Project Alliance Agreement Roe 8 Project · Project Alliance Agreement Roe 8 Project ... Final...

Project Alliance Agreement

Roe 8 Project

Contract No. 98/14

Commissioner of Main Roads

CPB Contractors Pty Ltd

Georgiou Group Pty Ltd

P.M.R Quarries Pty Ltd

GHD Pty Ltd

AECOM Australia Pty Ltd

BG&E Pty Limited


Final Project Alliance Agreement – 11 October 2016 Page (i)

Table of Contents

1. Definitions and Interpretation 2

1.1 Definitions 2

1.2 Interpretation 10

1.3 References to Main Roads and the Owner Participant 11

1.4 Business Day 11

1.5 Ambiguity, discrepancy and inconsistency 11

1.6 Provision of information and documentation by the Participants 11

2. Alliance Principles, Purpose, Vision and Objectives 12

2.1 Alliance Principles, Purpose and Vision 12

2.2 Project Objectives 12

3. Commitments 12

3.1 Good Faith 12

3.2 Privilege 12

3.3 Results orientated 12

3.4 Best For Alliance 13

3.5 Open book commitment 13

3.6 Commitment to “no-blame” culture 13

4. Avoidance of issues between the Participants 13

4.1 No litigation or arbitration 13

4.2 Immediate notification of possible issue 14

4.3 Saving of certain legal and equitable rights 14

5. Alliance Board 14

5.1 Establishment and composition 14

5.2 Chairperson 14

5.3 Functions and responsibilities 15

5.4 Representatives authorised to bind Participant 15

5.5 Meetings 15

5.6 Decisions 15

5.7 Compliance with decisions 15

5.8 Disclosure of conflict of interest 16

5.9 Main Roads’ Reserved Powers 16

6. Alliance Manager, Alliance Management Team and Alliance Project Team 17

6.1 Alliance Manager – appointment and functions 17

6.2 Alliance Management Team – selection and endorsement 17

6.3 Change in membership of Alliance Management Team 17

6.4 Alliance Project Team 17

6.5 Change in membership of Alliance Project Team 18

6.6 Project office 18

7. Effective Date and Term 18

7.1 Term of Agreement 18


Final Project Alliance Agreement – 11 October 2016 Page (ii)

7.2 Condition precedent 18

7.3 Effective Date 18

7.4 Time to satisfy condition precedent 18

8. Project Management Plan and Design 19

8.1 Project Management Plan 19

8.2 Design development 20

8.3 Supply of Design by Main Roads 20

8.4 Design input by Main Roads 21

8.5 Site responsibilities 21

9. Direct Cost Target 21

9.1 Nature of Direct Cost Target 21

10. Timing 22

10.1 Completion 22

10.2 Extension of time 22

11. Practical Completion 22

11.1 Definition of Practical Completion 22

11.2 Issue of Certificate of Practical Completion 23

11.3 Disagreement whether Practical Completion reached 23

11.4 Certificate does not constitute approval 23

12. Final reconciliation and Final Certificate 23

12.1 Issue of Final Certificate 23

12.2 Content of Final Certificate 24

12.3 Payment under Final Certificate 24

12.4 Disagreement over contents of Final Certificate 24

12.5 Certificates evidence of completion 24

13. Construction of the Works 24

13.1 Standard of work 24

13.2 Authorisations for construction 25

13.3 Responsibility for Separable Portions 25

13.4 Defects and maintenance 25

13.5 Accreditation under the Scheme 25

14. Directions, Scope Changes and changes to funding 26

14.1 Directions 26

14.2 Scope Change 26

14.3 Endorsement by Main Roads 27

14.4 Change in funding 27

15. Site 28

15.1 Possession of Site 28

15.2 Access for Main Roads and others 28

15.3 Cleaning 28

15.4 Other contractors 28

15.5 Access to other sites 29

16. Policies, procedures and Project Management System 29


Final Project Alliance Agreement – 11 October 2016 Page (iii)

16.1 Subcontracts 29

16.2 Subcontracts with associated person needs Alliance Board approval 29

16.3 Compliance with Statutory Requirements 30

16.4 Compliance with the Code 30

16.5 Protection of people and property 32

16.6 Purchase of Materials 32

16.7 Project Management System 32

16.8 Aboriginal Heritage, rights and employment 33

16.9 Project Industry Participation Plan 33

16.10 Industrial Relations Management Plan 34

17. Payments 34

17.1 General 34

17.2 Acknowledgement 34

17.3 Project Bank Account 35

17.4 Procedure for payment 35

17.5 Payment not evidence 35

17.6 Overpayments and underpayments 35

17.7 Payment of Subcontractors 36

17.8 Construction Contracts Act 2004 36

17.9 Unfixed Materials 37

17.10 Goods and Services Tax (GST Exclusive Prices) 37

18. Reports, records, access and audit 38

18.1 Reports 38

18.2 Alliance records 38

18.3 State records 38

18.4 Access 39

18.5 Audit 39

19. Insurances – specific 39

19.1 Insurances to be maintained by the Owner Participant 39

19.2 Insurances to be maintained by the Non-Owner Participants 41

20. Insurance – general 43

20.1 Claims procedures 43

20.2 Participants' responsibilities 44

20.3 Obligation to notify and assist 44

20.4 Payment of excesses 44

20.5 Proof of insurance and inspection of insurance policies 44

20.6 Owner Participant to be informed of notices 45

20.7 Notice is notice by all insureds 45

20.8 Obligations to remain unchanged 45

20.9 Non-compliance 45

20.10 Pass through of insurance payouts 45

21. Review of insurances and Insurance Risk Management Plan 46

21.1 Review of Insurances 46

21.2 Decision to be made by Alliance Board 46

21.3 Implementation of recommendations 46


Final Project Alliance Agreement – 11 October 2016 Page (iv)

21.4 Insurance Risk Management Plan 46

22. Indemnities 47

22.1 Non compliance with insurance requirements 47

22.2 Wilful Default 47

22.3 Proportionate liability 47

22.4 Insurance obligations are primary 48

23. Limits of liability 48

23.1 Total liability of Non-Owner Participants to Main Roads 48

23.2 Total liability of Main Roads to Non-Owner Participants 48

23.3 No liability for Consequential Loss 48

23.4 Exclusion of Civil Liability Act 48

24. When limits of liability do not apply 49

24.1 Wilful Default 49

24.2 Failure to comply with insurance obligations 49

24.3 Non-payment of Excluded Amounts 49

24.4 Limits of liability are separate from limits under the risk/reward regime 49

25. Suspension 50

25.1 Suspension by the Participants 50

25.2 Suspension by Main Roads 50

25.3 Suspension costs 50

25.4 Recommencement 50

26. No fault termination 50

26.1 No fault termination 50

26.2 Termination payment 51

27. Termination for default and repudiation 51

27.1 Events of Default 51

27.2 Defaulting Participant 51

27.3 Failure to remedy 52

27.4 Exclusion from further participation in this Agreement 52

27.5 Loss and damage 53

28. Consequences of termination 53

28.1 Termination 53

28.2 Work to cease 54

28.3 Consequences of notice of termination 54

28.4 Works continuation 54

29. Security 54

29.1 Type of security 54

29.2 Amount of security 55

29.3 Demand on security 55

29.4 Return of security 56

29.5 Costs of establishing security 56

29.6 Parent Company Guarantee 56

30. Force Majeure 56


Final Project Alliance Agreement – 11 October 2016 Page (v)

30.1 Definition of Force Majeure Event 56

30.2 Effect of Force Majeure Event 57

31. Intellectual Property 57

31.1 Ownership of Pre-existing Intellectual Property 57

31.2 Enhancements to Pre-Existing Intellectual Property 58

31.3 Ownership of other Intellectual Property 58

31.4 Grant of sub licence 59

31.5 Warranty by Participants 59

31.6 Protection of Participants’ Intellectual Property 59

31.7 Moral rights 60

31.8 Saving 60

32. Notices 60

32.1 All Notices 60

32.2 Notices by email 61

32.3 Receipt of Notices sent by email 61

33. General 61

33.1 Governing law and jurisdiction 61

33.2 Invalidity and enforceability 62

33.3 Waiver 62

33.4 Amendments 62

33.5 Entire agreement 62

33.6 Counterparts 62

33.7 Assignment 62

33.8 Confidentiality 62

33.9 Relationship of the Participants 63

33.10 Corporate power and authority 64

33.11 Financial difficulties 64

33.12 Change in Control 64

33.13 Main Roads’ statutory functions 64

33.14 Survival 64

33.15 Costs 64

33.16 Unincorporated joint venture 64

33.17 Limitation on Liability of Non-Owner Participants after Final Certificate 65

34. Personal Property Securities Act 65

34.1 Meanings of terms 65

34.2 PPSA further steps 66

34.3 Provision of information 66

34.4 PPSA requirements 66

34.5 PPSA exclusions 66

Schedule 1 – Alliance Framework 68

Schedule 2 – Termination payment 71

Schedule 3 – Direct Costs 75

Schedule 4 – Performance Payment 84


Final Project Alliance Agreement – 11 October 2016 Page (vi)

Schedule 5 – Corporate Overhead and Profit 88

Schedule 6 – Participants’ contact details 89

Schedule 7 – Proposal Elements 91

Schedule 8 – Main Roads’ Representative 92

Schedule 9 – Scope Changes 95

Schedule 10 – Basis For Design And Construction 97

Schedule 11 – Payment Procedures 98

Schedule 12 – Form of Statutory Declaration 103

Schedule 13 – Parent Company Guarantee 104

Schedule 14 – Issues Resolution Procedures 110


Final Project Alliance Agreement – 11 October 2016 Page 1

Date 2016

Parties

1. Commissioner of Main Roads of Waterloo Crescent, East Perth, Western Australia (Main

Roads).

2. CPB Contractors Pty Ltd, (formerly Leighton Contractors Pty Ltd) ABN 98 000 893 667 of

202 Pier Street Perth, Western Australia (Participant 1).

3. Georgiou Group Pty Ltd, ABN 82 073 851 948 of 68 Hasler Road, Osborne Park, Western

Australia (Participant 2).

4. P.M.R Quarries Pty Ltd, ACN 008 866 448 of 401 Spearwood Avenue, Bibra Lake,

Western Australia (Participant 3).

5. GHD Pty Ltd, ABN 39 008 488 373 of Level 15, 133 Castlereagh Street, Sydney, New

South Wales (Participant 4).

6. AECOM Australia Pty Ltd, ABN 20 093 846 925 of Level 8, 540 Wickham Street,

Fortitude Valley, Queensland (Participant 5).

7. BG&E Pty Limited, ABN 67 150 804 603 of 484 Murray Street, Perth, Western Australia

(Participant 6).

Recitals

A Main Roads intends to deliver the Roe 8 Project, being an extension of Roe Highway from

Kwinana Freeway to just west of Coolbellup Avenue.

B The Roe 8 Project is more particularly described in the Basis For Design And Construction

set out in Schedule 10 (the Project).

C Main Roads has selected the Non-Owner Participants based on the Proposal and the selection

process, and the Non-Owner Participants have agreed to enter into this Agreement and to

carry out the Works and the Project in return for the payments set out in this Agreement.

D Main Roads (in its role as the Owner Participant) and the Non-Owner Participants have

undertaken to enter into a project alliance and perform their respective roles in relation to the

Project in the spirit of co-operation and openness.

E The Participants agreed the Direct Cost Target of

and are

committed to achieving exceptional outcomes as measured by the extent to which the Project

meets or exceeds the agreed Key Result Areas.



F In consideration of, among other things, the mutual promises contained in this Agreement,

the Participants agree as set out in the operative part of this Agreement.

It is agreed as follows.

1. Definitions and Interpretation

1.1 Definitions

The meanings of the terms used in this Agreement are set out below.

Aboriginal Enterprise means a business registered on the Aboriginal Business Directory WA

(available at http://www.abdwa.com.au ) and may be:

(a) a sole trader, if the sole trader is an Aboriginal Person;

(b) a partnership or firm, where at least 51% of the partners are Aboriginal Persons; or

(c) a corporation, where Aboriginal Persons own at least 51% of the corporation.

Aboriginal Heritage means a place, object, remain or any other thing that is of significance to

Aboriginal persons in accordance with their practices, observances, customs, traditions, beliefs or

history and includes any place or object or thing that is subject to protection under the Environment

Protection and Biodiversity Conservation Act 1999 (Cth), the Aboriginal and Torres Strait Islander

Heritage Protection Act 1984 (Cth) or the Aboriginal Heritage Act 1972 (WA).

Aboriginal Person means a person who is of Aboriginal or Torres Strait Islander descent, who

identifies as such and is accepted as such by the community in which he or she lives or has lived.

Action is defined in clause 5.8(a).

Act of Parliament means all Acts of the Parliament of the Commonwealth, and of the State of

Western Australia and includes any ordinance, rule, regulation, by-law, local law, order, code of

practice, guideline, instruction and proclamation made or issued under any such Act now in

existence or which comes into existence during the Term.

Actual Direct Cost means the total verified sum of all Direct Costs reasonably and actually incurred

by the Participants on or before the Completion Date, except for amounts specifically excluded

under this Agreement.

Adjudicator means the independent person appointed under clause 2 of Schedule 2.

Advance Payment Amounts is defined in clause 3(c) of Schedule 11.

Agreement means this project alliance agreement.

Alliance Board means the alliance board established under clause 5.1.

Alliance Manager means the person specified in clause 6.1 or any other person appointed by the

Alliance Board as the Alliance Manager for the purposes of this Agreement from time to time.

Alliance Management Team means the alliance management team to be established under

clause 6.2.

Alliance Principles are set out in Schedule 1.



Alliance Project Team means the group of people to be selected by the Alliance Manager under

clause 6.4 as the alliance project team for the alliance.

Alliance Purpose is set out in Schedule 1.

Alliance Vision is set out in Schedule 1.

Authorisation means any consent, registration, filing, agreement, notarisation, certificate, licence,

approval, permit, authority or exemption from, by or with a Government Agency or a Third Party.

Basis For Design And Construction means the written summary of requirements for all of the

Works to be carried out by the Participants under this Agreement as set out in Schedule 10, as may

be amended from time to time in accordance with clause 14.1(a)(viii).

Best For Alliance means an action, approach, decision, determination, method, process, answer,

solution, interpretation, outcome, resolution or the like that is consistent with and serves the Alliance

Principles, Alliance Purpose, Alliance Vision and Project Objectives.

Business Day means a day that is not a Saturday, Sunday or public holiday in Perth, Western

Australia (unless a clause expressly refers to a Business Day in another location).

CCA means the Construction Contracts Act 2004 (WA).

Certificate of Practical Completion is defined in clause 11.2(b).

Change in Control means in respect of an entity, a change in the persons who, directly or indirectly,

control that entity. For the purposes of this definition, the term control (including the terms

controlled by and under common control with) has the same meaning as in the Corporations Act.

Code means the Building Code 2013, a copy of which is available at

http://employment.gov.au/building-code.

Completion Date means the completion date of the Works specified in the Final Certificate.

Consequential Loss means loss of production, loss of revenue, loss of profit or anticipated profit,

loss of business reputation, loss of use, business interruptions of any nature or wasted overheads but

for the avoidance of doubt, does not include any entitlement of a Non-Owner Participant under this

Agreement to Corporate Overhead and Profit.

Construction Plant means apparatus, facilities, plant, equipment and machinery used in carrying out

the Works but not forming part of the completed Works.

Corporate Overhead and Profit or COP means the Non-Owner Participants’ corporate overhead

and profit stated in Schedule 5.

Corporations Act means the Corporations Act 2001 (Cth).

Cost Performance Amount is the payment, if any, to the Non-Owner Participants by Main Roads or

to Main Roads by the Non-Owner Participants (as the case may be) for performance by the

Participants in the area of Direct Costs underrun or overrun which will be calculated in accordance

with the cost performance payment methodology set out in clause 2 of Schedule 4.

D&C Program is defined in clause 8.1(a)(ii).

Date for Practical Completion means the Date for Practical Completion for Separable Portion 1 or

the Date for Practical Completion for Separable Portion 2, as applicable.



Date for Practical Completion for Separable Portion 1 means , as may be revised in

accordance with this Agreement.

Date for Practical Completion for Separable Portion 2 means , as may be revised in

accordance with this Agreement.

Date of Practical Completion means the date of Practical Completion specified in the Certificate of

Practical Completion.

Defaulting Non-Owner Participant is defined in clause 29.3.

Defaulting Participant is defined in clause 27.1.

Defect means any error, omission, defect, non-conforming item, deficiency or discrepancy in any

part of the Works as compared against the requirements of this Agreement.

Defects Correction Period means, in respect of a Separable Portion, the period commencing from

the Date of Practical Completion applicable to that Separable Portion and expiring on the third

anniversary of the last to occur of the Date of Practical Completion of Separable Portion 1 and

Separable Portion 2.

Delivery Objectives are set out in Schedule 1.

Design means such design, conceptual design, design development and Design Documentation

provided in accordance with this Agreement.

Design Documentation means all:

(a) design documentation (including design standards, design reports, durability reports,

specifications, models, samples, calculations, drawings, digital records and all other

relevant data) in computer readable or written forms, or stored by any other means, which

are required for the performance of the Works or which a Participant or any other person

creates in performing the Works (including the design of Temporary Works);

(b) computer software specifically created or modified for the purpose of the Works; and

(c) reports and submissions to a Government Agency.

Difference Amount is defined in clause 5(a) in Schedule 11.

Diligence means the exercise of the degree of skill, expertise, diligence and foresight which would

from time to time be expected of skilled and experienced professional persons engaged in

undertakings of a similar type as the Works.

Direct Cost Target is

Direct Costs is defined in Schedule 3.

Effective Date is defined in clause 7.3.

Enhancements is defined in clause 31.2(a).

Entitlement Amount is defined in clause 5(a) in Schedule 11.

Environment has the same meaning as in the Environment Protection and Biodiversity

Conservation Act 1999 (Cth).



Excluded Amounts means any:

(a) Direct Costs reimbursable under clause 17.1;

(b) Corporate Overhead and Profit payable under clause 17.1;

(c) Cost Performance Amount or KRA Performance Amount payable under clause 17.1 and

Schedule 4;

(d) amount required to be paid by Main Roads to the Non-Owner Participants, or the Non-

Owner Participants to Main Roads (as the case may be), under clauses 17.6 and 26.2 and

Schedule 2; and

(e) any amount required to be paid by a Non-Owner Participant to the Owner Participant under

clause 20.10.

Excluded Representative is defined in clause 5.8(c).

Expert means a person appointed by the Alliance Board and who:

(a) has reasonable qualifications and commercial and practicable experience in the area of the

dispute;

(b) has no interest or duty which conflicts or may conflict with his or her functions as an

Expert (unless all Participants waive this requirement); and

(c) is not a present (or within the previous five years a past) employee, contractor or consultant

to any of the Participants or their respective Related Body Corporate (unless all Participants

waive this requirement).

Final Certificate is defined in clause 12.1.

Force Majeure Event is defined in clause 30.1.

FWBI Act means the Fair Work (Building Industry) Act 2012 (Cth).

FWBI Regulation means the Fair Work (Building Industry - Accreditation Scheme) Regulation

2016 (Cth).

Good Faith is defined in clause 3.1(a).

Government Agency means any government or governmental, semi-governmental, administrative,

monetary, fiscal or judicial body, department, commission, authority, tribunal, government minister,

agency or entity.

GST Exclusive Consideration is defined in clause 17.10.

Insolvency Event means if a Participant:

(a) informs another Participant or creditors generally that it is insolvent;

(b) has a meeting of its creditors called with a view to:

(i) entering a scheme of arrangement or composition with creditors; or

(ii) placing the Participant under official management;

(c) enters a scheme of arrangement or composition with creditors;

(d) is subject to a resolution passed at a meeting of its creditors to place it under official

management;



(e) is placed under official management;

(f) has a controller (as that term is defined in the Corporations Act) of its property or part of its

property appointed;

(g) is the subject of an application to a court for its winding up, which application is not stayed

within 10 Business Days;

(h) has a winding up order made in respect of it;

(i) has an administrator appointed under section 436A, 436B or 436C of the Corporations Act;

(j) enters into voluntary liquidation;

(k) fails to comply with a statutory demand issued under section 459E of the Corporations Act,

unless the demand is set aside by a court within 10 Business Days; or

(l) has execution levied against it by creditors, debenture holders or trustees or under a floating

charge.

Insurance Risk Management Plan is defined in clause 21.4.

Intellectual Property means all intellectual property rights existing worldwide and the subject

matter of those rights including any patent, design (whether registered or not), copyright, trade mark,

protected circuit layout (or similar right), trade secret or other right whether existing under a

Statutory Requirement, at common law or in equity.

Intellectual Property Assets are defined in clause 31.3(a).

IP Documents are defined in clause 31.3(a).

Joint Venture is defined in clause 33.16.

JV Agreement is defined in clause 33.16.

Key Result Areas or KRAs are defined in clause 3.2 of Schedule 4.

KRA Performance Amount is the payment, if any, to the Non-Owner Participants by Main Roads or

to Main Roads by the Non-Owner Participants (as the case may be) for performance by the

Participants in the Key Result Areas which will be calculated in accordance with the KRA

performance methodology set out in clause 3 of Schedule 4.

Latent Conditions means the physical conditions on and off the Site including the weather, soil and

rock conditions, surface water, groundwater, geotechnical conditions, contamination, Pollution and

artificial things.

Licence means a licence, approval or consent granted to a Participant under a Statutory Requirement

which is necessary to enable the Project to be delivered.

Main Roads' Representative is defined in clause 1.3(b).

Main Roads’ Reserved Powers means the reserved powers set out in clause 5.9(a).

Materials means materials, plant, machinery, equipment, products, processes and other things used

by the Participants in carrying out, or for incorporation in, the Works.

Native Title Laws includes the Native Title Act 1993 (Cth), the Titles (Validation) and Native Title

(Effect of Past Acts) Act 1995 (WA), the Aboriginal Heritage Act 1972 (WA) and the Aboriginal

and Torres Strait Islander Heritage Protection Act 1984 (Cth).



Non-Owner Participant means Participant 1, Participant 2, Participant 3, Participant 4, Participant 5

or Participant 6 as the context requires.

Non-Owner Participants means Participant 1, Participant 2, Participant 3, Participant 4, Participant

5 and Participant 6.

Notice is defined in clause 32.1.

Owner Participant means Main Roads, in its capacity as a Participant to the project alliance for the

delivery of the Works.

Parent Company Guarantee is defined in clause 7.2.

Participant means either the Owner Participant, Participant 1, Participant 2, Participant 3,

Participant 4, Participant 5 or Participant 6 as the context requires.

Participants means the Owner Participant and the Non-Owner Participants.

Participating Interest means the percentage ascribed to each Non-Owner Participant in clause

29.1(b).

Performance Payment means a payment to the Non-Owner Participants by Main Roads or to Main

Roads by the Non-Owner Participants (as the case may be) for performance by the Participants in

the:

(a) area of Direct Costs underrun or overrun; and

(b) Key Result Areas.

PMP is defined in clause 8.1(a).

PPSA means the Personal Property Securities Act 2009 (Cth).

Pollution means any unauthorised discharge or deposit of waste into the Environment.

Practical Completion is defined in clause 11.1.

Pre-existing Intellectual Property Materials is defined in clause 31.1(a).

Preliminary Design means the Non-Owner Participants' preliminary design for the Works which is

set out in Schedule 7.

Preliminary Project Management Plan means the Non-Owner Participants' preliminary project

management plan in Schedule 7.

Project is defined in Recital B of the Recitals of this Agreement.

Project Bank Account means the bank account referred to in clause 17.3(a).

Project Management System is defined in clause 16.7.

Project Objectives are set out in Schedule 1.

Proposal means the written response submitted by the Non-Owner Participants in respect of the

Project in response to the Request for Proposals for the Perth Freight Link Project.

Record Keeping Code is defined in clause 18.3(b).

Related Body Corporate has the meaning given to that term in the Corporations Act.

Relevant Period means the period commencing on the Effective Date and ending on:



(a) a date agreed by the Alliance Board; or

(b) failing agreement, the date necessary to ensure that all Participants comply with any

Statutory Requirement relating to record keeping.

Request for Proposals means the request for proposals to form a project alliance to design and

construct section 1 (the Roe 8 Project) or section 2, or both, of the Perth Freight Link Project issued

in May 2015.

Risk and Contingency Provisions or RCP means the provision for all possible Direct Costs

associated with the likelihood of risks and opportunities that may arise in carrying out the Works

including items such as Latent Conditions, rise and fall events, directions by Main Roads or the

Alliance Board in accordance with clause 14.1 (excluding Scope Changes), foreign exchange

fluctuations, cost of living increases, uncertainty of costs of Utility Services relocation, costs of

coordinating the Works with other works and services undertaken by Main Roads or its contractors

(other than the Non-Owner Participants) and the cost of rectifying any Defects.

Roe 8 Project is defined in Recital A of the Recitals to this Agreement.

Scheme means the 'Australian Government Building and Construction WHS Accreditation Scheme'

established by the FWBI Act.

Scope Change is defined in clause 14.2(a).

Senior Project Director is defined in clause 1.3(d).

Separable Portion means Separable Portion 1 or Separable Portion 2.

Separable Portion 1 means Separable Portion 1, more particularly described in the Basis For Design

And Construction.

Separable Portion 2 means Separable Portion 2, more particularly described in the Basis For Design

And Construction.

Site means any land, or any part of land, where the Works are to be performed.

Statutory Requirements includes:

(a) Acts of Parliament;

(b) Authorisations;

(c) directions given under a statutory power which affect the performance of the Works; and

(d) all other laws, regulations, conventions, orders, directions, guidelines and policies given by

or on behalf of any Government Agency which may apply to the Works.

Stipulation is defined in clause 27.2(a).

Subcontract means any contract or purchase order, or arrangement made in respect of the Works,

between a Participant and a Subcontractor.

Subcontractor means any person engaged by a Participant to perform any part of the Works and

includes, where it is not inconsistent with the context, that person’s employees, agents, consultants

and invitees.

Supplier is defined in clause 17.10(d).



Temporary Works means works used in the execution or undertaking of the Works, but which do

not form part of the completed Works.

Term is described in clause 7.1.

Third Party means a person who is not a Participant or a director, officer or employee of a

Participant.

Utility Services means the permanent or temporary installations of utility providers, including

energy (for example, electricity and gas), water, sewerage, drainage and telecommunications

infrastructure.

Wilful Default means any of the following:

(a) a deliberate and purposeful act or omission carried out, or real and substantial evidence of a

deliberate and purposeful act or omission carried out, with a reckless disregard or

calculated disregard for the consequences of the act or omission by a Participant which is a

breach of a duty, obligation or Stipulation arising out of this Agreement, or which is a

breach of a duty or obligation owed to another Participant however arising;

(b) an act or omission by a Participant which gives rise to a contravention or cancellation of a

Licence where:

(i) it was reasonably foreseeable that the consequences of the act or omission would

give rise to a contravention or cancellation of the Licence; and

(ii) in the case of a contravention of a Licence only, the Participant fails to

immediately take all steps necessary to remedy the contravention of the Licence;

(c) a deliberate and wilful act or omission by a Participant which is a substantial or continuous

breach of the Project Management System;

(d) the refusal by the Alliance to grant to the Owner Participant access to the Site or Works as

required in accordance with clause 15.2; and

(e) failure to pay moneys due under this Agreement within 28 days of being directed to do so

in writing by the Alliance Board,

but does not include any error of judgment, mistake, act or omission, whether negligent or not,

which is made in Good Faith by that Participant or by any director, officer, employee, agent or

Subcontractor of that Participant.

Works means the whole of the works and services to be carried out by the Participants from time to

time under this Agreement (including the works set out in the Basis For Design And Construction)

necessary to deliver those works and services in accordance with this Agreement and the D&C

Program and includes:

(a) the Separable Portions;

(b) all planning, management and administrative works and services associated with managing

the Works as a whole;

(c) the works associated with any direction by Main Roads or the Alliance Board in accordance

with clause 14.1 or Scope Changes;

(d) Temporary Works; and



(e) rectification work necessary to make good any Defects in a Separable Portion arising before

and during the Defects Correction Period applicable to that Separable Portion.

1.2 Interpretation

In this Agreement:

(a) headings and bold type are for convenience only and do not affect the interpretation of this

Agreement;

(b) the singular includes the plural and the plural includes the singular;

(c) words of any gender include all genders;

(d) other parts of speech and grammatical forms of a word or phrase defined in this Agreement

have a corresponding meaning;

(e) an expression importing a person includes any company, partnership, joint venture,

association, corporation or other body corporate and any Government Agency as well as an

individual;

(f) a reference to a clause, party, schedule, attachment, annexure or exhibit is a reference to a

clause of, and a party, schedule, attachment, annexure or exhibit to, this Agreement and a

reference to this Agreement includes any clause, schedule, attachment, annexure and

exhibit;

(g) a reference to any legislation includes all delegated legislation made under it and

amendments, consolidations, replacements or re-enactments;

(h) a reference to a document (including this Agreement) is that document as varied, amended,

novated, ratified or replaced from time to time;

(i) a covenant or agreement on the part of the Non-Owner Participants (or any one or more of

them) binds them jointly to Main Roads;

(j) all money referred to under this Agreement is in Australian dollars;

(k) a reference to a body (including an institute, association or authority), other than a party to

this Agreement, whether statutory or not which ceases to exist or whose powers or

functions are transferred to another body, is a reference to the body which replaces it or

which substantially succeeds to its powers or functions;

(l) specifying anything in this Agreement after the words “include” or “for example” or similar

expressions does not limit what else is included;

(m) a reference to writing includes any method of representing or reproducing words, figures,

drawings, or symbols in a visible and tangible form and includes communication by email;

(n) non-defined terms commencing in the upper case have their apparent meanings;

(o) nothing in this Agreement is to be interpreted against a Participant solely on the ground that

the Participant put forward this Agreement or any part of it; and

(p) a reference to a Participant using, or obligation on a Participant to use, its 'best endeavours'

does not oblige that Participant to:

(i) pay money:



(A) in the form of an inducement or consideration to a Third Party to procure

something (other than the payment of immaterial expenses or costs,

including costs of advisers, to procure the relevant thing); or

(B) in circumstances that are commercially onerous or unreasonable in the

context of this Agreement;

(ii) provide other valuable consideration to, or for the benefit of, any person; or

(iii) agree to commercially onerous or unreasonable conditions.

1.3 References to Main Roads and the Owner Participant

(a) While Main Roads and the Owner Participant are the same entity, throughout this

Agreement references are made to “Main Roads” and “Owner Participant” respectively to

indicate when that entity is acting as the client for the Works and when it is acting as one of

the Participants to the project alliance for the delivery of the Works.

(b) Main Roads must perform its obligations under this Agreement through a representative

appointed in writing by Main Roads from time to time and who, as at the Effective Date, is

(Main Roads' Representative). Main Roads may, from time to time,

change the Main Roads' Representative by giving notice to the Non-Owner Participants.

(c) Main Roads’ Representative will also perform the roles and functions and have the powers

and rights allocated to him or her as set out in Schedule 8. The Participants will provide all

assistance necessary to ensure Main Roads’ Representative can fulfil the responsibilities,

perform those roles and functions and exercise those rights.

(d) Main Roads has also appointed as Senior Project Director who has the

responsibility to make any alterations to the Direct Cost Target under clause 9.1. The

Senior Project Director may attend Alliance Board meetings and may attend other meetings

by agreement with the Alliance Manager. The Senior Project Director has the authority to

perform the obligations of the Main Roads' Representative, if the Main Roads'

Representative is absent for any reason. Main Roads may, from time to time, change the

Senior Project Director by giving notice to the Non-Owner Participants.

1.4 Business Day

Where the day on or by which any thing is to be done is not a Business Day, that thing must be done

on or by the next Business Day.

1.5 Ambiguity, discrepancy and inconsistency

The Alliance Board must resolve any ambiguity, discrepancy or inconsistency in this Agreement,

and the documents comprising this Agreement, in a manner consistent with the commitments given

by the Participants under clause 3.

1.6 Provision of information and documentation by the Participants

The Participants have, prior to the Effective Date, exchanged information and advice about the

Works and the performance of the Works. The Participants must continue to do this during the

Relevant Period. To avoid the possibility of issues between the Participants arising and the need for

any subsequent alterations to the Direct Cost Target, each Participant must undertake its own



enquiries to satisfy itself as far as reasonably practical of the accuracy, completeness and relevance

of that information or advice.

2. Alliance Principles, Purpose, Vision and Objectives

2.1 Alliance Principles, Purpose and Vision

The Participants will perform the Works in accordance with the Alliance Principles, Alliance

Purpose and Alliance Vision set out in Schedule 1. The Alliance Principles, the Alliance Purpose

and the Alliance Vision will underpin the relationship between the Participants at all levels of the

project alliance.

2.2 Project Objectives

The Project Objectives set out in Schedule 1 are the key drivers of the Project.

3. Commitments

3.1 Good Faith

(a) In the context of this Agreement, Good Faith means:

(i) acting in accordance with the Alliance Principles, Alliance Purpose and Alliance

Vision both in a literal sense and with their intent;

(ii) undertaking, adopting and implementing all things reasonably necessary to ensure

a Best For Alliance outcome; and

(iii) being fair, honest and reasonable and acting with integrity at all times.

(b) Subject to clauses 3.1(c) and 3.2, the Participants must act in Good Faith in exercising their

rights and performing their obligations under this Agreement.

(c) The Participants' obligations to act in Good Faith do not apply to:

(i) the exercise of Main Roads' discretion under clause 5.9; or

(ii) the exercise of any right or remedy by a Participant consequent upon any of the

circumstances set out in clause 4.3 arising.

3.2 Privilege

Nothing in this Agreement requires a Participant to waive any entitlement or right to legal

professional privilege or disclose confidential lawyer/client communications.

3.3 Results orientated

The Participants commit to working together to meet the Project Objectives and to produce

outstanding and innovative results in carrying out the Works.



3.4 Best For Alliance

The Participants commit to establishing an alliance culture based on the Alliance Principles,

Alliance Purpose and Alliance Vision and to act at all times in a manner that is consistent with a

Best For Alliance approach.

3.5 Open book commitment

(a) Each Participant commits to:

(i) maintain, for at least the Relevant Period, all of the records and other

documentation referred to in this Agreement that relate to the Works in accordance

with, where applicable, good accounting practices, standards and procedures;

(ii) make the records and other documentation available to each other (or each other’s

nominated auditor) on request; and

(iii) make available to each other (or each other’s nominated auditor) any existing

documentation or information in whatever form relating to the Works.

(b) The obligation to make records and documentation available does not apply to records or

documentation that may be the subject of legal professional privilege or are confidential

lawyer/client communications.

3.6 Commitment to “no-blame” culture

A key purpose of this Agreement is, and the Participants will commit themselves to:

(a) promoting and maintaining a 'no-blame' culture between the Participants in relation to

disputes, errors, mistakes, poor performance and other issues which may arise; and

(b) the prompt and mutual resolution of all disputes, differences and other issues by all

Participants within the framework created by this Agreement.

4. Avoidance of issues between the Participants

4.1 No litigation or arbitration

(a) Subject to clause 4.3, the Participants agree that, as a fundamental element of, and objective

in, establishing the alliance relationship under this Agreement, there will be no litigation or

arbitration between them arising out of or in connection with this Agreement. The

Participants must use their best endeavours to avoid issues arising as between each other

and, to the extent an issue arises, must resolve the issue internally. The Alliance Board

must resolve issues in accordance with the principles and procedures set out in

Schedule 14.

(b) The Participants agree that, subject to the exceptions listed in clause 4.3, a failure by a

Participant to perform any obligation or to discharge any duty under, or arising out of or in

connection with this Agreement, or which is otherwise an obligation to or duty owed to

another Participant however arising, does not give rise to any enforceable right or

obligation at law or in equity and, to the extent that it does, the other Participants release

and discharge that Participant from any consequences at law or in equity for that failure.



4.2 Immediate notification of possible issue

Each Participant agrees to immediately notify the other Participants of any matter which may

amount to or result in an issue between the Participants in relation to this Agreement.

4.3 Saving of certain legal and equitable rights

Clause 4.1 has no force or effect:

(a) in respect of a Wilful Default by a Participant;

(b) in respect of a Participant’s motor vehicle insurer exercising a right of subrogation, to the

extent it is permitted to do so, against another Participant;

(c) where a Participant has a right to bring a claim or action under a Statutory Requirement

which cannot be excluded as a matter of law by the Participants;

(d) any claims for breach of any Statutory Requirement (including any prosecution brought

against a Participant by a Government Agency) in connection with the Works;

(e) in respect of a breach of an obligation to indemnify under this Agreement; or

(f) where this Agreement expressly states that clause 4.1 does not apply.

5. Alliance Board

5.1 Establishment and composition

The Participants have established the Alliance Board. The Alliance Board comprises 9

representatives, each to be a senior member of the relevant Participant’s organisation, of which:

(a) two will be appointed by the Owner Participant;

(b) two will be appointed by Participant 1;

(c) one will be appointed by Participant 2;

(d) one will be appointed by Participant 3;

(e) one will be appointed by Participant 4;

(f) one will be appointed by Participant 5; and

(g) one will be appointed by Participant 6.

The initial representatives appointed by each Participant are set out in Schedule 1. Each Participant,

with the agreement of the other Participants, may remove or replace its representatives on the

Alliance Board.

5.2 Chairperson

The Owner Participant must appoint a chairperson. The chairperson must be a representative of the

Owner Participant and a member of the Alliance Board.



5.3 Functions and responsibilities

The primary function of the Alliance Board is to ensure that this Agreement runs as smoothly and

efficiently as possible for the benefit of the Participants. The roles and responsibilities of the

Alliance Board are more fully described in Schedule 1.

5.4 Representatives authorised to bind Participant

A Participant’s representative is authorised to represent and bind their appointor on any matter

relating to this Agreement. A decision will bind the Participants, if, when the decision was made, the

representative reasonably believed the decision was within the representative’s authorisation limit.

5.5 Meetings

(a) The Alliance Board must hold a meeting at intervals of no greater than monthly and

otherwise when reasonably required by any Participant. The procedures for Alliance Board

meetings must be decided by the Alliance Board at its first meeting. Those procedures may

be changed at any time by a decision of the Alliance Board.

(b) The Participants acknowledge that the continuous involvement in and attendance at the

Alliance Board meetings of the nominated Alliance Board representatives is critical to the

success of the project alliance.

5.6 Decisions

(a) No decision can be made by the Alliance Board unless:

(i) one representative of the Owner Participant;

(ii) one representative of Participant 1;

(iii) one representative of either Participant 2 or Participant 3; and

(iv) one representative of either Participant 4, Participant 5 or Participant 6,

are present at the meeting and unanimity is achieved.

(b) Each Participant must use its best endeavours to ensure a decision made by the Alliance

Board is unanimous.

(c) If the Alliance Board does not achieve unanimity on an issue, the issues resolution

procedure in Schedule 14 will apply.

5.7 Compliance with decisions

(a) Subject to paragraph (b), a Participant must comply with an Alliance Board decision that is

within the matters contemplated by this Agreement.

(b) If a Participant genuinely believes that compliance with an Alliance Board decision would

cause the Participant or a Participant’s officer, director, agent or employee to do or omit to

do anything that contravenes any law or Statutory Requirement, or the Participant’s

constituent statute, constitution, memorandum or articles of association, the Participant

need not comply, but must immediately notify the remaining Participants.



5.8 Disclosure of conflict of interest

(a) A Participant’s representative must fully disclose to an Alliance Board meeting, an Alliance

Management Team meeting or Alliance Project Team meeting (as the case may be), any

conflicting interest or duty, or potential conflict of interest or duty the representative may

have (whether personally or as a representative) before participating in any:

(i) action, decision or determination to be taken or made by the Alliance Board,

Alliance Management Team or Alliance Project Team (as the case may be)

associated with or connected to the conflict; or

(ii) discussion or consideration of any relevant issue or making a decision or

determination about, or taking an action in respect of, that issue associated with or

connected to the conflict, during an Alliance Board meeting, Alliance

Management Team meeting or Alliance Project Team meeting (as the case may

be),

(paragraphs (i) and (ii) collectively, Action).

(b) The Alliance Board, in the absence of the representative concerned, will consider each such

disclosure under paragraph (a) and determine (adopting best corporate governance

practices) if the representative has a conflict and, if so, how to resolve or mitigate that

conflict in accordance with a Best for Alliance approach.

(c) Where the Alliance Board resolves, in accordance with paragraph (b), to exclude the

representative (Excluded Representative) from an Alliance Board meeting, an Alliance

Management Team meeting or Alliance Project Team meeting (as the case may be) in

respect of the Action, then that Action may not proceed until another representative of the

Participant attends and performs the role, functions and duties of the Excluded

Representative in respect of the Action.

5.9 Main Roads’ Reserved Powers

(a) Notwithstanding the alliance relationship established under this Agreement, the Non-Owner

Participants acknowledge that the final decision on the following matters (Main Roads’

Reserved Powers) ought to be, and are, reserved for unilateral determination by Main

Roads:

(i) the decision to suspend all or part of the Works under clause 25;

(ii) any decisions, directions or actions Main Roads determines are necessary

following any event which significantly impacts on the Works or any part of the

Works;

(iii) any discretion exercised by Main Roads under clause 20.1(b); and

(iv) unless otherwise specified, the decision to terminate this Agreement where Main

Roads has such a right under this Agreement.

(b) The Participants must abide by and implement a decision by Main Roads under

paragraph (a) as though it was a decision of the Alliance Board.

(c) The impact, if any, that the exercise of a Main Roads’ Reserved Power has on

compensation to the Non-Owner Participants under this Agreement will be calculated in



accordance with the manner prescribed by this Agreement, and if no manner is prescribed,

as determined by Main Roads.

6. Alliance Manager, Alliance Management Team and Alliance Project

Team

6.1 Alliance Manager – appointment and functions

The Alliance Board has selected and appointed as the Alliance Manager. The

functions and responsibilities of the Alliance Manager will be determined by the Alliance Board as

soon as practicable after the Effective Date.

6.2 Alliance Management Team – selection and endorsement

(a) Subject to paragraph (b), the Alliance Management Team will be selected by the Alliance

Manager and endorsed by the Alliance Board and will comprise of the Alliance Manager

and individuals drawn from the Participants reporting directly to the Alliance Manager

provided always that at least one representative from each Participant must be selected and

endorsed.

(b) The Owner Participant may nominate Main Roads' personnel for inclusion in the Alliance

Management Team and those persons nominated must form part of the Alliance

Management Team.

(c) The membership of the Alliance Management Team may be amended with the approval of

the Alliance Board.

(d) The Alliance Management Team must perform the functions determined by the Alliance

Board as soon as practicable after the Effective Date.

6.3 Change in membership of Alliance Management Team

The Participants must (subject to satisfactory performance by the relevant personnel) use their best

endeavours to ensure that, where appropriate, the personnel that have been assigned to the Alliance

Management Team remain as members of the Alliance Management Team for the duration of the

Works or otherwise until the Alliance Board or the Alliance Manager, as appropriate, decides that he

or she is no longer required.

6.4 Alliance Project Team

(a) Subject to the requirements of this clause, an Alliance Project Team will be selected by the

Alliance Manager.

(b) The Alliance Project Team must:

(i) include personnel from each of the Participants; and

(ii) under the guidance of the Alliance Board and the Alliance Management Team,

perform the functions determined by the Alliance Board and Alliance Management

Team as soon as practicable after the Effective Date and from time to time during

the Term.



(c) The Owner Participant plans to nominate personnel for inclusion in the Alliance Project

Team (including nominating some personnel for the purpose of gaining training and

experience in program alliancing). The Alliance Manager must include in the Alliance

Project Team those persons nominated by the Owner Participant and at all times give due

consideration for and accommodate the normal work conditions and conditions of

employment of the Owner Participant's personnel.

6.5 Change in membership of Alliance Project Team

The Participants must (subject to satisfactory performance by the relevant personnel) use their best

endeavours to ensure that, where appropriate, the personnel that have been assigned to the Alliance

Project Team remain as members of the Alliance Project Team for the Term or otherwise until the

Alliance Board or the Alliance Management Team decides that he or she is no longer required.

6.6 Project office

The Participants must provide Project offices as soon as practicable after the Effective Date until the

Date of Practical Completion of the last Separable Portion.

7. Effective Date and Term

7.1 Term of Agreement

This Agreement becomes effective on the Effective Date and continues until (subject to

clause 33.14):

(a) payment is made in accordance with clause 12.3 by Main Roads or the Non-Owner

Participants, as the case may be, on the Final Certificate; or

(b) it is terminated under clause 26, 27 or 30.2(b)(iii) or otherwise under this Agreement,

(the Term).

7.2 Condition precedent

Notwithstanding the Participants executing this Agreement, this Agreement is conditional on

Participant 1 providing to Main Roads an original validly executed parent company guarantee in the

form, or substantially in the same form acceptable to Main Roads, set out in Schedule 13 (Parent

Company Guarantee).

7.3 Effective Date

The effective date of this Agreement is the later of:

(a) the date on which Main Roads receives the Parent Company Guarantee from Participant 1;

and

(b) the date on which the Participants execute the Agreement,

(Effective Date).

7.4 Time to satisfy condition precedent

If the condition precedent set out in clause 7.2 is not:



(a) satisfied within 20 Business Days of the date of this Agreement; or

(b) waived by Main Roads (acting in its absolute discretion),

then this Agreement shall lapse and have no force or effect.

8. Project Management Plan and Design

8.1 Project Management Plan

(a) Promptly following the Effective Date, but by no later than 60 Business Days from that

date, the Alliance Management Team must develop the Preliminary Project Management

Plan into a final Project Management Plan (PMP). The PMP must include the following:

(i) a project specific Scope of Works and Technical Criteria (SWTC) document which

is based on Main Roads' template generic SWTC and complies with the Basis For

Design And Construction;

(ii) a detailed design and construction program which achieves the required Dates for

Practical Completion and indicates the dates by which Main Roads must give the

Participants access, or procure their access, to the portions of the Site (the D&C

Program);

(iii) a project cash-flow which is consistent with the D&C Program; and



(b) The Participants must, in consultation with the Alliance Board, develop and implement any

other management plans necessary to ensure that the Project is managed and delivered to

the standards and in the manner required to ensure the Project Objectives are satisfied.

8.2 Design development

The Alliance Management Team must develop the Preliminary Design to a level necessary for the

Participants to satisfy themselves that:

(a) the Design for the Works is such that, when constructed, the Works will meet the Basis For

Design And Construction;

(b) the Design for the Works is constructible having regard to usual industry practices;

(c) the Design for the Works makes the optimum use of the time available contemplated by

this Agreement to complete the Works;

(d) the Works can be constructed within Main Roads’ budget for the Project and in accordance

with the Project Objectives;

(e) the Design of each element of the Works is iterated sufficiently to achieve the optimum

value for money;

(f) the decision on the final Design option contemplated in paragraph (e) for any element of the

Works must be considered with reference to input from Main Roads' Representative; and

(g) the Design of the Works ensures a minimum 'whole of life' cost for the Works having

regard to the various design lives of each component of the Works and the requirements of

the Basis For Design And Construction.

8.3 Supply of Design by Main Roads

(a) In addition to the Basis For Design And Construction, Main Roads may, from time to time,

provide the Non-Owner Participants with Design and other documentation which:

(i) is consistent with the Basis For Design And Construction; and

(ii) describes Main Roads’ requirements for the design, documentation and

construction of the Works.

(b) The Participants must take into account the Design and other documentation in designing

the Works.



(c) Subject to paragraph (d), the Non-Owner Participants may not use, copy or reproduce the

Design or other documentation provided by Main Roads for any purpose other than for

undertaking the Works.

(d) The Design and other documentation (and any copies of it) supplied by Main Roads to the

Non-Owner Participants remains the property of Main Roads. The Non-Owner Participants

may retain one copy of each Design and other documentation supplied by Main Roads for

purposes solely connected with:

(i) quality assurance record keeping; or

(ii) insurances contemplated by this Agreement,

and all other Design and other documentation (including all other copies) must, upon Main

Roads' written request, be destroyed or returned by the Non-Owner Participants to Main

Roads.

8.4 Design input by Main Roads

(a) The Participants must give Main Roads the opportunity to monitor Design development of

the Works.

(b) The Participants must provide Main Roads with any Design and other documentation

relating to the Works which Main Roads reasonably requires from time to time to enable its

technical input and comment to be offered.

(c) The Participants must provide Main Road's Representative confirmation that any relevant

input and comments offered by Main Roads under paragraph (b) have been satisfactorily

addressed.

8.5 Site responsibilities

The Participants must ensure that, in consultation with Main Roads' Representative, the Participants,

relevant Main Roads' organisational units and all other relevant contractors and service providers

engaged by Main Roads for the management of the existing roads and structures located within, or

connected to, the Site, agree between them the roles and responsibilities of each entity with respect

to:

(a) general maintenance;

(b) traffic management;

(c) network operations; and

(d) incident management,

issues occurring within, or connected to, the Site and document any agreement reached in the PMP.

9. Direct Cost Target

9.1 Nature of Direct Cost Target

The Direct Cost Target is fixed and not subject to alteration except in accordance with:

(a) clause 14.3(c)(i) (Scope Change);



(b) clause 21.3(e) (Insurances);

(c) clause 25.3(b) (Suspension costs); or

(d) clause 30.2(b)(i) (Force Majeure),

and is inclusive of all Direct Costs and RCP.

10. Timing

10.1 Completion

The Participants must use their best endeavours to execute each Separable Portion to the stage of

Practical Completion by the Date for Practical Completion.

10.2 Extension of time

(a) If the Alliance Board considers that the Participants are or will be delayed in reaching

Practical Completion as a result of any of the following:

(i) a direction by Main Roads in accordance with clause 14.1 (but not including a

direction which Main Roads determines to be a Scope Change under

clause 14.2(e));

(ii) a Force Majeure Event;

(iii) an abnormal or exceptional cause that the Alliance Board decides is or was beyond

the reasonable control of the Participants; or

(iv) suspension by Main Roads of all or part of the Works under clause 25,

it must decide any appropriate extension of time to the Date for Practical Completion.

(b) Lack of funds or financial resources of a Non-Owner Participant is not a cause of delay

beyond the reasonable control of a Participant and does not entitle a Participant to any

extension of time to the Date for Practical Completion.

11. Practical Completion

11.1 Definition of Practical Completion

Practical Completion means, in respect of a Separable Portion, the stage in the execution of that

Separable Portion when:

(a) the works identified in that Separable Portion are complete except for:

(i) minor omissions and Defects which do not prevent the Separable Portion from

being reasonably capable of being used for the purpose as intended in the Basis

For Design And Construction (either expressly or by implication);

(ii) minor omissions and Defects which the Participants have reasonable grounds for

not promptly rectifying; and



(iii) minor omissions and Defects rectification of which will not prejudice the

immediate and convenient use of the Separable Portion for the purpose as intended

in the Basis For Design And Construction (either expressly or by implication);

(b) the requirements of all relevant certifying authorities and insurance surveyors have been

met; and

(c) Main Roads has received all documents, certifications and information about the design and

construction of the Separable Portion including all Design, surveys and as constructed

information and drawings and other documentation reasonably required by Main Roads

with respect to the Separable Portion.

11.2 Issue of Certificate of Practical Completion

(a) If the Alliance Board decides that Practical Completion has been reached in respect of a

Separable Portion, it must notify Main Roads accordingly.

(b) Main Roads must, if it agrees that Practical Completion has been reached, within 20

Business Days after receiving that notification, issue a certificate of Practical Completion in

respect of that Separable Portion (Certificate of Practical Completion) to the Participants,

stating the Date of Practical Completion notified by the Alliance Board.

11.3 Disagreement whether Practical Completion reached

(a) If Main Roads does not agree that Practical Completion has been reached, it must, within

20 Business Days after receiving notification from the Alliance Board, notify the Alliance

Board that it disagrees and the reasons why it believes that Practical Completion has not

been reached.

(b) The Alliance Board must then ensure that the Participants promptly address the matters

specified by Main Roads, and when those matters have been addressed, re-notify Main

Roads that the Alliance Board has decided that Practical Completion has been reached.

(c) Main Roads must then re-consider whether it agrees that Practical Completion has been

reached. If Main Roads agrees that Practical Completion has been reached, clause 11.2(b)

will apply. If Main Roads does not agree that Practical Completion has been reached,

clause 11.3(a) will apply.

11.4 Certificate does not constitute approval

The issue of a Certificate of Practical Completion does not constitute approval of the applicable

Separable Portion.

12. Final reconciliation and Final Certificate

12.1 Issue of Final Certificate

If the Participants have complied with all their obligations relating to the Works (including all

obligations arising during the Defects Correction Period), the Alliance Board must issue to Main

Roads a final payment claim endorsed 'final certificate' (Final Certificate).



12.2 Content of Final Certificate

In the Final Certificate, the Alliance Board must certify:

(a) that all of the Participants’ obligations relating to the Works have been properly completed

in accordance with this Agreement;

(b) the amount which, in the opinion of the Alliance Board, is finally due and payable to the

Non-Owner Participants by Main Roads, or from the Non-Owner Participants to Main

Roads (as the case may be). In determining the amount which is finally due and payable to

the Non-Owner Participants by Main Roads or from the Non-Owner Participants to Main

Roads (as the case may be), the Alliance Board must have regard to any Direct Costs which

may be incurred by Main Roads following the issue of the Final Certificate;

(c) the calculation of any Cost Performance Amount payable; and

(d) the Completion Date.

12.3 Payment under Final Certificate

If Main Roads and the Non-Owner Participants agree with the contents of the Final Certificate, Main

Roads or the Non-Owner Participants (as the case may be) must make the payment contemplated by

the Final Certificate within 20 Business Days of the date that the Final Certificate is received by

Main Roads.

12.4 Disagreement over contents of Final Certificate

(a) If Main Roads does not agree with the contents of the Final Certificate, it must, within 20

Business Days after receiving the Final Certificate, notify the Alliance Board which part of

the contents of the Final Certificate it does not agree with and the reasons it does not agree.

(b) The Alliance Board must then ensure that the Participants promptly address the matters

specified by Main Roads and when those matters have been addressed, re-submit the Final

Certificate to Main Roads.

(c) Main Roads must then re-consider whether it agrees with the contents of the Final

Certificate. If Main Roads agrees with the contents of the Final Certificate then clause 12.3

will apply. If Main Roads does not agree with the contents of the Final Certificate

paragraph (a) will apply.

12.5 Certificates evidence of completion

Subject to clause 17.6, once payment has been made on the Final Certificate, the Final Certificate is

evidence that the Works have been completed in accordance with the terms of this Agreement on the

Completion Date and that all payments required to be made by Main Roads or by the Non-Owner

Participants (as the case may be) in respect of the Works have been made in full.

13. Construction of the Works

13.1 Standard of work

The Participants must:

(a) commence to carry out the Works on the Effective Date in accordance with this Agreement;



(b) carry out all of the Works with Diligence;

(c) design and construct, to the extent applicable, the Works to meet the requirements set out in

the Basis For Design And Construction;

(d) design and construct the Works to ensure a minimum whole of life cost for the Works as a

whole based on the various design lives of each component of the Works;

(e) take all reasonable precautions to ensure that the Works cause as little disturbance as

reasonably possible to the general public and Main Roads, its employees, other contractors

and service providers engaged by Main Roads; and

(f) carry out the Works such that rectification work necessary to make good any Defects

arising before and during the Defects Correction Period are promptly rectified to the

satisfaction of Main Roads before the end of the Defects Correction Period.

13.2 Authorisations for construction

(a) The Participants must commence with the design of the Works but may not commence

construction of the Works until the necessary Authorisations for construction have been

obtained.

(b) If the Participants are unable to obtain all of the Authorisations necessary for the

construction of the Works or any part of the Works, then the Alliance Board must promptly

meet and decide how and under what conditions, if any, the Works are to proceed.

13.3 Responsibility for Separable Portions

From the date the Participants are given possession of the Site in respect of the Separable Portion

and until the Date of Practical Completion applicable to that Separable Portion, the Participants are

responsible for the works and services, rectification of any Defects and maintenance associated with

that Separable Portion.

13.4 Defects and maintenance

(a) After the Date of Practical Completion of the Separable Portion, the Participants remain

responsible for the completion of outstanding works and services in respect of that

Separable Portion including reinstatement works and the rectification of any Defects

existing at the Date of Practical Completion applicable to that Separable Portion or arising

during the Defects Correction Period applicable to the Separable Portion. Subject to

paragraph (b), maintenance of a Separable Portion after the Date of Practical Completion

applicable to that Separable Portion is the sole responsibility of Main Roads.

(b) The Participants must maintain all landscaping, revegetation and drainage for the duration

of the Defects Correction Period.

13.5 Accreditation under the Scheme

Subject to the exclusions specified in the FWBI Regulation, Participant 1 must:

(a) maintain accreditation under the Scheme while 'building work' (as defined in section 5 of

the FWBI Act) is being carried out in respect of the Works; and

(b) comply with all conditions of Scheme accreditation.



14. Directions, Scope Changes and changes to funding

14.1 Directions

(a) Main Roads (acting on its own accord or following a recommendation from the Alliance

Board) may direct the Participants in writing to:

(i) change the design of the Works;

(ii) change the Works;

(iii) increase, decrease or omit any part of the Works;

(iv) change the character or quality of any material or work;

(v) change the levels, lines, positions or dimensions of any part of the Works;

(vi) execute additional work, such additional work to be within the general scope of

this Agreement;

(vii) demolish or remove material or work no longer required by Main Roads;

(viii) change the Basis For Design And Construction; or

(ix) subject to clause 14.4, change, alter or amend the D&C Program,

and the Participants must, subject to obtaining any necessary Authorisation or amendment

to an existing Authorisation and, in the case of a Scope Change, Main Roads’ endorsement

of the Scope Change, within a reasonable time, implement that direction.

(b) No direction will invalidate this Agreement and, unless the direction is a Scope Change,

there will be no change to the Direct Cost Target.

(c) The Participants agree that an amount for directions of the kind contemplated by this

clause 14.1, other than directions determined to be a Scope Change, will be, and is,

included in the RCP component of the Direct Cost Target.

14.2 Scope Change

(a) A scope change (Scope Change) is a direction by Main Roads under clause 14.1 which

amounts to either:

(i) a significant change, amendment or alteration to the Basis For Design And

Construction; or

(ii) a significant change to the fundamental requirements of the Works.

Examples of when a direction by Main Roads in accordance with clause 14.1 is also a

Scope Change are set out in Schedule 9.

(b) The Participants acknowledge that it is their expectation that Scope Changes are unlikely to

occur during the Term.

(c) Where the Alliance Board considers that a direction by Main Roads under clause 14.1 is a

Scope Change, the Alliance Board must, prior to implementation by the Participants of the

direction, notify Main Roads in writing.

(d) The determination as to whether a direction by Main Roads under clause 14.1 is a Scope

Change must be made by Main Roads applying the principles set out in paragraph (a) and



the examples set out in Schedule 9. Main Roads must promptly notify the Alliance Board

of its determination.

(e) If Main Roads determines that a direction by Main Roads under clause 14.1 is a Scope

Change, the Alliance Board must determine:

(i) the proposed reasonable alterations, if any, required to the Direct Cost Target; and

(ii) the proposed reasonable extension of time, if any, required to the Date for Practical

Completion,

and as soon as reasonably practicable notify Main Roads of its determination.

14.3 Endorsement by Main Roads

(a) Within 20 Business Days of receipt of a notice under clause 14.2(e), Main Roads must, by

notice to the Alliance Board, endorse or reject:

(i) the Scope Change;

(ii) any reasonable alteration to the Direct Cost Target proposed by the Alliance

Board; and

(iii) any reasonable extension of time to the Date for Practical Completion proposed by

the Alliance Board.

(b) If, in accordance with paragraph (a), Main Roads endorses the Scope Change and the

matters referred to in paragraphs (a)(ii) and (a)(iii), the Participants must, subject to

obtaining any necessary Authorisation or amendment to an existing Authorisation, within a

reasonable time, implement the Scope Change.

(c) In addition to implementing the Scope Change, the Participants must ensure, to the extent

applicable:

(i) the Direct Cost Target is adjusted in the way endorsed by Main Roads and a

commensurate alteration is made to the Direct Cost Target; and

(ii) the Date for Practical Completion is extended by the period endorsed by Main

Roads.

(d) If, in accordance with paragraph (a), Main Roads rejects the Scope Change or any one of

the matters referred to in paragraphs (a)(ii) and (a)(iii), the Participants may not implement

the Scope Change.

(e) If a direction by Main Roads under clause 14.1 is implemented by the Participants prior to

the endorsement by Main Roads in accordance with paragraph (a), the Participants will not

at any time be entitled to:

(i) an alteration of the Direct Cost Target; or

(ii) an extension to the Date for Practical Completion.

14.4 Change in funding

If, during the Term and as a result of changes in funding for the Project, Main Roads directs the

Participants to substantially change the D&C Program with effect that significant additional Works

are required to be performed by the Participants or a significant part of the Works are required to be



omitted, the Alliance Board must promptly meet and decide how, and under what conditions, if any,

this Agreement is to proceed.

15. Site

15.1 Possession of Site

(a) Subject to the Participants complying with clause 8.5, Main Roads will give the

Participants possession of the Site or sufficient possession of the Site to enable the

Participants to carry out the Works in accordance with the terms of this Agreement and the

Participants must ensure they are in compliance with their insurance obligations set out in

this Agreement and contained in the insurance policies contemplated by this Agreement.

(b) Without limiting paragraph (a), the Participants must commence Work on the Site by the

date specified in the D&C Program.

15.2 Access for Main Roads and others

(a) Main Roads, its employees and agents and any other person nominated by Main Roads may

at any time have access to any part of the Site for any purpose.

(b) Access is available after notification by Main Roads to the Participants of the areas to be

visited. Main Roads must comply with the relevant Site procedures and health, safety and

environmental conditions.

(c) Main Roads must use its best endeavours to procure that any contractor engaged by Main

Roads before the Effective Date complies with the relevant Site procedures and health,

safety and environmental requirements when accessing and executing works or services on

the Site.

(d) At all reasonable times, the Participants will give Main Roads and any other person

authorised in writing by Main Roads access to the Works at any place where that work is

being carried out or Materials are being prepared or stored.

15.3 Cleaning

(a) The Participants must keep the Site and the Works clean and tidy and must regularly

remove rubbish and surplus material.

(b) The Participants must remove the Temporary Works and Construction Plant from the Site

within a reasonable time.

15.4 Other contractors

(a) The Participants acknowledge that Main Roads has arranged, and may subsequently

arrange, for other contractors to execute works or services on and adjacent to the Site

concurrently with the performance of the Works.

(b) Without limiting any other obligation of the Participants under this Agreement, the

Participants must:

(i) at all reasonable times allow access to any Site to the other contractors; and



(ii) cooperate with the other contractors to ensure the coordination of the works or

services of the other contractors with the performance of the Works by the

Participants and compliance with the Participants’ obligations under this

Agreement.

15.5 Access to other sites

The Participants agree that if they or their Subcontractors require access to, or use, control or

possession of, a site(s) other than the Site in order to carry out the Works in accordance with the

terms of this Agreement, the Participants will be responsible for procuring such access, use, control

or possession in consultation and cooperation with Main Roads.

16. Policies, procedures and Project Management System

16.1 Subcontracts

(a) Subcontracts may be entered into by any of the Participants within the authorisation limits

set by the Alliance Board from time to time.

(b) Any Subcontract entered into by a Non-Owner Participant or Non-Owner Participants (as

the case may be) is entered into in its or their own right and not as an agent of Main Roads.

(c) The general terms and conditions of Subcontracts (including the insurance obligations of

the Subcontractors) must be decided by the Participants through the Alliance Management

Team and approved by the Alliance Board.

(d) Notwithstanding paragraph (c), a Subcontract must:

(i) contain the grant of a licence of Intellectual Property by the Subcontractor to each

Participant;

(ii) contain written warranties in favour of Main Roads to the extent that such

warranties are relevant, that any:

(A) materials incorporated into the Works are correctly designed, fabricated

and installed to the standards set out in this Agreement or, if not set out,

then to the relevant industry standards and codes of practice; and

(B) Design and any materials incorporated into the Works are of the required

quality and fit for the intended uses stated in this Agreement; and

(iii) subject to the exclusions specified in the FWBI Regulation applying, contain a

requirement that where the Subcontractor is carrying out 'building work' (as

defined in section 5 of the FWBI Act) in respect of the Works the Subcontractor

must be accredited (at all times while performing Works under this Agreement)

under the Scheme and must comply with all conditions of Scheme accreditation.

16.2 Subcontracts with associated person needs Alliance Board approval

(a) The Participants recognise that difficulties may arise in the proper calculation of Direct

Costs if one or more of the Participants enters into a contract, arrangement or understanding

related to this Agreement with a person that is in any way related to or associated with the

Participant concerned.



(b) The Participants agree that before any of them enters into any contract, arrangement or

understanding with any person which is in any way related to or associated with the

Participant, they must first seek the approval of the Alliance Board to that contract,

arrangement or understanding.

16.3 Compliance with Statutory Requirements

(a) The Participants must comply with all Statutory Requirements that affect or relate to the

performance of the Works, including obtaining and complying with all Authorisations

necessary to perform each particular portion of the Works, prior to undertaking that

particular portion of the Works.

(b) Notwithstanding clause 4.1, a failure by a Participant to comply with the requirements of

paragraph (a) confers on the other Participants an enforceable right at law or in equity to

seek any one of or a combination of specific performance, injunction or damages and, to the

extent that any right under an Act of Parliament may be excluded by this Agreement, under

that Act of Parliament.

(c) Without limiting paragraph (a), the Participants must comply with the State of Western

Australia's 'Government Building Training Policy' administered by the Department of

Training and Workforce Development.

16.4 Compliance with the Code

(a) Each of the Participants must, and must ensure that all of its Subcontractors and, in the case

of each of the Non-Owner Participants only, its Related Bodies Corporate, comply with the

Code.

(b) Compliance with the Code does not relieve the Participants from responsibility to perform

their obligations under this Agreement or from any liability for any Defect in the Works

arising from compliance by the Participants with the Code.

(c) Where any amendment to this Agreement under clause 33.4 is proposed by the Participants

or the Alliance Board, and that amendment would affect compliance with the Code by the

Participants in accordance with this clause 16.4, the Alliance Board must submit a report to

the Government of the Commonwealth of Australia specifying the extent to which the

Participants’ compliance with the Code will be affected.

(d) Each of the Participants must maintain adequate records of compliance with the Code by:

(i) that Participant;

(ii) that Participant’s Subcontractors; and

(iii) in the case of each of the Non-Owner Participants only, its Related Bodies

Corporate.

(e) If the Non-Owner Participants do not comply with the requirements of the Code in the

performance of this Agreement such that a sanction is applied by:

(i) the Minister for Employment;

(ii) the Code Monitoring Group (as referred to in the Code); or

(iii) the Government of the Commonwealth of Australia,



without prejudice to any rights that would otherwise accrue, the Minister for Employment,

the Code Monitoring Group or the Government of the Commonwealth of Australia are

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 Non-Owner Participants or a

Related Body Corporate of the Non-Owner Participants in respect of work funded by the

Government of the Commonwealth of Australia or any Government Agency.

(f) While acknowledging that value for money is the core principle underpinning decisions on

Government procurement, when assessing tenders, the Participants may give preference to

Subcontractors that have demonstrated commitment to:

(i) adding, retaining or both trainees and apprentices;

(ii) increasing the participation of women in all aspects of the industry; or

(iii) promoting employment and training opportunities for Indigenous Australians in

regions where significant Indigenous populations exist.

(g) A Subcontractor in relation to the Project must not be engaged where:

(i) the appointment would breach a sanction imposed by the Minister for

Employment; or

(ii) the Subcontractor has had an adverse court or tribunal decision (not including

decisions under appeal) for a breach of workplace relations law, work health and

safety law, or workers' compensation law and the Subcontractor has not fully

complied, or is not fully complying, with the order.

(h) Each of the Participants must, and must ensure that its Subcontractors and, in the case of

each of the Non-Owner Participants only, its Related Bodies Corporate, provide the

Government of the Commonwealth of Australia or any person authorised by the

Government of the Commonwealth of Australia, including a person occupying a position in

the Fair Work Building Industry Inspectorate, with access to:

(i) inspect any work, material, machinery, appliance, article or facility;

(ii) inspect and copy any record relevant to the Project and Works the subject of this

Agreement; and

(iii) interview any person,

as is necessary to ensure their compliance with the Code.

(i) Each of the Participants and, in respect of each of the Non-Owner Participants only, its

Related Bodies Corporate, must comply with a request from the Government of the

Commonwealth of Australia or any person authorised by the Government of the

Commonwealth of Australia, including a person occupying a position in the Fair Work

Building Industry Inspectorate, to produce a specified document within a specified period,

in person, by facsimile or by post.

(j) For the avoidance of doubt, paragraph (h) applies in relation to the Non-Owner

Participants’ new privately funded construction projects.

(k) The Participants must ensure that all Subcontracts impose obligations on the Subcontractors

equivalent to the obligations under this clause 16.4.



16.5 Protection of people and property

(a) Without limiting any other obligation of the Participants under this Agreement, the

Participants are committed to protecting both people and property when carrying out the

Works, and must take all action to ensure this commitment is met including:

(i) providing all Materials, procedures and training and taking all measures necessary

to protect people and property;

(ii) avoiding unnecessary interference with the passage of people and vehicles;

(iii) except to the extent necessary in relocating, replacing or protecting any Utility

Service, avoiding damage, obstruction or other interference with any Utility

Service or other similar services to the Site;

(iv) minimising the effect of the Works on the aesthetic qualities of the Environment

and social activities of local community members;

(v) eliminating nuisance including implementing appropriate dust control measures

and avoiding unnecessary noise and disturbance; and

(vi) preventing unlawful environmental damage or Pollution.

(b) The Participants' responsibilities include the provision of barricades, guards, fencing,

temporary roads, warning signs, lighting, traffic flagging, safety helmets, training of

personnel and clothing, removal of obstructions and protection of Utility Services of the

kind referred to in paragraph (a).

16.6 Purchase of Materials

(a) Any Materials necessary for the Works must be purchased on a Best For Alliance basis.

(b) If a Non-Owner Participant acquires Materials, it must ensure that:

(i) the benefit of any express warranty attaching to the Materials is assigned to Main

Roads;

(ii) Main Roads obtains unencumbered title to those Materials upon payment for those

Materials by Main Roads through the Direct Cost reimbursement principle set out

in clause 17.1; and

(iii) it maintains an up to date register of all assets including a register of all express

and implied warranties pertaining to those Materials as provided by the relevant

supplier or prescribed by a Statutory Requirement.

(c) Any surplus Materials that have been paid for by Main Roads as a Direct Cost must be

disposed of at the direction of Main Roads and Main Roads is entitled to the proceeds of

that disposal and the Actual Direct Cost must be reduced by the sum of the proceeds from

that disposal.

16.7 Project Management System

(a) Promptly following the Effective Date, the Alliance Management Team must develop and

implement an integrated project management system in accordance with the requirements

of 'A Guide to Project Management Body of Knowledge (PMBOK Guide) – 5th

Edition'

(Project Management System).



(b) The Project Management System must be of a standard that is capable of Third Party

certification to AS/NZS ISO 9001 Quality Management Systems - Requirements.

16.8 Aboriginal Heritage, rights and employment

(a) It is of critical importance to the Participants that the Participants have a very good working

relationship with Aboriginal People and the organisations which represent them.

Accordingly, it is an objective of Main Roads to ensure that nothing that any of the

Participants may do or omit to do in carrying out the Works harms that relationship.

(b) The Participants are committed to the protection of Aboriginal Heritage and Aboriginal

rights and must ensure that they, their employees, agents, Subcontractors, consultants and

suppliers comply with:

(i) all applicable Statutory Requirements relating to Aboriginal Heritage and Native

Title Laws;

(ii) any agreements or arrangements between Main Roads and Aboriginal People in

relation to Aboriginal Heritage;

(iii) Main Roads’ instructions reasonably required to enable Main Roads to comply

with any Statutory Requirements, agreements, arrangements or requirements of

any other Authorisation relating to Aboriginal Heritage and Native Title Laws; and

(iv) the Aboriginal Heritage Management Plan.

(c) The Participants must use their best endeavours to provide employment to Aboriginal

People and must provide opportunities for Aboriginal Enterprises to tender for Subcontract

works and services.

(d) The Participants must set targets for employment of Aboriginal People and awarding of

Subcontracts to Aboriginal Enterprises and report on progress against these targets at

Alliance Board meetings.

16.9 Project Industry Participation Plan

(a) The Participants commit to work constructively with Australian industry to identify and

develop options for maximising local content in performing the work under the Agreement.

(b) Main Roads has developed an over-arching Industry Participation Plan to help achieve this

objective and to ensure consistency with the State Government's Building Local Industry

Policy. The Industry Participation Plan details the strategies that will be undertaken to

ensure Australian industry is provided a full, fair and reasonable opportunity to participate

in all aspects of the Works.

(c) For the purposes of this clause 16.9:

(i) full means Australian industry has the same opportunity afforded to other global

supply chain partners to participate in all aspects of the Works (eg. design,

engineering, project management, professional services, IT architecture);

(ii) fair means Australian industry is provided the same opportunity as global suppliers

to compete on an equal and transparent basis, including being given reasonable

time in which to tender; and



(iii) reasonable means tenders are free from non-market burdens that might rule out

Australian industry and are structured in such a way as to provide Australian

industries the opportunity to participate in the Works.

(d) The Project Industry Participation Plan (to form part of the PMP) must be prepared by the

Alliance Management Team in accordance with the State Government's Building Local

Industry Policy requirements and the Main Roads’ over-arching Industry Participation Plan

and must include the targets referred to in clause 16.8(d).

(e) The Non-Owner Participants have agreed to allow opportunities for smaller contracting

companies to participate in the Project. The Participants must achieve this objective by the

award of separate packages of works to a range of contractors who are prequalified with

Main Roads (under the National Prequalification System) to Road Categories R1, R2, R3

and R4 (but not R5) and/or Bridge Categories B1, B2 and B3 (but not B4). The aggregate

value of these packages must be a minimum of , a maximum of of which

may be awarded to R1 and B1 contractors. The contractors included must not be

Participants. Each package of works must be competitively tendered and awarded using a

transparent value for money evaluation process approved by the Alliance Board.

16.10 Industrial Relations Management Plan

No later than 20 Business Days after the Effective Date, the Participants, through the Alliance

Management Team, must develop, implement and include in the PMP an Industrial Relations

Management Plan in relation to the Works and the Project that is in compliance with relevant

Statutory Requirements, codes of practice (including the Code) and guidelines. The Industrial

Relations Management Plan is to be approved (or otherwise) by the Alliance Board and once

approved, implemented by the Alliance Management Team.

17. Payments

17.1 General

Unless otherwise expressly provided in this Agreement, no matter what events, circumstances,

contingencies, conditions (Latent Conditions or otherwise), or degree of difficulty is encountered by

the Participants in carrying out the Works, the Non-Owner Participants’ entitlement, and only

entitlement, to payment by Main Roads for the Works is for:

(a) Direct Costs reimbursement;

(b) Corporate Overhead and Profit;

(c) the Cost Performance Amount if, under the applicable portion of the Performance Payment

methodology set out in clause 2 of Schedule 4, a Cost Performance Amount is payable; and

(d) the KRA Performance Amount if, under the applicable portion of the Performance Payment

methodology set out in clause 3 of Schedule 4, a KRA Performance Amount is payable.

17.2 Acknowledgement

The Non-Owner Participants acknowledge that Main Roads has entered into this Agreement in

reliance on representations by the Non-Owner Participants that, other than as expressly provided for



in Schedule 3, the Direct Costs do not include any element of profit, mark up or overhead

component to the Non-Owner Participants.

17.3 Project Bank Account

(a) The Non-Owner Participants must establish a separate bank account for the purposes of this

Agreement (Project Bank Account).

(b) Main Roads must ensure that payments to the Non-Owner Participants for their Direct

Costs, Corporate Overhead and Profit, Cost Performance Amount and KRA Performance

Amount are made to the Project Bank Account.

17.4 Procedure for payment

The entitlement procedure and principles which will govern:

(a) reimbursement of Direct Costs;

(b) payment by Main Roads of the Corporate Overhead and Profit;

(c) payment by Main Roads or the Non-Owner Participants (as the case may be) of the Cost

Performance Amount; and

(d) payment by Main Roads to the Non-Owner Participants or by the Non-Owner Participants

to Main Roads (as the case may be) in respect of the KRA Performance Amount,

are set out in Schedule 11.

17.5 Payment not evidence

Payment of moneys is not evidence of the value of the Works, or that the Works have been executed

satisfactorily, or an admission of liability, but is payment on account only.

17.6 Overpayments and underpayments

(a) If, on completion of any inspection and audit it is discovered that the total payments made

to the Non-Owner Participants are greater than the Non-Owner Participants’ entitlement to

payment under this Agreement, Main Roads may either:

(i) deduct an amount equal to the excess from moneys due or becoming due to the

Non-Owner Participants whether under this Agreement or otherwise; or

(ii) require the Non-Owner Participants to reimburse the excess to Main Roads.

(b) If, on completion of any inspection and audit it is discovered that the total payments made

to the Non-Owner Participants are less than the Non-Owner Participants’ entitlement to

payment under this Agreement, the Non-Owner Participants may require Main Roads to

pay any shortfall to the Non-Owner Participants.

(c) This clause 17.6 applies:

(i) even if the Final Certificate has been issued under clause 12 or this Agreement has

terminated; and

(ii) whether the inspection and audit was carried out under clause 18.5, or otherwise.



(d) If Main Roads or the Non-Owner Participants are required to make a payment under this

clause 17.6, they must make that payment within 20 Business Days of a request for

payment being made.

(e) Notwithstanding clause 4.1, Main Roads or the Non-Owner Participants (as the case may

be) may commence proceedings to recover any amount payable to them under this

clause 17.6 which was not paid on time.

17.7 Payment of Subcontractors

(a) If a Non-Owner Participant informs Main Roads, or Main Roads becomes aware, that a

Non-Owner Participant has failed to pay an amount that is due and payable to a

Subcontractor, Main Roads may pay the Subcontractor directly and the amount paid will be

a Direct Cost.

(b) If Main Roads pays a Subcontractor directly, it is not liable to pay the Non-Owner

Participant for the work performed by the Subcontractor the subject of the payment.

17.8 Construction Contracts Act 2004

(a) The Non-Owner Participants must:

(i) promptly give Main Roads a copy of any notice that a Non-Owner Participant

receives from a Subcontractor; and

(ii) ensure that each Subcontractor promptly gives Main Roads and the Non-Owner

Participants a copy of any notice that the Subcontractor receives from another

party,

under sections 42 or 43 of the Construction Contracts Act 2004 (WA) (CCA).

(b) If Main Roads becomes aware that the Subcontractor is entitled to suspend any works or

services (which forms part of the Works) under section 42 of the CCA, Main Roads may

pay the Subcontractor such money as is or may be owing to the Subcontractor in respect of

works or services forming part of the Works. Any amount paid by Main Roads will be a

Direct Cost and Main Roads is not liable to pay the Non-Owner Participant for the work

performed by the Subcontractor the subject of the payment.

(c) If a Participant applies for adjudication of a payment dispute under the CCA, the prescribed

appointer for the purposes of section 26(1)(c) of the CCA is The Western Australian

Chapter of The Institute of Arbitrators and Mediators Australia.

(d) For the purposes of this clause 17.8, a reference to:

(i) a Subcontractor includes any person engaged by a Non-Owner Participant, its

subcontractors or any other person to carry out works or services which forms part

of the Works; and

(ii) works or services refers to all or any part of the Works a Non-Owner Participant is

or may be required to execute or provide under this Agreement and includes

equipment, services (including design work), Materials, Construction Plant and

Temporary Works.



17.9 Unfixed Materials

Without limiting clause 16.6, Main Roads will not pay for any Materials off-Site unless:

(a) Main Roads is satisfied that the unencumbered title to those Materials will pass to Main

Roads on payment and the Owner Participant is satisfied that the Materials are protected

and insured to Main Roads’ satisfaction; or

(b) the Materials are delivered to the Site and the terms of the supply of the Materials are that

unencumbered title to those Materials passes to Main Roads or the Non-Owner Participants

on delivery.

17.10 Goods and Services Tax (GST Exclusive Prices)

(a) Any reference in this clause 17.10 to a term defined or used in the A New Tax System

(Goods and Services Tax) Act 1999 (Cth) is, unless the context indicates otherwise, a

reference to that term as defined or used in that Act.

(b) Unless expressly included, the consideration for any supply made under or in connection

with this Agreement does not include an amount on account of GST in respect of the supply

(GST Exclusive Consideration) except as provided under this clause 17.10.

(c) Any amount referred to in this Agreement (other than an amount referred to in

paragraph (h)) which is relevant in determining a payment to be made by one of the

Participants to another is, unless indicated otherwise, a reference to that amount expressed

on a GST exclusive basis.

(d) To the extent that GST is payable in respect of any supply made by a Participant (Supplier)

under or in connection with this Agreement, the consideration to be provided under this

Agreement for that supply (unless it is expressly stated to include GST) is increased by an

amount equal to the GST Exclusive Consideration (or its GST exclusive market value if

applicable) multiplied by the rate at which GST is imposed in respect of the supply.

(e) The recipient must pay the additional amount payable under paragraph (d) to the Supplier at

the same time as the GST Exclusive Consideration is otherwise required to be provided.

(f) The Supplier must issue a tax invoice to the recipient of the taxable supply at or before the

time of payment of the consideration for the supply as increased on account of GST under

paragraph (d) or at such other time as the parties agree.

(g) Whenever an adjustment event occurs in relation to any taxable supply made under or in

connection with this Agreement the Supplier must determine the net GST in relation to the

supply (taking into account any adjustment) and if the net GST differs from the amount

previously paid under paragraph (e), the amount of the difference must be paid by, refunded

to or credited to the recipient, as applicable.

(h) If one of the Participants is entitled to be reimbursed or indemnified for a loss, cost,

expense or outgoing incurred in connection with this Agreement, then the amount of the

reimbursement or indemnity payment must first be reduced by an amount equal to any

input tax credit to which the Participant being reimbursed or indemnified (or its

representative member) is entitled in relation to that loss, cost, expense or outgoing and

then, if the amount of the payment is consideration or part consideration for a taxable

supply, it must be increased on account of GST under paragraph (d).



(i) The Participants, through the Alliance Management Team must, as soon as practicable after

the Effective Date, develop and implement a system to manage the GST implications of the

Works.

18. Reports, records, access and audit

18.1 Reports

The Participants must ensure that the Alliance Management Team prepares, as a minimum, the

following:

(a) D&C Program status reports;

(b) Separable Portion status reports;

(c) KRA performance reports;

(d) monthly earned value reports; and

(e) monthly cash flow statements covering a 3 month rolling period,

relating to the Works in a format and at times which are acceptable to Main Roads.

18.2 Alliance records

The Participants must maintain for the Relevant Period, a complete set of:

(a) all records which show how the Direct Cost Target was calculated and how any Scope

Changes were valued for the purposes of clause 14.2;

(b) all purchase orders, invoices, accounts, records and bank statements including for the

Project Bank Account (to the extent they relate to the Works) under good and accepted

accounting principles showing all of the Direct Costs reasonably and actually incurred in

the performance of the Works; and

(c) all correspondence, tenders, Subcontracts, minutes of meetings, notes, reports, drawings, as

constructed information and all other documentation associated with the Works.

18.3 State records

(a) For this purposes of this clause 18.3, records and State records have the meanings given to

them in the State Records Act 2000 (WA).

(b) The Participants acknowledge that the State Records Act 2000 (WA) requires Main Roads

and the Participants to provide for the keeping of State records related to contracts.

Records must be kept in accordance with Main Roads' document entitled 'Record Keeping

Code of Practice for the Management of Contract Records' (Record Keeping Code).

(c) As part of their obligations under this clause 18.3, the Participants, through the Alliance

Board, must:

(i) manage its record keeping obligations by complying with the Records

Management Plan for the keeping of all records in accordance with the Record

Keeping Code; and



(ii) maintain and comply with the Records Management Plan until the end of the

Defects Correction Period.

18.4 Access

The Participant who holds the original of any of the records referred to in clause 18.2 must:

(a) keep them for the Relevant Period; and

(b) on request, make them available to any other Participant and that Participant’s nominated

auditor.

18.5 Audit

(a) Subject to paragraph (b) and clause 33.13, any Participant or its nominated auditor may

inspect and audit documentation referred to in clause 18.2:

(i) at the times identified in the audit plan to be developed by the Participants

promptly after the Effective Date and approved by the Alliance Board; or

(ii) at any other time as agreed by the Alliance Board.

(b) Main Roads or its nominated auditor may inspect and audit documentation referred to in

clause 18.2 at any time determined by Main Roads.

(c) A Participant must provide each other Participant with proper access to their personnel and

facilities to enable any Participant or its nominated auditor to undertake any inspection and

audit of the kind set out in this clause 18.5.

(d) Subject to paragraph (e), all inspection and audit costs must be paid by the Participant

undertaking the inspection and audit and are not Direct Costs.

(e) If an inspection and audit under this clause 18.5 reveals that the other Participant is in

default (as that term is defined in clause 27.1), then without limiting any other rights and

obligations of a Participant, the Participant in default is responsible for all costs incurred by

the Participant undertaking the inspection and audit and those costs are not Direct Costs.

19. Insurances – specific

19.1 Insurances to be maintained by the Owner Participant

(a) Insurance of the Works

As soon as practicable after the Effective Date, the Owner Participant must take out

contract works insurance insuring the Works (which includes the transit of procurements

ex-works to Site) in the joint names of the Owner Participant, the Non-Owner Participants

and Subcontractors. The insurance must be for the full replacement cost. The policy must

cover the Owner Participant, the Non-Owner Participants and Subcontractors and must

come into effect as soon as the policy is taken out and continue for a period of three years

followed by a 36 month defects correction period.

(b) Combined general liability insurance policy

As soon as practicable after the Effective Date, the Owner Participant must take out a

combined general liability insurance policy in the names of the Owner Participant, the Non-



Owner Participants and Subcontractors, whether nominated or otherwise for their respective

rights and interests and liabilities, for an amount not less than $250 million arising from any

one occurrence in respect of:

(i) death of or personal injury (including illness) to any person not being a person

who at the time of the occurrence is engaged in or upon the service of the insured

under a contract of service or apprenticeship; and

(ii) damage to property not belonging to nor in the care, custody or control of the

insured,

caused by an occurrence happening during the period of insurance arising out of or in the

course of or by reason of the execution or purported execution of the Works.

The insurance referred to in this paragraph (b) must commence as soon as the insurance is

taken out and continue for the Term.

(c) Professional indemnity insurance

As soon as practicable after the Effective Date, the Owner Participant must effect a

professional indemnity insurance policy. The professional indemnity insurance policy must

be in the names of the Owner Participant, the Non-Owner Participants and Subcontractors

providing professional services and must cover legal liability to Third Parties for breach of

professional duty arising out of the Works and loss or damage suffered by the Participants

as a result of a breach of professional duty arising out of the Works.

The professional indemnity insurance policy referred to in this paragraph (c) must include a

limit of liability of:

(i) not less than $50 million and not more than $100 million for any one claim; and

(ii) not less than $50 million and not more than $100 million in the aggregate for all

claims,

the final respective amounts within the ranges described in paragraphs (i) and (ii) being

subject to agreement between Main Roads and the Non-Owner Participants prior to the

inception of the professional indemnity insurance policy.

The professional indemnity insurance policy to be effected and maintained by the Owner

Participant in accordance with this paragraph (c) must be arranged so that it comes into

effect on the Effective Date and must be effected and maintained for a period of six years

from the date of inception of the insurance policy. Prior to the expiry of the six year period

referred to in this paragraph (c), the Alliance Board must meet and determine what, if any,

insurance arrangements are to be put in place to address the risks of claims arising

following the expiration of the six year period. As part of this process, the Alliance Board

will consider whether any amendments are required to this Agreement to give effect to

those agreed insurance arrangements. If the Alliance Board determines that additional

insurance is required or the current policy should be renewed or extended, any costs

associated with effecting and maintaining that additional insurance or extension or renewal

of the current policy will be Direct Costs.



(d) Motor vehicle insurance

The Owner Participant must effect motor vehicle third party liability insurance against

property damage and injury to and death of persons, arising from the use of motor vehicles

belonging to or in the care, custody or control of the Owner Participant and used in

connection with the Works, for an amount of not less than $20 million arising from any one

event in addition to any obligation under a Statutory Requirement for insurance relating to

motor vehicles.

(e) Non-Owner Participants to accept terms

To the extent that it is commercially viable for the Owner Participant to do so, the Owner

Participant will use its best endeavours to procure the insurance policies contemplated by

this clause 19.1 such that they contain terms, conditions, exclusions, premiums and

excesses consistent with applicable insurance industry practice and similar insurance

policies ordinarily procured by the Non-Owner Participants. Notwithstanding the

requirements of this paragraph (e), the Non-Owner Participants agree that the insurance

policies contemplated by this clause 19.1 will contain such terms, conditions, exclusions,

premiums and excesses as determined by the Owner Participant, acting reasonably, and the

Non-Owner Participants, upon procurement by the Owner Participant of the insurance

policies contemplated by this clause 19.1, will accept those policies in full satisfaction of

the Owner Participant’s obligations to insure as imposed by this clause 19.1.

19.2 Insurances to be maintained by the Non-Owner Participants

(a) Construction and equipment insurance

Each Non-Owner Participant, or the Non-Owner Participants together, must insure

Construction Plant, equipment, tools, facilities, hutments, services, construction aids and

the like, belonging to it or them or under it or their physical or legal care, custody or control

and including its or their employees’ effects whilst on Site or being mobilised to the Site or

being demobilised from the Site, supplied, leased or hired for use in connection with the

performance of the Works. The insurance effected and maintained pursuant to this

paragraph (a) must be:

(i) unless otherwise agreed by the Owner Participant, for the insured property’s

market value;

(ii) extended to name the Owner Participant as an insured party for its respective

rights, interests and liabilities;

(iii) extend to cover all liability to Third Parties for loss of or damage to property

arising from the use, loss or damage of the Construction Plant, equipment, tools,

facilities, hutments, services, construction aids and the like, belonging to a Non-

Owner Participant or under the Non-Owner Participants’ physical or legal care,

custody or control and including the Non- Owner Participants' employees’ effects

whilst on Site or being mobilised to the Site or being demobilised from the Site,

supplied, leased or hired by the Non-Owner Participants for use in connection with

the performance of the Works; and

(iv) against all risks and physical loss or damage arising from any cause which:



(A) occurs during the period commencing on the date of commencement of

the Works and ending on the date the Non-Owner Participants have

completed demobilisation from Site; or

(B) becomes apparent after the Date of Practical Completion (as specified in

the Certificate of Practical Completion) and before the date of issue of the

Final Certificate provided that the cause has occurred prior to or on the

Date of Practical Completion,

and in either case arises out of or in the course of or by reason of the execution or

purported execution of the Works.

(b) Motor vehicle insurance

Each Non-Owner Participant or the Non-Owner Participants together, must effect motor

vehicle third party liability insurance against property damage and injury to and death of

persons and all liability to Third Parties for loss of or damage to property, arising from the

use of motor vehicles belonging to it or them or in the care, custody or control of it or them

and used in connection with the Works, for an amount of not less than $20 million arising

from any one event in addition to any obligation under a Statutory Requirement for

insurance relating to motor vehicles. An insurance policy contemplated by this paragraph

(b) effected by Participant 1 must extend to name the Owner Participant as an insured party

for its respective rights, interests and liabilities. An insurance policy contemplated by this

paragraph (b) effected by Participant 2 or by the Non-Owner Participants together must

extend to register the interest, if any, of the Owner Participant in the motor vehicles.

(c) Workers' Compensation Insurance

(i) Each Non-Owner Participant must maintain or effect and maintain, and ensure that

each of its Subcontractors maintains or effects and maintains, a policy that

provides or policies that together provide cover:

(A) in respect of any injury, damage, expense, loss or liability suffered or

incurred by any person engaged in carrying out the Works (or their

dependants) giving rise to a claim:

(1) under any statute relating to workers’ or accident compensation;

or

(2) for employer’s liability at common law; and

(B) in Western Australia, in every State or Territory or other jurisdiction

where the Works will be carried out, as well as in each State or Territory

or other jurisdiction where the Non-Owner Participant's employees

normally reside or where their respective contracts of employment were

made,

including any such coverage as may be necessary to cover liability in respect of

expatriate personnel under the laws of the state or country of their origin for the

benefits required to be covered by insurance at that point in time.

(ii) The policy referred to in clause 19.2(c)(i) must, in relation to employer’s liability

at common law, have a limit of cover of at least:



(A) for a policy maintained or effected and maintained by a Subcontractor

where the subcontract value is less than $2 million, $50 million; and

(B) in all other circumstances, $200 million,

arising out of any one occurrence or event. Such policy must, unless prohibited by

law, extend to indemnify the Owner Participant as principal for all statutory claims

and at common law and provide a waiver by the insurer of all rights of

subrogation, action or relief against the Owner Participant.

(iii) Each Non-Owner Participant must, from the date of this Agreement, maintain

continuous cover under the policy referred to in clause 19.2(c)(i) until the

expiration of all defects correction periods under this Agreement.

(iv) Where possible under the relevant law of the State or Territory or other jurisdiction

governing workers' compensation insurance, each Non-Owner Participant must

procure an extension to the policy referred to in clause 19.2(c)(i) to indemnify the

Owner Participant as principal for the Owner Participant's liability, under any

statute relating to workers’ or accident compensation, to persons engaged by the

Non-Owner Participant (and their dependants) and provide a waiver of all rights of

subrogation, action or relief against the Owner Participant. The policy must

provide a common law limit that is at least customary in such state, territory or

country.

20. Insurance – general

20.1 Claims procedures

(a) The Non-Owner Participants must immediately notify the Owner Participant in writing of

any occurrence or incident that may, however remotely, give rise to a claim under an

insurance policy taken out by the Owner Participant or of any other matter or thing for

which those policies require notice to be given. A notice must include reasonable

particulars of the occurrence, incident, matter or thing.

(b) Claims made against insurance policies taken out by the Owner Participant must be

submitted to the Owner Participant for lodgement by the Owner Participant with its insurer.

The Owner Participant may engage any legal advisor, insurance broker or loss adjuster it

considers appropriate to assist the Owner Participant in relation to a claim under an

insurance policy taken out by the Owner Participant under this Agreement and the Non-

Owner Participants acknowledge that the Owner Participant may settle, address,

compromise, resolve or deal with any claim made against an insurance policy taken out by

the Owner Participant in any manner it considers appropriate. The Non-Owner Participants

must give all assistance and provide all information to the Owner Participant and the Owner

Participant's insurer, legal advisor, insurance broker and loss adjuster as may be reasonably

practicable in all the circumstances.

(c) If an event occurs which in the opinion of a reasonable person in the position of a Non-

Owner Participant may give rise to a claim involving the Owner Participant under any

policy of insurance required to be taken out by the Non-Owner Participants in accordance



with clause 19.2, that Non-Owner Participant must notify the Owner Participant in writing

and must ensure that the Owner Participant is kept fully informed of subsequent action or

developments concerning the claim.

20.2 Participants' responsibilities

At all times the Participants (to the extent applicable) are responsible for complying with the terms

and conditions of the policies taken out under this Agreement and must ensure that their employees,

Subcontractors and Subcontractors’ employees are made aware of, and comply with, those terms

and conditions.

20.3 Obligation to notify and assist

(a) Each Participant must immediately notify in writing the other Participants of any relevant

changes to the terms and conditions of the insurance policies it is required to maintain

under this Agreement including changes to the available coverage or limits, but only to the

extent that the relevant Participant’s insurance policy does not comply with the insurance

requirements specified in this Agreement.

(b) The Non-Owner Participants must provide the Owner Participant with all reasonable

assistance and all information reasonably required by the Owner Participant within the

timeframes and in the format specified by the Owner Participant to enable the Owner

Participant to obtain, effect and maintain the policies referred to in clause 19.1.

20.4 Payment of excesses

(a) The Owner Participant is responsible for the payment of the excesses applicable to those

policies effected by the Owner Participant under clause 19.1 and which, for the avoidance

of doubt, will be treated as a Direct Cost. The payment of any excess in accordance with

this paragraph (a) will not alter or lead to a change to the Direct Cost Target.

(b) The Non-Owner Participants are responsible for the payment of the excesses applicable to

those policies effected by the Non-Owner Participants under clause 19.2 which, for the

avoidance of doubt, will be treated as a Direct Cost. The payment of any excess in

accordance with this paragraph (b) will not alter or lead to a change to the Direct Cost

Target.

20.5 Proof of insurance and inspection of insurance policies

(a) Each Participant must make available for inspection by the other Participants certificates of

currency for insurance required by this Agreement to be taken out by that Participant and

any Subcontractors engaged by that Participant.

(b) Whenever requested by a Participant, the other Participants must produce certificates of

currency to the satisfaction of the requesting Participant of the insurance taken out under

this Agreement.

(c) To comply with this clause 20.5, a Participant is not required to do any act or thing which

may constitute a breach of the insurance policy.



20.6 Owner Participant to be informed of notices

Each Non-Owner Participant must ensure that every insurance policy taken out by it under this

Agreement includes a provision that requires the Non-Owner Participant, whenever the insurer gives

to or serves upon the Non-Owner Participant or Subcontractor a notice of cancellation or any other

notice under or in relation to the policy of insurance, as soon as possible, to inform the Owner

Participant in writing that the notice has been given to or served upon that Non-Owner Participant or

Subcontractor.

20.7 Notice is notice by all insureds

(a) Each Non-Owner Participant must ensure that every insurance policy taken out by it under

this Agreement contains a provision that provides that a notice of the occurrence of an

event out of which the particular insured giving the notice alleges it has suffered, or could

suffer, loss or damage or incur a liability must be accepted by the insurer as a notice of the

occurrence given by all the insureds.

(b) Main Roads must use its best endeavours to procure that in respect of every insurance

policy taken out by it under clause 19.1 a notice of the occurrence of an event out of which

the particular insured giving the notice alleges it has suffered, or could suffer, loss or

damage or incur a liability is accepted by the insurer as a notice of the occurrence given by

all the insureds.

20.8 Obligations to remain unchanged

Taking out and keeping in force insurance required by this Agreement does not in any way limit the

liabilities, responsibilities and obligations of the Participants under other provisions of this

Agreement.

20.9 Non-compliance

Notwithstanding clause 4.1, if any Participant does not follow a written request from another

Participant to fulfil and comply with its obligations under clauses 19, 20 and 21, the Participant

making the request may take action it considers appropriate to ensure that the non-compliant

Participant complies.

20.10 Pass through of insurance payouts

(a) Subject to paragraph (b), to the extent that a Non-Owner Participant receives payment

under an insurance policy that reimburses any amounts that were reimbursed or are

reimbursable under this Agreement, then the Non-Owner Participant must within 20

Business Days of receipt of that payment pass on full payment to the Owner Participant.

(b) Notwithstanding that a Non-Owner Participant may have lodged a claim under an insurance

policy required to be effected and maintained by the Owner Participant, the Owner

Participant may require its insurer to make payment directly to the Owner Participant in

respect of any claim for loss or damage to the Works.

(c) Notwithstanding clause 4.1, the Owner Participant may commence proceedings to recover

any amounts payable to it under paragraph (a) if that amount is not paid by the Non-Owner

Participants within the time period referred to in paragraph (a).



21. Review of insurances and Insurance Risk Management Plan

21.1 Review of Insurances

The Alliance Board must systematically and regularly review the insurances referred to in this

Agreement (including certificates of currency, the adequacy and appropriateness of the insurances

and levels of coverage and excesses applicable to those insurances).

21.2 Decision to be made by Alliance Board

(a) As part of the review, the Alliance Board must decide whether:

(i) any additional or alternative insurance policies are required;

(ii) whether any insurances policies in place at the time of the review are still required;

and

(iii) whether any consequential amendments must be made to this Agreement to reflect

any new or alternate arrangements agreed.

(b) To allow the Alliance Board to perform this function, the Participants must provide

certificates of currency and, to the extent that they are able, the insurance policies and

accompanying schedules they are required to take out under this Agreement to the Alliance

Board.

21.3 Implementation of recommendations

(a) The Alliance Board must, as soon as reasonably practicable after a review, notify any

recommendations for changes to the insurances to the relevant Participant.

(b) The relevant Participant must, within 10 Business Days of receiving notice from the

Alliance Board, commence negotiations with its underwriters in an attempt to amend the

insurances to reflect the recommendations of the Alliance Board.

(c) The relevant Participant must promptly notify the Alliance Board if it is unable to, or it

becomes apparent that it will be unable to, comply with the recommendations of the

Alliance Board.

(d) The Alliance Board must decide what action, if any, is to be taken following receipt of this

notification.

(e) The Alliance Board must decide whether any cost incurred by a Participant in complying

with a recommendation made under this clause is a Direct Cost and whether any change is

required to the Direct Cost Target.

21.4 Insurance Risk Management Plan

(a) As part of the systematic and regular review required to be undertaken by the Alliance

Board under this clause, the Alliance Board must, no later than 20 Business Days after the

Effective Date, start to develop an insurance risk management plan (Insurance Risk

Management Plan).

(b) The Insurance Risk Management Plan must set out, as a minimum, the policies, procedures

and guidelines to be adopted by the Participants to ensure compliance by the Participants



and their Subcontractors with the insurances taken out by the Participants under this

Agreement.

(c) The Insurance Risk Management Plan must be completed 60 Business Days after the

Effective Date, or a later date on which the Participants may agree.

22. Indemnities

22.1 Non compliance with insurance requirements

(a) Each Non-Owner Participant indemnifies and must keep indemnified the Owner Participant

and the directors, officers, employees and agents of the Owner Participant against losses,

damages or claims suffered by the Owner Participant and the directors, officers, employees

and agents of the Owner Participant as a consequence of non compliance by a Non-Owner

Participant with the terms and conditions of clauses 19, 20 and 21, or the terms and

conditions of the insurance policies required to be taken out and maintained by the

Participants under this Agreement.

(b) The Owner Participant indemnifies and must keep indemnified each Non-Owner

Participant and the directors, officers, employees and agents of each Non-Owner Participant

against losses, damages or claims suffered by each Non-Owner Participant and the

directors, officers, employees and agents of each Non-Owner Participant as a consequence

of non-compliance by the Owner Participant with the terms and conditions of clauses 19,

20 and 21, or the terms and conditions of the insurance policies required to be taken out and

maintained by the Participants under this Agreement.

22.2 Wilful Default

(a) The Non-Owner Participants indemnify and must keep indemnified the Owner Participant

and the directors, officers, employees and agents of the Owner Participant against losses,

damages or claims suffered by the Owner Participant and the directors, officers, employees

and agents of the Owner Participant as a consequence of or arising from any Wilful Default

by a Non-Owner Participant.

(b) The Owner Participant indemnifies and must keep indemnified the Non-Owner Participants

and the directors, officers, employees and agents of the Non-Owner Participants against

losses, damages or claims suffered by the Non-Owner Participants and the directors,

officers, employees and agents of the Non-Owner Participants as a consequence of or

arising from any Wilful Default by the Owner Participant.

22.3 Proportionate liability

(a) The liability of the Non-Owner Participants under the indemnities contained in

clauses 22.1(a) and 22.2(a) is reduced proportionately to the extent that an act or omission

of the Owner Participant, its directors, officers, employees, agents, contractors or

Subcontractors may have contributed to the loss, damage or claim.

(b) The liability of the Owner Participant under the indemnities contained in clauses 22.1(b)

and 22.2(b) is reduced proportionately to the extent that an act or omission of a Non-Owner



Participant, its directors, officers, employees, agents, contractors or Subcontractors may

have contributed to the loss, damage or claim.

22.4 Insurance obligations are primary

For the avoidance of doubt, the insurances required to be taken out and maintained by the

Participants under this Agreement are primary and not secondary to the indemnities referred to in

this clause 22.

23. Limits of liability

23.1 Total liability of Non-Owner Participants to Main Roads

Subject to clause 24, the total liability of the Non-Owner Participants to Main Roads (whether as the

client or as the Owner Participant) for any losses or damages by reason of any claims (including

negligence claims) arising out of or in connection with this Agreement is limited in the aggregate for

all claims to the sum of:

(a)

(b)

23.2 Total liability of Main Roads to Non-Owner Participants

Subject to clause 24, the total liability of Main Roads (whether as the client or as the Owner

Participant) to the Non-Owner Participants for any losses or damages by reason of any claims

(including negligence claims) arising out of or in connection with this Agreement is limited in the

aggregate for all claims to the sum of:

(a)

(b)

23.3 No liability for Consequential Loss

Subject to clause 24 (except to the extent that Consequential Loss is covered and is recoverable

under a policy of insurance taken out under this Agreement, in which case a Participant will be

liable), no Participant will be liable to another Participant (including to Main Roads whether as the

client or as the Owner Participant) for any Consequential Loss sustained by a Participant, whether

caused by that Participant’s breach of this Agreement, negligence or otherwise.

23.4 Exclusion of Civil Liability Act

(a) Except as provided in clause 22.3, the operation of Part 1F of the Civil Liability Act 2002

(WA) is excluded as to all and any rights, obligations and liabilities arising under or in

connection with this Agreement and irrespective of whether such rights, obligations or

liabilities are sought to be enforced as a breach of contract or claim in tort (including

negligence), in equity, under statute or otherwise at law.

(b) Without limiting paragraph (a), it is further agreed that the rights, obligations and liabilities

of the Participants (including those relating to proportionate liability) are as specified in this



Agreement and not otherwise whether such rights, obligations and liabilities are sought to

be enforced as a breach of contract or claim in tort (including negligence), in equity, under

statute or otherwise at law.

24. When limits of liability do not apply

24.1 Wilful Default

The limits of liability set out in clause 23 do not apply to claims brought by a Participant for losses

or damages suffered by that Participant arising out of or in connection with a Wilful Default by

another Participant.

24.2 Failure to comply with insurance obligations

The limits of liability set out in clause 23 do not apply to a Participant if:

(a) the Participant has failed (other than where the failure is due to the Wilful Default of a

Participant in which case clause 24 will apply) to take out an insurance policy covering the

claim where such an insurance policy was required to be taken out by that Participant in

accordance with clauses 19.1 or 19.2 (as the case may be); or

(b) because of any act or omission of that Participant (other than an act or omission amounting

to a Wilful Default of that Participant in which case clause 24.1 will apply), an insurance

policy taken out by the Owner Participant or the Non-Owner Participants in accordance

with clauses 19.1 or 19.2 (as the case may be) for the purposes of covering such a claim

fails to respond to the claim,

in which case the limit of liability will be:

(c) in the case of Main Roads (whether as client or the Owner Participant), the sum of:

(i)

(ii)

(d) in the case of the Non-Owner Participants, the sum of:

(i)

(ii)

24.3 Non-payment of Excluded Amounts

The limits of liability in clause 23 do not apply to the non-payment of Excluded Amounts.

24.4 Limits of liability are separate from limits under the risk/reward regime

The limits of liability in clause 23 are separate from, do not relate to and are not limited, voided or

compromised by any cap or limit imposed on the Non-Owner Participants’ obligation to pay any

Cost Performance Amount or KRA Performance Amount to Main Roads under the Performance

Payment methodology in Schedule 4 and this Agreement.



25. Suspension

25.1 Suspension by the Participants

The Participants may only suspend the whole or any part of the Works with prior written agreement

from Main Roads unless there is, or there is a real risk of:

(a)

(b) an adverse impact on Aboriginal Heritage.

25.2 Suspension by Main Roads

If Main Roads considers that suspension of the whole or part of the Works is necessary or

appropriate for any reason, Main Roads may direct the Participants in writing to immediately

suspend the progress of the whole or part of the Works for the period specified by Main Roads in

writing, and the Participants must promptly suspend the Works.

Specific instances where Main Roads may suspend the whole or part of the Works include:

(a) acquisition of land by Main Roads being delayed by more than three months and

construction of the Works being unable to be rescheduled to accommodate the delay;

(b) unexpected Aboriginal Heritage issues delaying the Works by more than three months and

construction of the Works being unable to be rescheduled to accommodate the delay; and

(c)

25.3 Suspension costs

(a) If Main Roads directs suspension (other than as a result of a breach of this Agreement by a

Non-Owner Participant), Main Roads must continue to pay any Direct Costs reasonably

and actually incurred during the period of suspension and the Corporate Overhead and

Profit in respect of those costs. Any Direct Costs paid by Main Roads in respect of the

period of suspension will be known as 'Suspension Costs'.

(b) The total of all Suspension Costs paid by Main Roads must be added to the Direct Cost

Target so that the Direct Cost Target is increased for the purposes of the calculation of any

Cost Performance Amount.

25.4 Recommencement

When Main Roads chooses, Main Roads may direct the Participants to recommence the whole or the

relevant part of the Works and the Participants must recommence the Works at the time directed by

Main Roads or, if no time is stated, within a reasonable time after the direction.

26. No fault termination

26.1 No fault termination

Main Roads may terminate this Agreement at any time by serving a notice on the Non-Owner

Participants.



26.2 Termination payment

(a) If Main Roads elects to terminate this Agreement under clause 26.1, subject to Main Roads'

rights under or in connection with this Agreement, Main Roads must pay the Non-Owner

Participants, or the Non-Owner Participants must pay Main Roads (as the case may be), an

amount calculated or decided under Schedule 2. The Participants must take all reasonable

steps to minimise and mitigate any costs incurred by them arising from termination of this

Agreement under clause 26.1.

(b) Upon payment of any termination payment by Main Roads to the Non-Owner Participants

or the Non-Owner Participants to Main Roads (as the case may be) under this clause 26.2,

Main Roads and the Non-Owner Participants must enter into a deed of release under which,

subject to clause 33.14 which survives termination of this Agreement, each of Main Roads

and the Non-Owner Participants:

(i) agree that all payments required to be made by Main Roads or by the Non-Owner

Participants (as the case may be) in respect of this Agreement have been made in

full; and

(ii) release each other from any claims arising out of or in connection with this

Agreement.

27. Termination for default and repudiation

27.1 Events of Default

Subject to clause 27.3, if any of the Participants or, where appropriate, Main Roads (Defaulting

Participant):

(a) commits a Wilful Default;

(b) commits any material breach of clauses 18.4, 18.5, 22 or 33.8 of this Agreement, whether

or not amounting to a Wilful Default; or

(c) is the subject of an Insolvency Event,

(each a default),

then the non-defaulting Participants may give notice to the Defaulting Participant of:

(d) the default and of their intention to exercise their rights under clause 27.3 on the expiration

of 15 Business Days if the default is capable of being rectified but is not rectified within the

15 Business Days period; or

(e) their intention to exercise their rights under clause 27.3 immediately if the default is not

capable of being rectified, or in the case of an Insolvency Event.

A notice given under this clause 27.1 must specify that it is a default notice under this clause.

27.2 Defaulting Participant

For the purposes of clause 27.1(b), a Participant is only deemed to be a Defaulting Participant for

the purposes of this clause 27 where:



(a) the relevant material breach or failure to perform, as the case may be, relates to a particular

duty, obligation, term or condition arising out of, or connected with, this Agreement

(Stipulation);

(b) the Alliance Board has, in writing and with express reference to this clause 27.2, allocated

responsibility and performance of the Stipulation to the Participant in question; and

(c) the Participant in question has committed a material breach in respect of all or part of that

Stipulation.

27.3 Failure to remedy

(a) If:

(i) the Defaulting Participant fails within 15 Business Days after receipt of a notice

given under clause 27.1(d) to either remedy a default or in writing show (to the

satisfaction of the non-defaulting Participants) that reasonable progress has been

made in rectifying the default; or

(ii) if the non-defaulting Participants give notice under clause 27.1(e),

then, subject to clause 27.3(b):

(iii) where Main Roads is not in default, Main Roads may, without prejudice to its

rights under this Agreement or otherwise, at any time thereafter wholly or partly

suspend the Defaulting Participant’s portion of any payment due to the Non-

Owner Participants under this Agreement until the default has been remedied to

the satisfaction of the non-defaulting Participants; or

(iv) the non-defaulting Participants may, without prejudice to their rights under this

Agreement or otherwise, terminate this Agreement by notice to the Defaulting

Participant.

(b) Where:

(i) the Defaulting Participant is not Main Roads; and

(ii) the non-defaulting Participants are entitled to exercise their rights under

clause 27.3(a) but have not exercised those rights,

the non-defaulting Participants may, subject to the approval of Main Roads and without

prejudice to their rights under this Agreement or otherwise, by joint notice exclude the

Defaulting Participant from further participation in the performance of any of the Works

and step-in and assume the rights and obligations allocated to the Defaulting Participant, in

which case the provisions of clause 27.4 will apply.

27.4 Exclusion from further participation in this Agreement

If the non-defaulting Participants exclude the Defaulting Participant from further participation in the

performance of any of the Works and this Agreement by notice under clause 27.3:

(a) the non-defaulting Participants may employ and pay other persons to replace the Defaulting

Participant in the performance of the Works and may use all Temporary Works and

Construction Plant provided by the Defaulting Participant and necessary to perform the

Works;



(b) the Defaulting Participant will, if required by the non-defaulting Participants, promptly

assign or novate to Main Roads, without payment, the benefit of any agreements for the

performance of any part of the Works;

(c) as and when required by Main Roads (and not before), the Defaulting Participant will

remove from the Site any Temporary Works, Construction Plant and other property

provided by the Defaulting Participant. If the Defaulting Participant fails to do so not less

than 15 Business Days after notice to it of the non-defaulting Participants' intention to do so

(but without being responsible for any loss or damage), the non-defaulting Participants may

remove and/or sell any such Temporary Works, Construction Plant or other property;

(d) the non-defaulting Participants may execute all deeds and documents and will do all such

things on behalf of the Defaulting Participant, including making decisions on behalf of the

Defaulting Participant’s representatives at the Alliance Board, as are necessary for the

performance of the Works; and

(e) to enable the execution of deeds and documents under paragraph (d), the Defaulting

Participant by this Agreement irrevocably authorises any directors, managers or officers of

the non-defaulting Participants to act as its attorneys for the purpose of executing deeds and

documents and doing all things of that kind. The non-defaulting Participants must act

reasonably in the performance of any right permitted under this paragraph (e).

Notwithstanding the exclusion of the Defaulting Participant from further participation in the

performance of the Works and this Agreement by notice under clause 27.3(b), the Defaulting

Participant will continue to be subject to the requirements of clauses 4, 17, 18, 20.1, 20.10, 22, 23,

24, 27.4, 27.5, 28, 31, 32 and 33 and Schedule 2.

27.5 Loss and damage

(a) If the non-defaulting Participants elect to terminate this Agreement under

clause 27.3(a)(iv), or exclude the Defaulting Participant under clause 27.3(b), then

notwithstanding clause 4.1, subject only to clause 23, the non-defaulting Participants may

recover from the Defaulting Participant any and all losses, damages, costs and expenses

suffered by the non-defaulting Participants arising out of any, all, or any combination of:

(i) the default or non performance;

(ii) any exclusion under this clause 27; or

(iii) termination under this clause 27.

(b) If one of the Participants repudiates this Agreement, then notwithstanding clause 4.1 and

subject only to clause 23, nothing in this Agreement prejudices the other Participants’ rights

to recover damages or to exercise any other right in connection with that repudiation.

28. Consequences of termination

28.1 Termination

A reference in this clause 28 to termination means termination of the Agreement for any reason

whatever.



28.2 Work to cease

Upon termination, the Participants must immediately cease the Works.

28.3 Consequences of notice of termination

(a) Upon termination, the Participants must immediately, to the extent each of the following is

applicable, comply with any directions by Main Roads including and to the extent directed,

to:

(i) protect property in the possession of the Non-Owner Participants in which Main

Roads has or may acquire an interest;

(ii) demobilise from the Site persons, Construction Plant, vehicles, equipment and

other things;

(iii) assign or novate to Main Roads all rights and benefits under contracts with Third

Parties; and

(iv) provide Main Roads with IP Documents and Design. For the avoidance of doubt

and subject to Participant 2’s obligations under clause 33.8, nothing in this clause

operates to prevent Participant 2 from keeping a bona fide copy of the IP

Documents and Design for its records.

(b) Without limiting any other obligation of the Participants, where this Agreement is

terminated by Main Roads for default by a Non-Owner Participant, the Participants must

provide Main Roads with possession of all Materials, Construction Plant, Temporary

Works, vehicles, equipment and other things on the Site or off-Site, which are required by

Main Roads for the purpose of, and for such time as necessary, to make the Works safe.

28.4 Works continuation

Without limiting any other rights of the Participants under this Agreement, if this Agreement is

terminated for any reason whatever, the Non-Owner Participants acknowledge that Main Roads may

continue with the Works either:

(a) with parties other than the Non-Owner Participants; or

(b) on an alliance, conventional contractual or any other basis that Main Roads may decide,

and the Non-Owner Participants must do all things and execute all further documents necessary to

ensure that Main Roads is free to continue with the Works in the manner set out in this clause 28.4

within the time period prescribed by Main Roads.

29. Security

29.1 Type of security

(a) Within 20 Business Days from the Effective Date, the Non-Owner Participants must

provide security:

(i) in the form of an irrevocable and unconditional bank guarantee, insurance bond, or

both in favour of Main Roads;

(ii) from a financial institution with a credit rating acceptable to Main Roads;



(iii) payable in Australian dollars; and

(iv) on terms and conditions acceptable to Main Roads,

as security for performance by the Non-Owner Participants of their respective terms,

covenants and responsibilities under this Agreement.

(b) The Non-Owner Participants acknowledge that all security required to be provided by them

under this Agreement will at all times be provided by each Non-Owner Participant in the

following proportions:

(i) Participant 1 –

(ii) Participant 2 –

(iii) Participant 3 –

(iv) Participant 4 –

(v) Participant 5 – and

(vi) Participant 6 –

(c) The security, including the amount and terms of operation, applies irrespective of clause 23.

If the Non-Owner Participants provide any security under this clause that is due to expire

prior to the completion of the Works, the Alliance Board must meet at least 6 months prior

to the expiration and determine what security arrangement must be made by the Participants

to ensure compliance with this clause.

29.2 Amount of security

The total amount of security to be provided by the Non-Owner Participants to Main Roads under

this Agreement is

29.3 Demand on security

Main Roads may make a demand or call on the security referred to in clause 29.1 where:

(a) any of the Non-Owner Participants, in the reasonable opinion of Main Roads, commits a

default (as that term is defined in clause 27.1) or commits any material breach of this

Agreement (whether or not amounting to a default for the purposes of clause 27.1)

(Defaulting Non-Owner Participant);

(b) Main Roads has given the Defaulting Non-Owner Participant 15 Business Days' notice of

Main Roads’ intention to make a demand under the security referred to in clause 29.1; and

(c) where the default or material breach of this Agreement is:

(i) capable of being remedied within the 15 Business Day period specified in

paragraph (b) and the Defaulting Non-Owner Participant has failed to either:

(A) remedy the default or material breach of this Agreement; or

(B) in writing show (to the satisfaction of Main Roads) that reasonable

progress has been made in rectifying the default or material breach of this

Agreement;



(ii) not capable of being rectified, and 15 Business Days have elapsed since the notice

under paragraph (b) was given; or

(iii) capable of being remedied within a period greater than a 15 Business Day period

specified in paragraph (b) and the Defaulting Non-Owner Participant has failed to

in writing show (to the satisfaction of Main Roads) that reasonable progress has

been made in rectifying the default or material breach of this Agreement.

29.4 Return of security

If the Non-Owner Participants have performed all of their obligations under this Agreement as at the

date the contents of the Final Certificate are agreed by Main Roads and the Non-Owner Participants,

then Main Roads will return to the Non-Owner Participants the security provided by the Non-Owner

Participants within 20 Business Days of the date the contents of the Final Certificate are agreed.

29.5 Costs of establishing security

All costs of establishing the security referred to above and maintaining that security will be Direct

Costs. However, the amount of any call made on one or more of the Non-Owner Participants by the

financial institution(s) which issue the security in respect of a payment made to Main Roads under

the security and the cost of such calls, will not be a Direct Cost but will be the responsibility of the

Non-Owner Participants concerned.

29.6 Parent Company Guarantee

(a) Main Roads may have recourse to the Parent Company Guarantee in the circumstances

contemplated by the Parent Company Guarantee.

(b) Participant 1 must ensure that, from the Effective Date until the end of the Term, the Parent

Company Guarantee is maintained in the terms specified in Schedule 13 and is otherwise

kept in full force and effect.

(c) Any agreement between the provider of the Parent Company Guarantee and Main Roads

with respect to any demands made and amounts paid by the provider to Main Roads under

the Parent Company Guarantee is without prejudice to Main Roads’ right to make

continuing claims against the Non-Owner Participants for matters for which the Parent

Company Guarantee is provided.

30. Force Majeure

30.1 Definition of Force Majeure Event

Force Majeure Event means an event set out in paragraphs (a) – (i) below which is beyond the

reasonable control of the relevant Participant:

(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 Agency or public authority;

(b) ionising radiations or contamination by radioactivity from any nuclear fuel or from any

nuclear waste from the combustion of nuclear fuel;



(c) an act of a public enemy, including lawful or unlawful protests by members of the public

which substantially interfere with or disrupt the delivery of the Project;

(d) an industrial dispute other than industrial disputes which are confined to the relevant

Participant, any Subcontractor, the Site or the Works;

(e) pressure waves caused by aircraft or other aerial devices travelling at sonic or supersonic

speeds;

(f) earthquake, cyclone, or other physical disaster or act of God;

(g) fire or explosion (including radioactive and toxic explosion);

(h) aviation disaster; and

(i) a Terrorist Act as defined in the Terrorism Insurance Act 2003 (Cth),

but does not include:

(j) any event which could have been prevented or overcome by the exercise by the relevant

Participant of the standard of a reasonable and prudent person;

(k) any event which was caused by the relevant Participant or contributed to by the relevant

Participant, to the extent of the contribution;

(l) lack of funds for any reason; or

(m) inability to use available funds.

For the purposes of this definition, the relevant Participant is the Participant who is prevented from

complying with its obligations under this Agreement (other than an obligation to pay money).

30.2 Effect of Force Majeure Event

(a) Where a Force Majeure Event occurs which, notwithstanding the taking of all practicable

care and precautionary steps, prevents a Participant from complying with its obligations

under this Agreement (other than an obligation to pay money), the Alliance Board must

promptly meet and decide how, and under what conditions, if any, the Works are to

proceed.

(b) In making a decision under this clause 30.2, the Alliance Board may, where appropriate and

without limiting any of its other rights under this Agreement, recommend to Main Roads

for approval (or otherwise) that:

(i) the Direct Cost Target be altered;

(ii) the applicable Date for Practical Completion be altered; or

(iii) this Agreement be terminated and specify the consequences which flow from such

a termination under the principles of this Agreement.

31. Intellectual Property

31.1 Ownership of Pre-existing Intellectual Property

(a) Ownership of Intellectual Property in any drawings, documents, any other information,

samples, models, patterns, ideas, policies, procedures, methods, processes, materials or any



other tangible or intangible thing required by this Agreement existing prior to the Effective

Date relating to or connected with the Works (Pre-existing Intellectual Property

Materials) remains with the Participant who created the Pre-existing Intellectual Property

Materials.

(b) The Non-Owner Participants grant to Main Roads an irrevocable, non-exclusive, world-

wide, perpetual, transferable, royalty free licence to use the Non-Owner Participants’ Pre-

existing Intellectual Property Materials for:

(i) the Works; and

(ii) otherwise, but only to the extent necessary to use the Intellectual Property Assets

(as that term is defined in clause 31.3(a)).

(c) Main Roads grants to the Non-Owner Participants an irrevocable, non-exclusive, world-

wide, perpetual, transferable, royalty free licence to use Main Roads’ Pre-existing

Intellectual Property Materials for the Works.

(d) The Participants must do everything necessary to effect the grant of the licences set out in

paragraphs (b) and (c) and the Alliance Board must decide the manner in which any costs

associated with that vesting will be borne by the Participants.

31.2 Enhancements to Pre-Existing Intellectual Property

(a) Any enhancement, adaptation, change, modification or development of Pre-Existing

Intellectual Property Materials (Enhancements) will be the property of the Participant that

owns the Pre-Existing Intellectual Property Rights. Ownership will vest immediately upon

the creation of the Enhancement.

(b) The Non-Owner Participants grant to Main Roads an irrevocable, non-exclusive, world-

wide, perpetual, transferable, royalty free licence to use the Non-Owner Participants’

Enhancements to their Pre-existing Intellectual Property Materials for:

(i) the Works; and

(ii) otherwise, but only to the extent necessary to use the Intellectual Property Assets

(as that term is defined in clause 31.3(a)).

(c) Main Roads grant to the Non-Owner Participants an irrevocable, non-exclusive, world-

wide, perpetual, transferable, royalty free licence to use Main Roads’ Enhancements to its

Pre-existing Intellectual Property Materials for the Works.

(d) The Participants must do everything necessary to effect the grant of the licences set out in

paragraphs (b) and (c) and the Alliance Board must decide the manner in which any costs

associated with that vesting will be borne by the Participants.

31.3 Ownership of other Intellectual Property

(a) Intellectual Property in any:

(i) drawings, documents, any other information, samples, models, patterns and the

like required by this Agreement (including those prepared or created by the Non-

Owner Participants) (IP Documents); and



(ii) idea, policy, procedure, method, process, materials or any other tangible or

intangible thing first discovered or developed during the course of carrying out the

Works,

created on or after the Effective Date by any of the Participants and relating to or connected

with the Works (collectively, Intellectual Property Assets) vests in Main Roads, and Main

Roads grants to the Non-Owner Participants an irrevocable, non-exclusive, world wide,

perpetual, transferable, royalty free licence to use the Intellectual Property Assets for:

(iii) the Works; and

(iv) any other purpose relating to a Non-Owner Participant’s business.

(b) Each of the Participants must do everything necessary to perfect the vesting set out in the

previous paragraph and the Alliance Board must decide the manner in which any costs

associated with that vesting will be borne between the Participants.

(c) For the avoidance of doubt, Enhancements are not, and will not be deemed to be,

Intellectual Property Assets.

31.4 Grant of sub licence

(a) Where a Non-Owner Participant is the licensee of any Intellectual Property necessary for

the purposes of the use of the Pre-existing Intellectual Property Materials or the Intellectual

Property Assets, that Non-Owner Participant must use its best endeavours to obtain for

Main Roads a sub licence of that Intellectual Property on terms and conditions reasonably

acceptable to the Owner Participant.

(b) A request by a Non-Owner Participant to obtain an intellectual property sub licence for a

Non-Owner Participant under paragraph (a) must be expressed in writing.

(c) The Alliance Board must decide the manner in which any costs associated with the sub

licence will be borne by the Participants.

31.5 Warranty by Participants

(a) The Participants warrant to each other that they own, or have a licence to use, the

Intellectual Property in those of the Pre-existing Intellectual Property Materials and IP

Documents (and anything contributed by them in the preparation of the Pre-existing

Intellectual Property Materials and IP Documents), provided by them.

(b) The Participants warrant to each other that the Pre-existing Intellectual Property Materials

and IP Documents and the Works do not infringe any other person’s Intellectual Property

rights.

(c) These warranties survive the termination of this Agreement.

31.6 Protection of Participants’ Intellectual Property

A Participant must:

(a) notify the other Participants immediately if it becomes aware of any infringement or

potential infringement by a Third Party of any Participant’s Intellectual Property; and



(b) take all timely steps necessary to ensure that its agents, employees or Subcontractors who

have access to the Participant’s Intellectual Property or any part of it do not use the

Participant’s Intellectual Property, except under this clause.

31.7 Moral rights

If the Participants, in the course of the Works, make use of any work or other subject matter in

which copyright subsists, the Participants must procure from every person (whether an employee of

a Participant or any Subcontractor or consultant) involved in the creation of that work or subject

matter an agreement from that person for the benefit of each Participant and each Government

Agency under which that person irrevocably and unconditionally consents to each Participant:

(a) using, disclosing, reproducing or publishing that work or subject matter anywhere in the

world in whatever form each Participant thinks fit as so used, disclosed, reproduced or

published; and

(b) using, disclosing, reproducing or publishing that work or subject matter or any adaptation

anywhere in the world without making any identification of that person in relation to the

work or subject matter.

31.8 Saving

Notwithstanding clause 4.1, a failure by:

(a) the Non-Owner Participants to comply with the requirements of this clause confers on Main

Roads; or

(b) Main Roads to comply with the requirements of this clause confers on the Non-Owner

Participants,

gives rise to an enforceable right at law or in equity to seek any one of or a combination of specific

performance, injunction or damages and, to the extent that any right under a Statutory Requirement

may be excluded this Agreement, any right under that Statutory Requirement.

32. Notices

32.1 All Notices

Any notice, demand, consent or other communication (Notice) given or made under this Agreement

(unless it is given or made under clause 32.2):

(a) must be in writing and signed by the sender or a person duly authorised by the sender;

(b) must be delivered to the intended recipient by prepaid post (if posted to an address in

another country, by registered airmail) or by hand to the address for that recipient in

Schedule 6 or as otherwise specified by a recipient by Notice; and

(c) will be conclusively taken to be duly given or made:

(i) in the case of delivery in person, when delivered; and

(ii) in the case of delivery by post, 2 Business Days after the date of posting (if posted

to an address in the same country) or 7 Business Days after the date of posting (if

posted to an address in another country),



but if the result is that a Notice would be taken to be given or made on a day that is not a

Business Day in the place to which the Notice is sent or is later than 4pm (local time) it will

be conclusively taken to have been duly given or made at the start of business on the next

Business Day in that place.

32.2 Notices by email

(a) Any Notice which may be made or given under this Agreement may instead be sent by

email if the Notice:

(i) is sent by a person clearly authorised by the sender;

(ii) is sent to the Participant's email address in Schedule 6 or as otherwise specified by

the Participant by Notice; and

(iii) the sender keeps an electronic copy of the Notice sent.

(b) The recipient of a Notice sent under this clause 32.2 must promptly acknowledge receipt of

a Notice sent under this clause and must keep an electronic copy of the Notice.

32.3 Receipt of Notices sent by email

A Notice sent under clause 32.2 will be conclusively taken to be duly given or made on the first to

occur of:

(a) a receipt by the sender of an email acknowledgement from the recipient's information

system showing that the Notice has been delivered to the Participant's email address in

Schedule 6 or as otherwise specified by a Participant by Notice;

(b) the time that the Notice enters an information system which is under the control of the

recipient; and

(c) the time that the Notice is first opened or read by the recipient,

but if the result is that a Notice would be taken to be given or made on a day that is not a Business

Day in the place to which the Notice is sent or is later than 4pm (local time) it will be conclusively

taken to have been duly given or made at the start of business on the next Business Day in that

place.

33. General

33.1 Governing law and jurisdiction

(a) This Agreement is governed by the law in force in Western Australia.

(b) Each Participant irrevocably submits to the exclusive jurisdiction of courts exercising

jurisdiction in Western Australia and courts of appeal from those in respect of any

proceedings arising out of or in connection with this Agreement. Each Participant

irrevocably waives any objection to the venue of any legal process in these courts on the

basis that the process has been brought in an inconvenient forum.



33.2 Invalidity and enforceability

If any term or part of this Agreement is or becomes for any reason invalid or unenforceable at law,

then in that event, that term or part of this Agreement will be and be hereby deemed to be severed

from this Agreement without thereby affecting the remainder of this Agreement and the remainder

of this Agreement will continue to be valid and enforceable in all things.

33.3 Waiver

(a) No Participant to this Agreement may rely on the words or conduct of any other Participant

as a waiver of any right unless the waiver is in writing and signed by the Participant

granting the waiver.

(b) In this clause 33.3:

(i) conduct includes delay in the exercise of a right;

(ii) right means any right arising under or in connection with this Agreement and

includes the right to rely on this clause; and

(iii) waiver includes an election between rights and remedies, and conduct which might

otherwise give rise to an estoppel.

33.4 Amendments

Amendment of this Agreement must be in writing and signed by the Participants.

33.5 Entire agreement

This Agreement states all the express terms of the agreement between the Participants in respect of

its subject matter. It supersedes all prior discussions, negotiations, understandings and agreements in

respect of its subject matter.

33.6 Counterparts

This Agreement may be executed in any number of counterparts. All counterparts together will be

taken to constitute one instrument.

33.7 Assignment

(a) Subject to clause 33.7(b), a Non-Owner Participant must not, without Main Roads’ prior

written approval (which must not be unreasonably withheld), assign, mortgage, novate,

charge or encumber this Agreement or any part of it or any right, benefit, money or interest

under this Agreement.

(b) The Non-Owner Participants may assign to a financial institution all or part of their rights,

title and interest in relation to any payments or amounts payable to the Non-Owner

Participants under this Agreement without the prior written approval of Main Roads.

33.8 Confidentiality

(a) This Agreement, and any information relating to or arising from the Agreement, is

confidential, and the Participants may not disclose the Agreement, or any information

relating to or arising from the Agreement, to any person, unless that disclosure or that

information:



(i) at the material time is in or enters the public domain through no fault, action or

omission of, or breach of this Agreement by, a Participant;

(ii) is required by any Statutory Requirement to be communicated to a person who is

authorised by any Statutory Requirement to receive it;

(iii) is necessarily made to a court, or to an arbitrator or administrative tribunal or to

legal counsel in the course of proceedings provided that, in the case of any

arbitration proceedings, the Participant concerned first obtains from each other

party to those proceedings an undertaking, enforceable by any Participant, that

each party must similarly not divulge or communicate, without Main Roads’

written consent, any information referred to in this clause 33.8;

(iv) is required to be disclosed to any Government Minister or Government Agency

whether in connection with the granting of any licence or otherwise;

(v) is to a servant, agent or contractor of the Participants, when that disclosure is

reasonably necessary for the conduct of this Agreement;

(vi) was consented to in writing by each of the other Participants; or

(vii) is required to be disclosed to the Australian Stock Exchange Limited (ABN 98 008

624 691).

(b) Nothing in this Agreement prevents Main Roads from providing any information relating to

the Agreement or the Works to any Government Minister of the State of Western Australia

or to the Parliament of Western Australia or to any committee or sub-committee of that

Parliament in the context of any issue or enquiry that may be made concerning the

Agreement or the Works.

(c) For the purposes of section 275(6) of the PPSA, the Participants agree that, subject to the

permitted circumstances of disclosure under paragraphs (a)(i) – (a)(vii), no Participant may

disclose any information of the kind referred to in section 275(1) of the PPSA.

(d) Notwithstanding clause 4.1, a failure by a Participant to comply with the requirements of

this clause 33.8 confers on the other Participants an enforceable right at law or in equity to

seek any one of or a combination of specific performance, injunction or damages and, to the

extent that any right under an Act of Parliament may be excluded by this Agreement, under

that Act of Parliament.

33.9 Relationship of the Participants

(a) Nothing in this Agreement gives a Participant authority to bind any other Participant in any

way.

(b) The Non-Owner Participants are independent contractors of Main Roads. The employees,

agents and Subcontractors of the Non-Owner Participants will not be deemed to be

employees, agents or Subcontractors of Main Roads and each Participant must pay all costs

associated with its employees.

(c) This Agreement, and the project alliance relationship created by it, is not intended to create,

nor will it be construed as creating, any partnership, joint venture or fiduciary obligation

with regard to, or as between, the Participants.



33.10 Corporate power and authority

Each Participant represents and warrants to the others that it has full power to enter into and perform

its obligations under this Agreement and that when executed it will constitute legal, valid and

binding obligations under its terms.

33.11 Financial difficulties

A Participant must immediately notify the other Participants in writing if it forms the opinion that it

will be unable to, or be unlikely to be able to, satisfy any of its financial obligations in relation to

this Agreement from the financial resources available, or likely to be available to it, at the time the

financial obligation is due.

33.12 Change in Control

Each Non-Owner Participant must notify Main Roads immediately upon becoming aware of a

Change in Control in respect of it or of the provider of the Parent Company Guarantee to be

provided under clause 29.6.

33.13 Main Roads’ statutory functions

Nothing contained in or implied by this Agreement or any document contemplated by this

Agreement has the effect of constraining:

(a) Main Roads or placing any fetter on its statutory rights, duties, powers and functions,

including those contained or referred to in any Statutory Requirement; and

(b) the Auditor-General for the State of Western Australia or placing any fetter on its statutory

rights, duties, powers and functions under the Financial Administration and Audit Act 1985

(WA).

33.14 Survival

Clauses 4, 17, 18, 20.1, 20.10, 22, 23, 24, 27.4, 27.5, 28, 31, 32 and 33 and Schedule 2 survive the

expiration of the Term.

33.15 Costs

Each Participant must pay its own costs and disbursements in connection with the negotiations,

preparation and execution of this Agreement. For the avoidance of doubt these costs are not Direct

Costs.

33.16 Unincorporated joint venture

The Non-Owner Participants have formed an unincorporated joint venture (Joint Venture) pursuant

to an agreement dated on or about the date of this Agreement (JV Agreement) to undertake their

obligations under this Agreement. The Non-Owner Participants agree that:

(a) a covenant, obligation, liability or agreement on the part of the Non-Owner Participants (or

any one of them) under this Agreement binds the Non-Owner Participants jointly to Main

Roads;



(b) the Non-Owner Participants are jointly liable in their respective individual capacities and

notwithstanding the nature of the relationship that exists between them under the JV

Agreement or this Agreement;

(c) any duty or obligation, if any, created by the JV Agreement or the Joint Venture as joint

venturers will be subordinate to their obligations under this Agreement;

(d) any costs or expenses incurred by any Non-Owner Participant in the administration,

operation or conduct of the Joint Venture, other than procurement obligations or liabilities

entered into by the Non-Owner Participants on behalf of the Participants, must be paid for

by the Non-Owner Participants and will not be Direct Costs; and

(e) upon written request by Main Roads, the Non-Owner Participants must provide to Main

Roads a certified copy of the final JV Agreement executed by the Non-Owner Participants.

33.17 Limitation on Liability of Non-Owner Participants after Final Certificate

(a) If, following Main Roads' and the Non-Owner Participants' agreement to the contents of the

Final Certificate in accordance with clause 12.3, Main Roads makes a claim against the

Non-Owner Participants (or any number of them) and at that time one or more of the Non-

Owner Participants is insolvent, is being wound up (except for the purposes of

reconstruction or amalgamation), or has ceased to exist (Former Non-Owner Participant):

(i)

(ii)

(b) Except as provided in paragraph (a), this clause 33.17 does not affect the application of

clause 33.16, including the joint liability of the remaining Non-Owner Participants.

(c) Nothing in this clause 33.17:

(i) affects the exclusion of Part 1F of the Civil Liability Act 2002 (WA) under clause

23.4, including its exclusion in relation to any claim made by Main Roads against

the remaining Non-Owner Participants referred to in paragraph (a); or

(ii) limits Main Roads' rights to claim against the Former Non-Owner Participant for

its liability.

34. Personal Property Securities Act

34.1 Meanings of terms

In this clause 34, security interest, perfected, personal property, possession and control have the

meanings given to them in the PPSA.



34.2 PPSA further steps

(a) Whenever Main Roads requests that the Non-Owner Participants do anything to ensure any

security interest granted under this Agreement is fully effective, enforceable and perfected

with the priority required by Main Roads, the Non-Owner Participants must promptly do it

at the Non-Owner Participants' cost.

(b) This may include:

(i) doing anything to make, procure or obtain any consent, authorisation, registration

or approval in respect of anything, or to facilitate it;

(ii) creating or executing (or procuring the creation or execution of) any document,

including any form, notice, consent or agreement; and

(iii) delivering documents or evidence of title or otherwise giving possession or control

with respect to any personal property or other asset.

34.3 Provision of information

Main Roads may request the Non-Owner Participants to provide information relating to a security

interest (in favour of any person) in this Agreement or any matter contemplated by this Agreement,

including requesting a copy of any form, notice, consent or agreement relating to such a security

interest. The Non-Owner Participants must promptly (and at their own cost) comply with such a

request.

34.4 PPSA requirements

(a) The Non-Owner Participants must promptly take all reasonable steps which are prudent for

its business under or in relation to the PPSA, including doing anything reasonably

requested by Main Roads for that purpose.

(b) Without limiting paragraph (a), each Non-Owner Participant must take reasonable steps to

identify security interests in its favour and to perfect and protect them, with the highest

priority reasonably available, except to the extent it is not reasonable or practicable to do

so, taking into account the costs and risks involved.

(c) Main Roads may request that the Non-Owner Participants provide evidence of their

compliance with this clause 34.4, and the Non-Owner Participants must promptly comply

with that request.

34.5 PPSA exclusions

(a) To the extent this Agreement or the transactions contemplated by it give rise to a security

interest under the PPSA, the Participants contract out of each provision which

sections 115(1) or 115(7) permits them to contract out, other than sections 117 and 118

(relationship with land laws), 128 and 129 (disposal of collateral) and 134(1) and 135

(retention of collateral). Any disposal or other exercise of a right, power or remedy under

this Agreement or otherwise will only be taken to be under a provision listed in this

paragraph (a) if the exercising Participant so elects.

(b) The Non-Owner Participants waive their rights to receive:



(i) each notice which section 157(3) permits it to waive and, to the extent capable of

being waived, notice under any other provision of the PPSA; and

(ii) anything from the other party under section 275 and agrees not to make any

request of the other party under that section.



Schedule 1 – Alliance Framework

1. Alliance Principles

The Alliance Principles are:

(a) all Participants win, or all Participants lose, based on achieved Project outcomes;

(b) Participants have a peer relationship where each Participant has an equal say;

(c) responsibilities are shared and managed collectively;

(d) risks and rewards are shared equitably among Participants;

(e) Participants provide the best available resources;

(f) Participants act consistently according to espoused values;

(g) Participants are committed to developing a culture that promotes and drives collaboration,

innovation and outstanding performance;

(h) there is a clear definition of responsibilities in a ‘no-blame’ culture;

(i) the Alliance Board, Alliance Management Team and Alliance Project Team are empowered

to make decisions and actions;

(j) all transactions are fully 'open-book';

(k) communication between all Participants is open and honest; and

(l) important decisions are made on a ‘Best for Alliance’ basis.

2. Alliance Purpose

The Alliance Purpose will be confirmed following the first Alliance Board meeting.

3. Alliance Vision

The Alliance Vision will be confirmed following the first Alliance Board meeting.

4. Project Objectives

The Project Objectives are to:

(a) improve road safety and reduce the impact of freight transport on the community through

greater segregation of freight and passenger vehicle movements along key urban arterial

roads; and

(b) enhance State productivity by improving access to Fremantle Port and Perth's key strategic

industrial areas to meet current and future growth in freight traffic,

and will include the following Delivery Objectives:

(a) deliver the Project Objectives;



(b) accomplish value for money procurement;

(c) achieve Project milestones and completion by

(d) provide access into Fiona Stanley Hospital by

(e) realise budget certainty;

(f) adopt affordable scope for roads and bridges;

(g) achieve environmental compliance;

(h) attain positive stakeholder and community acceptance, including for road user safety and

travel time reliability during construction;

(i) enhance physical and visual amenity; and

(j) maintain network access and reliability.

5. Alliance Board

5.1 Alliance Board members

As at the Effective Date, the Alliance Board members are:

• , Owner Participant

• , Owner Participant

• , Participant 1

• , Participant 1

• , Participant 2

• , Participant 3

• , Participant 4

• , Participant 5

• , Participant 6

5.2 Alliance Board roles and responsibilities

The role of the Alliance Board is to:

(a) facilitate project alliance culture, continuous improvement and innovation, and provide the

governance required to promote improvement on business as usual;

(b) provide visible, ongoing, challenging and strategic leadership;

(c) establish and review the Project Objectives;

(d) appoint the Alliance Manager and endorse the Alliance Management Team;

(e) lead the adoption of the Alliance Purpose, Alliance Vision, Project Objectives and strategic

direction for the Project;

(f) approve the initial PMP, and all associated plans outlined in the Agreement, and

amendments as necessary through the life of the Project;



(g) monitor Project performance including cost and KRA key performance indicator outcomes,

and take remedial action where necessary;

(h) monitor progressive performance with respect to payments and estimated Performance

Payment;

(i) consider relevant changes identified during the course of the Project, and where

appropriate, recommend changes to the Direct Cost Target to Main Roads;

(j) review and endorse new initiatives, including community initiatives, and approve specific

funding;

(k) review and determine whether internally generated charge out rates used to calculate Direct

Costs are fair and reasonable;

(l) liaise with and influence high level stakeholders to facilitate project alliance performance

and success;

(m) recommend changes to the Agreement which would improve the provision of Works; and

(n) provide the final point for resolution of issues.

5.3 Alliance Board code of conduct

The Alliance Board must, as a minimum, abide by the following principles:

(a) Best for Alliance decision making;

(b) have the power to commit resources within the limits of their fiduciary responsibilities to

their parent company;

(c) deal with issues promptly;

(d) no surprises – timely agenda;

(e) be prepared and available;

(f) open and honest communication;

(g) strategic thinking rather than operational;

(h) unanimous decisions;

(i) Alliance Board members own Alliance Board decisions; and

(j) act professionally at all times.



Schedule 2 – Termination payment

1. Termination payments – termination of Agreement for convenience

(a) Subject to Main Roads’ rights under or in connection with this Agreement, if this

Agreement is terminated in accordance with clause 26.1, Main Roads must pay the Non-

Owner Participants, or the Non-Owner Participants must pay Main Roads (as the case may

be), an amount which is to be agreed between the Participants or, failing agreement, an

amount determined by an Adjudicator in accordance with the provisions of this Schedule 2.

(b) In agreeing the amount payable under this clause, the Participants must have regard to the

following:

(i) the Direct Costs, Corporate Overheads and Profit, Cost Performance Amount (if

any), KRA Performance Amount (if any) payable in accordance with clause 17.1

for the Works carried out prior to the date of termination. In considering any Cost

Performance Amount or KRA Performance Amount that may be payable, the

Participants must, in Good Faith, estimate the Cost Performance Amount or KRA

Performance Amount (as the case may be) which would have been payable during

the course of this Agreement, if this Agreement had not been terminated under

clause 26.1;

(ii) the cost of Materials reasonably ordered by the Non-Owner Participants for the

Works, which the Non-Owner Participants are legally liable to accept, but only if

the Materials become the property of Main Roads upon payment;

(iii) costs reasonably and actually incurred by the Non-Owner Participants in the

expectation of completing the whole of the Works including costs or damages

incurred by reason of the Non-Owner Participants having to terminate contractual

arrangements with other parties that were entered into for the purposes of the

Works, those costs and damages not having been accounted for in any payment by

Main Roads (including any payment to be made by Main Roads under a new

agreement as referred to in paragraph (b)(viii) of this Schedule 2);

(iv) reasonable costs of demobilisation;

(v) costs reasonably and actually incurred (and not recovered under this Agreement)

by the Non-Owner Participants in preparing their Proposal;

(vi) the reasonable costs of complying with any directions given by Main Roads upon,

or subsequent to, termination;

(vii) any amounts which Main Roads has previously paid to the Non-Owner

Participants; and

(viii) if any of the Non-Owner Participants agree to continue with the Works as

contemplated by clause 28.4, the extent to which Materials, orders made and other

matters the subject of the costs outlined in this paragraph (b) can be used in any

new agreement entered into between those Non-Owner Participants for the

continuation of the Works.



(c) Payments made under this Schedule 2 are the only liability of Main Roads in relation to or

in connection with a termination under clause 26.1 and Main Roads is not otherwise liable

to the Non-Owner Participants for any cost, loss (including loss of production, loss of

revenue, loss of profit or anticipated profit, loss of business reputation, business

interruptions of any nature or wasted overheads), expense or damage incurred by the Non-

Owner Participants as a consequence of, or in connection with, this Agreement, the Works,

or the termination.

(d) Any issue between the Participants regarding the amount payable under paragraph (a) of

this Schedule 2 must be referred to the Adjudicator for determination.

(e) Notwithstanding the undertaking to avoid issues arising between the Participants and

litigation or arbitration set out in clause 4.1 of this Agreement, Main Roads and the Non-

Owner Participants are entitled to recover the amount as determined in accordance with this

clause if that amount is not paid within 20 Business Days of the date of agreement between

the Participants or the date of determination by an Adjudicator, as the case may be.

2. Independent Adjudicator

2.1 Referral of certain issues to an Adjudicator

If an issue arises between the Participants in respect of the amount payable under clause 1 of this

Schedule 2, then a Participant may by notice to the others, specify the nature of the issue and call for

submission of the issue to an Adjudicator to determine it. In the event of a submission of the issue to

the Adjudicator, the Adjudicator must determine the amount payable by Main Roads to the Non-

Owner Participants or the Non-Owner Participants to Main Roads (as the case may be) by

determining the net sum of the amounts set out in clauses 1(b)(i) – 1(b)(viii) of this Schedule 2

(Determination).

2.2 Nomination of Adjudicator

The procedure for appointing the Adjudicator is as follows:

(a) Notice must be given by the Participant calling for the appointment of the Adjudicator,

including details of the matter to be resolved by the Adjudicator, to the other Participants.

(b) If the matter is not resolved within 5 Business Days from the date of the notice, the

Participants must agree on a single Adjudicator to determine the issue.

(c) If, within 5 Business Days of the notice, the Participants fail to agree on a single

Adjudicator, then the Participants must, as soon as practicable, request the President of

CPA Australia or the most senior officer of CPA Australia to appoint the Adjudicator.

(d) Upon agreement of the Participants, or appointment of an Adjudicator under paragraph (c)

of this Schedule 2, the Participants and the Adjudicator must enter into an agreement which

will govern the determination of the issue. That agreement must be consistent with the

provisions of this Schedule 2.



2.3 Adjudicator to have appropriate experience

(a) The Adjudicator must have appropriate commercial and practical experience and expertise

in the area of the issue.

(b) Any person nominated to act as an Adjudicator must fully disclose any interest or duty

prior to that person's appointment. If that person has or may have any interest or duty which

conflicts with their appointment as Adjudicator, then that person must not be appointed

except with the agreement of all the Participants.

(c) In resolving the issue the Adjudicator must act impartially.

2.4 Confidentiality

It will be a term of the Adjudicator’s appointment that the Adjudicator must be required to undertake

to keep confidential matters coming to the Adjudicator’s knowledge by reason of the Adjudicator’s

appointment and carrying it out.

2.5 Powers of Adjudicator

The Adjudicator will have the following powers:

(a) to determine an issue regarding the amount payable under clause 1(a) of this Schedule 2;

(b) to inform itself independently as to facts to which the issue relates;

(c) to obtain evidence from any person in relation to any aspect of the issue;

(d) to receive written submissions and sworn and unsworn written statements and to photocopy

documents and to act upon the same;

(e) to consult with such other professionally qualified persons as the Adjudicator in its absolute

discretion thinks fit; and

(f) to take such measures as the Adjudicator thinks fit to expedite the completion of the issue

resolution,

but the Adjudicator will only have the power to determine an issue regarding the amount payable

under clause 1(a) of this Schedule 2 and no other issue (unless the Participants otherwise agree).

2.6 Timing of issue resolution

It will be a term of the Adjudicator's appointment that the Adjudicator must be required to make a

determination of the issue within 20 Business Days of the Adjudicator’s appointment or such further

period as the Participants may agree. If any Participant considers that the issue is of an urgent nature

and needs to be resolved within a shorter period, then that Participant may require the period of 20

Business Days to be reduced to such period as that Participant may reasonably require, being not

less than 5 Business Days.

2.7 Written determination

The Adjudicator must deliver a written determination which sets out the reasons for the

determination and the findings of fact on which the determination is based.



2.8 Issue resolution to be held in Perth, Western Australia

The issue resolution must be held in Perth, Western Australia unless the Participants otherwise

agree.

2.9 Adjudicator's Determination is final

The Adjudicator must act as an expert and not an arbitrator. The determination is final and binding

on the Participants except in the case of manifest error or if the Adjudicator has acted in bad faith.

2.10 Costs of Adjudicator

The costs of the Adjudicator must be borne equally by the Participants and are not Direct Costs.

2.11 Referral to Adjudicator does not affect the obligations of the Participants

The referral of any matter to an Adjudicator does not in any manner relieve any Participant from

performing its obligations under this Agreement pending the determination of the issue.



Schedule 3 – Direct Costs

For the Works, all costs which are actually and reasonably incurred by the Participants in connection with the

Works will be direct costs (Direct Costs) apart from:

(a) any corporate overhead component not specific to the Works (except for the allowable

overheads specified in Item 1.2(b)(vi) to (xix) of this Schedule 3) (Allowable Overheads);

and

(b) profit or mark up of any kind.

It is a fundamental underlying principle of this Agreement that:

(a) except for the Corporate Overhead and Profit and Allowable Overheads, no Participant will

derive any mark up, overhead, profit or unreasonable advantage from the utilisation of their

resources for the Works; and

(b) direct costs which are recovered under Item 1 of this Schedule 3 cannot be also recovered

under Items 2 to 16 of this Schedule 3.

Direct Costs include the following costs which are actually and reasonably incurred:

1 Labour, staff and supervision

The Participants are entitled to recover the actual cost for labour, staff and supervision employed by

the Participants and assigned to the Alliance Management Team and Alliance Project Team for the

purposes of performing the Works in accordance with this item, including as set out under the

following categories:

(a) Employees of Constructor Participants (comprising Participant 1, Participant 2 and

Participant 3);

(b) Employees of Designer Participants (comprising Participant 4, Participant 5 and Participant

6);

(c) Direct Labour – Project employed personnel; and

(d) Other Costs.

1.1 Employees of Constructor Participant(s)

The Participants are entitled to recover the following actual labour costs for employees of the

Constructor Participant(s) for their time spent on the Project:

(a) the base salary - salaries actually paid to an employee, including site allowances, shift

allowances, vehicle allowances which form part of an employee’s salary package and

allowance for sick leave and public holidays; and

(b) an on-cost multiplier – an on-cost multiplier of which will be added to the base salary

and which is deemed to include the following costs:

(i) superannuation contributions;

(ii) payroll costs and tax;



(iii) leave burdens, annual leave loading and long service leave entitlements to the

extent they are accrued during the period they are employed on the Works;

(iv) termination/redundancy payments to staff to the extent that they accrue during the

period they are employed on the Works;

(v) bonus payments, reasonable benefits and allowances made by or provisioned by

the Participants to staff; and

(vi) training related to corporate requirements.

1.2 Employees of Designer Participants

The Participants are entitled to recover the following actual labour costs for professional/technical

employees of the Designer Participants for their time spent working on the Project, either in the

Project office or in the Designer Participant’s usual place of business:

(a) normal time base salary: salaries actually paid including superannuation contributions

payable to an employee for normal time worked, where superannuation is fixed at statutory

levels, which form part of an employee's salary package;

(b) normal time on-cost multiplier: an on-cost multiplier of which will be added to the

normal time base salary for normal time hours worked and which is deemed to include the

following:

Statutory On-costs

(i) payroll costs and tax;

(ii) FBT, Living Away from Home Allowance (LAFHA) and Cost of Living

Allowance (COLA), per diems (where applicable);

(iii) leave burdens, including sick leave, annual leave loading and long service leave

entitlements;

(iv) public holidays;

(v) Workers Compensation insurance;

Overhead Costs

(vi) administration labour: including salary and other salary related costs for support

staff including marketing, finance, HR, QA, HSE, administration, legal and IT;

(vii) fixed occupancy: including rent and outgoings, electricity, water, repairs and

maintenance, security and cleaning;

(viii) communication: including office and mobile telephones, (excludes VPN

connectivity to/from Project office; this is a reimbursable Project cost);

(ix) stationary, supplies and equipment: including stationary, postage, archiving,

reasonable general printing, brochures, subscriptions, freight and postage, etc.;

(x) computer services: including software licences and maintenance, internal and

external IT support;

(xi) insurance premiums;

(xii) depreciation of fixed assets;



(xiii) staff and client amenities, employee professional memberships, professional

development training and recognition programs, in-house work refreshments, etc.;

(xiv) non-Project related travel costs including domestic and international airfares, car

hire, accommodation, travel allowances and related costs;

(xv) business services expenses: including costs for activities such as innovation,

management information system, safety, business school, etc.;

(xvi) expenditure relating to the training of staff that is non-Project related (e.g. venue

hire, workshops, external trainers, training materials);

(xvii) bonus payments, reasonable benefits and allowances made by or provisioned by

the Participants to staff;

(xviii) other overheads including general expenses, legal expenses relating to business

operations, equipment hire and other sundry expenses; and

(xix) professional/technical employee non-chargeable time: including time spent by

otherwise chargeable staff whose salary is not captured in the administration

labour costs on non-chargeable (overhead) activities. Examples include

management time (mentoring, planning, staff management, resourcing), marketing

and business development activities, proposal development, training and

professional development activities, quality reviews, team briefings, unpaid

variations and other activities that are not directly associated with the Project;

(c) overtime base salary: salaries actually paid including superannuation contributions

payable to an employee for overtime, where superannuation is fixed at statutory levels,

which form part of an employee's salary package;

(d) overtime on-cost multiplier: an on-cost multiplier of which will be added to the

overtime base salary for the overtime hours worked; and

(e) base salary adjustment: normal time and overtime base salaries will be adjusted:

(i) for Participant 4, to include a salary continuance charge of of the base salary;

and

(ii) for Participant 6, to include annual leave and public holidays within the base rate

(and which are therefore not included in the on-cost multiplier).

Notwithstanding the above principles, Main Roads agrees that the Participants are entitled to recover

their Direct Costs under this clause 1.2 in accordance with the provisions contained in clause 10 of

Schedule 11.

1.3 Direct Labour - Project Employed Personnel

Direct labour may be engaged for carrying out the Works provided an Enterprise Agreement is

entered into to govern the rules under which the direct labour will be employed. All direct labour

shall provide weekly timesheets which will determine the amount paid.

Direct labour employed by the Participants for the Project will be paid as required under an

Enterprise Agreement and the necessary provisions will be made, as described in the Enterprise

Agreement, to cover the on-costs associated with employing the labour. The on-costs associated

with employing the labour will include the following:



(a) superannuation contributions payable;

(b) payroll costs and tax;

(c) annual leave burdens, sick leave, public holidays and long service leave entitlements to the

extent they are accrued during the period they are employed on the Works;

(d) termination/redundancy payments to the extent they are accrued during the period they are

employed on the Works; and

(e) income protection insurance.

1.4 Other Costs

Costs which are not recovered through the on-cost multiplier, but are recovered directly for the

amount actually and reasonably incurred, include the following:

(a) project specific team functions and recognition;

(b) incentive payments made to staff/labour employed on the Works which are directly related

to the performance of the Works and that are as approved in writing by the Alliance Board

prior to making the payment;

(c) project specific training costs;

(d) project specific travel costs, including Project specific travel, accommodation and

subsistence allowances;

(e) project specific clothing and safety equipment with alliance branding;

(f) provisions of registered industrial agreements relevant to this Project, provided that Main

Roads is consulted prior to any new entitlements being accorded to employees and agrees

to the new entitlements;

(g) costs directly associated with a Participant’s implementation and compliance with State and

Federal Government policies and guidelines including the State of Western Australia's

'Government Building Training Policy' administered by the Department of Training and

Workforce Development as required by this Project;

(h) costs directly associated with a Participant’s management of the insurances referred to in

this Agreement required to be maintained by the Owner Participant or the Non-Owner

Participants, including any related claims management, injury management and return to

work programs; and

(i) Proposal preparation costs, as stated in Cost Centre No.1 in item 3 of Schedule 7.

2. Taxes, fees and charges

All fees, charges, duties, royalties, licences, Fringe Benefit Tax and statutory charges of any kind or

nature, imposed or levied with respect to the performance of the Works (including any Building and

Construction Industry Training Levy payable in respect of the Works).



3. Legal expenses

Subject to the exclusion in clause 18 of this Schedule 3, all reasonable costs paid in defending or

prosecuting lawsuits or claims (including payment of judgments, awards, orders, damages,

restitution, compensation or interest) arising out of or in connection with the Works (but excluding

costs, payment of judgments, awards, orders, damages, restitution, compensation or interest incurred

or suffered in relation to issues between the Participants as contemplated in clause 4.3 of this

Agreement), or any reasonable legal costs otherwise necessary or expedient for the Works other than

legal services used in the preparation, negotiation or execution of this Agreement.

4. Subcontractors and consultancies

(a) Cost of Subcontract works and services and the provision of equipment in connection with

Works from sources other than the Participants.

(b) Consultancy services of consultants engaged by the Alliance Board or the Alliance

Management Team in connection with the Works.

5. Materials

(a) Cost of Materials purchased by any of the Participants for the Works, including Materials

purchased for research and development directly related to the Works.

(b) Cost of the disposal of Materials not required for the purposes of undertaking the Works.

6. Participant facilities

Cost of the use of on-Site and off-Site Construction Plant and Temporary Works provided for the

Works. These costs will be allocated on a basis determined by the Alliance Board if the

Construction Plant and Temporary Works in question are also used for purposes other than the

Works.

7. Site establishment costs

Costs associated with the establishment of the Site, including:

(a) mobilisation and demobilisation;

(b) connection and disconnection of temporary services;

(c) the costs associated with negotiating, investigating, surveying and designing land

acquisitions and arranging Site access, possession and laydown areas;

(d) the costs associated with establishing the Site offices;

(e) the costs associated with acquiring land outside the Site;

(f) accommodation works on, and modifications to accesses to, properties impacted by the

Works;



(g) applying for Development Applications and complying with the conditions of those

Development Applications;

(h) Site fencing, remedial fencing, access gates and hoardings;

(i) protection of existing facilities;

(j) Project signboard; and

(k) inductions (to the extent not covered under clause 1 of this Schedule 3).

8. Site running costs

Costs associated with running the Site, including:

(a) the Site offices;

(b) storage facilities (whether on-Site or off-Site). These costs will be allocated on a basis

determined by the Alliance Board if the storage facilities are also used for purposes other

than for the Works;

(c) laydown areas;

(d) ablutions;

(e) compliance with quality assurance, occupational health and safety and environmental

requirements;

(f) compliance with public relations and Aboriginal Heritage issues;

(g) traffic management;

(h) power and water consumption;

(i) rubbish removal;

(j) Site security; and

(k) consumables (for example, petty cash, first aid, tea and coffee).

9. Participants' Construction Plant

(a) The cost of Construction Plant which is required across the whole spectrum of the Works,

including:

(i) cranage;

(ii) scaffolding and access;

(iii) Site vehicles;

(iv) earthmoving plant;

(v) road and structure construction plant;

(vi) concrete placing plant;

(vii) general small tools;



(viii) the supply, installation and miscellaneous (eg. freight) costs of mechanical

equipment; and

(ix) any additional equipment for testing.

(b) The hire rate to the Project for all Participant owned Construction Plant will be the lesser

of:

(i) the published internal rate currently being utilised by the Participant; or

(ii) the best external hire rate for a similar piece of equipment for a similar period of

hire.

(c) Participants must provide evidence of the published internal hire rate referred to in

paragraph (b)(i).

10. Photocopying and printing

All costs associated with producing, copying and binding:

(a) all drawings;

(b) maintenance and operation manuals;

(c) test reports; and

(d) other documents produced as part of the Works.

11. Insurance

(a) The Non-Owner Participants' cost of providing the insurances referred to in this Agreement

and any difference in cover insurance approved by the Alliance Board.

(b) Any deductible or excess payable in relation to the insurances referred to in this Agreement

or unrecovered amounts and the cost of preparing any claims.

(c) If any of the insurances referred to in this Agreement are not specific to this Agreement, the

Alliance Board must determine the extent that the cost of that insurance should be

apportioned for the purpose of being a Direct Cost.

12. Security

Subject to clause 29 of this Agreement, all costs of establishing and maintaining the security referred

to in clause 29 of this Agreement.

13. Project Office

Leasing, support and equipment (including communications and signage) costs of the Project offices

referred to in clause 6.6 of this Agreement.



14. Specialist groups

The costs charged by any specialist group within any of the Participants when their services are used

by the Alliance Management Team for the purposes of the Works.

15. Rectification costs

All costs incurred in making good any Defects to the extent such costs are not recovered under any

Project insurance policy.

16. IT Costs

The cost of:

(a) cabling;

(b) switching infrastructure;

(c) telephone system;

(d) implementation and installation;

(e) servers;

(f) network costs;

(g) data link costs;

(h) PCs (including design software and other software purchased specifically for the Works but

excluding design software and software used by the Participants in their day to day

operations);

(i) amortisations and licences;

(j) printers, plotters, MFM, scanners;

(k) cameras and videos to the extent they are purchased or used solely for the Works;

(l) MIS services and support charges; and

(m) IT support,

located at the Project offices referred to in clause 6.6 in this Agreement.

17. Other

Any other cost that, in the view of the Alliance Board, should be a Direct Cost including any costs

incurred by the Non-Owner Participants in running an overdraft in the Project Bank Account.

18. Exclusions

For the avoidance of doubt, the following costs incurred by the Participants will not be Direct Costs

(and to the extent that they have been incorrectly recognised as Direct Costs, will be credited against

Direct Costs):



(a) any legal costs incurred by a Participant in defending any prosecution or claim brought

against a Participant by a Governmental Agency by reason of an alleged breach of any

Statutory Requirement;

(b) proceeds recovered under any insurance policy required to be effected and maintained by a

Participant or any other insurance policy in place, or put in place, by a Participant covering

the Works or the obligations of that Participant;

(c) costs incurred by a Participant where those costs are subsequently recouped by that

Participant including where those costs are recouped under security provided by the Non-

Owner Participants, an insurance policy required to be effected and maintained by a

Participant or any other insurance policy in place, or put in place, by a Participant covering

the Works or the obligations of that Participant or from a Third Party;

(d) any costs associated with Participants’ representatives attending an Alliance Board

meeting;

(e) any costs, liabilities or payments incurred or made by a Participant in indemnifying another

Participant in accordance with this Agreement;

(f) any costs, liabilities or payments incurred or made by a Participant in defending or

prosecuting lawsuits of claims (including payment of judgments, awards, orders, damages,

restitution, compensation or interest) by or against another Participant in accordance with

clause 4.3 of this Agreement;

(g) any and all costs, losses, damages and expenses suffered or incurred by the Defaulting

Participant arising out of or in connection with a default (as that term is defined in

clause 27.1) and/or exclusion and/or termination under clauses 27 and 28;

(h) any corporate or personal income tax or capital gains tax imposed on a Participant;

(i) GST;

(j) any penalties or fines in respect of the matters referred to in this Schedule 3;

(k) any costs incurred by a Participant, or to be incurred by a Participant, specifically excluded

under this Agreement as being a Direct Cost; and

(l) costs incurred by Main Roads in effecting its Principal Controlled Insurance Program.



Schedule 4 – Performance Payment











Schedule 6 – Participants’ contact details

1. Main Roads (client)

Address: Main Roads

Don Aitken Centre

Waterloo Crescent

East Perth WA 6004

Email:

Attention:

2. Owner Participant

Address: Main Roads

Don Aitken Centre

Waterloo Crescent

East Perth WA 6004

Email:

Attention:

3. Participant 1

Address: 202 Pier Street

Perth WA 6000

Email

Attention:

4. Participant 2

Address: 68 Hasler Road

Osborne Park WA 6017

Email:

Attention:



5. Participant 3

Address: 401 Spearwood Avenue

Bibra Lake WA 6163

Email:

Attention:

6. Participant 4

Address: 239 Adelaide Terrace

Perth WA 6004

Email:

Attention:

7. Participant 5

Address: Level 6, 3 Forrest Place

Perth WA 6000

Email:

Attention:

8. Participant 6

Address: 484 Murray Street

Perth WA 6000

Email:

Attention:



Schedule 7 – Proposal Elements

1. Preliminary Project Management Plan

2. Preliminary Design Drawings

3. Direct Cost Target Schedule of Cost Centres

4. Breakdown of allowance for utility provider quotes

5. Details for Schedule 9 adjustments:

- Item 17.

- Item 18. Karel Avenue bridge widening.

6. Preliminary Design Report

7. Agreed Urban Design Elements

The parties acknowledge that the documents comprising Schedule 7 are contained on the disc included in this

Schedule 7 and which forms part of this Agreement.



Schedule 8 – Main Roads’ Representative

1. Role

Main Roads’ Representative must perform all of Main Roads’ obligations in Main Roads’ capacity

as client under this Agreement, except for alterations to the Direct Cost Target, which is the

responsibility of the Senior Project Director. In performing Main Roads' obligations under this

Agreement (except to the extent such obligations comprise the exercise of a Main Roads' Reserved

Power or the context requires otherwise), Main Roads' Representative and Senior Project Director

must act honestly, reasonably and with integrity.

2. Responsibilities

2.1 General

Main Roads’ Representative’s responsibilities can be divided into 4 categories:

(a) scope of Works;

(b) financial accountability;

(c) liaison and facilitation; and

(d) ownership.

The responsibilities of Main Roads in respect of the 4 categories identified above include the matters

set out in clauses 2.2 to 2.5 of this Schedule 8.

2.2 Scope of Works

Main Roads’ Representative:

(a) must facilitate the Participants’ access to documentation, which describes Main Roads’

requirements for the design, documentation and construction of the Works; and

(b) may direct the Participants in writing to change the Works in accordance with clause 14.1.

2.3 Financial Accountability

Main Roads’ Representative must:

(a) assist the Participants in the development of design to achieve and adopt the design that

represents best value for money;

(b) specify the required format and intervals for reporting to Main Roads on financial and other

matters;

(c) ensure all payments to the Non-Owner Participants for the Direct Costs that the Non-Owner

Participants reasonably, properly and actually incurred are made into the Project Bank

Account;

(d) ensure verification and payment of any Cost Performance Amount;



(e) ensure verification and payment of any KRA Performance Amount after the Date of

Practical Completion of the final Separable Portion;

(f) receive the security for performance required to be provided by the Non-Owner Participants

under this Agreement;

(g) in accordance with the terms of this Agreement, make a demand on the security provided

by the Non-Owner Participants;

(h) return the security provided by the Non-Owner Participants to the Non-Owner Participants

within 20 Business Days of the date of the contents of the Final Certificate being agreed;

and

(i) ensure payment on the Final Certificate to the extent Main Roads is required to make

payment to the Non-Owner Participants under the Final Certificate.

2.4 Liaison and facilitation


(a) communicate directly with the chairperson of the Alliance Board, the Alliance Manager

and, with the acknowledgement of the Alliance Manager, the Alliance Management Team

on operational issues;

(b) attend Alliance Board meetings as required, and other meetings by agreement with the

Alliance Manager;

(c) ensure that Main Roads provides relevant information in a timely manner;

(d) communicate to Main Roads issues arising from the Participants;

(e) ensure that resources and expertise are available within Main Roads for the benefit of the

alliance; and

(f) ensure relevant support staff within Main Roads understand the nature of the alliance, and

the obligations placed on the Participants.

2.5 Ownership


(a) give the Participants possession of the Site or sufficient of the Site to enable the

Participants to carry out the Works;

(b) if necessary, suspend the progress of the whole or part of the Works in accordance with

clause 25.2;

(c) issue a Certificate of Practical Completion for each Separable Portion to the Participants in

accordance with this Agreement and be satisfied that defects or omissions are rectified

before the end of the Defects Correction Period;

(d) receive all documents and information in respect of the design and construction of the

Works including all design documentation, surveys and as constructed information together

with any other documentation, which ought to be held by Main Roads with respect to the

Works; and



(e) issue a Final Certificate to the Participants in accordance with this Agreement once

satisfaction is gained that defects or omissions have been rectified.



Schedule 9 – Scope Changes

The following examples are to assist Main Roads in determining whether a direction by Main Roads in

accordance with clause 14.1 is a Scope Change:

Item

No.

Event Specific Context Scope Change?

(Yes or No)

1. Change to Basis For Design

And Construction or

fundamental requirements of

the Works

Minor scope change, minor change in

design standards or minor change in

fundamental project requirements

requiring a direction by Main Roads.

No

2. Change in Act of Parliament Requiring a significant change to the

Basis For Design And Construction or

fundamental requirements of the

Works.

Yes

3. Change in community /

stakeholder expectations

Requiring a significant change to the



Works.

Yes

4. Community opposition Protests or other action by the

community impacts on the Works.

No

5. Main Roads makes changes to

traffic volume forecasts or

traffic modelling




Works.

Yes

6. Drainage Adjustments to existing drainage

network to accommodate the Works.

No

7. Utility Service relocations /

modifications

Actual costs claimed by utility

providers, for the items listed in

Schedule 7 Item 4, differ from that

allowed in the Direct Cost Target.

Yes

8. Discovery of Class V

contaminated materials which

cannot be treated to become a

lesser Class

Dealing with material requires a

significant change to the Basis For

Design And Construction or


Works.

Yes

9. Geotechnical information Ground conditions vary from that

assumed in developing the Direct

Cost Target.

No



Item

No.

Event Specific Context Scope Change?

(Yes or No)

10. Major traffic disruption or

inability to implement proposed

Traffic Management Plan

Traffic Management Plan requires

amendment which impacts on the

Works.

No

11. Accommodation works relating

to the Roe 8 Project

Change in accommodation works. No

12. Final environmental

management plans prepared by

Main Roads for the Roe 8

Project significantly different

from draft management plans




Works.

Yes

13. The environmental approvals

for areas where the concept

design for the Roe 8 Project is

outside of the approved

development envelope include

conditions which are over and

above what would reasonably

be expected




Works.

Yes

14. Design development /

optimisation

The final design is different to that on

which the Direct Cost Target was

based.

No

15. Aggregation of minor scope

changes

Several minor scope changes

aggregate to create a significant

change.

No

16. Urban Design Changes to the list of urban design

elements in Schedule 7.

Yes

17.

18. Karel Avenue bridge widening If Main Roads agrees to the widening

of the Karel Avenue bridge to four

lanes, the Direct Cost Target will be

increased by (refer

Schedule 7).

Yes



Schedule 10 – Basis For Design And Construction

The parties acknowledge that the document comprising Schedule 10 is contained on the disc included in

Schedule 7 and which forms part of this Agreement.



Schedule 11 – Payment Procedures

1. Introduction

(a) For the avoidance of doubt, Main Roads and the Non-Owner Participants agree that:

(i) Main Roads will reimburse the Non-Owner Participants for Direct Costs (as

defined in Schedule 3) incurred by them;

(ii) Main Roads will pay the Non-Owner Participants the Corporate Overhead and

Profit;

(iii) if applicable, Main Roads will pay the Non-Owner Participants a Cost

Performance Amount, or the Non-Owner Participants will pay Main Roads a Cost

Performance Amount; and

(iv) if applicable, Main Roads will pay the Non-Owner Participants a KRA

Performance Amount, or the Non-Owner Participants will pay Main Roads a KRA

Performance Amount.

(b) This Schedule 11 sets out the procedure which will govern the payments referred to above.

2. Cash neutrality

A key principle governing the payment procedures to apply to the Works is ensuring that the Non-

Owner Participants, in their joint capacity and to the greatest extent possible, are put in a cash

neutral position in relation to the reimbursement of Direct Costs.

3. Cash flow forecasting

(a) The Alliance Management Team must prepare and deliver to Main Roads a cash flow

forecast in respect of the first month of the Term within 5 Business Days (or as otherwise

agreed by the Participants) from the Effective Date. The cash flow forecast must be in a

format approved by the Alliance Board and must detail for the first month of the Term:

(i) the Directs Costs that are expected to be incurred by the Non-Owner Participants

in the first month of the Term; and

(ii) the Corporate Overhead and Profit that is expected to be due to the Non-Owner

Participants in the first month of the Term.

The cash flow forecast must identify the amount, if any, to be paid in advance by Main

Roads into the Project Bank Account and the date for payment of that amount.

(b) By no later than 10 Business Days (or as otherwise agreed by the Participants) prior to the

end of the first month of the Term and thereafter each subsequent month during the Term,

the Alliance Management Team must prepare and deliver to Main Roads a cash flow

forecast. The cash flow forecast must be in a format approved by the Alliance Board and

must detail for the following month of the Term:



(i) the Directs Costs that are expected to be incurred by the Non-Owner Participants

in the following month of the Term; and

(ii) the Corporate Overhead and Profit that is expected to be due to the Non-Owner

Participants in the following month of the Term.

The cash flow forecast must identify the amount, if any, to be paid in advance by Main

Roads into the Project Bank Account and the date for payment of that amount.

(c) For the purpose of this Schedule 11, the amounts identified under clauses 3(a) and (b) of

this Schedule 11 are advance payment amounts (Advance Payment Amounts).

4. Advance Payment Amount by Main Roads

Main Roads must pay each Advance Payment Amount on the date for payment of that amount

identified in the applicable cash flow forecast.

5. Reconciliation

(a) As soon as practicable after the end of each month during the Term, the Alliance

Management Team must prepare and deliver a notice in a format approved by the Alliance

Board to the Non-Owner Participants and Main Roads:

(i) detailing for that month of the Term:

(A) Actual Directs Costs incurred by the Non-Owner Participants; and

(B) the entitlement of the Non-Owner Participants to Corporate Overhead and

Profit calculated in accordance with this Agreement,

(Entitlement Amount);

(ii) identifying the amount of the difference (if any) between the Advance Payment

Amount and the Entitlement Amount for that month of the Term (Difference

Amount); and

(iii) attaching a statutory declaration provided by the Non-Owner Participants in the

form set out in Schedule 12 in respect of:

(A) payment by the Non-Owner Participants of any amounts that are due and

payable to Subcontractors; and

(B) compliance by the Non-Owner Participants with clause 16.4 of this

Agreement in respect of the Code.

(b) All supporting documentation relating to the amounts contained in any notice prepared

under clause 5(a) in this Schedule 11 must be available for inspection and audit.

(c) If the Entitlement Amount is greater than the Advance Payment Amount, then Main Roads

must make payment of the Difference Amount into the Project Bank Account within

5 Business Days of receipt of the notice under clause 5(a) in this Schedule 11.

(d) If the Entitlement Amount is less than the Advance Payment Amount, then the Non-Owner

Participants must reimburse Main Roads the Difference Amount from the Project Bank



Account within 5 Business Days of receipt of the notice under clause 5(a) in this

Schedule 11.

(e) If Main Roads is not satisfied for any reason with any of the amounts set out in a notice

given by the Non-Owner Participants under clause 5(a) in this Schedule 11, Main Roads

must:

(i) if the Difference Amount is payable by Main Roads under clause 5(c) of this

Schedule 11, pay the Difference Amount; and

(ii) within 5 Business Days of receipt of the notice under clause 5(a) in this

Schedule 11, give notice to the Alliance Management Team that Main Roads is not

satisfied with the amounts set out in the notice under clause 5(a) in this

Schedule 11 and full details of why it is not satisfied.

The Alliance Management Team must then promptly satisfy Main Roads’ concerns and the

provisions of clause 17.6 of this Agreement will apply to any overpayment by Main Roads

of the Difference Amount.

(f) This clause 5 of this Schedule 11 does not limit Main Roads’ right to withhold or deduct

payments in accordance with this Agreement.

6. Payment of Cost Performance Amount

(a) As soon as practicable after the Date of Practical Completion of the last Separable Portion,

Main Roads must pay the Non-Owner Participants or the Non-Owner Participants must pay

Main Roads (as the case may be) an interim payment of an appropriate proportion of the

anticipated final Cost Performance Amount as approved by the Alliance Board.

(b) As soon as practicable after the Completion Date, the Alliance Management Team must

prepare and deliver a notice in a format approved by the Alliance Board to the Non-Owner

Participants and Main Roads detailing for the period from the Effective Date until the

Completion Date the Cost Performance Amount (if any) payable by Main Roads to the

Non-Owner Participants or the Non-Owner Participants to Main Roads (as the case may

be), in accordance with clause 2.2(a) of Schedule 4. The amount payable must take into

account any interim payment made under clause 6(a) of this Schedule 11.

(c) All supporting documentation relating to the amount set out in any notice prepared under

clause 6(b) of this Schedule 11 must be available for inspection and audit.

(d) Within 20 Business Days of receipt of the notice under clause 6(b) of this Schedule 11,

Main Roads must pay the Non-Owner Participants, or the Non-Owner Participants must

pay Main Roads (as the case may be), the amount set out in the notice issued under

clause 6(b) of this Schedule 11.

(e) If a Participant is not satisfied for any reason with the amount set out in a notice under

clause 6(b) of this Schedule 11, that Participant must nonetheless pay the amount, and the

Participant must, within 10 Business Days of a payment being made, give notice to the

Alliance Management Team that the Participant is not satisfied with the amount set out in

the notice under clause 6(b) of this Schedule 11 and full details of why it is not satisfied.

The Alliance Management Team must then promptly satisfy that Participant’s concerns and



the provisions of clause 17.6 of this Agreement will apply to any overpayment of the

amount set out in the notice under clause 6(b) of this Schedule 11.

7. Payment of KRA Performance Amount

(a) As soon as practicable after the Date of Practical Completion of the last Separable Portion,

the Alliance Management Team must prepare and deliver a notice in a format approved by

the Alliance Board to the Non-Owner Participants and Main Roads detailing for the period

from the Effective Date until the Date of Practical Completion the KRA Performance

Amount (if any) payable by Main Roads to the Non-Owner Participants or the Non-Owner

Participants to Main Roads (as the case may be).

(b) All supporting documentation relating to the amount set out in any notice prepared under

clause 7(a) of this Schedule 11 must be available for inspection and audit.

(c) Subject to clause 7(d) of this Schedule 11, within 20 Business Days of receipt of the notice

under clause 7(a) of this Schedule 11, Main Roads must pay the Non-Owner Participants,

or the Non-Owner Participants must pay Main Roads (as the case may be), the amount set

out in the notice issued under clause 7(a) of this Schedule 11.

(d) If a Participant is not satisfied for any reason with the amount set out in a notice under

clause 7(a) of this Schedule 11, that Participant must nonetheless pay the amount, and the

Participant must, within 10 Business Days of a payment being made, give notice to the

Alliance Management Team that the Participant is not satisfied with the amount set out in

the notice under clause 7(a) of this Schedule 11 and full details of why it is not satisfied.

The Alliance Management Team must then promptly satisfy the Participant’s concerns and

the provisions of clause 17.6 of this Agreement will apply to any overpayment of the

amount set out in the notice under clause 7(a) of this Schedule 11.

8. Direct Costs incurred by Main Roads

For the purposes of the Performance Payment methodology set out in Schedule 4, the Alliance

Management Team will monitor the Actual Direct Costs incurred by the Owner Participant in

relation to the Works during the Term.

9. Procedures

Within 20 Business Days of the Effective Date, the Alliance Management Team must develop such

further procedures as are necessary to define in detail the processes for payment. Those procedures

must be based on the principles set out in this Schedule 11 and are subject to the approval (or

otherwise) of the Alliance Board.

10. Employees of Designer Participants

(a) The Designer Participants will compile a combined charge-out rate schedule (Charge-Out

Rate Schedule) which covers the salary bands of the professional/technical employees of

the Designer Participants that will work on the Project. The Charge-Out Rate Schedule will



form part of the procedure developed in accordance with clause 9 above. The bands within

the Charge-Out Rate Schedule must cover the normal time and overtime base salary and

normal time and over time on-cost multiplier components specified in clauses 1.2(a) to

1.2(e) of Schedule 3. Main Roads acknowledges that in generating the bands, the on-cost

multiplier may vary within each band but that, on average, the on-cost multiplier will

equate to the on-cost multiplier specified in clauses 1.2(b) and 1.2(d) of Schedule 3.

(b) During the course of the Project, the Participants will assign the professional/technical

employees of the Designer Participants to the appropriate band.

(c) The assignment of employees within the bands of the Charge-Out Rate Schedule is subject

to change in line with the annual salary review process of the Designer Participants.

(d) Payment of Direct Costs by Main Roads in accordance with the Charge-Out Rate Schedule

does not limit the rights of Main Roads to reconcile or audit any payment of the Designer

Participants for Direct Costs, so as to ensure recovery is in accordance with the principles

in clause 1.2 of Schedule 3.



Schedule 12 – Form of Statutory Declaration

Contract No. 98/14

Statutory Declaration

I ............................................................................................................................. ........

(FULL NAME)

of ........................................................................................................... ........................

(ADDRESS)

............................................................................................ Postcode ..........................

in the State of Western Australia

(insert your occupation(s))................................................................................................................

sincerely declare that:

1. all workers, suppliers, subcontractors and consultants engaged by any or all

of....................................................................... (Non-Owner Participants) have been paid all

moneys due and payable to them in respect of work under Contract No. 98/14; and

2. the Non-Owner Participants have complied with and continue to comply with their obligations under

clause 16.4 of Contract No. 98/14.

I confirm that I have made enquiries of all appropriate persons and taken such other steps so as to obtain the

knowledge and information required to make this statutory declaration and am duly authorised to make this

statutory declaration on behalf of the Non-Owner Participants.

This declaration is true and I know that it is an offence to make a declaration knowing that it is false in a

material particular.

This declaration is made under the Oaths, Affidavits and Statutory Declarations Act 2005 (WA) at:

(insert place) ………………………. on

(insert date) ………………………... by

.......................................................................................................................................

(SIGNATURE OF DECLARANT)

in the presence of

.......................................................................................................................................

(SIGNATURE OF WITNESS)

.......................................................................................................................................

(NAME AND QUALIFICATION OF WITNESS)



Schedule 13 – Parent Company Guarantee

Deed of Guarantee and Indemnity

This Deed of Guarantee and Indemnity (Deed) is made on [insert date] by the following party:

[Insert name of Non-Owner Participant Guarantor] ABN [insert ABN of Non-Owner Participant Guarantor]

of [insert address of Non-Owner Participant Guarantor] (Guarantor)

Recitals

A. On or about the date of this Deed, the Commissioner of Main Roads, of Waterloo Crescent,

East Perth, Western Australia (Principal) entered into a Project Alliance Agreement

(Agreement) with [insert details] (Non-Owner Participant) and [insert details of other Non-Owner

Participant(s)].

B. It is a requirement under clause 29.6 of the Agreement that the Guarantor enter into, execute and

deliver this Deed.

This Deed witnesses

that in consideration of the Principal accepting this Deed in satisfaction of the Non-Owner Participant’s

obligations under clause 29.6 of the Agreement, the Guarantor agrees:

1. Definitions and interpretation

1.1 Definitions

In this Deed, unless the context otherwise requires, a word or phrase defined in the Agreement has

the same meaning as in the Agreement.

1.2 Interpretation

In this Deed (including the Recitals), unless a contrary intention appears:

(a) headings and under linings are for convenience only and do not affect the interpretation of

this Deed;

(b) words importing the singular include the plural and vice versa;

(c) words importing a gender include any gender;

(d) an expression importing a natural person includes any company, partnership, joint venture,

association or other body corporate;

(e) a reference to a statute, regulation, proclamation, ordinance or by-law includes all statutes,

regulations, proclamations, ordinances or by-laws amending, consolidating or replacing it

and a reference to a statute includes all regulations, proclamations, ordinances and by-laws

issued under that statute;

(f) all prices and sums of money and all payments made under this Deed are in Australian

currency;



(g) a reference to the word 'including' means 'including without limitation' and references to

'includes' means 'includes without limitation'; and

(h) a reference to a document (including this Deed) is that document as varied, amended,

novated, ratified or replaced from time to time.

2. Guarantee

The Guarantor unconditionally and irrevocably guarantees to the Principal the due and punctual

performance of the obligations of the Non-Owner Participant under the Agreement including:

(a) the discharge of the obligations and liabilities of the Non-Owner Participant under the

Agreement; and

(b) the payment of all debts and monetary liabilities of the Non-Owner Participant to the

Principal under the Agreement.

3. Guarantor to perform

If, in the Principal’s opinion, the Non-Owner Participant fails to perform any of the Non-Owner

Participant’s obligations or discharge any of Non-Owner Participant’s liabilities under the

Agreement, the Guarantor must forthwith:

(a) upon receipt of notice from the Principal requiring it to do so, perform those obligations or

discharge those liabilities (as the case may be) and thereafter continue to perform those

obligations and discharge those liabilities (as the case may be) until the termination of the

Agreement by the effluxion of time or otherwise; and

(b) upon demand, pay to the Principal all losses, damages, costs (including legal costs on a full

indemnity basis) and expenses suffered or incurred by the Principal arising from or

connected with the Non-Owner Participant’s failure to perform any of the Non-Owner

Participant’s obligations or to discharge any of the Non-Owner Participant’s liabilities

under the Agreement.

4. Indemnity

The Guarantor indemnifies the Principal against all claims, losses, actions, damages, costs

(including legal costs on a full indemnity basis) and expenses that the Principal may suffer or incur

arising from or in connection with the Agreement by reason of:

(a) any default in or breach or failure to perform or observe any of the terms and conditions of

the Agreement by the Non-Owner Participant; or

(b) the Non-Owner Participant being wound up (except for the purpose of reconstruction or

amalgamation the terms of which have previously been approved in writing by the

Principal) or becoming insolvent or bankrupt or entering into a composition with its

creditors or having an administrator, a receiver, a receiver/manager, liquidator appointed or

any other external controller (as that term is defined in the Corporations Act) appointed.



5. Payments

All payments which the Guarantor is required to make under this Deed must be made without any

set-off, counterclaim, condition or deduction and must be made by the Guarantor on demand by the

Principal.

6. Certificate

A certificate signed by an authorised representative of the Principal, or any person authorised in

writing by an authorised representative of the Principal, stating the amount payable under this Deed

is prima facie evidence of that amount.

7. Representations and warranties

(a) The Guarantor represents and warrants that:

(i) it has full power and authority to enter into and perform its obligations under this

Deed;

(ii) it has taken all necessary action to authorise the execution, delivery and

performance of this Deed;

(iii) this Deed constitutes legal, valid and binding obligations;

(iv) each of its representations and warranties contained in this Deed are true, correct

and not misleading when made or repeated or regarded as made or repeated; and

(v) all information provided to the Principal by or on behalf of the Guarantor is true

and correct in all material respects and is not, whether by omission of information

or otherwise, misleading.

(b) The representations and warranties in this clause 7 survive the execution of this Deed.

8. Continuing obligation

The guarantee and indemnity contained in this Deed are continuing obligations of the Guarantor,

despite any settlement of account or the occurrence of any other thing and remains in full force and

effect until all the obligations of the Non-Owner Participant under the Agreement have been

performed.

9. Independent obligation

The guarantee and indemnity contained in this Deed are separate and independent obligations of the

Guarantor and neither limits the generality of the other.



10. Nature of Guarantor’s obligations

(a) The obligations of the Guarantor under this Deed in respect of the Agreement are principal

obligations and are not released, discharged or otherwise affected by anything which but for

this provision might have that effect, including:

(i) the grant to any person of any time, concession, waiver, covenant not to sue or

other indulgence or release;

(ii) any arrangement made between the Principal and Non-Owner Participant;

(iii) any alteration, amendment or variation of the Agreement; or

(iv) any assignment, novation, assumption or transfer of, or other dealing with, any

rights or obligations under the Agreement.

(b) Paragraph (a) applies irrespective of the consent or knowledge, or lack of consent or

knowledge, of the Principal, the Guarantor or any other person of any event described in

paragraph (a) or of any rule of law or equity to the contrary.

11. Limit of liability

(a) The Guarantor's liability to the Principal under this Deed shall:

(i) be subject to the same limitations of liability as per the Agreement;

(ii) be no greater than the aggregate liability of the Non-Owner Participant to the

Principal under the Agreement; and

(iii) expire on the date that all of the Non-Owner Participant's liabilities expire under

the Agreement,

excluding any costs arising from or connected with the enforcement of this Deed (including

the costs set out in clause 12).

(b) Subject to the express terms of this Deed, to the extent that the Principal seeks to exercise

any of its rights against the Guarantor under this Deed, the Guarantor will have and be

entitled to the same rights as the Non-Owner Participant has and is entitled to under the

Agreement.

12. Costs and expenses

The Guarantor must pay all taxes, duties, fees, costs and expenses in relation to the negotiation,

preparation, execution, delivery, stamping, registration and discharge of this Deed and the

enforcement or protection or attempted enforcement or protection of any rights or powers of the

Principal under this Deed, including any legal costs and expenses and any professional consultant’s

fees in respect of any of the above on a full indemnity basis.



13. Notices

13.1 How and where notices may be sent

A notice or other communication (Notice) under this Deed must be in writing and delivered by hand

or sent by pre-paid post or fax to a party to this Deed at the address or the fax number for that party

specified in clause 13.5 or as otherwise specified by a party by Notice.

13.2 Notices sent by company

A Notice sent by a company must be signed by a duly authorised officer or representative of the

sender.

13.3 Email not to be used

Email or similar electronic means of communication must not be used to give Notices under this

Deed.

13.4 When Notices are taken to have been given and received

(a) A Notice sent by post is regarded as given and received on the second Business Day

following the date of postage.

(b) A fax is regarded as given and received on production of a transmission report by the

machine from which the fax was sent which indicates that the fax was sent in its entirety to

the recipient’s fax number, unless the recipient informs the sender that the Notice is

illegible or incomplete within 4 hours of it being transmitted.

(c) A Notice delivered or received other than on a Business Day or after 4pm (recipient’s time)

is regarded as received at 9am on the following Business Day and a Notice delivered or

received before 9am (recipient’s time) is regarded as received at 9am.

13.5 Contact details

Any Notice must be addressed as below:

(a) Guarantor

Address: [insert details]

Attention: [insert details]

Facsimile: [insert details]; and

(b) Principal

Address: Main Roads

Don Aitken Centre

Waterloo Crescent

East Perth WA 6004

Attention: Mark Hazebroek

Facsimile: [insert details].



14. General

14.1 Governing law and jurisdiction

This Deed is governed by the laws of Western Australia and the Guarantor irrevocably submits to

the exclusive jurisdiction of courts exercising jurisdiction in Western Australia and courts of appeal

from them in respect of any proceedings arising out of or in connection with this Deed. Each party

irrevocably waives any objection to the venue of any legal process in these courts on the basis that

the process has been brought in an inconvenient forum.

14.2 Prohibition and enforceability

(a) Any provision of, or the application of any provision of, this Deed which is prohibited in

any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition.

(b) Any provision of, or the application of any provision of, this Deed which is void, illegal or

unenforceable in any jurisdiction does not affect the validity, legality or enforceability of

that provision in any other jurisdiction or of the remaining provisions in that or any other

jurisdiction.

14.3 Waivers

Waiver of any right, power, authority, discretion or remedy arising upon default under this Deed

must be in writing and signed by the party granting the waiver.

14.4 Cumulative rights

The rights, powers and remedies provided in this Deed are cumulative and are not exclusive of any

rights, powers or remedies provided by law.

Executed as a deed in [insert location]

Executed as a deed in accordance with

section 127 of the Corporations Act 2001 by

[insert]:

Director Signature Director/Secretary Signature

Print Name Print Name



Schedule 14 – Issues Resolution Procedures

1. Resolution principles

The principles that will underpin how issues arising out of or in connection with this Agreement will

be handled by the Participants are agreed as follows:

(a) issues must be immediately notified;

(b) issues must be resolved, or attempted to be resolved, in accordance with the Alliance

Principles;

(c) issues must be resolved at the lowest practical and appropriate level within the Alliance

(commensurate with the nature of the issue) in a way that promotes ongoing efficient and

cooperative relations; and

(d) issues must be resolved as quickly as possible.

2. Resolution process

The resolution of issues involves consideration of the issue at various levels:

(a) The Alliance Board must use its best endeavours to first attempt to resolve an issue through

no less than two separate Alliance Board meetings.

(b) If the issue cannot be resolved in the first instance by the Alliance Board, the Alliance

Board must refer the issue to a separate meeting of authorised officers from each

Participant who must meet within 2 Business Days of the issue being referred to them and

attempt to resolve the issue within 5 Business Days following their first meeting.

(c) If the issue cannot be resolved in the second instance by the authorised officers of each

Participant, the Participants must refer the issue to an Expert appointed by the Alliance

Board. In referring the issue to an Expert, a report describing the unresolved issues and the

grounds for each Participant's position on the matter must be forwarded to the Expert.

(d) The Expert must consider the issue and make a recommendation(s) to the Alliance Board as

to how that issue should be resolved. The decision of the Expert is final and binding on the

Participants, except in the case of manifest error or if the Expert has acted in bad faith.

(e) The resolution of the issue must be documented and tabled for noting at the next Alliance

Board meeting.



Executed as a Deed in Perth, Western Australia

Main Roads

The common seal of the Commissioner of Main

Roads was affixed to this Agreement by Richard

Sellers the Commissioner of Main Roads for the

time being in the presence of:

Witness Signature Signature of the Commissioner of Main Roads

Print Name

Participant 1

Signed sealed and delivered for and on behalf

of CPB Contractors Pty Ltd (ACN 000 893

667) by its Attorneys under a Power of

Attorney dated 10 October 2016 (and the

Attorneys declare that the Attorneys have not

received any notice of the revocation of such

Power of Attorney) in the presence of:

Attorney Signature Attorney Signature


Witness Signature Witness Signature




Participant 2



Georgiou Group Pty Ltd (ACN 073 851 948):



Participant 3



P.M.R. Quarries Pty Ltd (ACN 008 866 448):



Participant 4

Signed sealed and delivered for and on behalf of

GHD Pty Ltd (ACN 008 488 373) by its

attorney under power of attorney dated 10

October 2016 who has received no notice of

revocation in the presence of :

Witness Signature Attorney Signature




Participant 5

Signed for AECOM Australia Pty Ltd (ACN

093 846 925) by a director and its attorney under

power of attorney dated 10 October 2016 who

has received no notice of revocation in the

presence of:

Director Signature Attorney Signature


Witness Signature

Print Name

Participant 6

Signed for BG&E Pty Limited (ACN 150 804

603) by a director and its attorney under power of

attorney dated 10 October 2016 who has received

no notice of revocation in the presence of:

Director Signature Attorney Signature


Witness Signature

Print Name

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