; and

(b) use materials which:

(i) comply with the requirements of the Contract; or

(ii) if not fully described in the Contract, are new and consistent with the best industry standards for work of a nature similar to the Remediation Works; and

(iii) are of merchantable quality, which are fit for their purpose and consistent with the nature and character of the Remediation Works; and

(c) carry out the Contractor's Activities in accordance with the requirements of the Contract and, to the extent they are not inconsistent, best industry practice and the requirements of all relevant standards of Standards Australia.

9.2 Contract Administrator's Right to Inspect

The Contract Administrator may at any time inspect the Contractor's Activities and the Remediation Works.

The Contractor however acknowledges that:

(a) the Contract Administrator owes no duty to the Contractor to:

(i) inspect the Contractor's Activities; or

(ii) review the Remediation Works for errors, omissions or compliance with the requirements of this Contract if it does so inspect; and

(b) no inspection of the Contractor's Activities or review of the Remediation Works by the Contract Administrator will in any way lessen or otherwise affect:

(i) the Contractor's obligations whether under this Contract or otherwise according to law; or

(ii) the Commonwealth's rights against the Contractor whether under this Contract or otherwise according to law.

9.3 Sampling and Analysis

The Contractor must carry out all sampling and analysis required by the Contract or directed by the Contract Administrator. All sampling and analysis is to be carried out in accordance with any procedure:

(a) set out in the Contract which may apply to the tests; or

(b) if no procedure exists, as reasonably directed by the Contract Administrator.


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9.4 Costs of Sampling and Analysis

If:

(a) the Contract Administrator directs the Contractor to carry sampling and analysis which is not otherwise required by the Contract; and

(b) the results of the sampling and analysis show the Contractor's Activities are in accordance with the Contract,

the reasonable costs incurred by the Contractor in carrying out the sampling and analysis will be determined by the Contract Administrator and added to the Contract Price.

9.5 Remediation Defects

Subject to paragraphs (b) and (c), the Contractor must correct all Remediation Defects.

If, prior to the expiration of the Remediation Defects Rectification Period for the Remediation Works or a Stage, the Contract Administrator discovers or believes there is a Remediation Defect, the Contract Administrator may give the Contractor an instruction specifying the Remediation Defect and doing one or more of the following:

(a) requiring the Contractor to correct the Remediation Defect, or any part of it, and specifying the time within which this must occur;

(b) requiring the Contractor to carry out a Remediation Works Variation to overcome the Remediation Defect, or any part of it, and specifying the time within which this must be carried out; or

(c) advising the Contractor that the Commonwealth will accept the work, or any part of it, despite the Remediation Defect.

9.6 Correction of Remediation Defect or Remediation Works Variation

If an instruction is given under clause 9.5(a) or (b), the Contractor must correct the Remediation Defect or carry out the Remediation Works Variation:

(a) within the time specified in the Contract Administrator's instruction; and

(b) if after Remediation Completion, at times and in a manner which cause as little inconvenience to the occupants of the Site as is reasonably possible.

9.7 Claim for Correction of Remediation Defect

Where an instruction is given under clause 9.5(a):

(a) the Contractor will only be entitled to make a Claim for correcting the Remediation Defect (or the relevant part) if the Remediation Defect (or the relevant part) is something for which the Contractor is not responsible; and

(b) where the Contractor is so entitled to make a Claim, the work involved in the correction of the Remediation Defect will be treated as if it were a Remediation Works Variation the subject of a direction by the Contract Administrator, and clause 11.5 will apply.

9.8 Claim for Remediation Works Variation

Where a Remediation Works Variation has been instructed under clause 9.5(b) and:

(a) the Contractor is not responsible for the Remediation Defect (or the relevant part):

(i) the Contract Price will be adjusted in accordance with clause 11.5; and

(ii) the Contractor will be entitled to an extension of time to any relevant Date for Remediation Completion where it is otherwise so entitled under clause 10.7; or

(b) the Contractor is responsible for the Remediation Defect (or the relevant part):


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(i) the Contract Administrator will determine:

A. the value of the Remediation Works Variation in accordance with clause 11.5; and

B. the cost of correcting the Remediation Defect (or the relevant part) as if clause 9.7(b) applied;

(ii) the Contract Price will be adjusted by the difference between the valuations under subparagraph (i) as follows:

A. if the value under subparagraph (i)A is greater than the cost under subparagraph (i)B, the Contract Price will be increased by the excess; or

B. if the value under subparagraph (i)B is greater than the cost under subparagraph (i)A, the Contract Price will be decreased by the difference and will be a debt due from the Contractor to the Commonwealth; and

(iii) the Contractor may not claim an extension of time to any Date for Remediation Completion.

9.9 Acceptance of Remediation Work

If:

(a) an instruction is given under clause 9.5(c) prior to the expiration of the Remediation Defects Rectification Period; and


the amount determined by the Contract Administrator which represents the cost of correcting the Remediation Defect (or the relevant part) will be a debt due from the Contractor to the Commonwealth.

9.10 Extension of Remediation Defects Rectification Period

If:

(a) the Contract Administrator gives the Contractor an instruction under clause 9.5(a) or (b) during the Remediation Defects Rectification Period; and


the Remediation Defects Rectification Period will be extended for the work required by the instruction by the period set out in the Contract Particulars, commencing upon completion of the correction of the Remediation Defect (or the relevant part) or completion of the Remediation Works Variation.

9.11 Common Law Rights not Affected

Neither the Commonwealth's rights, nor the Contractor's liability, whether under the Contract or otherwise according to law in respect of Remediation Defects, whether before or after the expiration of the Remediation Defects Rectification Period, will be affected or limited by:

(a) the rights conferred upon the Commonwealth or Contract Administrator by this clause 9 or any other provision of the Contract;

(b) the failure by the Commonwealth or the Contract Administrator to exercise any such rights; or

(c) any instruction of the Contract Administrator under clause 9.5.


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10. TIME FOR CONTRACTOR'S ACTIVITIES AND REMEDIATION WORKS

10.1 Progress and Time for Remediation Completion


(a) regularly and diligently progress the Contractor's Activities; and

(b) achieve Remediation Completion of the Remediation Works or each Stage by the relevant Date for Remediation Completion.

10.2 Programming


(a) within 14 days of the Award Date, prepare a program of the Contractor's Activities which must contain the details required by the Contract or which the Contract Administrator otherwise reasonably directs;

(b) update the program periodically at least at intervals of no less than that specified in the Contract Particulars to take account of:

(i) changes to the program; or

(ii) delays which may have occurred, including any for which the Contractor is granted an extension of time under clause 10.8;

(c) give the Contract Administrator copies of all programs for approval;

(d) ensure that the subcontractors adhere to the program; and

(e) provide all programs in a format compatible with the software described in the Contract Particulars.

10.3 Contractor Not Relieved

Any review of, comments upon or approval of, or any failure to review or comment upon, a program by the Contract Administrator will not:

(a) relieve the Contractor from or alter its liabilities or obligations under the Contract, especially (without limitation) the obligation to achieve Remediation Completion by each Date for Remediation Completion;

(b) evidence or constitute the granting of an extension of time or an instruction by the Contract Administrator to accelerate, disrupt, prolong or vary any or all of the Contractor's Activities; or

(c) affect the time for the carrying out of the Commonwealth's or Contract Administrator's Contract obligations.

10.4 Acceleration by Contractor

If the Contractor chooses to accelerate progress then despite clause 3.3:

(a) neither the Commonwealth nor the Contract Administrator will be obliged to take any action to assist or enable the Contractor to achieve Remediation Completion before any Date for Remediation Completion; and

(b) the time for the carrying out of the Commonwealth's or the Contract Administrator's obligations will not be affected.

10.5 Delays Entitling Claim

If the Contractor is, or is likely to be, delayed:

(a) prior to the Date for Remediation Completion of the Remediation Works or a Stage, by:


63

(i) an Act of Prevention; or

(ii) a cause described in the Contract Particulars,

in a manner which will prevent it from achieving Remediation Completion of the Remediation Works or the Stage by the relevant Date for Remediation Completion; or

(b) after the Date for Remediation Completion of the Remediation Works or a Stage, by an Act of Prevention in a manner which will delay it in achieving Remediation Completion of the Remediation Works or the Stage,

the Contractor may claim an extension of time.

10.6 Claim

To claim an extension of time the Contractor must:

(a) within 14 days of the commencement of the occurrence causing the delay submit a written claim to the Contract Administrator for an extension to the relevant Date for Remediation Completion which:

(i) gives detailed particulars of the delay and the occurrence causing the delay; and

(ii) states the number of days extension of time claimed together with the basis of calculating that period, including evidence that it will be delayed in achieving Remediation Completion in the manner set out in clause 10.7(c); and

(b) if the effects of the delay continue beyond the period of 14 days after the commencement of the occurrence causing the delay and the Contractor wishes to claim an extension of time in respect of the further delay, submit a further written claim to the Contract Administrator:

(i) every 14 days after the first written claim until 7 days after the end of the effects of the delay; and

(ii) containing the information required by paragraph (a).

10.7 Conditions Precedent to Extension

Subject to clause 10.14, it is a condition precedent to the Contractor's entitlement to an extension of time that:

(a) the Contractor must give the written claim required by clause 10.6 as required by that clause;

(b) the cause of the delay was beyond the reasonable control of the Contractor;

(c) the Contractor must have actually been, or be likely to be, delayed by:

(i) prior to the Date for Remediation Completion of the Remediation Works or the Stage:

A. an 6Act of Prevention; or

B. a cause described in the Contract Particulars,

in a manner which will prevent it from achieving Remediation Completion of the Remediation Works or the Stage by the relevant Date for Remediation Completion unless that date is extended; or

(ii) after the Date for Remediation Completion of the Remediation Works or the Stage, an Act of Prevention in a manner which will delay it in achieving Remediation Completion of the Remediation Works or the Stage; and

(d) the Contractor must not have been given an instruction under clause 10.13.


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10.8 Extension of Time

Subject to clause 10.9, if the conditions precedent in clause 10.7 have been satisfied, the relevant Date for Remediation Completion will be extended by a reasonable period determined by the Contract Administrator and notified to the Commonwealth and the Contractor within 21 days of the Contractor's written claim under clause 10.6.

10.9 Reduction in Extension of Time

The Contract Administrator will reduce any extension to the relevant Date for Remediation Completion it would otherwise have notified to the Commonwealth and the Contractor under clause 10.8 to the extent that the Contractor:

(a) contributed to the delay; or

(b) failed to take all steps necessary both to preclude the cause of the delay and to avoid or minimise the consequences of the delay.

10.10 Unilateral Extensions

Whether or not the Contractor has made, or is entitled to make, a claim for an extension of time under this clause 10, the Commonwealth may, in the Commonwealth's absolute discretion at any time and from time to time by written notice to the Contractor and the Contract Administrator, unilaterally extend any Date for Remediation Completion.

The parties acknowledge that:

(a) the Commonwealth is not required to exercise the Commonwealth's discretion under this clause 10.10 for the benefit of the Contractor;

(b) this clause 10.10 does not give the Contractor any rights; and

(c) the exercise or failure to exercise the Commonwealth's discretion under this clause 10.10 is not capable of being the subject of a dispute or difference for the purposes of clause 15.1 or otherwise subject to review.

10.11 Agreed Damages

This clause 10.11 applies unless the Contract Particulars state that it does not apply.

The Contractor will be entitled to be paid the amount in the Contract Particulars for each day by which the Date for Remediation Completion of the Remediation Works or a Stage is extended due to a breach of the Contract by the Commonwealth.

This amount:

(a) is the agreed damages which will be payable by the Commonwealth in these circumstances; and

(b) will be a limitation upon the Commonwealth's liability to the Contractor for any delay or disruption which:

(i) the Contractor encounters in carrying out the Contractor's Activities; and

(ii) arises out of, or in any way in connection with, the breach of the Contract by the Commonwealth,

and the Contractor will not be entitled to make, nor will the Commonwealth be liable upon, any Claim in these circumstances other than for the amount which is payable by the Commonwealth under this clause 10.11.

10.12 Suspension

(a) The Contract Administrator:

(i) may instruct the Contractor to suspend and, after a suspension has been instructed, to re-commence, the carrying out of all or a part of the Contractor's Activities; and


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(ii) is not required to exercise the Contract Administrator's power under subparagraph (i) for the benefit of the Contractor.

(b) If a suspension under this clause 10.12 arises as a result of:

(i) the Contractor's failure to carry out its obligations in accordance with the Contract, the Contractor will not be entitled to make any Claim against the Commonwealth arising out of, or in any way in connection with, the suspension; or

(ii) a cause other than the Contractor's failure to carry out its obligations in accordance with the Contract:

A. an instruction to suspend under this clause 10.12 will entitle the Contractor to:

1) be paid by the Commonwealth the extra costs reasonably incurred by it as a result of the suspension as determined by the Contract Administrator; and

2) an extension of time to any relevant Date for Remediation Completion where it is otherwise so entitled under clause 10.7;

B. the Contractor must take all steps possible to mitigate the extra costs incurred by it as a result of the suspension; and

C. the Contractor will not be entitled to make any Claim against the Commonwealth arising out of, or in any way in connection with, the suspension other than under this subparagraph (ii).

(c) Except to the extent permitted by the relevant Security of Payment Legislation, the Contractor may only suspend the Contractor's Activities when instructed to do so under this clause 10.12.

10.13 Instruction to Accelerate

If the Contractor gives the Contract Administrator a claim under clause 10.6, the Contract Administrator may:

(a) instruct the Contractor to accelerate the Contractor's Activities by taking those measures which are necessary to overcome or minimise the extent and effects of some or all of the delay including, if required, in order to achieve Remediation Completion of the Remediation Works or the Stage by the relevant Date for Remediation Completion; and

(b) give such an instruction whether or not the cause of delay for which the Contractor has given its claim under clause 10.6 otherwise entitles the Contractor to an extension of time to any relevant Date for Remediation Completion.

10.14 Partial Acceleration

If the Contract Administrator gives the Contractor an instruction to accelerate under clause 10.13 requiring it to accelerate the Contractor's Activities and it only applies to part of the delay, the Contractor's entitlement to any extension of time which it otherwise would have had will only be reduced to the extent to which the instruction to accelerate requires the Contractor to accelerate to overcome the delay.

10.15 Acceleration

If the Contract Administrator gives an instruction to the Contractor under clause 10.13:

(a) the Contractor must accelerate the Contractor's Activities to overcome or minimise the extent and effect of some or all of the delay as instructed, including, if required, in order to achieve Remediation Completion of the Remediation Works or the Stage by the relevant Date for Remediation Completion;

(b) if the Contractor would, but for the instruction, have been entitled to an extension of time to the relevant Date for Remediation Completion for the cause of delay, the Contractor will be entitled to be paid:


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(i) the extra costs reasonably incurred by it and directly attributable to accelerating the Contractor's Activities; and

(ii) that percentage of the amount under subparagraph (i) stipulated in the Contract Particulars; and

(c) subject to clause 10.14, the Contractor will not be entitled to make any Claim against the Commonwealth, arising out of, or in any way in connection with, the cause of delay and the instruction other than for the amount which is payable by the Commonwealth under this clause 10.15.

10.16 Commonwealth's Rights to Liquidated Damages Not Affected

The Commonwealth's rights to liquidated damages under clause 13.7 for a failure by the Contractor to achieve Remediation Completion of the Remediation Works or a Stage by any relevant Date for Remediation Completion are not affected by the Contract Administrator giving the Contractor an instruction to accelerate under clause 10.13.


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11. VARIATION TO REMEDIATION WORKS

11.1 Notice of Unidentified Site Conditions

If the Contractor considers it has encountered an Unidentified Site Condition, it must immediately give the Contract Administrator notice in writing.

After receipt of a notice from the Contractor, the Contract Administrator must within 21 days of receipt of the Contractor's notice:

(a) determine whether an Unidentified Site Condition has been encountered; and

(b) notify the Contractor and the Commonwealth of the Contract Administrator's determination.

11.2 Contractor's Entitlement for Unidentified Site Conditions

If the Contract Administrator determines that an Unidentified Site Condition has been encountered, the Contractor will be entitled to:

(a) claim an extension of time to any relevant Date for Remediation Completion under clause 10.5 where it is otherwise so entitled under clause 10.7; and

(b) to the extent to which it is reasonably required by the Contractor, request a Remediation Works Variation under clause 11.7.

To the extent permitted by law, the Contractor's entitlement under this clause 11.2 will be its only right to make a Claim arising out of, or in any way in connection with, the Unidentified Site Condition.

11.3 Remediation Works Variation Price Request Initiated by Commonwealth

At any time prior to the Date of Remediation Completion of the Remediation Works or a Stage (but without limiting clauses 5.3 and 9.5), the Contract Administrator may issue a document titled "Remediation Works Variation Price Request" to the Contractor which will set out details of a proposed Remediation Works Variation which the Commonwealth is considering with respect to the Remediation Works or a Stage.

The Contractor must immediately take all action required under any relevant subcontract in relation to each subcontractor that would be involved in carrying out the proposed Remediation Works Variation.

Within 14 days of the receipt of a "Remediation Works Variation Price Request", the Contractor must provide the Contract Administrator with a written notice in which the Contractor sets out:

(a) the adjustment (if any) to the Contract Price to carry out the proposed Remediation Works Variation; and

(b) the effect (if any) which the proposed Remediation Works Variation will have on the then approved program, including each Date for Remediation Completion.

11.4 Remediation Works Variation Order

Whether or not the Contract Administrator has issued a "Remediation Works Variation Price Request" under clause 11.3, the Contract Administrator may at any time prior to the Date of Remediation Completion of the Remediation Works or a Stage (but without limiting clauses 5.3 and 9.5), instruct the Contractor to carry out a Remediation Works Variation by a written document titled "Remediation Works Variation Order" in which the Contract Administrator will state one of the following:

(a) the proposed adjustment to the Contract Price as set out in the Contractor's notice under clause 11.3 (if any) is agreed and the Contract Price will be adjusted accordingly; or

(b) any adjustment to the Contract Price will be determined under clauses 11.5(b) and 11.5(c).

No Remediation Works Variation will invalidate the Contract irrespective of the nature, extent or value of the work the subject of the Remediation Works Variation.


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11.5 Cost of Remediation Works Variation

Subject to clauses 9.8(b) and 11.9, the Contract Price will be increased or decreased for all Remediation Works Variations which have been the subject of a direction by the Contract Administrator:

(a) as agreed under clause 11.4(a);

(b) if paragraph (a) does not apply, in accordance with the rates or prices included in the Schedule of Rates, if and insofar as the Contract Administrator determines that those rates or prices are applicable to or it is reasonable to use them for valuing, the Remediation Works Variation, to which will be added any reasonable costs and expenses incurred by the Contractor arising from the Remediation Works Variation delaying the Contractor;

(c) to the extent paragraph (b) does not apply, by a reasonable amount:

(i) to be agreed between the parties; or

(ii) failing agreement, determined by the Contract Administrator,

to which will be added any reasonable costs and expenses incurred by the Contractor arising from the Remediation Works Variation delaying the Contractor.

11.6 Omissions

If a Remediation Works Variation the subject of a direction by the Contract Administrator omits any part of the Remediation Works or a Stage, the Commonwealth may thereafter carry out this omitted work either itself or by engaging Other Contractors.

11.7 Remediation Works Variations Requested by Contractor

(a) The Contractor may request the Contract Administrator to direct a Remediation Works Variation:

(i) where it reasonably considers that a Remediation Works Variation is necessary or desirable (including to minimise costs); or;

(ii) without limiting paragraph (i), as a consequence of an:

A. Unidentified Site Condition which has been determined by the Contract Administrator under clause 11.1(a) to have been encountered; or

B. Unidentified Toxic Agent or Other Material which has been determined by the Contract Administrator under clause 6.7(b) to have been encountered.

(b) Any such request under clause 11.7(a) must be in writing and must contain the following details:

(i) a description of the Remediation Works Variation;

(ii) the reason or reasons why the Remediation Works Variation is required;

(iii) the additional or reduced costs or time involved in the Remediation Works Variation and any proposal for sharing any savings in costs with the Commonwealth including the amount;

(iv) any benefits which will flow to the Commonwealth from the Remediation Works Variation; and

(v) the effect which the Remediation Works Variation will have upon the future cost of operating and maintaining the Remediation Works.

11.8 Contract Administrator's Determination

After a request is made by the Contractor in accordance with clause 11.7(a), the Contract Administrator will, in the Contract Administrator's absolute discretion, give a written notice to the Contractor:

(a) rejecting the request; or


69

(b) approving the request either conditionally or unconditionally, and if clause 11.7(a)(ii) applies, outlining any change to the requirements for Remediation Works Completion as a consequence of the:

(i) Unidentified Site Condition; or

(ii) Toxic Agents or Other Materials.

The Contract Administrator will not be obliged to exercise the Contract Administrator's discretion for the benefit of the Contractor.

11.9 Remediation Works Variation Approved by Contract Administrator

Subject to clause 11.10, if the Contract Administrator issues a written notice under clause 11.8 approving the Contractor's request under clause 11.7(a)(i):

(a) unless otherwise agreed, the Contractor will not be entitled to make a Claim against the Commonwealth arising out of, or in any way in connection with, the Remediation Works Variation;

(b) if the Contractor's request offered to share savings in cost with the Commonwealth, the Contract Price will be reduced by or adjusted in accordance with the Contractor's offer; and

(c) the Contractor will be responsible for all parts of the Remediation Works which are in any way affected by the Remediation Works Variation.

11.10 Unidentified Site Conditions, Toxic Agent Specialist Directions and Contract Price

If the Contract Administrator issues a written notice under clause 11.8 approving the Contractor's request under clause 11.7(a) in relation to a Remediation Works Variation which has been requested as a consequence of an Unidentified Site Condition or any Toxic Agents or Other Materials:

(a) the Contract Price will be increased or decreased in accordance with clause 11.5(b) or clause 11.5(c) (as appropriate); and

(b) the requirements for Remediation Completion will be varied as reasonably determined by the Contract Administrator and set out in the Contractor Administrator's notice under clause 11.8.


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12. PAYMENT FOR REMEDIATION WORKS

12.1 Payment Obligation

(a) Subject to clause 12.15 and to any other right to set-off which the Commonwealth may have, the Commonwealth will pay the Contractor:

(i) the Contract Price; and

(ii) any other amounts which are payable by the Commonwealth to the Contractor under the Contract.

(b) The Contract Price comprises the:

(i) Lump Sum Component; and

(ii) Schedule of Rates Component.

12.2 Payment Claims

Subject to clause 12.3, the Contractor must give the Contract Administrator claims for payment on account of the Contract Price and all other amounts then payable by the Commonwealth to the Contractor under the Contract:

(a) at the times stated in the Contract Particulars until Remediation Completion or termination of the Contract (whichever is earlier);

(b) unless terminated earlier, after Remediation Completion or the Remediation Defects Rectification Period (as the case may be), within the time required by clause 12.9 or 12.11 (as the case may be);

(c) in the format set out in the Schedule of Collateral Documents or in any other format which the Contract Administrator reasonably requires;

(d) which are based on the Table of Remediation Works Variation Rates and Prices or the Schedule of Rates to the extent these are relevant;

(e) which show separately the amounts (if any) claimed on account of:

(i) the Lump Sum Component;

(ii) Schedule of Rates Component; and

(iii) all other amounts then payable by the Commonwealth to the Contractor under the Contract; and

(f) which set out or attach sufficient details, calculations, supporting documentation and other information in respect of all amounts claimed by the Contractor:

(i) to enable the Contract Administrator to fully and accurately determine (without needing to refer to any other documentation or information) the amounts then payable by the Commonwealth to the Contractor under the Contract; and

(ii) including any such documentation or information which the Contract Administrator may by written notice from time to time require the Contractor to set out or attach, whether in relation to a specific payment claim or all payment claims generally.

12.3 Conditions Precedent

(a) The Contractor's entitlement to submit a payment claim under clause 12.2 is conditional upon the Contractor having:

(i) provided the Commonwealth with Approved Security for the amount (if any) required under clause 4.1 and any related company guarantee required under clause 4.4;


71

(ii) obtained the insurance required by clause 5.4 and (if requested) provided evidence of this to the Contract Administrator;

(iii) complied with its programming obligations under clause 10.2;

(iv) finalised all relevant Project Plans in accordance with clause 7.7 at the time of submission of the payment claim;

(v) complied with clause 12.16;

(vi) complied with clause 12.22;

(vii) complied with clause 12.23;

(viii) complied with clause 12.24;

(ix) provided the Contract Administrator with duly executed copies of any Subcontractor Deed of Covenant or Contractor Deed of Covenant that the Contractor is required to obtain under the Contract;

(x) if clause 14.8(b)(ii) applies - complied with clause 14.8(b)(ii); and

(xi) provided all relevant information as required under the WHS Legislation or under this Contract arising out of or in connection with work health and safety.

(b) If the Contractor has not satisfied the conditions in paragraph (a) at the time of submitting a payment claim, then:

(i) the payment claim is deemed to have been invalidly submitted under clause 12.2;

(ii) the Contract Administrator will not be obliged to include in any payment statement under clause 12.4 any amount included in the payment claim; and

(iii) the Commonwealth will not be liable to pay any amount included in the payment claim.

(c) If the Contractor:

(i) submits a payment claim; and

(ii) has failed to comply with the requirements of clause 12.2(f) in relation to any amount (or portion of any amount) claimed in the payment claim,

then:

(iii) the Contractor will not be entitled to payment of;

(iv) the Contract Administrator will not be obliged to include in any payment statement under clause 12.4; and

(v) the Commonwealth will not be liable to pay,

the amount (or the portion of the amount) claimed in the payment claim in relation to which the Contractor has failed to comply with the requirements of clause 12.2(f), unless:

(vi) the Contract Administrator (in its absolute discretion and without being under any obligation to exercise this discretion for the benefit of the Contractor) issues a written notice to the Contractor identifying the documentation or information which the Contractor has failed to provide under clause 12.2(f); and

(vii) the Contractor provides that documentation or information to the Contract Administrator within the time required in the Contract Administrator's notice.


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12.4 Payment Statements

The Contract Administrator:

(a) must, within 10 business days of receiving a payment claim submitted or purported to be submitted in accordance with clause 12.2; or

(b) may, if the Contractor fails to submit any such claim in accordance with clause 12.2, at any time,

give the Contractor (with a copy to the Commonwealth), on behalf of the Commonwealth, a payment statement which is in the form set out in the Schedule of Collateral Documents and which states:

(c) the payment claim to which it relates (if any);

(d) the Contractor's total value of entitlement to payment under the Contract;

(e) the amount already paid to the Contractor;

(f) the amount (if any) which the Contract Administrator believes to be then payable by the Commonwealth to the Contractor on account of the Contract Price and otherwise in accordance with the Contract and which the Commonwealth proposes to pay to the Contractor; and

(g) if the amount in paragraph (f) is less than the amount claimed in the payment claim:

(i) the reason why the amount in paragraph (f) is less than the amount claimed in the payment claim; and

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

Any evaluation, or issue of a payment statement, by the Contract Administrator will not:

(h) constitute approval of any work nor will it be taken as an admission or evidence that the part of the Remediation Works covered by the payment statement has been satisfactorily carried out in accordance with the Contract; or

(i) constitute a waiver of the requirements of clauses 12.2 and 12.3 in relation to any payment claim other than to the extent (if any) to which the Commonwealth expressly waives such requirements in respect of the payment claim the subject of the payment statement.

12.5 Payment

Within the number of business days stated in the Contract Particulars of the Commonwealth receiving a payment statement under clause 12.4, the Commonwealth will pay the Contractor the amounts set out as then payable in the payment statement.

12.6 Payment on Account

Any payment of moneys under clause 12.5 is not:

(a) evidence of the value of work or that work has been satisfactorily carried out in accordance with the Contract;

(b) an admission of liability; or

(c) approval by the Commonwealth or the Contract Administrator of the Contractor's performance or compliance with the Contract,

but is only to be taken as payment on account.


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12.7 Unfixed Goods and Materials

Unfixed goods or materials will not be included in the value of work in a payment statement under clause 12.4 unless:

(a) the Contract Administrator is satisfied that the unfixed goods and materials have not been prematurely ordered and are necessary to enable the Contractor to comply with its obligations under the Contract;

(b) the Contractor gives the Contract Administrator with its payment claim under clause 12.2:

(i) additional Approved Security equal to the payment claimed for the unfixed goods and materials; and

(ii) such evidence as may be required by the Contract Administrator that title to the unfixed goods and materials will vest in the Commonwealth upon payment;

(c) the unfixed goods and materials are clearly marked as the property of the Commonwealth and are on the Site or available for immediate delivery to the Site; and

(d) the unfixed goods and materials are properly stored in a place approved by the Contract Administrator.

Upon payment of a payment statement which includes unfixed goods and materials, title in the unfixed goods and materials will vest in the Commonwealth.

12.8 Release of Additional Approved Security

If the Contractor has given the Commonwealth additional Approved Security for payment for unfixed goods and materials, the Commonwealth must release it to the Contractor once those goods and materials are incorporated into the Remediation Works.

12.9 Remediation Completion Payment Claim and Notice

Within 28 days (or such longer period agreed in writing by the Contract Administrator) after the issue of a Remediation Completion Notice for the Remediation Works or a Stage, the Contractor must give the Contract Administrator:




(c) in the case of the Remediation Works, occurred prior to the Date of Remediation Completion of the Remediation Works; or

(d) in the case of a Stage, occurred prior to the Date of Remediation Completion of the Stage, insofar as the fact, matter or thing relates to the Stage.



12.10 Release after Completion Payment Claim and Notice



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(a) in the case of the Remediation Works, occurred prior to the Date of Remediation Completion of the Remediation Works; or

(b) in the case of a Stage, occurred prior to the Date of Remediation Completion of the Stage, insofar as the fact, matter or thing relates to the Stage,


12.11 Final Payment Claim and Notice

Within 28 days (or such longer period agreed in writing by the Contract Administrator) after the end of the Remediation Defects Rectification Period for the Remediation Works or a Stage, the Contractor must give the Contract Administrator:




(c) in the case of the Remediation Works, occurred during the Remediation Defects Rectification Period for the Remediation Works; or

(d) in the case of a Stage, occurred during the Remediation Defects Rectification Period for the Stage, insofar as the fact, matter or thing relates to the Stage.



12.12 Release after Final Payment Claim and Notice


(a) in the case of the Remediation Works, occurred during the Remediation Defects Rectification Period for the Remediation Works; or

(b) in the case of a Stage, occurred during the Remediation Defects Rectification Period for the Stage, insofar as the fact, matter or thing relates to the Stage,


12.13 Interest

The Commonwealth will pay simple interest at the rate stated in the Contract Particulars on any:

(a) amount which has been set out as payable by the Contract Administrator in a payment statement under clause 12.4, but which is not paid by the Commonwealth within the time required by the Contract; and

(b) damages (excluding any agreed damages payable under clause 10.11).

This will be the Contractor's sole entitlement to interest including damages for loss of use of, or the cost of borrowing, money.


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12.14 Correction of Payment Statements

The Contract Administrator may, in any payment statement:

(a) correct any error in any previous payment statement; and

(b) modify any previous payment statement,

issued by the Contract Administrator.

12.15 Right of Set-Off

The Commonwealth may:

(a) deduct from moneys otherwise due to the Contractor:

(i) any debt or other moneys due from the Contractor to the Commonwealth; and

(ii) any claim to money which the Commonwealth may have against the Contractor whether for damages (including liquidated damages) or otherwise,

whether under the Contract or otherwise at law relating to the Remediation Works or the Contractor's Activities; and

(b) without limiting paragraph (a), deduct any debt or claim referred to in paragraphs (a)(i) or (a)(ii) from any moneys which may be or thereafter become payable to the Contractor by the Commonwealth in respect of any Remediation Works Variation the subject of a "Remediation Works Variation Order" under clause 11.4.

12.16 Payment of Workers and Subcontractors

The Contractor must with each payment claim under clause 12.2 provide the Contract Administrator with:

(a) a statutory declaration, together with any supporting evidence which may be reasonably required by the Contract Administrator, duly signed by the Contractor or, where the Contractor is a corporation, by a representative of the Contractor who is in a position to know the facts declared, that, except to the extent disclosed in the statutory declaration (such disclosure to specify all relevant amounts, workers and subcontractors):

(i) all workers who have at any time been employed by the Contractor on the Contractor's Activities have at the date of the payment claim been paid all moneys due and payable to them in respect of their employment on the Contractor's Activities; and

(ii) all subcontractors have been paid all moneys due and payable to them in respect of the Contractor's Activities; and

(b) documentary evidence that, except to the extent otherwise disclosed (such disclosure to specify all relevant amounts and workers), as at the date of the payment claim, all workers who have been employed by a subcontractor have been paid all moneys due and payable to them in respect of their employment on the Contractor's Activities.


12.17 GST

(a) Subject to paragraph (b), where any supply occurs under or in connection with the Contract or the Remediation Works for which GST is not otherwise provided, the party making the supply (Supplier) will be entitled to increase the amount payable for the supply by the amount of any applicable GST.

(b) Where an amount is payable to the Supplier for a supply under or in connection with the Contract or the Remediation Works which is based on the actual or reasonable costs incurred by the Supplier, the amount payable for the supply will be reduced by the amount of any input tax credits available to the


76

Supplier (or a representative member on the Supplier's behalf) in respect of such costs before being increased for any applicable GST under paragraph (a).

(c) As a condition precedent to any amount on account of GST being due from the recipient to the Supplier in respect of a taxable supply, the Supplier must provide a tax invoice to the recipient in respect of that supply.

(d) If the amount paid to the Supplier in respect of the GST (whether because of an adjustment or otherwise):

(i) is more than the GST on the supply, then the Supplier shall refund the excess to the recipient; or

(ii) is less than the GST on the supply, then the recipient shall pay the deficiency to the Supplier.

(e) In this clause:

(i) GST means the tax payable on taxable supplies under the GST Legislation;

(ii) GST Legislation means A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any related Act imposing such tax or legislation that is enacted to validate, recapture or recoup such tax; and

(iii) terms defined in GST Legislation have the meaning given to them in GST Legislation.

12.18 Quantities in Schedule of Rates

(a) The items of work and quantities in any Schedule of Rates are estimated and not guaranteed. The Contractor will not be entitled to make any Claim against the Commonwealth if the items of work or quantities are incorrect in that they:

(i) contain an incorrect quantity;

(ii) contain an item which should not have been included; or

(iii) omit an item which should have been included.

(b) The Contractor acknowledges as agrees that:

(i) the Schedule of Rates Work cannot include work which forms part of the Lump Sum Work; and

(ii) the relevant quantity of work performed by the Contractor in respect of each line item in the Schedule of Rates cannot exceed the quantity in the Schedule of Rates unless:

A. the Contractor has provided reasonable prior written notice to the Contract Administrator together with a detailed explanation of the need to exceed that quantity (including the estimated excess quantity) and such further information as the Contract Administrator may require; and

B. the Contract Administrator has provided written agreement to the excess quantity, in which case the relevant quantity in the Schedule of Rates will be adjusted accordingly and this paragraph (ii) will reapply to that adjusted quantity.

(c) The Contractor must carry out all Schedule of Rates Work so as to:

(i) ensure, to the maximum extent possible, that the quantities in the Schedule of Rates are not exceeded; and

(ii) minimise the cost to the Commonwealth.

(d)


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12.19 Limits of Accuracy

If a Schedule of Rates exists and:

(a) the actual quantity of an item required to carry out the Contractor's Activities is greater or less than the quantity shown in the Schedule of Rates;

(b) the Commonwealth has accepted a rate for the item referred to in paragraph (a); and

(c) the actual quantity of the item referred to in paragraph (a) is outside the limits of accuracy stated in the Contract Particulars,

the rate will only apply to the quantities within those limits of accuracy and quantities outside those limits of accuracy will have their value determined by:

(d) where the Table of Remediation Works Variation Rates and Prices contains a corresponding item to the relevant item in the Schedules of Rates for which the quantity required is greater or less than the quantity shown in the Schedule of Rates - the Table of Remediation Works Variation Rates and Prices; and

(e) where the Table of Remediation Works Variation Rates and Prices does not contain a corresponding item to the relevant item in the Schedules of Rates for which the quantity required is greater or less than the quantity shown in the Schedule of Rates:

(i) agreement between the Contractor and the Contract Administrator; or

(ii) failing agreement, the Contract Administrator using reasonable rates.

12.20 Security of Payment Legislation

(a) The Contractor agrees with the Commonwealth that:

(i) a payment claim submitted to the Contract Administrator under clause 12.2 which also purports to be a payment claim under the relevant Security of Payment Legislation is received by the Contract Administrator as agent for the Commonwealth;

(ii) unless otherwise notified to the Contractor by the Commonwealth in writing, the Contract Administrator will give payment statements and carry out all other functions of the Commonwealth under the relevant Security of Payment Legislation as the agent of the Commonwealth;

(iii) to the extent permitted by and for the purposes of the relevant Security of Payment Legislation, the "reference dates" are those of the dates prescribed in clauses 12.2(a) and 12.2(b) on which the Contractor has satisfied the requirements of clause 12.3(a); and

(iv) a reference to a "payment statement" is also a reference to a "payment schedule" for the purposes of the relevant Security of Payment Legislation.

(b) Failure by the Contract Administrator to set out in a payment statement issued under the relevant Security of Payment Legislation or otherwise an amount which the Commonwealth is entitled to retain, deduct, withhold or set-off from the amount which would otherwise be payable to the Contractor by the Commonwealth will not prejudice:

(i) the Contract Administrator's ability or power to set out in a subsequent payment statement an amount which the Commonwealth is entitled to retain, deduct, withhold or set-off from the amount which would otherwise be payable to the Contractor by the Commonwealth; or

(ii) the Commonwealth's right to subsequently exercise its right to retain, deduct, withhold or set-off any amount under this Contract.

(c) The Contractor agrees that the amount set out in the payment statement in accordance with clause 12.4(f) is, to the extent permitted by and for the purposes of the relevant Security of Payment


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Legislation, the amount of the "progress payment" calculated in accordance with the terms of this Contract, which the Contractor is entitled to in respect of the Contract.

(d) The Contractor irrevocably chooses the person set out in the Contract Particulars as, to the extent permitted by and for the purposes of the relevant Security of Payment Legislation and to the extent that the relevant Contractor's Activities are to be carried out in:

(i) the Northern Territory or Western Australia, the appointed adjudicator or, where there is no appointed adjudicator, the prescribed appointer; or

(ii) any other State or Territory in which Security of Payment Legislation applies, the authorised nominating authority.

(e) The Contractor must not at any time, without the written consent of the Commonwealth, divulge or suffer or permit its servants, subcontractors or agents to divulge to any person any communication, submission or statement made or evidence or information used by or relied upon by the Commonwealth or any details thereof in respect of an adjudication application made under the relevant Security of Payment Legislation (in this paragraph, the Information).

For the avoidance of doubt:

(i) the Contractor's obligation in respect of the Information applies in respect of any subsequent proceedings before a court, arbitrator, expert or tribunal save where the Contractor is unable by requirement of law to comply with its obligation in respect of the Information;

(ii) notwithstanding the Contractor's obligation in respect of the Information, the Commonwealth has sole and unfettered discretion to divulge or suffer or permit its servants, subcontractors or agents to divulge to any person the Information;

(iii) the Commonwealth may divulge or suffer or permit its servants, subcontractors or agents to divulge to any person any communication, submission or statement made or evidence or information used by or relied upon by the Contractor or any details thereof in respect of an adjudication application made under the relevant Security of Payment Legislation; and

(iv) any Information which the Commonwealth provides or relies upon in respect of an adjudication application made under the relevant Security of Payment Legislation is made without prejudice to the Commonwealth's right to vary, modify, supplement or withdraw the Information in any subsequent proceedings before a court, arbitrator, expert or tribunal.

12.21 Accounting Records

The Contractor must keep accurate and up to date accounting records including books of account, labour time sheets, invoices for materials, plant hire, final accounts and any other documents or papers which show all details in relation to

(a) all Remediation Works Variations; and

(b) all other amounts payable to the Contractor other than on account of the original Contract Price specified in the Contract Particulars.

12.22 Cost Allocation Advice

Without limiting clause 12.2, for the purposes of assisting the Commonwealth to report on an accrual basis, the Contractor must, with each payment claim under clause 12.2, provide the Contract Administrator with accurate information which apportions monthly costs against expenses for all work completed in the previous month, in a format approved by the Contract Administrator.

12.23 Remediation Works Accounting

Without limiting clause 12.2, for the purposes of assisting the Commonwealth to bring all completed Remediation Works to account, as a condition precedent to Completion of the Remediation Works or a Stage, the Contractor must provide a cost report to the Contract Administrator which sets out:


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(a) details of the Contract Price (or part) paid in respect of the Remediation Works or the Stage;

(b) the matters specified in the Contract Particulars; and

(c) any other matters required by the Contract Administrator.

12.24 DEMS and NSIMS


(a) assist the Commonwealth to comply with its Defence Estate Management System (DEMS) obligations by providing information regarding the maintenance and operation of plant and equipment (including costs for replacement, maintenance requirements, the design life of the asset and warranties) (DEMS Information) to the Contract Administrator as follows:

(i) as a condition precedent to Remediation Completion of the Remediation Works or a Stage - DEMS Information representing incorporated work supplied to the Commonwealth, such information being 100% complete and to the standard required by the Commonwealth; and

(ii) within 30 days of the end of the Remediation Defects Rectification Period for the Remediation Works or a Stage - DEMS Information representing incorporated work supplied to the Commonwealth and all post- Remediation Completion work, such information being 100% complete and to the standard required by the Commonwealth;

(b) assist the Commonwealth to comply with its National Spatial Information Management System (NSIMS) obligations by providing information regarding the maintenance and operation of plant and equipment (including Site plans for all DSG controlled properties showing the physical location of all services, property details and topography) (Spatial Data Information) to the Contract Administrator as follows:

(i) as a condition precedent to Remediation Completion of the Remediation Works or a Stage - the Spatial Data Information representing incorporated work supplied to the Commonwealth, such information being 100% complete and to the standard required by the Commonwealth; and

(ii) within 30 days of the end of the Remediation Defects Rectification Period for the Remediation Works or a Stage - the Spatial Data Information representing incorporated work supplied to the Commonwealth, such information being 100% complete and to the standard required by the Commonwealth; and

(c) if DEMS or NIMS is replaced by another Commonwealth Information System, assist the Commonwealth to comply with its obligations in connection with the replacement Commonwealth Information System by providing information of the type recorded in the replacement Commonwealth Information System, such information being 100% complete and to the standard required by the Commonwealth.


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13. COMPLETION OF REMEDIATION WORKS

13.1 Contractor to Notify of Remediation Completion

The Contractor must give the Contract Administrator written notice 28 days, and then again 14 days, before it anticipates achieving Remediation Completion of the Remediation Works or a Stage.

13.2 Contract Administrator to Inspect


(a) promptly, and in any event no later than 14 days after receiving the Contractor's second written notice under clause 13.1 or a notice under paragraph (d) (as the case may be), inspect the Remediation Works or the Stage; and

(b) if:

(i) satisfied that Remediation Completion has been achieved, issue a notice to the Commonwealth and the Contractor:

A. stating the date upon which the Contract Administrator determines Remediation Completion was achieved;

B. containing a list of any minor Remediation Defects of the type described in paragraph (a) of the definition of "Remediation Completion" in clause 1.1; or

(ii) not satisfied that Remediation Completion has been achieved, issue a notice so advising the Contractor and the Commonwealth.

If the Contract Administrator issues a notice under paragraph (b)(ii), the Contractor must:

(c) proceed to bring the Remediation Works or the Stage to Remediation Completion; and

(d) when it considers it has achieved Remediation Completion, give the Contract Administrator written notice to that effect (after which this clause 13.2 will reapply).

13.3 Unilateral Issue of Remediation Completion Notice

If at any time a notice required to be given by the Contractor to the Contract Administrator under clause 13.1 or 13.2 is not given by the Contractor yet the Contract Administrator is of the opinion that Remediation Completion of the Remediation Works or a Stage has been achieved, the Contract Administrator may issue a Remediation Completion Notice under clause 13.2(b)(i) for the Remediation Works or the Stage.

13.4 Hand-Over of Site Upon Completion

Upon the issue of a Remediation Completion Notice, the Contractor must:

(a) hand over the Site to the Commonwealth; and

(b) correct all Remediation Defects listed in the Remediation Completion Notice as soon as possible.

13.5 Part of the Works or a Stage

The Commonwealth may, after written notice is given to the Contractor by the Contract Administrator, occupy or use any part of the Site although the whole of the Remediation Works or the Stage has not reached Remediation Completion.

If any such notice is given by the Contract Administrator:

(a) the Commonwealth must allow the Contractor reasonable access to the part of the Site referred to in the notice and being occupied or used by the Commonwealth, to enable the Contractor to bring the Remediation Works or the relevant Stage of which the area being occupied or used forms part to Remediation Completion; and


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(b) this will not limit or affect the obligations of the Contractor under the Contract (except to the extent that an act or omission of the Commonwealth, the Contract Administrator or an Other Contractor engaged by the Commonwealth under this clause 13.5 constitutes an Act of Prevention, in which case, the Contractor may be entitled to an extension of time under clause 10.8) including the obligation of the Contractor to achieve Remediation Completion of the Remediation Works or the relevant Stage of which the area being occupied or used forms part by the relevant Date for Remediation Completion.

13.6 Effect of Remediation Completion Notice

A Remediation Completion Notice will not:

(a) constitute approval by the Commonwealth of the Contractor's performance of its Contract obligations;

(b) be taken as an admission or evidence that the Remediation Works or the Stage complies with the Contract; or

(c) prejudice any rights or powers of the Commonwealth or Contract Administrator.

13.7 Liquidated Damages

If the Date of Remediation Completion of the Remediation Works or a Stage has not occurred by the Date for Remediation Completion for the Remediation Works or the Stage, the Contractor must pay liquidated damages at the rate specified in the Contract Particulars for every day after the Date for Remediation Completion until the Date of Remediation Completion or the Contract is terminated, whichever is first.

This amount is an agreed genuine pre-estimate of the Commonwealth's damages if the Date of Remediation Completion does not occur by the Date for Remediation Completion.

The amount payable under this clause 13.7 will be a debt due from the Contractor to the Commonwealth.


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14. TERMINATION

14.1 Preservation of Rights

Subject to clause 14.6, nothing in this clause 14 or that the Commonwealth does or fails to do pursuant to this clause 14 will prejudice the right of the Commonwealth to exercise any right or remedy (including recovering damages) which it may have where the Contractor breaches (including repudiates) the Contract.


The Commonwealth may give a written notice under clause 14.3 to the Contractor if the Contractor:

(a) does not commence the Contractor's Activities in accordance with the requirements of the Contract;

(b) suspends the Contractor's Activities in breach of clause 10.12 or otherwise does not proceed with the Contractor's Activities regularly and diligently;

(c) fails to provide security as required by clause 4.1 or the related company guarantee as required under clause 4.4;

(d) fails to comply with any of its obligations under clause 5.4 or 5.6;

(e) fails to comply with any of its obligations under clause 8.11 or 8.13;

(f) fails to comply with any of its obligations under clause Error! Reference source not found. or clause 20;

(g) fails to use the materials or standards of workmanship required by the Contract;

(h) does not comply with any direction of the Contract Administrator made in accordance with the Contract; or

(i) is otherwise in substantial breach of the Contract.

14.3 Contents of Notice of Default

A notice under this clause 14.3 must state:

(a) that it is a notice under clause 14.3;

(b) the breach relied upon; and

(c) that the Commonwealth requires the Contractor to remedy the breach within the number of days set out in the Contract Particulars of receiving the notice.

14.4 Termination for Insolvency or Breach

If:

(a) an Insolvency Event occurs to the Contractor, or where the Contractor comprises 2 or more persons, to any one of those persons; or

(b) the Contractor does not remedy a breach of Contract the subject of a notice under clause 14.3 within the number of days set out in the Contract Particulars of receiving the notice under clause 14.3,

then the Commonwealth may by written notice to the Contractor terminate the Contract.

14.5 Commonwealth's Entitlements after Termination

Subject to clause 14.1, if the Commonwealth terminates the Contract under clause 14.4, or if the Contractor repudiates the Contract and the Commonwealth otherwise terminates the Contract:

(a) the Commonwealth will:


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(i) be entitled to take over and use, or require the Contractor to remove from the Site, the Plant, Equipment and Work and all materials, equipment and other things intended for the Remediation Works;

(ii) be entitled to require the Contractor to novate to the Commonwealth or the Commonwealth's nominee, any or all subcontracts between the Contractor and its subcontractors as required by the Commonwealth;

(iii) to the extent permitted by the relevant Security of Payment Legislation, not be obliged to make any further payments to the Contractor, including any money the subject of a payment claim under clause 12.2 or a payment statement under clause 12.4; and

(iv) be entitled to recover from the Contractor any costs, losses or damages incurred or suffered by it as a result of, or arising out of, or in any way in connection with, such termination; and

(b) the Contractor must immediately hand over to the Commonwealth all copies of:

(i) documents provided by the Commonwealth in connection with the Contractor's Activities; and

(ii) Project Documents prepared by the Contractor to the date of termination (whether complete or not).

14.6 Contractor's Entitlements after Termination

If the Commonwealth repudiates the Contract and the Contractor terminates the Contract, the Contractor will:

(a) be entitled to claim an amount determined in accordance with clause 14.8 as if the Commonwealth had terminated the Contract under clause 14.7; and

(b) not be entitled to a quantum meruit.

This clause 14.6 will survive the termination of the Contract.

14.7 Termination for Convenience

Without prejudice to any of the Commonwealth's other rights under this Contract, the Commonwealth may:

(a) at any time for its sole convenience, and for any reason (including the discovery of any Toxic Agent on or under the Site), by written notice to the Contractor terminate the Contract effective from the time stated in the Commonwealth's notice or if no such 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 either itself or by engaging Other Contractors.

14.8 Costs

If the Commonwealth terminates the Contract under clause 14.7, the Contractor:

(a) will be entitled to payment of the following amounts as determined by the Contract Administrator:

(i) 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 submitted a payment claim for work carried out to the date of termination;

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

A. the value of the goods or materials is not included in the amount payable under subparagraph (i); and

B. title in the goods and materials will vest in the Commonwealth upon payment; and


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(iii) the reasonable cost of removing from the Site all labour, Plant, Equipment and Work and other things used in the Contractor's Activities; and

(b) must:

(i) take all steps possible to mitigate the costs referred to in paragraphs (a)(ii) and (a)(iii); and

(ii) immediately hand over to the Commonwealth all copies of:

A. documents provided by the Commonwealth in connection with the Contractor's Activities; and

B. Project Documents prepared by the Contractor to the date of termination (whether complete or not).

The amount to which the Contractor is entitled under this clause 14.8 will be a limitation upon the Commonwealth's liability to the Contractor arising out of, or in any way in connection with, the termination of the Contract (whether under clause 14.7 or deemed to be under clause 14.7 through the operation of clause 14.6(a)) and the Contractor will not be entitled to make any Claim against the Commonwealth arising out of, or in any way in connection with, the termination of the Contract other than for the amount payable under this clause 14.8.

This clause 14.8 will survive the termination of the Contract by the Commonwealth under clause 14.7 or by the Contractor following repudiation by the Commonwealth.


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15. DISPUTES

15.1 Notice of Dispute

If a dispute or difference arises between the Contractor and the Commonwealth or between the Contractor and the Contract Administrator in respect of any fact, matter or thing arising out of, or in any way in connection with, the Contractor's Activities, the Remediation Works or the Contract, or either party's conduct before the Contract, the dispute or difference must be determined in accordance with the procedure in this clause 15.

Where such a dispute or difference arises, either party may give a notice in writing to the Contract Administrator and the other party specifying:

(a) the dispute or difference;

(b) particulars of the party's reasons for being dissatisfied; and

(c) the position which the party believes is correct.

15.2 Expert Determination

If the dispute or difference is in relation to a direction of the Contract Administrator under one of the clauses referred to in the Contract Particulars and is not resolved within 14 days after a notice is given under clause 15.1, the dispute or difference must be submitted to expert determination.

15.3 The Expert

(a) The expert determination under clause 15.2 is to be conducted by:

(i) the independent industry expert specified in the Contract Particulars; or

(ii) where no such independent industry expert is specified or paragraph (b) applies, an independent industry expert appointed by the person specified in the Contract Particulars.

(b) If the expert appointed under this clause 15.3:

(i) is unavailable;

(ii) declines to act;

(iii) does not respond within 14 days to a request by one or both parties for advice as to whether he or she is able to conduct the determination;

(iv) does not enter into the agreement in accordance with clause 15.9(b) within 14 days of his or her appointment under this clause 15; or

(v) does not make a determination within the time required by clause 15.8,

the jurisdiction of the expert shall lapse and a further expert must be appointed under paragraph (a).

(c) If there has been an appointment under paragraph (a) and one of the events in paragraph (b) has occurred, the further expert appointed under paragraph (a) shall not be an expert previously appointed under paragraph (a) in respect of the same dispute or difference.

15.4 Not Arbitration

An expert determination conducted under this clause 15 is not an arbitration and the expert is not an arbitrator. The expert may reach a decision from his or her own knowledge and expertise.

15.5 Procedure for Determination

The expert will:

(a) act as an expert and not as an arbitrator;


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(b) proceed in any manner he or she thinks fit;

(c) conduct any investigation which he or she considers necessary to resolve the dispute or difference;

(d) examine such documents, and interview such persons, as he or she may require; and

(e) make such directions for the conduct of the determination as he or she considers necessary.

15.6 Disclosure of Interest

The expert must:

(a) disclose to the parties any:

(i) interest he or she has in the outcome of the determination;

(ii) conflict of interest;

(iii) conflict of duty;

(iv) personal relationship which the expert has with either party, or either party's representatives, witnesses or experts; and

(v) other fact, matter or thing which a reasonable person may regard as giving rise to the possibility of bias; and

(b) not communicate with one party to the determination without the knowledge of the other.

15.7 Costs

Each party will:

(a) bear its own costs in respect of any expert determination; and

(b) pay one-half of the expert's costs.

15.8 Conclusion of Expert Determination

Unless otherwise agreed between the parties, the expert must notify the parties of his or her decision upon an expert determination conducted under this clause 15 within 28 days from the acceptance by the expert of his or her appointment.

15.9 Agreement with Expert

(a) The expert will not be liable to the parties arising out of, or in any way in connection with, the expert determination process, except in the case of fraud.

(b) The parties must enter into an agreement with the appointed expert on the terms set out in the Schedule of Collateral Documents or such other terms as the parties and the expert may agree.

15.10 Determination of Expert

The determination of the expert:

(a) must be in writing;

(b) will be substituted for the relevant direction of the Contract Administrator unless a party gives notice of appeal to the other party within 21 days of receiving such determination in which case, subject to clauses 15.11 and 15.12, any such appeal will be by way of a hearing de novo; and

(c) will be final and binding, unless a party gives notice of appeal to the other party within 21 days of receiving such determination.


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15.11 Executive Negotiation

(a) If:

(i) clause 15.2 applies, and a notice of appeal is given under clause 15.10; or

(ii) clause 15.2 does not apply,

the dispute or difference is to be referred to the Executive Negotiators.

(b) The Executive Negotiators must within:

(i) 21 days of:

A. if the dispute or difference is not one which is to be referred to expert determination under clause 15.2, the notice of dispute given under clause 15.1; or

B. otherwise, the notice of appeal given under clause 15.10; or

(ii) such longer period of time as the Executive Negotiators may agree in writing,

meet and undertake genuine and good faith negotiations with a view to resolving the dispute or difference and, if they cannot resolve the dispute or difference, endeavour to agree upon a procedure to resolve the dispute or difference (such as mediation or further expert determination).

15.12 Arbitration Agreement

If, within:

(a) 21 days of:

(i) if the dispute or difference is not one which is to be referred to expert determination under clause 15.2, the notice of dispute given under clause 15.1; or

(ii) otherwise, the notice of appeal given under clause 15.10; or

(b) such longer period of time as the Executive Negotiators may agree in writing,

the Executive Negotiators:

(c) or either party refuse or fail to meet and undertake genuine and good faith negotiations with a view to resolving the dispute or difference;

(d) cannot resolve the dispute or difference; or

(e) have not reached agreement upon a procedure to resolve the dispute or difference,

the dispute or difference will be referred to arbitration by a written notice by either party to the other party.

15.13 Arbitration

(a) Arbitration pursuant to this clause will be conducted in accordance with the Rules of Arbitration of the International Chamber of Commerce (ICC Rules) current at the time of the reference to arbitration and as otherwise set out in this clause.

(b) The seat of the arbitration will be Melbourne, Australia and hence the proper law of the arbitration shall be Victoria.

(c) Nothing in this clause is intended to modify or vary the rights of appeal contained in the Commercial Arbitration Act 1984 (Vic). For the avoidance of doubt, the second sentence of Article 28(6) of the ICC Rules (in force from 1 January 1998) or its equivalent in any subsequent version of the ICC Rules shall not apply.


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(d) The parties agree that:

(i) they have entered into the arbitration agreement under this clause 15 for the purposes of achieving a just, quick and cheap resolution of any dispute or difference;

(ii) any arbitration conducted pursuant to this clause 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) One arbitrator will be appointed.

(f) All evidence in chief will be in writing unless otherwise ordered by the arbitrator.

(g) Discovery will be governed by the substantive and procedural rules and practices adopted by the Federal Court of Australia at the time of arbitration.

(h) The oral hearing will be conducted as follows:

(i) the oral hearing will take place in Melbourne, Australia and all outstanding issues must be addressed at the oral hearing;

(ii) the date and duration of the oral hearing will 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 good cause;

(iv) the oral hearing will be conducted on a stop clock basis with the effect that the time available to the parties will be split equally between the parties so that each party will have the same time to conduct its case unless, in the opinion of the arbitrator, such a split would breach the rules of natural justice or is otherwise unfair to one of the parties;

(v) not less than 28 days prior to the date fixed for the oral hearing, each party will 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).

(i) Unless otherwise ordered, each party may only rely upon one expert witness in respect of any recognised area of specialisation.

15.14 Proportional Liability

Notwithstanding anything else, to the extent permissible by law, the expert or the arbitrator (as the case may be) will have no power to apply or to have regard to the provisions of any proportional liability legislation which might, in the absence of this provision, have applied to any dispute referred to arbitration or expert determination pursuant to this clause.

15.15 Continuation of Contractor's Activities

Despite the existence of a dispute or difference between the parties the Contractor must:

(a) continue to carry out the Contractor's Activities; and

(b) otherwise comply with its obligations under the Contract.


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16. NOTICES

16.1 Notice of Remediation Works Variation

If a direction by the Contract Administrator, other than a "Remediation Works Variation Order" under clause 11.4, constitutes or involves a Remediation Works Variation, the Contractor must, if it wishes to make a Claim against the Commonwealth arising out of, or in any way in connection with, the direction:

(a) within 7 days of receiving the direction and before commencing work on the subject matter of the direction, give notice to the Contract Administrator that it considers the direction constitutes or involves a Remediation Works Variation;

(b) within 21 days after giving the notice under paragraph (a), submit a written claim to the Contract Administrator which includes the details required by clause 16.3(b); and

(c) continue to carry out the Contractor's Activities in accordance with the Contract and all directions of the Contract Administrator, including any direction in respect of which notice has been given under this clause 16.1.

16.2 Notices of Other Claims

Except for claims for:

(a) an extension of time under clause 10.6;

(b) payment under clause 12.2 of the original Contract Price specified in the Contract Particulars; or

(c) a Remediation Works Variation instructed in accordance with clause 11.4 or to which clause 16.1 applies,

the Contractor must give the Contract Administrator the notices required by clause 16.3 if it wishes to make a Claim against the Commonwealth in respect of any direction by the Contract Administrator or any other fact, matter or thing (including a breach of the Contract by the Commonwealth) under, arising out of, or in any way in connection with, the Contractor's Activities or the Contract, including anything in respect of which:

(d) it is otherwise given an express entitlement under the Contract; or

(e) the Contract expressly provides that:

(i) specified costs are to be added to the Contract Price; or

(ii) the Contract Price will be otherwise increased or adjusted,

as determined by the Contract Administrator.

16.3 Prescribed Notices

The notices referred to in clause 16.2 are:

(a) a written notice within 21 days of the first occurrence of the direction or other fact, matter or thing upon which the Claim is based, expressly specifying:

(i) that the Contractor proposes to make a Claim; and

(ii) the direction or other fact, matter or thing upon which the Claim will be based; and

(b) a written Claim within 21 days of giving the written notice under paragraph (a), which must include:

(i) detailed particulars concerning the direction or other fact, matter or thing upon which the Claim is based;

(ii) the legal basis for the Claim, whether based on a term of the Contract or otherwise, and if based on a term of the Contract, clearly identifying the specific term;


90

(iii) the facts relied upon in support of the Claim in sufficient detail to permit verification; and

(iv) details of the amount claimed and how it has been calculated.

16.4 Continuing Events

If the direction or fact, matter or thing upon which the Claim under clause 16.1(b) or 16.2 is based or the consequences of the direction or fact, matter or thing are continuing, the Contractor must continue to give the information required by clause 16.3(b) every 28 days after the written claim under clause 16.1(b) or 16.3(b) (as the case may be) was submitted or given to the Contract Administrator, until after the direction or fact, matter or thing upon which the Claim is based has, or the consequences thereof have, ceased.

16.5 Time Bar

If the Contractor fails to comply with clause 16.1, 16.2, 16.3 or 16.4:

(a) the Commonwealth will not be liable (insofar as it is possible to exclude such liability) upon any Claim by the Contractor; and

(b) the Contractor will be absolutely barred from making any Claim against the Commonwealth,

arising out of, or in any way in connection with, the relevant direction or fact, matter or thing (as the case may be) to which clause 16.1 or 16.2 applies.

16.6 Other Provisions Unaffected

Nothing in clauses 16.1 - 16.5 will limit the operation or effect of any other provision of the Contract which requires the Contractor to give notice to the Contract Administrator in order to preserve an entitlement to make a Claim against the Commonwealth.

16.7 Address for Service

Any notice to be given or served under or arising out of a provision of this Contract must:

(a) be in writing;

(b) be delivered by hand, sent by prepaid post or sent by fax, as the case may be, to the relevant address or fax number:

(i) stated in the Contract Particulars; or

(ii) last notified in writing to the party giving or serving the notice,

for the party to whom or upon which the notice is to be given or served; and

(c) be signed by the party giving or serving the notice or (on the party's behalf) by the solicitor for or attorney, director, secretary or authorised agent of the party giving or serving the notice.

16.8 Receipt of Notices

A notice given or served in accordance with clause 16.7 is taken to be received by the party to whom or upon whom the notice is given or served on the date determined in accordance with clause 2.5.3 of the Deed.


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17. GENERAL



(a) comply with its obligations under the Workplace Gender Equality Act 2012 (Cth); and

(b) not enter into a subcontract made in connection with this Contract with a subcontractor named by the Workplace Gender Equality Agency as an employer currently not complying with the Workplace Gender Equality Act 2012 (Cth)

17.2 Indigenous Opportunities

This clause 17.2 does not apply unless the Contract Particulars state that it does apply.


(i) comply with its current, approved ITES Plan;

(ii) maintain a current, approved ITES Plan for the duration of the Contract;

(iii) report annually to the Commonwealth or any person authorised by the Commonwealth (including the Department of Education, Employment and Workplace Relations) (in a format required by the IOP) on the implementation of and outcomes achieved under its ITES Plan;

(iv) provide the Commonwealth or any person authorised by the Commonwealth (including the Department of Education, Employment and Workplace Relations) with access to documents concerning the IOP and its ITES Plan (and copies of the documents requested in writing); and

(v) co-operate with the Commonwealth or any person authorised by the Commonwealth (including the Department of Education, Employment and Workplace Relations) in an audit and review of its compliance with the IOP and its ITES Plan.

(b) The Contractor acknowledges and agrees to the Commonwealth or any person authorised by the Commonwealth (including the Department of Education, Employment and Workplace Relations) publicising or reporting:

(i) on its performance concerning and compliance with its ITES Plan; and

(ii) any information contained in its ITES Plan or any report submitted in accordance with clause 17.2(a).

(c) For the purposes of this clause:

(i) ITES Plan means an Indigenous Training, Employment and Supplier Plan; and

(ii) IOP means the Indigenous Opportunities Policy and associated guidelines.


(a) Nothing that the Contractor is or may be required to do under this clause 17.3 will derogate from, or otherwise limit, the Contractor's other obligations under this Contract.

(b) The Contractor must be, and must ensure that its subcontractors are, fully familiar with the requirements of the SAFE BASE Alert State System (SAFE BASE).

(c) The Contractor must attend, and must arrange for its subcontractors to attend, a security briefing as requested by the Contract Administrator from time to time.

(d) In carrying out the Contractor's Activities, the Contractor must, and must ensure that its subcontractors, comply with the requirements of SAFE BASE, including:


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(i) subject to subparagraph (ii), at the level specified in the Contract Particulars; and

(ii) at any alternative level (or individual measure from a higher alert state to meet a specific threat or threats) applicable to the Site from time to time.

(e) The Contractor will be entitled to have the Contract Price increased by any extra costs reasonably incurred by it which arise directly from a change to the SAFE BASE level or individual measure in accordance with paragraph (d)(ii), as determined by the Contract Administrator.

(f) The Contractor's entitlement (if any) under paragraph (e) will be a limitation on the Commonwealth's liability to the Contractor arising out of, or in any way in connection with:

(i) the Contract Administrator's direction; or

(ii) the application of the alternative level or individual measure of SAFE BASE to the Contractor's Activities,

and the Contractor will not be entitled to make, nor will the Commonwealth be liable upon, any Claim in these circumstances other than for the amount (if any) which is payable by the Commonwealth under paragraph (e).

(g) The Contractor must, and must ensure that its subcontractors, participate in a rehearsal of SAFE BASE as directed by the Contract Administrator from time to time.

17.4 Protection of Personal Information

(a) The Contractor agrees:

(i) to comply with the Information Privacy Principles when doing any act or engaging in any practice in relation to Personal Information for the purposes of this Contract, as if it were an agency as defined in the Privacy Act;

(ii) to use Personal Information received, created or held by the Contractor for the purposes of this Contract only for the purposes of fulfilling its obligations under this Contract;

(iii) not to disclose Personal Information received, created or held by the Contractor for the purposes of this Contract without the prior written approval of the Contract Administrator;

(iv) not to transfer Personal Information received, created or held by the Contractor for the purposes of this Contract outside Australia, or to allow parties outside Australia to have access to it, without the prior written approval of the Contract Administrator;

(v) to co-operate with demands or inquiries made by the Federal Privacy Commissioner or the Contract Administrator in relation to the management of Personal Information in connection with this Contract;

(vi) to ensure that any person whom the Contractor allows to access Personal Information which is received, created or held by the Contractor for the purposes of this Contract is made aware of, and undertakes in writing to observe, the Information Privacy Principles;

(vii) to comply with policy guidelines laid down by the Commonwealth or issued by the Federal Privacy Commissioner from time to time relating to the handling of Personal Information;

(viii) to ensure that records (as defined in the Privacy Act) containing Personal Information received, created or held by the Contractor for the purposes of this Contract are, at the expiration or earlier termination of this Contract, at the Contract Administrator's election, to be either returned to the Commonwealth or deleted or destroyed in the presence of a person duly authorised by the Contract Administrator to oversee such deletion or destruction;

(ix) to the naming or other identification of the Contractor in reports by the Federal Privacy Commissioner;


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(x) to ensure that any subcontract made in connection with this Contract contains enforceable obligations requiring the subcontractor to comply with the Contractor's obligations arising out of this clause 17.4, as if the subcontractor were the Contractor;

(xi) to enforce the obligations referred to in subparagraph (x) in accordance with such directions as the Contract Administrator may give;

(xii) that Personal Information collected by the Contractor in connection with the Contract must not be used for, or in any way relating to, any direct marketing purpose; and

(xiii) to indemnify the Commonwealth against any loss, liability or expense suffered or incurred by the Commonwealth arising out of, or in connection with:

A. a breach of the obligations of the Contractor under this clause 17.4;

B. a breach of a subcontractor's obligations under a subcontract as contemplated by subparagraph (x);

C. the misuse of Personal Information held in connection with this Contract by the Contractor or a subcontractor; or

D. the disclosure of Personal Information held in connection with this Contract by the Contractor or a subcontractor in breach of an obligation of confidence.

(b) For the purposes of paragraph (a)(xiii), loss, liability or expense includes any compensation paid to a person by or on behalf of the Commonwealth to settle a complaint arising out of, or in any way in connection with, a breach of this clause 17.4 by the Contractor.

(c) The Contractor must immediately notify the Commonwealth in writing if the Contractor:

(i) becomes aware of a breach of the obligations under paragraph (a) by itself or by a subcontractor;

(ii) becomes aware of a breach of a subcontractor's obligations under a subcontract as contemplated by paragraph (a)(x);

(iii) becomes aware that a disclosure of Personal Information may be required by law; or

(iv) is approached or contacted by, or becomes aware that a subcontractor has been approached or contacted by, the Federal Privacy Commissioner or by a person claiming that their privacy has been interfered with.

(d) The Contractor acknowledges that, in addition to the requirements of this clause 17.4, the Contractor may also be obliged to comply with other obligations in relation to the handling of Personal Information, such as other provisions in the Privacy Act (including the National Privacy Principles) and State and Territory legislation.

(e) Nothing in this clause 17.4 limits any of the Contractor's other obligations or liabilities under the Contract.

(f) In this clause 17.4:

(i) Information Privacy Principle has the meaning given in the Privacy Act;

(ii) Personal Information has the meaning given in the Privacy Act;

(iii) Privacy Act means the Privacy Act 1988 (Cth); and

(iv) received includes collected.

(g) The Contractor:


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(i) acknowledges that the Commonwealth conducted a review of the Privacy Act which resulted in the passing of the Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth);

(ii) must comply (at no additional cost) with any amendments to the Privacy Act, including compliance with the Australian Privacy Principles (APPs) and any other relevant privacy principles when they come into effect; and

(iii) undertakes to accept the making of changes to this clause 17.4 which are required to reflect any such changes to the Privacy Act.

(h) Without limiting paragraph (g), on and from 12 March 2014:

(i) the Contractor is only required to comply with the then-current privacy principles and other requirements in the amended Privacy Act (for the avoidance of doubt, the Contractor is not be required to comply with the Information Privacy Principles and National Privacy Principles once they cease to have effect under the Privacy Act);

(ii) references in clause 17.4 (excluding in this paragraph (h)) will be taken to be changed as follows:

A. APC will be read as references to a registered APP code; and

B. IPPs and NPPs will be read as references to Australian Privacy Principles.


The Freedom of Information Act 1982 (Cth) (FOI Act) gives members of the public rights of access to official documents of the Commonwealth Government and its agencies. The FOI Act extends, as far as possible, rights to access information (generally documents) in the possession of the Commonwealth Government, limited only by considerations for the protection of essential public interest and of the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities.

The Contractor acknowledges that Commonwealth requirements and policies will require certain identifying details of the Contract to be made available to the public via the internet.

17.6 Long Service Leave

Clause 17.6 only applies if any relevant Long Service Leave Legislation applies to the Contractor's Activities.

(a) Without limiting its other obligations or liabilities under this Contract or otherwise, the Contractor must comply with its obligations under any relevant Long Service Leave Legislation.

(b) If required by any relevant Long Service Leave Legislation, the Contractor must pay any levy, charge, contribution or associated amount in respect of the Contractor's Activities.

(c) Any amount paid by the Contractor under paragraph (b) is deemed to be included in the Contract Price and the Contractor will have no Claim against the Commonwealth arising out of or in connection with its obligations under this clause 17.6 or any other obligation under the relevant Long Service Leave Legislation.

(d) In this clause 17.6, Long Service Leave Legislation means:

(i) Long Service Leave (Portable Schemes) Act 2009 (ACT);

(ii) Building and Construction Industry Long Service Payments Act 1986 (NSW);

(iii) Construction Industry Long Service Leave and Benefits Act 2005 (NT);

(iv) Building and Construction Industry (Portable Long Service Leave) Act 1991 (Qld);

(v) Construction Industry Long Service Leave Act 1987 (SA);

(vi) Construction Industry (Long Service) Act 1997 (Tas);


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(vii) Construction Industry Long Service Leave Act 1997 (Vic);

(viii) Construction Industry Portable Paid Long Service Leave Act 1985 (WA);

(ix) the long service leave obligations in the National Employment Standards in the Fair Work Act 2009 (Cth); and

(x) any Act in a State or Territory of Australia addressing long service leave in the building and construction industry.

17.7 Assignment

(a) The Contractor must not, without the prior written approval of the Commonwealth and except on the terms and conditions determined in writing by the Commonwealth, assign, mortgage, charge or encumber the Contract or any part or any benefit or moneys or interest under the Contract.

(b) For the purpose of but without limiting paragraph (a), an assignment of this Contract will be deemed to have occurred where there has been a Change of Control.

17.8 Publicity

Without limiting clause 1.3(f), the Contractor must:

(a) not furnish any information or issue any document or other written or printed material concerning the Contractor's Activities or the Remediation Works for publication in the media without the prior written approval of the Contract Administrator; and

(b) refer any enquiries from the media concerning the Contractor's Activities or the Remediation Works to the Contract Administrator.

17.9 Classified Information

(a) At the request of the Commonwealth, the Contractor must:

(i) comply with the Commonwealth's security clearance process;

(ii) obtain the level of security clearance requested by the Commonwealth; and

(iii) comply with all security policies and procedures notified by the Commonwealth from time to time.

(b) Without limiting clause 1.3(f), the Contractor must not disclose any Classified Information unless the disclosure:

(i) is strictly in accordance with the provisions of the Defence Security Manual; and

(ii) has first been approved in writing by the Contract Administrator.

(c) In giving any approval to the Contractor under paragraph (b), the Contract Administrator may impose such conditions as the Contract Administrator thinks fit, including conditions requiring any recipient of Classified Information to obtain a level of security clearance and to enter into a deed in a form acceptable to the Commonwealth.

(d) Without limiting clause 1.3(f), the Contractor must handle and store any Classified Information in its possession or control strictly in accordance with the provisions of the Defence Security Manual.

(e) The Contractor must ensure that any subcontract made in connection with this Contract contains enforceable obligations requiring the subcontractor to comply with the Contractor's obligations arising under this clause 17.9 as if the subcontractor were the Contractor.

(f) For the purposes of this clause 17.9:

(i) Classified Information includes:


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A. any Commonwealth document marked with a national security classification; and

B. any information or document that the Contractor knows or ought to know is subject to, or ought to be treated in accordance with, the provisions of the Defence Security Manual; and

(ii) Defence Security Manual is a reference to that document as amended from time to time.


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18. BUILDING CODE 2013

18.1 General


(a) comply with the Building Code 2013 from the time of submitting its registration of interest or if no registration was submitted, from the time of submitting its tender for the Remediation Works;

(b) require compliance with the Building Code 2013 by its Related Entities from the time of submitting its registration of interest or if no registration was submitted, from the time of submitting its tender for the Remediation Works;

(c) ensure compliance with the Building Code 2013 by all subcontractors engaged in the Remediation Works, including by confirming compliance at all site and project meetings;

(d) ensure that all contracts (including subcontracts) expressly require compliance with the Building Code 2013 and impose obligations equivalent to the obligations under this clause Error! Reference source not found., in the form set out in the Proforma Building Code Subcontract provisions; and

(e) not appoint a subcontractor or Consultant in relation to the Works where:

(i) the appointment would breach a sanction imposed by the Code Monitoring Group, the Minister for Education, Employment and Workplace Relations or the Commonwealth; or

(ii) the subcontractor or Consultant has had an adverse Court or Tribunal decision (not including decisions under appeal) for a breach of workplace relations laws, work health and safety law, or workers' compensation law and the tenderer has not fully complied, or is not fully complying, with the order.

A Copy of the Building Code 2013 is available at www.deewr.gov.au/BuildingCode.


Compliance with the Building Code 2013 shall not relieve the Contractor from its other obligations under the Contract or otherwise arising out of or in connection with the Contractor's Activities or the Remediation Works.

18.3 Notice of Effect on Compliance with Building Code 2013

If a change to the Contract is proposed which would affect the Contractor's compliance with the Building Code, the Contractor must immediately give the Commonwealth a report in writing specifying the extent to which the Contractor's compliance with the Building Code 2013 will be affected.

18.4 Records

The Contractor must maintain adequate records of compliance with the Building Code by the Contractor, its Related Entities, its Consultants and its subcontractors.

18.5 Access and Documents


(i) provide; and

(ii) ensure that its Related Entities, its Consultants and subcontractors provide,

the Commonwealth or any person authorised by the Commonwealth (including an Inspector) with access to:

(iii) inspect any work, material, machinery, appliance, article or facility;

(iv) inspect and copy any record relevant to the project, the Contractor's Activities or the Remediation Works the subject of the Contract; and


http://www.deewr.gov.au/BuildingCode

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(v) interview any person,

as is necessary to demonstrate compliance with the Building Code 2013.

(b) The Contractor must:

(i) produce; and

(ii) ensure its Related Entities, its Consultants and subcontractors produce,

any document requested by the Commonwealth or any person authorised by the Commonwealth (including an Inspector) within the specified period, in person, by fax or by post.

18.6 Project Agreements

The Contractor acknowledges and agrees that:

(a) it will not (nor will it seek to) enter or take any steps towards entering any project agreements, nor will any such project agreements apply in relation to, the whole or any part of the Contractor's Activities or the Remediation Works;

(b) the bargaining for and making of unregistered written agreements is not permitted unless the agreement falls within one of the exemptions specified in section 10(3) of the Building Code 2013;

(c) the Commonwealth will not be requested or required to approve the negotiation or the application of any project agreement or unregistered written agreements; and

(d) it will not (nor will it seek to) have any subcontractor or Consultant comply with, or apply the terms of any project agreements entered into by the Contractor that are inconsistent with the Building Code 2013or unregistered written agreements entered into by the Contractor unless the unregistered written agreement falls within one of the exceptions specified in section 10(3) of the Building Code 2013.


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19.1 General

The Contractor acknowledges that the Commonwealth is and will be subject to a number of Commonwealth requirements and policies which support internal and external scrutiny of its tendering and contracting processes and the objectives of transparency, accountability and value-for-money including requirements to:

(a) publish details of agency agreements, Commonwealth contracts, amendments and variations to any agreement or contract and standing offers with an estimated value of $10,000 or more on AusTender (the Commonwealth's business opportunity website located at www.tenders.gov.au);

(b) report and post on the internet a list of contracts valued at $100,000 or more and identify confidentiality requirements in accordance with the Senate Order on Department and Agency Contracts; and

(c) report and post on the internet information about its contracts in other ways pursuant to its other reporting and disclosure obligations, including annual reporting requirements and disclosure to any House or Committee of the Parliament of the Commonwealth of Australia.


(i) Clause 8.5 of the Deed applies in relation to Commercial-in-Confidence information that is provided or produced by any person in connection with this Contract.


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20. FAIR WORK PRINCIPLES

This clause 20 applies unless the Contract Particulars state that it does not apply.

20.1 General


(a) comply with; and

(b) as far as practicable, ensure all subcontractors comply with,

all relevant requirements of the Fair Work Principles.


Compliance with the Fair Work Principles shall not relieve the Contractor from its other obligations under the Contract or otherwise arising out of or in connection with the Contractor's Activities or the Remediation Works.


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ANNEXURE 1 - FUNCTIONS

PART A - ENVIRONMENTAL CONSULTANT FUNCTIONS

The functions of the Environmental Consultant are to:

1. inspect the Remediation Works;

2. collect samples from the Site and analyse those samples;

3. construct, maintain and access groundwater monitoring wells;

4. oversee the Remediation Works, having regard to the Technical Specification, Remediation Design Documentation and such other matters as the Environmental Consultant considers relevant;

5. provide such advice to the Contract Administrator as the Contract Administrator requires, or which the Environmental Consultant considers necessary;

6. produce the Remediation Validation Report which confirms whether the Specified Site Use Objective has been achieved in relation to the Site; and

7. perform such other tasks as specified in the Technical Specification as being the responsibility of the Environmental Consultant.

PART B - TECHNICAL ADVISOR'S FUNCTIONS

The functions of the Technical Advisor are to:



(b) Project Plans;



(e) the Remediation Validation Report.


3. provide such advice to the Commonwealth, the Contract Administrator and/or the Environmental Consultant as they may require, or which the Technical Advisor considers necessary, including, without limitation, in relation to workplace health and safety and environmental matters;

4. provide the Technical Advisor's Certification stating whether or not the Technical Advisor considers whether the Specified Site Use Objective has been achieved; and

5. perform such other tasks as specified in the Technical Specification as being the responsibility of a Technical Advisor.

PART C - ACCREDITED ENVIRONMENTAL SITE AUDITOR FUNCTIONS

The functions of the Accredited Environmental Site Auditor are to:



(b) Project Plans;



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(e) the Remediation Validation Report.


3. provide the Site Audit Statement in relation to the Site; and

4. perform such other tasks as specified in the Technical Specification as being the responsibility of the Accredited Environmental Site Auditor.

PART D - TOXIC AGENT SPECIALIST'S FUNCTIONS

The functions of the Toxic Agent Specialist are to:

1. provide resources and equipment for the identification and assessment of Toxic Agents;

2. provide advice and instructions in relation to the identification, assessment, handling and management of Toxic Agents, and the measures and work practices that must be implemented and observed in handling Toxic Agents;

3. provide technical advice to the Commonwealth in relation to Toxic Agents; and

4. perform such other tasks as specified in the Technical Specification as being the responsibility of the Toxic Agent Specialist.


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