Acacia Prison Services Agreement · Acacia Prison Maintenance Agreement Freehill Hollingdale & Page PERC4\Maintenance Agreement.doc page 5 Dispute means a dispute between the parties

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Freehill Hollingdale & Page PERC4\Maintenance Agreement.doc page 1

This Agreement

is made on 2000 between the following parties:

1. Minister for Works, a body corporate constituted under section 5(3) of the Public Works Act 1902 (WA) (Principal)

2. Corrections Corporation of Australia Pty Ltd ACN 010 921 641 of Level 4, Sherwood House, 39 Sherwood Road, Toowong, Queensland (Contractor)

Background A. In 1998 the State determined that a new prison should be constructed at

Wooroloo, Western Australia.

B. The State undertook an expression of interest process and following completion of the expression of interest process, invited the lodgement of proposals to design, construct, maintain and operate the proposed new prison at Wooroloo in accordance with a formal request for proposal.

C. The Contractor lodged a proposal to undertake the design, construction, maintenance and operation of the Prison.

D. The Contractor, with Transfield, is in the course of undertaking the design and construction of the Prison under the Construction Contract.

E. The Contractor will be undertaking operational services in respect of the Prison, under the Services Agreement.

F. The Principal and the Contractor have agreed that the Contractor will undertake the Maintenance Service for the Maintenance Period in accordance with the provisions of this Agreement.

Agreement The parties agree with each other as follows.

1 Definitions In this Agreement, unless the context otherwise requires, the following words and expressions have the following meanings.

Act means every Act of the Parliament of the Commonwealth, and of the State and includes every, rule, regulation, by-law, or order made under an Act.

Adjustment Date means:

(a) in the case of the adjustment of the Maintenance Fee - the Maintenance Fee Adjustment Date;

(b) in the case of the adjustment of the Liquidated Damage Rate and the Maintenance Security Amount - the LD/PG Adjustment Date.

Adjustment Note has the same meaning as in the GST Act;

Acacia Prison Maintenance Agreement


Agreement means this Agreement under which the Contractor agrees to undertake the Maintenance Service in respect of the Prison.

Anticipated Commencement Date means the date specified in item 1 of the Schedule.

Available Prisoner Places means the number of places for Prisoners created or available at the Prison Building by virtue of and evidenced by:

(a) the issue of a Prison Certificate by the Contract Manager certifying the maximum number of Prisoners who can be accommodated and held at the Prison Building; and

(b) the issue of Cell Certificates by the Contract Manager certifying the number of Prison Cells which are available for use and occupation by Prisoners.

Best Industry Practice means, subject to the Contractor’s philosophy on the operation of prisons, the best standards that would reasonably and ordinarily apply:

(a) in the same or similar type of undertaking;

(b) under the same or similar circumstances and conditions; and

when complying with recognised standards, including applicable laws.

Business Day means a day other than a Saturday, Sunday or public holiday in Western Australia.

Cell Certificate means a certificate issued by the Contract Manager to the effect that a Prison Cell satisfies the Cell Requirement.

Cell Requirement means that a Prison Cell is in all respects suitable for occupation and use by a Prisoner.

Claim means any claim, demand, action, proceeding or suit seeking the payment of money.

Commencement Date means the date on which construction of the Prison reaches the stage of practical completion under the Construction Contract, anticipated to be on or about the Anticipated Commencement Date.

Confidential Information means all knowledge, information, documents, reports, notes, memoranda, material or know-how (whether reduced to writing or otherwise recorded or stored), including intellectual property (including copyright, patents, trademarks, designs, drawings, manuals, specifications) or intellectual property rights of any kind relating to:

(a) this Agreement;

(b) anything done or to be done under this Agreement;

(c) the Principal;

(d) the Maintenance Work;

(e) the Contractor; or

(f) any Prisoner,

disclosed, communicated or delivered under or in connection with this Agreement, or in the performance of the Maintenance Work.



Construction Contract means the agreement dated 20 May 1999 between the Principal and the Construction Contractor for the design, construction and commissioning of the Prison.

Construction Contractor means the Contractor and Transfield.

Construction Expansion Work means the:

(a) construction of a new building or structure;

(b) demolition of a building or structure; or

(c) extension of an existing building or structure,

on the Site.

Construction Performance Guarantee means the performance guarantee given by the Construction Contractor under the Construction Contract.

Contract Manager means the person appointed to that role in accordance with clause 5.

Contract Manager Assistant means an assistant to the Contract Manager appointed under clause 5.6.

Contractor Person means the following:

(a) a Nominated Subcontractor;

(b) officers and employees of the Contractor and a Nominated Subcontractor;

(c) officers and employees of each sub-contractor engaged by the Contractor to undertake work in respect of the Maintenance Work; and

(d) other persons:

(1) for whom the Contractor is responsible; or

(2) otherwise engaged by the Contractor;

in respect of the Maintenance Work.

Contractor Dispute Representative means the person appointed as the Contractor Dispute Representative by the Contractor under clause 26.

Contractor Obligation means the obligation of the Contractor to undertake the Maintenance Service.

Contractor Representative means a person appointed as the representative of the Contractor under clause 5.

Contractor Representative Assistant means an assistant to the Contractor Representative appointed under clause 5.11.

CPI means:

(a) subject to subclauses (b), (c) and (d), the Consumer Price Index compiled by the Australian Bureau of Statistics for Perth (Capital City) (all groups);

(b) if the Index Number adopted by the Australian Bureau of Statistics is at any time updated, the Index Number is to be appropriately adjusted as from the same time;



(c) if the Consumer Price Index as specified in subclause (a) is discontinued, then the Consumer Price Index means any alternative cost of living index adopted in its place by the Commonwealth Government;

(d) if:

(1) the Consumer Price Index specified in subclause (a) is discontinued and the provisions of subclause (c) do not apply; or

(2) the Index Number is discontinued,

there is to be substituted for the Consumer Price Index specified in subclause (a) the Index for measuring increases in the cost of living in Perth which is determined by an economist appointed by the President of the Law Society of Western Australia on the application of the Principal whose decision will be final and binding on the Principal and the Contractor and whose fees will be paid by the Principal and the Contractor in equal shares.

CPI Adjustment means the figure calculated in accordance with the following formula:

CPIA = NCPI OCPI

Where:

CPIA means the CPI Adjustment

NCPI means the Index Number for the Quarter immediately prior to the Adjustment Date

OCPI means the Index Number for the Quarter immediately preceding:

(a) in the case of a Maintenance Fee Adjustment Date, 1 August 1998;

(b) in the case of an LD/PG Adjustment Date which is also the Commencement Date, 1 August 1998; and

(c) in the case of any other LD/PG Adjustment Date, the immediately preceding LD/PG Adjustment Date.

Date of Final Completion means the date the Final Payment Certificate is issued to the Construction Contractor under the Construction Contract.

deal with includes sell, novate, assign, transfer, encumber, grant any option, lease or licence in respect of, or in any manner alienate, dispose of, or part with possession of, or declare oneself trustee of or in relation to.

Default means:

(a) a Termination Default; or

(b) a Relevant Default.

direction includes agreement, approval, assessment, authorisation, certificate, decision, demand, determination, explanation, instruction, notice, order, permission, rejection, request or requirement.



Dispute means a dispute between the parties as to any matter arising under this Agreement other than a determination in respect of GST by an accountant appointed under clauses 15.4(d)(3) or (4).

Dispute Notice means a notice from the Principal to the Contractor or from the Contractor to the Principal specifying the following:

(a) a Dispute has arisen;

(b) the Dispute has not been resolved at the level at which the Dispute has arisen and the provisions of clause 26.2 apply; and

(c) the nature and details of the Dispute,

and drawing the attention of the party to whom the notice is given of the obligation to appoint a dispute representative as specified in clause 26.

Final Payment Certificate means the final payment certificate issued to the Construction Contractor under the Construction Contract.

Force Majeure means any of the following events or occurrences, and the effect of the following events and occurrences, but only to the extent that a party is prevented from, or delayed in, performing that party’s obligation under this Agreement taking into account contingency measures that party should reasonably have in place particularly in regard to the primacy of the security of the Prison:

(a) acts of God, including fire, bushfire, lightning, storm, tidal wave, cyclone, earthquake, landslide and flood;

(b) epidemics;

(c) war, revolution or other state of armed hostility of a like nature;

(d) insurrection, civil disturbances or riot; and

(e) collisions or accidents which constitute a major catastrophe, an example being an aircraft crash.

Force Majeure Party means a party which is unable to perform that party’s obligations under this Agreement as a result of Force Majeure.

Governmental Agency means any government or any governmental body.

GST means the tax imposed in accordance with the GST Act.

GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Commonwealth).

Index Number means the index number compiled and issued by the Australian Bureau of Statistics for the CPI for and in respect of a particular Quarter.

Insolvent means a corporation:

(a) being wound up;

(b) having a controller appointed;

(c) having an administrator or voluntary administrator appointed;

(d) being the subject of a deed of company arrangement;

(e) being subject to a compromise or arrangement with the corporation’s creditors;



(f) has a judgment entered against the corporation for a sum in excess of $250,000 and that judgment being a final judgment is not satisfied within 10 Business Days of the date of that judgment;

(g) in relation to which a notice is given of a meeting of creditors with a view to the corporation entering into a deed of company arrangement;

(h) subject to subclause (k), in relation to which an application is made for the winding up of the corporation and the application is not withdrawn or dismissed within 10 Business Days of being commenced; and

(i) which has resolved to be wound up voluntarily;

but does not include:

(j) a corporate reconstruction which has the prior written approval of the Principal; and

(k) an application specified in subclause (h) where the corporation actively seeks to have the application dismissed or withdrawn.

Insurer means a corporation which carries on an insurance business and which corporation has provided a policy of insurance under clause 23.

Intellectual Property Rights means all copyright, patents, trademarks, designs, drawings, manuals, specifications and other intellectual property rights in any of the Confidential Information and any development, improvement, modification and enhancement to the Confidential Information.

LEADR means LEADR (ACN 008 651 232) of National Dispute Centre, Level 4, 233 Macquarie Street, Sydney, NSW.

Legislative Requirement includes:

(a) the requirements of every Act; and

(b) every certificate, licence, consent, permit, approval and lawful requirement of any Governmental Agency having jurisdiction in connection with the performance of the Maintenance Work.

LD/PG Adjustment Date means:

(a) the Commencement Date; and

(b) each date, during the Maintenance Period, which is the date recurring every 2 years after the Commencement Date.

Liquidated Damage Rate means $60.00 per day for each single reduction in the number of Available Prison Places for each day of the reduction.

Loss means any damage, loss, cost or expense.

Maintenance Fee means the fee specified in the third column of the Maintenance Fee Schedule headed Maintenance Fee payable by the Principal to the Contractor during the Maintenance Period for the undertaking by the Contractor of the Maintenance Service.

Maintenance Fee Adjustment Date means:

(a) the Commencement Date; and

(b) each anniversary of the Commencement Date during the Maintenance Period.



Maintenance Fee Schedule means the Schedule set out in Annexure B.

Maintenance Month means each period of 1 month calculated from the Commencement Date.

Maintenance Performance Guarantee means:

(a) a written guarantee by a person, who is a bank, insurance company or other person acceptable to the Principal, to unconditionally pay to the Principal a specified sum of money, or any lesser amount specified by the Principal; or

(b) the provision of cash by the Contractor to the Principal,

in accordance with clause 22.

Maintenance Period means the period of time for the performance of the Maintenance Service but subject to an earlier termination in accordance with this Agreement, being 20 years commencing on the Commencement Date or as may be adjusted under this Agreement and includes any extension or continuation of it.

Maintenance Security Amount means the amount shown in item 2 of the Schedule as varied under clause 22.

Maintenance Service means the Maintenance Work and all other obligations of the Contractor under this Agreement including the obligation to take out and maintain insurance.

Maintenance Work means the work required to be undertaken by the Contractor in respect of the maintenance of the Prison in accordance with this Agreement.

Maintenance Year means each period of one year calculated from the Commencement Date and each year thereafter.

Motor Vehicle means any type of machine designed to travel on wheels or on self-laid tracks and to be propelled by other than manual or animal power.

New Prison Structure means a new building or structure constructed on the Site as a result of Construction Expansion Work.

New Structure Maintenance Work means Maintenance Work in respect of a New Prison Structure.

Nominated Subcontractor means a person who has been approved by the Principal as the Contractor’s nominated subcontractor.

Non Affected Party means the party which is not the Force Majeure Party.

Notice means:

(a) a Notice of Default;

(b) a Termination Notice; and

(c) a Dispute Notice.

Notice of Default means a notice from the Principal to the Contractor which:

(a) specifies the Default of the Contractor;

(b) specifies whether the Default is a Termination Default or a Relevant Default;



(c) in the case of a Termination Default - gives notice to the Contractor that the Principal may terminate this Agreement but that the Contractor has the right to make representations to the Principal under clause 28.2; and

(d) in the case of a Relevant Default - requires the Contractor to:

(1) remedy the Relevant Default; or

(2) otherwise implement procedures to overcome the Relevant Default in a manner acceptable to the Principal,

within the reasonable time specified in the notice which time must not be less than 2 Business Days after the service of the notice.

party means the Principal and the Contractor according to the context.

Power means each power and discretion of a party under this Agreement.

Principal Dispute Representative means the person appointed by the Principal as the Principal Dispute Representative under clause 26.

Principal Employee means:

(a) the Contract Manager and every employee, agent, representative, contractor or consultant of the Principal;

(b) but does not include the Contractor Representative or any Contractor Person.

Principal’s Property includes any property, real or personal, and chattels and improvements owned, used or occupied by the Principal or any person other than the Contractor in the Prison Building.

Prison means the prison to be constructed under the Construction Contract on the Site to be known as Acacia Prison, and includes:

(a) the Prison Building;

(b) the Prison Equipment; and

(c) the Site.

Prison Access Permit means a permit issued by the Contract Manager under clause 5, which permits a Contractor Person to enter the Prison to undertake Maintenance Work.

Prison Building means each building and permanent improvement on the Site.

Prison Cell means a secure unit of accommodation for occupation by a Prisoner or Prisoners including segregation units and secure units for occupation by a Prisoner or Prisoners.

Prison Certificate means a certificate issued by the Contract Manager that the Prison satisfies the Prison Requirement.

Prison Equipment means every item of:

(a) plant, equipment and fittings affixed to or forming part of the structure of the Prison Building or installed on the Site; but

(b) for the sake of completeness excludes furniture and other loose chattels, computers, computer equipment, office equipment, consumables, linen,



clothing, bedding and mattresses, provided by the Service Contractor for the Prison Service,

installed in, or at or within the Prison on the Commencement Date.

Prison Equipment Upgrade Schedule means the Schedule annexed and marked Annexure C.

Prison Requirement means the Prison is in all respects suitable for use and occupation as a prison.

Prison Service means the management, control and security of the Prison and the welfare of Prisoners at the Prison.

Prisoner means a person who is a "prisoner" within the definition contained in section 3 of the Prisons Act 1981.

Quality Plan means a written document which sets out in detail the procedures for undertaking and verifying the Maintenance Service to ensure that the Maintenance Service is undertaken in accordance with the provisions of this Agreement.

Quarter means the respective three monthly periods adopted by the Australian Bureau of Statistics for the compilation and issue of the CPI.

Record Place means the place where the Records are required to be kept by the Contractor as specified in clause 20.

Records means detailed, comprehensive and accurate records of all aspects of the Maintenance Work performed including:

(a) all documents relating to the Maintenance Work or otherwise referred to in this Agreement;

(b) photographic records as appropriate;

(c) quality system documents and records;

(d) quality assurance records and reports;

(e) manning and equipment records;

(f) time records; and

(g) all necessary supporting documents, invoices and records.

Relevant Default means:

(a) the Contractor is Insolvent; or

(b) the Contractor has committed a breach of a Contractor Obligation.

Schedule means the schedule to this Agreement.

Service Contractor means the person, including the State, who from time to time provides the Prison Service.

Services Agreement means the agreement known as the Services Agreement, dated 21 December 1999 made between Alan Piper, in his capacity as chief executive officer under the Prisons Act 1981 and the Contractor, under which the Contractor agrees to provide the Prison Service for the period of 5 years commencing on the Commencement Date.

Signature Date means the date of execution of this Agreement.



Site means the land situate at Wooroloo in the State as shown bounded by a thick black line on the Site Plan and including:

(a) the water main as shown on the Site Plan to its junction with the Water Corporation main; and

(b) the pipeline from the waster water treatment plant to the woodlots, which is not shown on the Site Plan.

Site Plan means the plan annexed and marked Annexure A.

Special Tools means:

(a) tools and equipment necessary or appropriate for the maintenance, servicing and repair of Prison Equipment; and

(b) spare parts for Prison Equipment.

State means the State of Western Australia.

Tax Invoice has the same meaning as in the GST Act.

Termination Default means:

(a) the identity of the persons who control, manage or own the Contractor or a Nominated Subcontractor change without the consent of the Principal; or

(b) the Contractor has committed a material breach of this Agreement.

Termination Notice means a notice in writing from:

(a) the Principal to the Contractor, under which the Principal gives notice to the Contractor that the Principal has elected to terminate this Agreement; or

(b) the Contractor to the Principal, under which the Contractor gives notice to the Principal that the Contractor has elected to terminate this Agreement.

Transfield means Transfield Pty Ltd.

2 Interpretation 2.1 Headings

Headings in this Agreement do not affect its interpretation.

2.2 Last day not a Business Day When the day or last day for doing an act is not a Business Day, the day or last day for doing the act will be the next following Business Day.

2.3 Joint and several covenants If a party comprises two or more persons, the covenants and agreements on their part bind and must be observed and performed by them jointly and each of them severally and may be enforced against any one or any two or more of them.

2.4 Reference to a Party Unless contrary to the sense or context, a reference to a party includes that party's executors, administrators, personal representatives, successors and assigns, and if



a party comprises two or more persons, the executors, administrators, personal representatives, successors and assigns of each of those persons.

2.5 Reference to other document Subject to any contrary provision in this Agreement, a reference to any other deed, agreement, instrument or contract includes a reference to that other deed, agreement, instrument or contract as amended, supplemented or varied from time to time.

2.6 Reference to a thing Reference to any thing (including any reference in a definition in clause 1) includes a reference to the whole and each part of that thing.

2.7 Reference to a clause or subclause Unless the context otherwise requires:

(a) reference to a clause is a reference to a clause of this Agreement; and

(b) a reference to a subclause is a reference to a subclause of the clause in which the reference occurs.

2.8 Singular, plural and gender Where applicable:

(a) words denoting the singular include the plural;

(b) words denoting the plural include the singular; and

(c) words denoting a gender include each gender.

2.9 Reference to a person and a body corporate Where applicable a reference to:

(a) a body corporate includes a reference to a natural person; and

(b) a person includes a natural person, corporation, partnership, joint venture association or other body corporate or unincorporated body, Government Agency or other legal entity.

2.10 Reference to body which ceases to exist Where:

(a) a reference is made to a body or association; and

(b) that body or association ceases to exist,

the reference to that body or association means a reference to the body or association which:

(c) is incorporated or established; or

(d) most nearly has the same object or purpose,

as the body or association which has ceased to exist and if subclauses (c) and (d) do not apply then the reference is to the body or association reasonably determined by the Principal.



2.11 Month Unless contrary to the sense or context, month means calendar month.

2.12 Governing Law This Agreement is governed by the laws of Western Australia. Each of the parties irrevocably submits to the exclusive jurisdiction of the courts of Western Australia.

2.13 Cost of and undertaking obligations Where a party is obliged to undertake a matter, that party must undertake the matter at the party’s expense, unless otherwise stated in this Agreement.

2.14 Continuing obligation Unless otherwise stated in this Agreement, any obligation under this Agreement will apply throughout the term of this Agreement.

2.15 Reference to comply with, permit, including, expiry and termination The expressions:

(a) “comply with” includes observe and perform;

(b) “permit” includes allow, permit or cause including by way of omission;

(c) “including” and similar words are not words of limitation;

(d) “termination of this Agreement” includes expiry of the Maintenance Period; and

(e) “expiry of the Maintenance Period” includes the termination of this Agreement.

2.16 Reference to Act or Legislative Requirement Reference to an Act or a Legislative Requirement includes all amendments, consolidations or replacements of that Act or Legislative Requirement and reference to a word or expression in an Act or a Legislative Requirement is a reference to that word or expression as amended or replaced.

2.17 Reference to the Principal and the State (a) The Principal has entered into this Agreement for and on behalf of the

State.

(b) Unless contrary to the sense or context, a reference to the Principal includes a reference to the State.

3 Engagement 3.1 Engagement of Contractor

The Principal appoints the Contractor, and the Contractor accepts the appointment by the Principal, to undertake the Maintenance Service for the Maintenance Period in accordance with the provisions of this Agreement.



3.2 Maintenance Fee Subject to the provisions of this Agreement, the Principal will pay the Contractor the Maintenance Fee for undertaking the Maintenance Work in accordance with the provisions of this Agreement.

3.3 Assumption of Risk by Contractor (a) The Contractor undertakes all the Maintenance Work entirely at the

Contractor’s own risk in all respects except as otherwise expressly provided in this Agreement.

(b) Subject to subclause (c), the Principal is not liable to the Contractor for any Loss incurred or suffered by the Contractor in respect to the Maintenance Work except to the extent that the Loss:

(1) is caused or contributed to by an act or omission of the Principal or a Principal Employee; and

(2) is not recoverable under the Contractor's insurance.

(c) If:

(1) the Contractor is able to recover under the Contractor’s insurance in respect of a matter specified in subclause (b); but

(2) the Contractor must pay an excess on the Contractor’s insurance as a consequence of an act or omission of the Principal or a Principal Employee,

the Principal must, to the extent the Loss was caused or contributed by the Principal or a Principal Employee, pay to the Contractor the amount of the excess.

3.4 Appointment of Nominated Subcontractor (a) Subject to subclauses (b) and (c), the Principal consents to the Contractor

subcontracting Maintenance Service, including the performance of the Maintenance Work, to a Nominated Subcontractor.

(b) The Contractor must, before entering into a subcontract with a Nominated Subcontractor, obtain the prior written consent of the Principal:

(1) as to the Nominated Subcontractor;

(2) as to the extent and the nature of the Maintenance Service which is to be subcontracted to the Nominated Subcontractor; and

(3) the form of the subcontract with the Nominated Subcontractor.

(c) The subcontract between the Contractor and the Nominated Subcontractor must include:

(1) a provision that the Nominated Subcontractor will not assign or subcontract any of the work to be undertaken by the Nominated Subcontractor under the subcontract without the written consent of the Principal;

(2) a provision that without the Principal’s prior written consent the Nominated Subcontractor must not deal with:

(A) the subcontract;



(B) the interest of the Nominated Subcontractor under the subcontract;

(C) except for money that has been paid to the Nominated Subcontractor under the subcontract - any money or payment under the subcontract;

(D) any other interest of the Nominated Subcontractor under the subcontract;

(3) a provision that without the prior written consent of the Principal the Nominated Subcontractor must not allow any change in the control, management or ownership of the Nominated Subcontractor;

(4) provisions which are necessary to enable the Contractor to fulfil each Maintenance Service which is the subject of the subcontract;

(5) a provision that the Nominated Subcontractor must effect and maintain the type of insurance to be maintained by the Contractor and on the same terms as are required of the Contractor under this Agreement;

(6) provisions requiring the Nominated Subcontractor to comply with relevant provisions of this Agreement and creating appropriate rights in favour of the Principal;

(7) a provision that the Nominated Subcontractor and the Contractor will not:

(A) vary the terms of the subcontract; or

(B) terminate the subcontract,

without the prior written consent of the Principal;

(8) a provision that if a Termination Notice is served under this Agreement:

(A) the Contractor and the Nominated Subcontractor will, if required by the Principal, promptly execute a deed of novation in a form to be approved by the Contract Manager; and

(B) the Contractor irrevocably appoints the Contract Manager to be the Contractor’s attorney to execute the documents as may be necessary for the purpose specified in subclause (c)(8) under which the Nominated Subcontractor agrees to undertake that part of the Maintenance Work:

(i) which is the subject of the subcontract between the Contractor and the Nominated Subcontractor; and

(ii) for the Principal in the terms of the subcontract between the Contractor and the Nominated Subcontractor ;

(d) The Principal’s consent to the subcontracting of Maintenance Service to the Nominated Subcontractor does not relieve the Contractor from any liability or obligation under this Agreement.



4 Maintenance Period 4.1 Appointment

Subject to clauses 4.2 and 4.3 the Contractor’s appointment will:

(a) commence on the Commencement Date;

(b) continue for the Maintenance Period; and

(c) subject to any early termination of this Agreement, expire on the expiry of the Maintenance Period.

4.2 Obligations prior to Commencement Date Despite clause 4.1 the Contractor must comply with all obligations of the Contractor which the Contractor is required to comply with prior to the Commencement Date.

4.3 Continuation of Maintenance Service (a) Unless the Principal otherwise directs, after the expiry of the Maintenance

Period:

(1) the Contractor will perform the Maintenance Service as if the Maintenance Period had been extended and the Maintenance Period will be treated as having been extended until that performance is terminated in accordance with subclause (a)(3) or otherwise in accordance with this Agreement;

(2) the Maintenance Service will be performed on the same provisions as in this Agreement, except that the Maintenance Fee will be paid on a monthly basis at an amount:

(A) agreed by the parties; or

(B) failing agreement, at an amount determined by the Contract Manager, subject to subclause (b),

but not being less than the monthly proportion, as has been adjusted in accordance with clause 15.2, of the Maintenance Expense for Maintenance Year 20 as specified in the Maintenance Fee Schedule; and

(3) unless otherwise agreed by the Principal and the Contractor, either party may terminate that performance by not less than 3 months’ prior notice to the other.

(b) If the Contractor disputes the amount determined by the Contract Manager under subclause (a)(2)(B), that dispute will be determined in accordance with the dispute resolution procedure in clause 26.

5 Contract Manager and Contractor’s Representative 5.1 Instructions from Contract Manager only

Unless otherwise provided by this Agreement, the Contractor will take directions from the Contract Manager only.



5.2 Appointment of the Contract Manager (a) The Principal must:

(1) not later than 10 Business Days prior to the Anticipated Commencement Date, appoint a natural person as the Contract Manager; and

(2) ensure that a natural person is at all times during the Maintenance Period appointed as the Contract Manager.

(b) The Principal will promptly notify the Contractor of:

(1) the name, contact telephone number, facsimile number and address of the Contract Manager; and

(2) any change to the person who is the Contract Manager, including any change of contact telephone number, facsimile number and address.

5.3 Agent of the Principal (a) The Contract Manager is the agent of the Principal to exercise the powers

and functions allocated to the Contract Manager under this Agreement.

(b) The Principal will be liable for the conduct of the Contract Manager in exercising the powers and functions of the Contract Manager under this Agreement.

5.4 Contract Manager to act reasonably (a) Subject to subclause (b), the Principal must ensure that in the exercise of

the powers and functions of the Contract Manager, including the giving of certificates and directions, the Contract Manager acts reasonably.

(b) Subclause (a) does not apply to a decision made or to be made by the Contract Manager under a provision of this Agreement where the Contract Manager is entitled to exercise an absolute discretion.

5.5 Functions of the Contract Manager (a) The Contract Manager will be the first point of contact for the Contractor

with the Principal.

(b) Without limiting the Contract Manager’s powers or functions, the Contract Manager:

(1) will, subject to the restrictions as to access by reason of operational or safety issues, be entitled to access to that part of the Prison where Maintenance Work is being undertaken, and at the time when Maintenance Work is being undertaken;

(2) has access to any place outside the Site where the Maintenance Work is being carried out or material is being prepared or stored;

(3) may test and examine any materials or workmanship to be used or used by the Contractor in connection with the Maintenance Work; and

(4) has all other powers express or implied by the provisions of this Agreement.



5.6 Appointment of Contract Manager Assistant (a) The Principal or the Contract Manager must appoint one or more persons

to assist the Contract Manager in the exercise of the Contract Manager’s functions under this Agreement.

(b) The Contract Manager will promptly notify the Contractor of:

(1) the name, contact telephone number, facsimile number and address of each Contract Manager Assistant; and

(2) any change in respect of a Contract Manager Assistant, including any change of a contact telephone number, facsimile number and address.

(c) Any direction given by the Contract Manager Assistant within the scope of the powers and functions of the Contract Manager will be treated as having been given by the Contract Manager.

5.7 Appointment of Contractor Representative The Contractor must not later than 10 Business Days prior to the Anticipated Commencement Date, appoint a natural person as the Contractor Representative, being a person to exercise the Contractor’s functions under this Agreement for the Maintenance Period.

5.8 Notification of Contractor Representative The Contractor must promptly notify the Principal in writing of:

(a) the name, contact telephone number, facsimile number and address of the Contractor Representative; and

(b) any change to the person who is the Contractor Representative, including any change of contact telephone number, facsimile number and address.

5.9 Authority of Contractor Representative The Contractor Representative:

(a) is the Contractor’s agent for the purpose of doing any thing to be done under this Agreement; and

(b) has authority to make and give, or accept, on the Contractor’s behalf, any approvals, acceptances, directions, notices and other decisions that the Contractor must make, give or accept under this Agreement.

5.10 Knowledge of Contractor Representative All matters known to the Contractor Representative will be treated as being known to the Contractor.

5.11 Appointment of Contractor Representative Assistant (a) The Contractor must appoint one or more persons as the Contractor

Representative Assistant to assist the Contractor Representative in the exercise of the Contractor Representative functions under this Agreement.

(b) The Contractor Representative must promptly notify the Contract Manager of:



(1) the name, contact telephone number, facsimile number and address of each Contractor Representative Assistant; and

(2) any change in respect of a Contractor Representative Assistant, including any change to a contact telephone number, facsimile number or address of a Contractor Representative Assistant.

(c) Any powers or functions exercised by the Contractor Representative Assistant will be treated as having been exercised by the Contractor Representative.

(d) Any matter known to a Contractor Representative Assistant will be treated as being known to the Contractor Representative.

5.12 Availability of Contractor Representative (a) The Contractor must ensure that the Contractor Representative, and each

Contractor Representative Assistant, is:

(1) an appropriate, experienced representative;

(2) when necessarily required, or when required by the Contract Manager, present on the Site during the carrying out of the Maintenance Work; and

(3) available on a 24 hour 365 day basis (366 days in a leap year) to act on behalf of the Contractor in respect of matters arising under this Agreement.

(b) If, for any reason, the Contractor Representative is not available to act on behalf of the Contractor in respect of matters arising under this Agreement, a Contractor Representative Assistant must be available to act in respect of those matters on behalf of the Contractor.

5.13 Replacement If the Principal makes a reasonable objection to the appointment of any particular person as the Contractor Representative or as the Contractor Representative Assistant, the Contractor must terminate the appointment and appoint another person to that position.

5.14 Dispute about Contract Manager’s decision If there is a Dispute about any decision of the Contract Manager, the Dispute is to be resolved in accordance with the procedures in clause 26.

6 Maintenance Obligation - General 6.1 General Obligation

(a) From the Commencement Date and throughout the Maintenance Period, the Contractor must maintain the Prison and the Prison Equipment:

(1) subject to reasonable fair wear and tear, in substantially the same state of repair and condition as the Prison Building and the Prison Equipment were in on the Commencement Date; and

(2) in accordance with Best Industry Practice.



(b) The intention of:

(1) the Principal and the Contractor; and

(2) as expressed under subclause (a),

is that the Contractor must maintain the Prison and the Prison Equipment in a manner so that the Prison may be used as a medium security prison for male prisoners on a 24 hour 365 day basis (366 days in a leap year) with the following specific requirements which apply in respect of the Prison, being continuous operation and use of the Prison and the Prison Equipment to enable:

(3) the security of the Prison;

(4) the welfare of the Prisoners and persons working in or visiting the Prison; and

(5) the reparation and rehabilitation of the Prisoners.

6.2 Suitable Personnel The Contractor must use the Contractor’s best endeavours to ensure that each Contractor Person engaged in the performance of the Maintenance Work is only a person who:

(a) is properly qualified for the task that person is to perform; and

(b) will act, in all the circumstances, in a fit and proper manner.

6.3 Standard of Maintenance Work The Contractor must undertake the Maintenance Work so as to not adversely affect the Service Contractor’s undertaking of the Prison Service in accordance with the Service Contractor’s obligations under the Services Agreement.

6.4 Other issues relating to general obligation (a) The Principal and the Contractor acknowledge that the Service Contractor

will be responsible for undertaking all necessary day to day maintenance, cleaning and gardening required to maintain the Prison in a neat, clean and tidy condition under the Services Agreement.

(b) The:

(1) Prison was designed by the Contractor; and

(2) Construction Contractor is undertaking the construction of the Prison,

with the intention and on the basis that the Prison was designed and constructed so that the Prison will be:

(3) subject to proper maintenance, fully operational as a prison for 20 years from the Commencement Date and thereafter for a further period of 30 years; and

(4) during the period specified in subclause (b)(3), fit for use as a prison having regard to the standards applicable as at the Signature Date.



(c) Following subclause (b) the basis upon which the Contractor was awarded the contract for the design and construction of the Prison was that the design and construction of the Prison would be to a standard where the Prison would effectively operate as a prison throughout the Maintenance Period, subject to appropriate maintenance as specified in this Agreement.

6.5 Access to the Prison and the Site (a) The Contractor acknowledges that as at the Commencement Date:

(1) and throughout the Maintenance Period, the Prison will, subject to increases and reductions, be used as a medium security prison for 750 male Prisoners; and

(2) the Contractor is the contractor who provides the Prison Service under the Services Agreement.

(b) Access to the Prison during the Maintenance Period and in particular, access to the Prison by the Contractor and any Nominated Subcontractor to undertake the Maintenance Work, will be subject to restrictions and conditions as imposed by the Service Contractor.

(c) The Contractor acknowledges that:

(1) restrictions and conditions as to access to the Prison for Maintenance Work will be required for the purpose of:

(A) the proper security of the Prison; and

(B) the welfare of the Prisoners and persons working in or visiting the Prison; and

(2) if after the Commencement Date a person other than the Contractor is the Service Contractor, the Contractor will be required to arrange access to the Prison for Maintenance Work with that person but, in those circumstances, the Principal will use the Principal’s reasonable endeavours to ensure that that other person facilitates the rights of the Contractor under this Agreement.

(d) Subject to:

(1) the provisions of subclauses (b) and (c); and

(2) any restrictions that the Principal may impose from time to time, in the absolute discretion of the Principal,

the Principal grants to the Contractor a right of access to the Prison, which right will be exercised in conjunction with the occupation of the Prison by the Service Contractor, during the Maintenance Period, to enable the Maintenance Work to be undertaken.

7 Maintenance manual 7.1 Proposed Maintenance Manual

(a) At least 3 months prior to the Anticipated Commencement Date, the Contractor must prepare and submit to the Principal, for approval, a maintenance manual which sets out a detailed programme for the:



(1) regular inspection of the Prison Building and the Prison Equipment;

(2) regular maintenance and servicing of the Prison Equipment;

(3) replacement of Prison Equipment as a result of:

(A) Prison Equipment reaching the end of its useful operating life; or

(B) the unavailability of spare parts; and

(4) repair of the structure of the Prison Building, including all aspects of the structure and the roof, and including plumbing, toilet and water supply fittings including showers and taps, windows, doors, and in particular cell doors,

to enable the Contractor’s compliance with the requirements of this Agreement.

(b) When submitting the Contractor’s maintenance manual in accordance with subclause (a), the Contractor must notify the Principal in writing of the obligation of the Principal under clause 7.3 to approve, or not approve, the maintenance manual within 20 Business Days of delivery to the Principal.

7.2 Content of maintenance manual The Contractor’s maintenance manual must specify in detail:

(a) procedures to ensure that the Maintenance Work is undertaken in accordance with Best Industry Practice;

(b) mechanisms for meeting all requirements with regard to the Maintenance Work;

(c) the basis of the undertaking of the Maintenance Work, including tests and procedures to ensure that the Maintenance Work has been undertaken in accordance with the provisions of this Agreement, and in particular, that:

(1) following maintenance, servicing or repair, Prison Equipment is operating correctly and satisfactorily; and

(2) following repair to the structure of the Prison Building, that the repair has been effective;

(d) the schedule for the regular servicing and maintenance of Prison Equipment; and

(e) actions to be taken when:

(1) Prison Equipment fails to operate; or

(2) repairs are required to the structure of the Prison Building,

as required under this Agreement.

7.3 Approval (a) The Principal must notify the Contractor within 20 Business Days of

receipt of the Contractor's maintenance manual as to whether or not the Principal approves the Contractor's maintenance manual as submitted by the Contractor.



(b) If the Principal does not approve the Contractor’s maintenance manual within the period of 20 Business Days specified in subclause (a) the Principal must, on or before the expiration of the 20 Business Day period, notify the Contractor of the reason the Principal does not approve the maintenance manual.

7.4 Non Approval If the Principal notifies the Contractor under clause 7.3(b) that the Principal does not approve the Contractor’s maintenance manual, then within 20 Business Days from the Principal’s notification under clause 7.3(b), the Contractor must either:

(a) submit a new or amended maintenance manual and this clause will apply to any new or amended maintenance manual submitted; or

(b) notify the Principal in writing that the Contractor does not wish to vary the Contractor's maintenance manual submitted in the manner required to satisfy the Principal, in which case:

(1) the Contractor and the Principal must meet within a further period of 10 Business Days and negotiate in good faith and use all reasonable endeavours to resolve the aspect which has not been approved by the Principal; and

(2) if the Principal and the Contractor are not able to resolve the relevant aspect within a further 10 Business Days, the requirements of the Principal will prevail.

7.5 Obligation Not Affected No:

(a) review that may be undertaken of the Contractor's maintenance manual; or

(b) comment, assent, approval or suggestion given by or on behalf of the Principal in relation to that maintenance manual,

relieves the Contractor of the Contractor Obligation.

7.6 Cost The cost of producing the maintenance manual, including 3 copies for the Principal, must be paid by the Contractor.

7.7 Status once approved If the Principal approves the Contractor's maintenance manual then that maintenance manual will become and be known as the Contractor's approved maintenance manual for the purpose of undertaking the Maintenance Work and otherwise for the purposes of this Agreement.

7.8 Compliance The Contractor:

(a) must undertake all Maintenance Work strictly in accordance with the Contractor's approved maintenance manual; and

(b) must not depart from the Contractor's approved maintenance manual except with the Principal's prior written consent or as required by law.



7.9 No Variation The Contractor must not update or vary the contents of the Contractor's approved maintenance manual without the Principal's prior written consent.

7.10 Variations by the Principal The Principal may from time to time, to ensure compliance with the Contractor Obligation, require revisions or variations to the Contractor’s approved maintenance manual, and the Contractor must comply with:

(a) the Principal’s requirements; and

(b) the requirements of the Contractor’s approved maintenance manual as revised or varied.

7.11 Inconsistency If there is any inconsistency between the provisions of:

(a) the Contractor’s approved maintenance manual; and

(b) the provisions of this Agreement,

then the provisions of this Agreement will apply unless the Contract Manager otherwise agrees in writing.

8 Maintenance Obligation - Prison Building and Structures 8.1 Contractor to Maintain

(a) Subject to clause 6, the Contractor must keep and maintain:

(1) everything on and within the Site; and

(2) including the Prison Building,

in good and proper repair and condition and working order so that the Prison is capable of being continuously operated as a Prison.

(b) Without affecting subclause (a), but subject to clause 6, the Contractor must:

(1) maintain the Prison Building including:

(A) all roads and car parks within the Site;

(B) without affecting subclause (b)(1)(A) - the road from Great Eastern Highway to the secure perimeter of the Prison;

(C) the effluent disposal system applicable to the Prison (being the waste water treatment plant);

(D) the woodlots;

(E) the dams on, within or associated with the Site, and all pumping, piping and irrigation equipment in respect of the passage of water or liquids including maintenance of the pipes, pumps, and other ancillary equipment;

(F) the water main, as shown on the Site Plan from the Water Corporation main;



(G) the Prison walls, plumbing, plumbing fittings, electrical and gas pipes, wires and fittings, locks and hinges for doors, fences, light towers, roofs, gutters and downpipes, cells and secure access areas; and

(H) the fence on the perimeter of the Site,

in good and sound structural repair and condition and working order ensuring that all enclosed parts of the Prison Building are waterproof and windproof and capable of being continuously operated as a Prison;

(2) maintain the area of the Site which is not developed, including keeping and maintaining all landscaping and gardens on the Site, properly tendered and maintained, and all other areas in a neat and tidy condition;

(3) maintain the decoration of the Prison Building in substantially the same condition as at the Commencement Date; and

(4) when necessary, replace any components of the Prison Building, including the roof.

(c) The Contractor acknowledges that:

(1) the Principal and the State are entitled to use the road from Great Eastern Highway, to the secure perimeter of the Prison, for access to land adjacent to the roadway; and

(2) the use of the road from the Great Eastern Highway to the secure perimeter of the Prison by the Principal or by the State will not affect the maintenance obligation of the Contractor under this Agreement in respect of that road.

(d) At the time when necessary the Contractor must replace any part of the structure of the Prison Building, including in particular the roof and undertake preventative maintenance and repair.

8.2 No alterations The Contractor must not make or permit to be made any alterations or additions to:

(a) the Prison; or

(b) the Prison Building or the Prison Equipment,

without the Principal's prior written consent.

8.3 Painting Without affecting the obligation of the Contractor under clause 8.1, but subject to clause 6.4(a), the Contractor must arrange for the walls, ceilings and all other parts of the Prison which have at any time previously been painted, to be painted when necessary and no later than at 5 year intervals calculated from the Commencement Date, and also during the last year of the Maintenance Period:

(a) with not less than two coats of high quality paint;

(b) in a proper and workmanlike manner;



(c) in accordance with Best Industry Practice; and

(d) in colours approved by the Principal (which approval the Principal must not unreasonably withhold).

8.4 Prison Building Upgrade (a) In making a submission in connection with the Maintenance Service the

Contractor proposed that:

(1) as part of the Maintenance Service there would, at appropriate times, be an upgrade of the Prison Building during the Maintenance Period to ensure and enable the continued use of the Prison for the Prison Service; and

(2) payment of the Maintenance Fee would make allowances on a cash flow basis for payment for the Prison Building Upgrade.

(b) Following subclause (a), the Maintenance Fee Schedule incorporates provisions for payment of an amount on account of the upgrade of the Prison Building:

(1) as a separate expense; and

(2) in the relevant Maintenance Years,

as specified in the Maintenance Fee Schedule.

(c) Prior to the relevant Maintenance Year in which an upgrade of the Prison Building is specified as a separate expense in the Maintenance Fee Schedule, the Contractor must submit to the Principal for approval and agreement by the Principal particulars of the Prison Building upgrade which the Contractor proposes to undertake as part of the Maintenance Service in the relevant Maintenance Year.

(d) If there is:

(1) no approval or agreement by the Principal as contemplated by subclause (c); or

(2) a dispute as to the proposed Prison Building upgrade work to be undertaken; or

(3) any other dispute in respect of subclause (c),

that matter or issue will be resolved in accordance with clause 26.

(e) The Principal and the Contractor may agree in writing to bring forward or defer:

(1) work, or part of work, relating to a Prison Building upgrade which is specified to take place in a relevant Maintenance Year; and

(2) payment of the relevant amount, or a part of the relevant amount, of the Maintenance Fee, which is specified in a relevant Maintenance Year to apply in respect of a Prison Building upgrade.

(f) The provisions of this clause do not affect the overall obligation of the Contractor to undertake the maintenance of the Prison Building as specified in the relevant provisions in this Agreement, and in particular in clauses 6 and 8.1.



9 Plant and Prison Equipment 9.1 Contractor to maintain

(a) Subject to clause 6 the Contractor must:

(1) keep each item of Prison Equipment in good and sound order, repair and condition;

(2) ensure that every item of Prison Equipment functions and performs according to the required specification, being not less than the specification applicable as at the Commencement Date;

(3) arrange the regular servicing and maintenance of each item of Prison Equipment; and

(4) when necessary, promptly replace every item of Prison Equipment which becomes worn out, inefficient or unserviceable.

(b) Without affecting the provisions of subclause (a), the Contractor must throughout the Maintenance Period:

(1) ensure that every item of Prison Equipment functions properly, so as to enable the proper operation of the Prison, including:

(A) the proper security of the Prison,

(B) the welfare of Prisoners and persons working in or visiting the Prison, and

(C) the reparation and rehabilitation of the Prisoners; and

(2) as appropriate, undertake relevant inspections of the Prison Equipment and, when necessary, undertake preventative maintenance and repair.

9.2 Maintenance contracts (a) Where the Contractor does not have the relevant expertise to undertake a

part of the Maintenance Work, the Contractor must enter into maintenance contracts for that part of the Maintenance Work with experienced and reputable subcontractors consented to by the Principal, which consent the Principal must not unreasonably withhold.

(b) Any consent of a subcontractor by the Contract Manager under subclause (a) does not relieve the Contractor of responsibility for the work of the subcontractor.

9.3 Prison Equipment Upgrade and/or Replacement (a) In making a submission in connection with the Maintenance Service the

Contractor proposed that:

(1) as part of the Maintenance Service there would, at appropriate times, be an upgrade or replacement of Prison Equipment to ensure and enable the continued use of the Prison for the Prison Service; and



(2) payment of the Maintenance Fee would make allowances on a cash flow basis for payment for the upgrade and replacement of Prison Equipment.

(b) Following subclause (a):

(1) the Prison Equipment Upgrade Schedule shows particulars of the Prison Equipment which it is proposed will be subject to upgrade or replacement; and

(2) the Maintenance Fee Schedule shows, as a separate item, in the relevant Maintenance Year when the upgrade or replacement of Prison Equipment is to take place, a specified amount for the upgrade or replacement of Prison Equipment which is part of the Maintenance Fee.

(c) Prior to the relevant Maintenance Year in which an upgrade or replacement of Prison Equipment is scheduled to be undertaken as shown in:

(1) the Prison Equipment Upgrade Schedule; and

(2) the Maintenance Fee Schedule,

the Contractor must submit to the Principal for approval and agreement by the Principal particulars of the replacement or upgrade of Prison Equipment which the Contractor proposes to undertake as part of the Maintenance Service in the relevant Maintenance Year.

(d) If there is:

(1) no approval or agreement by the Principal as contemplated by sub clause (c); or

(2) a dispute as to the proposed work to be undertaken in respect of the replacement or upgrade of Prison Equipment; or

(3) any other dispute in respect to sub clause (c),

that issue will be determined in accordance with clause 26.

(e) The Principal and the Contractor may agree in writing to bring forward or defer:

(1) Prison Equipment replacement and upgrade work, or part of the Prison Equipment replacement or upgrade work, which is specified to take place in a relevant Maintenance Year; and

(2) payment of the relevant amount, or part of that relevant amount, of the Maintenance Fee which is specified to apply to the upgrade or replacement of Prison Equipment for a Maintenance Year in respect of which the Prison Equipment Upgrade Schedule shows that there will be the replacement or upgrade of Prison Equipment.

(f) The provisions of this clause do not affect the obligation of the Contractor in respect to the continuing maintenance of the Prison Equipment under the relevant provisions in this Agreement, and in particular, in accordance with clauses 6 and 9.1.



10 Restriction on access to Prison - Contractor Person 10.1 Restriction of access

After the Commencement Date, no Contractor Person may enter the Prison to undertake Maintenance Work, unless the Contractor Person:

(1) holds a valid Prison Access Permit; and

(2) complies with all other requirements of the Principal.

10.2 Application for Prison Access Permit (a) The Contractor must provide to the Contract Manager the following details

of each Contractor Person who it is anticipated will require to enter the Prison after the Commencement Date for the purpose of undertaking Maintenance Work.

(1) Full name.

(2) Date of birth.

(3) Residential address.

(4) Business address.

(5) Nature of the work which the Contractor Person will be undertaking.

(6) 4 passport size photographs, if required by the Contract Manager.

(b) The Contractor must also provide to the Contract Manager any other details or particulars required by the Contract Manager to determine whether or not to issue a Prison Access Permit to a Contractor Person.

(c) The Contractor must, not later than 2 months prior to the Anticipated Commencement Date, lodge applications with the Contract Manager for a Prison Access Permit for each Contractor Person whom the Contractor anticipates will be required to undertake Maintenance Work in the Prison after the Commencement Date.

(d) After the period specified in subclause (c) the Contractor must, as soon as practicable after the Contractor is aware that a Prison Access Permit is required for a Contractor Person, submit an application to the Contract Manager for a Prison Access Permit for that person, in accordance with the provisions of subclauses (a) and (b).

10.3 Issue of Prison Access Permit Following the lodgement of an application for a Prison Access Permit, the Contract

Manager must, as soon as practicable:

(a) advise the Contractor whether a Prison Access Permit has been approved for the relevant Contractor Person; and

(b) if an application for a Prison Access Permit is approved:

(1) issue the Prison Access Permit; and

(2) provide the Prison Access Permit to the Contractor.



10.4 Custody and issue of Prison Access Permit to Contractor Person (a) The Contractor must:

(1) retain each Prison Access Permit issued to the Contractor for a Contractor Person under this clause; and

(2) arrange for a Prison Access Permit to be issued to a Contractor Person only when the Contractor Person is required to undertake Maintenance Work within the Prison.

(b) Following the completion of Maintenance Work by a Contractor Person, the Contractor must:

(1) use reasonable endeavours to obtain from that Contractor Person; and

(2) must thereafter retain,

the Prison Access Permit issued to that Contractor Person.

10.5 Withdrawal of Prison Access Permit (a) The Contract Manager may give notice to the Contractor that the Contract

Manager has determined in the Contract Manager’s absolute discretion to withdraw a Prison Access Permit from a Contractor Person.

(b) Where the Contract Manager gives a notice under subclause (a):

(1) each Prison Access Permit, the subject of the notice under subclause (a), will be treated as having been withdrawn and cancelled; and

(2) the Contractor must promptly return to the Contract Manager each Prison Access Permit for a Contractor Person who is the subject of the notice under subclause (a).

10.6 Compliance with other requirements (a) The Contractor and each Contractor Person must comply with all other

requirements of the Principal in respect to:

(1) access to the Prison; and

(2) the undertaking of the Maintenance Work within the Prison.

(b) Without affecting the provisions of subclause (a), the Contractor must ensure that each Contractor Person must:

(1) not wear bottle green clothing or other clothing which is similar to clothing worn by Prisoners;

(2) not take two-way radio communication into the Prison;

(3) ensure, as far as that is practicable, that all tools are secured in a lockable carrier;

(4) account for all tools taken into the Prison and report immediately any loss of tools while within the Prison; and

(5) be familiar with and comply with all of the requirements of the Principal in respect of access to and the undertaking of maintenance work within the Prison.



11 Survey and inspection by Principal 11.1 Annual program

(a) The Contractor must submit to the Contract Manager not less than 1 month prior to each anniversary of the Commencement Date, the Contractor’s program for the following 12 month period commencing on the anniversary of the Commencement Date, for all Maintenance Work to be undertaken during that following 12 month period.

(b) Following receipt of the Contractor’s program in accordance with subclause (a) the Contract Manager may direct the Contractor to modify the program to ensure compliance with a provision of this Agreement.

(c) None of the following will affect any Contractor Obligation:

(1) the provision of the program under subclause (a);

(2) a direction under subclause (b); or

(3) no comment by the Contract Manager on the program submitted under subclause (a).

(d) Subject to subclauses (e) and (f), the Principal acknowledges that the failure by the Contractor to undertake any Maintenance Work which is specified to be undertaken in accordance with an annual program will not constitute failure by the Contractor to undertake Maintenance Work as required under this Agreement.

(e) The provisions of subclause (d) will not apply unless the Contractor establishes to the reasonable satisfaction of the Principal that:

(1) there is no requirement to undertake a matter specified in the annual program; and

(2) the fact that that matter is not undertaken will not result in a breach by the Contractor of the Contractor Obligation.

(f) The provisions of subclause (d) do not:

(1) apply to the failure by the Contactor to comply with a direction of the Contract Manager under subclause (b); and

(2) affect the obligation of the Contractor to undertake all necessary Maintenance Work as required under this Agreement.

11.2 Asset management survey (a) The Principal may conduct, at the cost of the Principal, an asset

management survey for the purpose of determining the physical condition and state of maintenance of the Prison Building and the Prison Equipment:

(1) on or about 3 years after the Commencement Date; and

(2) thereafter on or about the expiration of each period of 2 years during the Maintenance Period.

(b) The Principal must notify the Contractor of the date the Principal intends to inspect the Prison Building and the Prison Equipment for the purpose of an asset management survey by not less than 5 Business Days notice in writing to the Contractor.



(c) The purpose of the asset management survey will be to:

(1) determine whether the Maintenance Work has been undertaken to the standard and in the manner required under this Agreement; and

(2) establish the basis for ensuring that after the completion of the inspection and the asset management survey, Maintenance Work is undertaken to the standard and in the manner required under this Agreement.

(d) Following an inspection and survey under subclause (a), the Principal:

(1) will prepare a written report concerning the inspection and survey; and

(2) provide to the Contractor a copy of the written report prepared in accordance with subclause (d)(1).

(e) Either party may, after the provision of the written report specified in subclause (d), convene a meeting with the other party to discuss issues arising from the written report.

(f) If a party requires a meeting in accordance with subclause (e), the other party must attend a meeting on a date and at a time reasonably specified by the party calling the meeting.

11.3 Inspection (a) The Principal may, subject to subclause (g), on not more than two

occasions in each Maintenance Year, undertake a formal inspection of the Prison Building and the Prison Equipment for the purpose of establishing whether Maintenance Work has been, or is being undertaken, in a manner and to the standard required under this Agreement.

(b) Not later than 5 Business Days prior to an inspection as specified in subclause (a) the Principal must notify the Contractor of the date on which the inspection under subclause (a) is to take place.

(c) The Contractor may accompany the Principal on an inspection under subclause (a).

(d) Following an inspection under subclause (a), the Principal:

(1) will prepare a written report concerning the inspection; and

(2) provide to the Contractor a copy of the written report prepared in accordance with subclause (d)(1).

(e) Either party may, after the provision of the written report specified in subclause (d), convene a meeting with the other party to discuss issues arising from the written report.

(f) If a party requires a meeting in accordance with subclause (e), the other party must attend a meeting on a date and at a time reasonably specified by the party calling the meeting.

(g) The Principal may, subject to the provisions of subclauses (b) to (f), elect to undertake a formal inspection on more than two occasions in a Maintenance Year.



11.4 Co-ordination of inspections As far as practicable the inspections required under clauses 11.2 and 11.3 will be undertaken at the same time to minimise disruption to the activities of the Contractor.

11.5 Contractor Obligation not affected No:

(a) inspection; or

(b) report prepared; or

(c) comment,

by the Contract Manager or the Principal following an inspection and report under clauses 11.2 or 11.3 will affect any Contractor Obligation.

11.6 Maintenance Work not undertaken (a) Subject to clause 11.1 and to subclause (b), if the Contractor fails to

undertake any Maintenance Work required to be undertaken under this Agreement the Principal may, without prejudice to any other right of the Principal under this Agreement, elect to:

(1) undertake that Maintenance Work; or

(2) engage another person to undertake that Maintenance Work,

and the cost of that Maintenance Work will, subject to the further provisions of this subclause, be a debt due by the Contractor to the Principal.

(b) Except in the case of an emergency when no notice will be required, the Principal must not:

(1) undertake Maintenance Work, or

(2) engage another person to undertake the Maintenance Work,

under subclause (a) without first giving to the Contractor a notice:

(3) specifying the Maintenance Work which has not been undertaken; and

(4) stating that if the Contractor does not undertake the Maintenance Work specified in subclause (b)(3) within the period of 10 Business Days or any longer or shorter period as is appropriate in the circumstances and specified in the notice, the Principal may:

(A) undertake the Maintenance Work; or

(B) engage another person to undertake the Maintenance Work,

specified in subclause (b)(3).

(c) Where the Principal undertakes Maintenance Work under this clause the Principal may, at the election of the Principal:

(1) deduct the cost incurred by the Principal in undertaking the Maintenance Work from any money which is payable to the Contractor under this Agreement, including any instalment of the



Maintenance Fee or by applying the Maintenance Performance Guarantee; or

(2) require the Contractor to pay the cost incurred by the Principal in which event the cost incurred by the Principal in undertaking the Maintenance Work will be treated as a liquidated debt due and payable by the Contractor to the Principal on demand.

11.7 Withdrawal of Cell Certificate (a) It is acknowledged that as at the Commencement Date a Cell Certificate

will be issued for each Prison Cell.

(b) If during the Maintenance Period the Contract Manager determines that a Prison Cell does not comply with the Cell Requirement the Contract Manager may withdraw the Cell Certificate for that Prison Cell.

(c) If the Contract Manager withdraws a Cell Certificate under subclause (b) the Contract Manager will not issue a Cell Certificate for that Prison Cell until all necessary Maintenance Work to that Prison Cell has been undertaken and the Prison Cell satisfies the Cell Requirement.

(d) Where the Contract Manager withdraws a Cell Certificate the Contract Manager must give notice in writing to the Contractor of, and reason for, the withdrawal of the Cell Certificate.

(e) Where:

(1) a Cell Certificate has been withdrawn; and

(2) the Contract Manager has determined to issue a new Cell Certificate for a Prison Cell where a Cell Certificate has been withdrawn,

the Contract Manager must give notice in writing to the Contractor of the issue of the Cell Certificate for that Prison Cell.

11.8 Withdrawal of Prison Certificate (a) It is acknowledged that as at the Commencement Date a Prison Certificate

in respect of 750 Available Prisoner Places will have been issued for the Prison.

(b) If during the Maintenance Period the Contract Manager determines that the Prison does not satisfy the Prison Requirement the Contract Manager may:

(1) withdraw the Prison Certificate; or

(2) amend or re-issue the Prison Certificate in respect of a reduced number of Available Prisoner Places.

(c) If the Contract Manager withdraws the Prison Certificate under subclause (b) the Contract Manager will not issue a Prison Certificate for the Prison until all necessary Maintenance Work has been undertaken so that the Prison meets the Prison Requirement and on completion of that Maintenance Work, the Contract Manager must issue a Prison Certificate in accordance with subclause (e).

(d) Where the Contract Manager withdraws, amends or re-issues the Prison Certificate, the Contract Manager must give notice in writing to the



Contractor of, and reasons for, the withdrawal, amendment or re-issue of the Prison Certificate.

(e) Where:

(1) the Prison Certificate has been withdrawn; and

(2) the Contract Manager determines to issue a new Prison Certificate,

the Contract Manager must:

(3) issue a new Prison Certificate; and

(4) notify the Contractor of the issue of the new Prison Certificate.

(f) This clause does not limit the rights of the Principal under clause 15.10.

12 Destruction of or damage to Prison 12.1 Suspension of Obligations

(a) If the Prison is destroyed or damaged during the Maintenance Period so as to render the Prison or any part of the Prison unfit for occupation and use or inaccessible then the following will apply:

(1) the Contractor's Obligations will be suspended or modified to the extent to which they cannot be fully and properly performed as a consequence of the destruction or damage; and

(2) the Principal's obligation to pay the Maintenance Fee will be suspended or modified according to the nature and extent of the destruction or damage.

(b) The provisions of subclause (a) do not affect any liability of the Contractor to the Principal for damage or destruction arising from a Default by the Contractor or a failure by the Contractor to undertake Maintenance Work as required under this Agreement.

12.2 Substantial Destruction If in the reasonable opinion of the Principal, the destruction of or damage to the Prison:

(a) affects 50% or more of the Available Prisoner Places which were available immediately prior to the damage or destruction; or

(b) renders 50% or more of the Prison Cells which were available immediately prior to the damage or destruction unusable; or

(c) is otherwise likely to detract substantially from the Contractor's ability to perform the Maintenance Work for more than 3 months,

the Principal may, by notice in writing to the Contractor, elect to terminate this Agreement.



13 Expansion of the Prison 13.1 Principal may instigate expansion

The Principal may request the Contractor during the Maintenance Period to undertake Construction Expansion Work.

13.2 Contractor must permit or undertake Expansion Work Subject to clause 13.3, it is acknowledged that:

(a) the Principal may make a request under clause 13.1;

(b) if the Contractor agrees to comply with the request referred to in subclause (a) the Contractor must not commence or undertake the Construction Expansion Work unless the parties reach agreement on the terms and conditions for the performance of the work associated with the request, including payment for the Contractor carrying out the Construction Expansion Work and any variation of the Maintenance Fee for the expanded Prison; and

(c) if the parties cannot reach agreement on the terms and conditions referred to in subclause (b), the Principal may contract with another contractor to carry out the Construction Expansion Work in place of the Contractor.

13.3 Principal may make alternative construction arrangements for Expansion Work Despite any other provision in this clause:

(a) the Principal is not obliged to request the Contractor undertake any Construction Expansion Work;

(b) the Principal is entitled to call for tenders or contract with other parties to carry out Construction Expansion Work; and

(c) the Contractor is entitled to submit a tender to the Principal in response to an invitation for tenders referred to in subclause (b).

13.4 Co-operation with other Contractor If Construction Expansion Work is undertaken by a person other than the Contractor, the Contractor must reasonably co-operate with:

(a) the other contractor; or

(b) any sub-contractor, consultant or employee of the other contractor,

who undertakes the Construction Expansion Work.

14 Obligation on termination 14.1 General obligation on termination

On the expiry of the Maintenance Period, or on the earlier termination of this Agreement, the Contractor must ensure that the Prison Building and Prison Equipment are in a state and condition consistent with full performance by the Contractor of the Contractor Obligation.



14.2 Removal of property Subject to Clause 14.3 on the expiry of the Maintenance Period or on the earlier termination of this Agreement, the Contractor must:

(a) remove from the Site all items of property which are owned by the Contractor or were brought into the Prison by the Contractor for the purpose of the Contractor undertaking the Contractor Obligations; and

(b) if applicable, make good any damage caused to the Prison on removal of the property specified in subclause (a).

14.3 Option - Special Tools (a) The Contractor grants to the Principal an option to purchase some or all of

the Special Tools.

(b) The Principal can exercise the option to purchase the Special Tools not later than 10 Business Days after:

(1) the expiry of the Maintenance Period; or

(2) any early termination of this Agreement.

(c) On the expiry of the Maintenance Period, or, earlier termination of this Agreement, the Contractor must not dispose of Special Tools until the expiry of the period of the option granted as specified in subclause (b), unless the Principal gives a contrary direction to the Contractor in writing.

(d) If the Principal exercises the option to purchase the Special Tools as set out in this clause:

(1) the Contractor must sell to the Principal; and

(2) the Principal must purchase,

the Special Tools for a reasonable price.

(e) The Contractor must, on request by the Principal, grant to the Principal the right to inspect the Special Tools at any time prior to the expiry of the period specified in subclause (b).

(f) On the exercise of the option the Contractor must, as directed by the Principal:

(1) deliver the Special Tools to the Principal; or

(2) make the Special Tools available to the Principal at the place nominated by the Principal.

(g) Any cost reasonably incurred by the Contractor in delivering the Special Tools to a place directed by the Principal in accordance with subclause (f) must be paid by the Principal.

(h) Where any Special Tools are subject to a finance lease, hire purchase agreement or other finance instrument, the Contractor must, as directed by the Principal either:

(1) pay out in full any financial accommodation provided to the Contractor in respect of the Special Tools; or



(2) assign or transfer all rights and obligations of the Contractor under the finance lease, hire purchase agreement or other financial agreement to the Principal.

(i) The Contractor must provide to the Principal all information applicable in respect of any finance lease, hire purchase agreement, or other financial agreement, relating to the Special Tools promptly on request by the Principal.

(j) Subject to the preceding provisions of this clause, where the option is exercised by the Principal, the Special Tools will be sold by the Contractor to the Principal, free of all encumbrances.

(k) The purchase price for the Special Tools will be the reasonable price:

(1) agreed between the Principal and the Contractor within 10 Business Days of the exercise of the option by the Principal; or

(2) failing agreement, determined in accordance with clause 26, as if the issue of the amount of the purchase price of the Special Tools constitutes a Dispute.

(l) For clarification:

(1) the Principal can elect to purchase some, but not all, of the Special Tools;

(2) if the Principal elects to purchase only some of the Special Tools, the Principal, when exercising the option to purchase the Special Tools, must specify those Special Tools in respect of which the option is exercised; and

(3) where the Principal elects to purchase some of the Special Tools, the provisions of subclauses (d) and (f) to (k) inclusive will apply to the Special Tools specified by the Principal when exercising the option to purchase.

15 Maintenance Fee 15.1 Payment of Maintenance Fee

(a) Subject to:

(1) the relevant provisions of this Agreement; and

(2) the Contractor punctually complying with the Contractor Obligation;

the Principal must pay to the Contractor the Maintenance Fee.

(b) The Principal must pay the Maintenance Fee to the Contractor for each Maintenance Month in arrear, commencing at the end of the first Maintenance Month after the Commencement Date.

15.2 Adjustment of Maintenance Fee (a) The Maintenance Fee specified in the Maintenance Fee Schedule is subject

to adjustment in accordance with subclause (b).



(b) On each Maintenance Fee Adjustment Date, the Maintenance Fee for the relevant Maintenance Year as set out in the Maintenance Fee Schedule will be adjusted so that the Maintenance Fee for that Maintenance Year will be the Maintenance Fee for that Maintenance Year as set out in the Maintenance Fee Schedule multiplied by the CPI Adjustment.

15.3 Maintenance Fee all inclusive Except as expressly provided to the contrary in this Agreement:

(a) the Maintenance Fee will be treated as including all:

(1) costs and expenses of the Maintenance Service; and

(2) subject to clause 15.4, all taxes and other levies payable in respect of the undertaking of the Maintenance Service and the payment of the Maintenance Fee; and

(b) the Contractor will not be entitled to any other fee or payment for undertaking the Maintenance Service.

15.4 Goods and Services Tax (a) The Maintenance Fee was agreed between the Principal and the Contractor

before the enactment of the GST Act.

(b) The GST Act will come into operation before the Commencement Date.

(c) It is the intention of the parties that, as far as practicable, the Maintenance Fee will be paid to the Contractor on the basis that the GST Act was not enacted.

(d) Following subclause (c), as soon as reasonable and practicable after the Commencement Date, the following provisions will apply.

(1) Either party may call a meeting of the parties in order to:

(A) undertake a full and proper accounting assessment of the Maintenance Fee; and

(B) endeavour to agree an adjustment to the Maintenance Fee to reflect the impact of the GST on the Maintenance Fee.

(2) A party calling a meeting under subclause (d)(1) must, when calling the meeting, reasonably specify a date, time and place for the meeting.

(3) Failing agreement as to an adjustment to the Maintenance Fee within 10 Business Days of the date fixed for a meeting as specified in subclause (d)(2), either of the parties may refer the matter for determination by an independent accountant jointly appointed by the parties.

(4) If the parties cannot agree the accountant to be appointed under subclause (d)(3), the parties will request:

(A) the President of the Western Australian Branch of the Institute of Chartered Accountants Australia; or

(B) the President’s nominee,

to appoint an independent accountant.



(5) The accountant appointed under subclauses (d)(3) or (d)(4) must be a member of the Institute of Chartered Accountants with:

(A) at least 10 years commercial experience; and

(B) particular expertise in taxation matters.

(6) Subject to subclause (d)(7), the necessary adjustment to the Maintenance Fee will be determined on the understanding that the net economic benefit derived by the Contractor under this Agreement, following the imposition of the GST, will be:

(A) the same; or

(B) as near as reasonably practicable the same,

as it would have been if the GST had not been imposed on the Maintenance Service.

(7) Any adjustment to the Maintenance Fee will be determined having regard to the economic benefit available to the parties, or either or them, from:

(A) any contemporaneous or related change to the imposition of sales tax (or its equivalent), excise duty or customs duty under the State Enterprises (Commonwealth Tax Equivalents) Act 1996, Sales Tax Assessment Act 1992, Excise Act 1901, Customs Act 1901 or any State taxes or duties, but not income taxes, intended by the GST Act or other related legislation to compensate in whole or in part for the imposition of the GST;

(B) any availability of input tax credits; and

(C) any adjustment to the CPI.

(e) The Principal must pay to the Contractor the Maintenance Fee as adjusted in accordance with subclauses (d)(1) to (d)(7).

(f) The Contractor must issue to the Principal a Tax Invoice enabling the Principal to claim any applicable input tax credits in respect of the Maintenance Service, which Tax Invoice:

(1) will be issued at the same time as; or

(2) will be incorporated in,

the invoices issued by the Contractor to the Principal under this Agreement.

(g) Any adjustment of the Maintenance Fee under clause 15.2 must take into account GST being required to be paid by the Principal and any adjustment that has already been or is required to be determined under the provisions of this clause.

(h) Where:

(1) a party gives an indemnity under this Agreement; and

(2) payment is made, at any time after 1 July 2000, by that party to the other party in respect of that indemnity of an amount that does not



include an amount compensating the other party for GST (Pre-GST Amount),

then the party making the payment must increase the Pre-GST Amount by a sum that results in the taxable value (under the GST Act) of the aggregate increased payment being equal to the Pre-GST Amount.

15.5 Basis of, and allocation of Maintenance Fee (a) The Maintenance Fee has been agreed between the Principal and the

Contractor on the basis that the Maintenance Fee includes:

(1) an annual maintenance expense for normal Maintenance Work; and

(2) a specific fee for undertaking work in respect of the upgrade of the Prison Building and the upgrade and replacement of the Prison Equipment.

(b) Following subclause (a), the part of the Maintenance Fee allocated to:

(1) normal annual Maintenance Work; and

(2) the work to be undertaken in respect of the upgrade of the Prison Building and the upgrade and replacement of the Prison Equipment,

is as set out in the column headed Maintenance Fee Allocation, in the Maintenance Fee Schedule.

15.6 Invoices The Contractor must:

(a) invoice the Principal using an invoice format the Principal approves, within 5 Business Days after the end of each Maintenance Month; and

(b) show in each invoice details that reflect the requirements of this clause including:

(1) if applicable relevant details of GST applicable to the Maintenance Fee; and

(2) any adjustment to the Maintenance Fee (reflected in an Adjustment Note in the form required by the GST Act) on and following a Maintenance Fee Adjustment Date.

15.7 Payment of invoices Subject to the Contractor punctually complying with:

(a) the Contractor Obligation; and

(b) the other provisions of this Agreement,

the Principal must pay the amount of an invoice to the Contractor within one month of receiving the invoice.

15.8 Failure to adjust If the Principal fails to make any adjustment or deduction permitted by this Agreement to or from any monthly payment of the Maintenance Fee due to the



Contractor at any time, the Principal may make that adjustment or deduction at any later time.

15.9 Disputing an invoice If the Principal disputes any amount claimed in an invoice:

(a) the Principal may withhold the disputed amount but must pay the undisputed balance of the invoice; and

(b) any withholding will not:

(1) be a default of the Principal’s obligations under this Agreement; nor

(2) entitle the Contractor to suspend the undertaking of the Maintenance Work.

15.10 Deductions from Maintenance Fee If the Contractor fails to undertake any part of the Maintenance Service, the Principal may deduct from any payment to the Contractor an amount which represents the value of the Maintenance Service which was not undertaken.

15.11 Overpayment If the Principal makes an overpayment to the Contractor, the Contractor must:

(a) immediately notify the Principal in writing of the overpayment; and

(b) repay to the Principal the full amount of any overpayment within 10 Business Days of that notice.

15.12 Set-off and security If the Contractor fails to pay any amount due to the Principal including:

(a) any amount for liquidated damages; or

(b) any amount due under any provision of this Agreement;

the Principal may:

(c) deduct the relevant amount from any money due to the Contractor by the Principal;

(d) if the amount deducted under subclause (d) is not sufficient, and the Contractor fails to pay the balance of the relevant amount within 10 Business Days of a demand by the Principal to the Contractor for payment of that amount, have recourse to the Maintenance Performance Guarantee; and

(e) if there is still a deficiency, recover that deficiency as a debt due to the Principal by the Contractor.

15.13 Suspension of payments (a) If:

(1) the Contractor undertakes Maintenance Service in a manner which is not consistent with the requirements of this Agreement; or

(2) this Agreement is suspended by the Principal,



the Principal may:

(3) if the circumstance referred to in paragraphs (1) or (2) is as a result of a Default, deduct and retain from any money owing to the Contractor and, in particular, any money owing to the Contractor in respect of the Maintenance Fee; or

(4) suspend payment of the whole or part of the Maintenance Fee to the Contractor,

on the basis that the Principal considers appropriate in the circumstances.

(b) Where the Principal in accordance with subclause (a):

(1) deducts from monies due to the Contractor, whether in respect of the Maintenance Fee or otherwise; or

(2) suspends payment of any money due to the Contractor in respect of the Maintenance Fee or otherwise,

and the Contractor disputes the entitlement of the Principal to make the deduction or the suspension, the issue of whether the Principal is entitled to make the deduction or suspend the payment will be determined in accordance with clause 26.

15.14 Liquidated Damages (a) If as a result of:

(1) a Default by the Contractor; or

(2) the failure by the Contractor to undertake any Maintenance Work,

there is less than 750 (or any other number agreed by the parties in writing) Available Prisoner Places, the Contractor agrees to indemnify the Principal and the State against any Loss in the amount described in subclause (b) arising from any reduction of the Available Prisoner Places, including any reduction in the Available Prisoner Places arising from the withdrawal of a Cell Certificate or the Prison Certificate.

(b) If the number of Available Prisoner Places is reduced as a result of the Default of the Contractor or a failure by the Contractor to undertake any Maintenance Work, the Contractor will pay liquidated damages at the Liquidated Damage Rate for each single reduction in the number of Available Prisoner Places for each day of the reduction, as a genuine pre-estimate of the Loss likely to be incurred by the Principal and the State.

(c) On each LD/PG Adjustment Date the Liquidated Damage Rate will be adjusted so that the Liquidated Damage Rate from the relevant LD/PG Adjustment Date will be the Liquidated Damage Rate on the day immediately preceding the LD/PG Adjustment Date multiplied by the CPI Adjustment.

(d) The Principal may set off any amount of liquidated damages which the Principal is entitled under this clause against any instalment or instalments of the Maintenance Fee payable by the Principal.

(e) This clause does not limit the rights of the Principal under clause 15.10.



15.15 Interest payable by parties (a) If either party fails to pay any amount due to the other party under this

Agreement within 5 Business Days of the due date for payment, that party must pay interest to the other party at the interest rate set out in item 5 of the Schedule.

(b) The provisions of subclause (a):

(1) do not affect any other right of a party under this Agreement; and

(2) are in addition to any other right of a party under this Agreement.

(c) For the purposes of this clause the due date for payment of each monthly instalment of the Maintenance Fee by the Principal, is the date which is 1 month after receipt by the Principal of an invoice from the Contractor in respect of the monthly instalment of the Maintenance Fee.

15.16 Interest to Accrue Daily (a) Interest will accrue daily, and will be calculated from the due date of

payment until the date of payment in full.

(b) For the purposes of sub-clause (a) the due date for payment of the Maintenance Fee by the Principal, is the date which is 1 month after receipt by the Principal of an invoice from the Contractor, in respect of the Maintenance Fee.

15.17 Payment not evidence that Maintenance Work is satisfactory Payment of the Maintenance Fee or any instalment of the Maintenance Fee is not evidence that the Maintenance Work has been carried out satisfactorily.

15.18 Variation of the Maintenance Fee for change to the Prison (a) If a change is made to the Prison which:

(1) is directed by the Principal and carried out under the Construction Agreement after the Signature Date but before the Commencement Date; and

(2) will affect the cost of carrying out the Maintenance Work in a manner that could not have been reasonably contemplated at the Signature Date (including any GST),

the Contractor is entitled to a variation of the Maintenance Fee in accordance with subclause (b).

(b) If the parties cannot agree the variation of the Maintenance Fee as referred to in subclause (a), the Contract Manager will determine the variation to the Maintenance Fee.

(c) If the Contractor disputes the Contract Manager’s determination under subclause (b), that dispute will be determined in accordance with the dispute resolution procedures in clause 26.



16 Cost savings (a) Where the Contractor or the Principal develop innovations that create cost

savings relating to the Maintenance Work, the savings will be shared equally between the Contractor and Principal.

(b) The Contractor agrees to disclose to the Principal all cost saving innovations in relation to the maintenance of the Prison.

(c) The Contractor will grant, at no cost to the Principal a perpetual licence to use at no cost to the Principal or the State any cost saving innovation developed in respect to the Maintenance Work during the Maintenance Period and the Principal and the State will be free to use and apply the innovations in the Prison and within Western Australia.

17 The Site and responsibility for the Site 17.1 Keep Site Clean

(a) When carrying out the Maintenance Work, the Contractor must keep that part of the Site where the Maintenance Work is being undertaken clean and tidy and must regularly remove debris and rubbish from that area.

(b) Without affecting clause 17.2, when clearing the Site after completing any part of the Maintenance Work, the Contractor must ensure that all equipment, including all ladders, tools, shears, boltcutters and wirecutters, are removed from the Site.

17.2 Contractor’s responsibility - tools The Contractor acknowledges that vehicles, tools and other unfixed items on the Site used by the Contractor or any Contractor Person for the purpose of the Maintenance Work must be properly secured against the risk of use by a Prisoner.

17.3 Protection of persons and property (a) The Contractor must, in relation to the Maintenance Work and the

Contractor's access to the Site:

(1) provide all things and take all measures necessary to protect persons and property;

(2) avoid unnecessary interference with the operation of the Prison; and

(3) prevent nuisance and unreasonable noise and disturbance.

(b) Subject to subclause (c), if the Contractor fails to comply with an obligation under this clause:

(1) the Principal may, in addition to any other remedy, fulfil the obligation on the Contractor's behalf; and

(2) the cost incurred by the Principal will be a debt due from the Contractor to the Principal payable on demand.

(c) Except where the Contract Manager determines there is an emergency, in which case no notice will be required before the Principal exercises the



powers specified in subclause (b), the Principal must not exercise the rights of the Principal under subclause (b) unless:

(1) the Principal has served a notice on the Contractor, which notice:

(A) specifies the action which the Principal intends to take under subclause (b); and

(B) requires the Contractor to undertake that action within the time specified in the notice, being not more than 5 Business Days after the service of the notice; and

(2) the Contractor fails to take the action specified in the notice given under subclause (c)(1) within the time specified in the notice given under subclause (c)(1).

17.4 Urgent Protection (a) If urgent action is necessary to ensure:

(1) the protection of the Maintenance Work or the Site; or

(2) the protection of persons or property,

and the Contractor, being the responsible party, does not take the necessary action, then

(3) the Principal may do so; and

(4) the cost incurred by the Principal will:

(A) be a debt due from the Contractor to the Principal payable on demand; and

(B) entitle the Principal to make a deduction from the Maintenance Fee or to have recourse to the Maintenance Performance Guarantee under clause 22.4.

(b) If time permits, the Principal is to give the Contractor prior written notice of the Principal’s intention to take action under subclause (a).

17.5 Removal of hazardous substances (a) If at any time the Principal or the Contractor becomes aware of the

existence of any hazardous substances or materials used in the Maintenance Work, the Contractor must promptly remove that hazardous substance or material in accordance with a procedure which:

(1) is first approved by the Principal in writing;

(2) is safe and suitable in all circumstances; and

(3) causes minimal disruption to the maintenance and operation of the Prison.

(b) The provisions of this clause do not affect the obligation of the Contractor to comply with a Legislative Requirement.



18 New Structure Maintenance Works 18.1 Written direction for new structure maintenance work

If the Principal arranges for the Contractor to undertake Construction Expansion Work, the Contractor must not undertake the New Structure Maintenance Work except in accordance with a written direction from the Contract Manager.

18.2 Written proposal from Contractor If a New Prison Structure is constructed, the Contractor must within 20 Business Days of a request by the Contract Manager, submit a proposal in writing to the Contract Manager to undertake the New Structure Maintenance Work which proposal must set out in detail:

(a) particulars of the proposed New Structure Maintenance Work; and

(b) any proposed variation to the Maintenance Fee to take account of the Maintenance Work required to the New Prison Structure.

18.3 Variation to Maintenance Fee The Contractor acknowledges that if a New Prison Structure is constructed, the Maintenance Fee may:

(a) be decreased;

(b) remain the same; or

(c) be increased.

18.4 Contract manager to determine variation to Maintenance Fee If:

(a) the Contractor lodges a proposal to undertake New Structure Maintenance Work; and

(b) the proposal lodged by the Contractor proposes a variation to the Maintenance Fee which is not acceptable to the Principal,

any variation to the Maintenance Fee applicable as a result of Maintenance Work in respect of the New Prison Structure will be determined by the Contract Manager acting reasonably.

18.5 Determination of Management Fee in case of dispute If:

(a) the Contract Manager makes a determination under clause 18.4; and

(b) the Contractor disputes the determination by the Contract Manager,

that matter will be treated as a Dispute and determined in accordance with clause 26.

18.6 Variation to Maintenance Fee all inclusive A proposal by the Contractor under clause 18.2 in respect of a variation to the Maintenance Fee will be treated as including all costs that the Contractor will incur in undertaking the Maintenance Work for the New Prison Structure.



19 Quality Assurance 19.1 Quality Plan

(a) The Contractor must develop and implement a Quality Plan to the satisfaction of the Contract Manager.

(b) The Quality Plan must include quality assurance protocol for all activities in connection with the Maintenance Service.

(c) Not later than 2 months prior to the Anticipated Commencement Date, the Contractor must provide to the Contract Manager details of the proposed Quality Plan for the approval of the Contract Manager.

(d) If the Contractor’s proposed Quality Plan:

(1) is approved by the Contract Manager, the Contractor must thereafter implement the Quality Plan; or

(2) is not approved by the Contract Manager, the Contractor must:

(A) change the draft Quality Plan until the Quality Plan meets the Contract Manager’s approval; and

(B) after the approval is obtained, implement the Quality Plan.

(e) The Contractor must ensure that all of the Contractor’s subcontractors comply with the Quality Plan relevant to the subcontractor’s work unless the Contract Manager expressly waives the requirement for a particular subcontractor to comply with the Quality Plan.

(f) The Contractor will not be relieved of any responsibility or obligation in respect of the execution of the Maintenance Service, despite:

(1) the obligation of the Contractor to develop and implement a Quality Plan; or

(2) any comment or direction on, review, acceptance or approval of a Quality Plan by the Contract Manager.

19.2 Review of Quality Plan (a) The Contractor must progressively update or amend each Quality Plan

throughout the Maintenance Period in order to ensure the provisions of clause 19.1(b) are met.

(b) If requested by the Contract Manager, the Contractor must submit the latest version of a Quality Plan to the Contract Manager for the Contract Manager’s consideration.

(c) Subject to subclause (a), if the Contractor Manager requires further amendment to a Quality Plan, the Contractor must implement that amendment.

19.3 Audit of Quality Plan Implementation (a) The Principal reserves the right to carry out surveillance and audits to

verify:

(1) whether each Quality Plan conforms to the standards specified by this Agreement;



(2) whether the Contractor is complying with the Quality Plan; and

(3) whether the Quality Plan is effective.

(b) All of the Contractor’s records relevant to the Quality Plan must be made available to the Contract Manager for the purpose of the audit and surveillance.

(c) The Principal or the Contract Manager may direct the Contractor to carry out corrective action relevant to the Quality Plan or amend the Quality Plan and if so directed, the Contractor must promptly implement the corrective action or amend the Quality Plan as directed.

19.4 No additional payment The Contractor acknowledges that the Contractor will not be entitled to any additional payment or be excused from any obligation or liability under this Agreement as a consequence of implementing the Quality Plan.

20 Records and Financial Records of the Contractor 20.1 Contractor to keep Records

The Contractor must make and keep, and must ensure all Contractor Persons make and keep, Records.

20.2 Place for keeping of records The Contractor must keep the Records:

(a) at the offices of the Contractor in Perth, Western Australia; or

(b) at any other place in Perth, which the Principal approves.

20.3 Right to inspect, and provision of facilities (a) The Principal has the right to:

(1) inspect; and

(2) at the Principal’s own cost, make copies of,

Records during normal business hours, on a Business Day, at the Record Place.

(b) The Contractor will provide to the Principal all facilities reasonably required by the Principal to exercise the rights of the Principal under subclause (a).

(c) Without affecting the provisions of subclause (b), the Contractor must:

(1) provide reasonable office space to the Principal, to enable the Principal to inspect the Records, at the Record Place;

(2) provide:

(A) electricity and any other power that the Principal may require to operate a photocopier, computer or other equipment at the Record Place; and



(B) sufficient space within the Record Place to install and operate a photocopier, computer or other equipment of the Principal;

(3) where copying of any Records is not practicable on a photocopier brought to the Record Place by the Principal, co-operate with the Principal and arrange for the relevant Records to be transported to a place where the photocopies can be made, subject to:

(A) the Principal paying all costs of transport, and any other reasonable costs associated with the transport of the Records; and

(B) the return of the Records, as well as the safe custody of the Records while at the other place where the Records are photocopied; and

(4) where Records are stored on a computer of the Contractor, download onto a disk provided by the Contractor, any Records which are stored on that computer as required by the Principal.

20.4 Principal’s right to defer Subject to an inspection of the Records being necessary before the relevant direction can be made, the Principal may defer any direction until after inspection of the Records is permitted by the Contractor.

20.5 Contractor must permit access The Contractor must not refuse inspection of any Records on any basis unless that disclosure would constitute a breach of law.

20.6 No Destruction of Records A Record must not be destroyed, without the prior written approval of the Principal, before the expiration of 7 years after the creation of the Record.

20.7 Contractor’s financial records Each year up during the Maintenance Period, the Contractor must provide to the Principal, the Contract Manager and any person authorised by the Principal a copy of the Contractor’s most recently audited annual report within 1 month of the annual report being requested.

20.8 Provision of information to Principal (a) In addition to the obligation of the Contractor to keep and maintain the

Records, the Contractor must provide to the Principal information:

(1) at the time;

(2) in the manner;

(3) incorporating the detail; and

(4) in the format,

which the Principal requires concerning the Maintenance Work and the Maintenance Service for incorporation into the Principal’s records and in particular into the Principal’s computer system.



(b) If required by the Principal the Contractor must establish a computer link with the Principal so that the information required to be provided under subclause (a) can be:

(1) provided by electronic transmission to the Principal; or

(2) accessed by the Principal from the Contractor’s computer records.

(c) If the Principal requires the Contractor to provide a computer link as required under subclause (b), the Contractor must:

(1) provide all facilities and equipment as are required for the purpose of establishing the computer link with the Principal; and

(2) comply with the requirements of the Principal, in particular including any requirement of the Principal in respect to confidentiality.

21 The Contractor’s warranties and other obligations 21.1 Compliance with Legislative Requirements

(a) The Contractor must comply with all Legislative Requirements in any way affecting or applicable to the performance of the Contractor Obligation.

(b) Without limiting subclause (a), the Contractor must obtain all necessary approvals and consents applicable to the Maintenance Work.

(c) The Contractor must bear the cost of complying with all Legislative Requirements and will not be entitled to any reimbursement from the Principal for any costs arising from compliance other than as stated in subclause (d).

(d) If:

(1) there is an amendment to a Legislative Requirement after the Signature Date; and

(2) that amendment causes the Contractor to incur more cost in performing the Maintenance Work than the Contractor could reasonably have anticipated at the Signature Date,

the Contractor will be entitled to be reimbursed by the Principal for that additional cost.

(e) Unless the parties agree upon the additional cost referred to in subclause (d), that additional cost will be a reasonable sum to be determined by the Contract Manager and notified in writing to the Contractor.

21.2 Compliance with Government Policies (a) The Contractor must comply with all relevant policies of the Government

of the State which relate to the Maintenance Service.

(b) Without affecting the provisions of subclause (a), the Contractor must comply with the policy which requires that contractors and subcontractors, wherever practicable, must give preference to using local materials and labour and locally made products.

(c) Where:



(1) the Contractor is required to comply with a policy of the Government of the State, which comes into effect after the Signature Date; and

(2) compliance with the policy results in the Contractor incurring additional cost in undertaking the Maintenance Service,

the Contractor will be entitled to reimbursement by the Principal of the additional cost.

(d) If there is a dispute between the Contractor and the Principal as to the reimbursement of cost in accordance with subclause (c), that dispute will be resolved in accordance with clause 26.

(e) Subject to subclause (f) the Principal must give to the Contractor notice of any Government policy which:

(1) affects the Maintenance Service;

(2) comes into effect after the Signature Date; and

(3) with which the Contractor is obliged to comply in accordance with subclause (a).

(f) The failure by the Principal to give notice to the Contractor in accordance with subclause (e) will not be treated as a default or breach by the Principal of the provisions of this Agreement.

21.3 Ensure Compliance by Others Where a provision of this Agreement prohibits the Contractor from doing a thing, the Contractor must ensure compliance with that provision by Contractor Persons.

21.4 Contractor’s representations and warranties The Contractor represents and warrants that:

(a) the Contractor will perform the Maintenance Work with reasonable care and skill and in accordance with the provisions of this Agreement;

(b) the Maintenance Work will conform to the specifications and requirements of this Agreement;

(c) the Contractor assumes total responsibility for the Maintenance Work, despite any comment on or approval of the Maintenance Work by the Principal or Contract Manager; and

(d) the Prison Building and all Prison Equipment will be maintained in a good and serviceable condition in order to allow the Prison Service to be provided in accordance with the Services Agreement.

21.5 Labour, Materials and standards of workmanship (a) The Contractor will, subject to the provisions of this Agreement, provide

all labour and things necessary for the execution of the Maintenance Work.

(b) Unless inconsistent with any other requirement of this Agreement or as otherwise agreed by the parties,

(1) the standard of the materials used; and

(2) the workmanship,



must in all respects comply with:

(3) the Building Code of Australia;

(4) subject to subclause (c), each relevant Australian Standard.

(c) Where there is no relevant Australian Standard, a relevant International Standard as directed by the Contract Manager will apply.

(d) The Contractor must in all respects comply with the Code of Practice for the Western Australian Building and Construction Industry.

(e) Without limiting subclause (b), the Contractor must use durable materials which are appropriate to ensure that the Prison Building and the Prison Equipment are maintained in a good and serviceable condition under which the Prison Service to be provided under the Services Agreement can be provided in accordance with the standards and requirements required under the Services Agreement.

21.6 Workplace Health & Safety (a) The Contractor must ensure that, in carrying out the Maintenance Work:

(1) the Contractor provides a safe workplace for all those involved in the Maintenance Work;

(2) the Contractor complies with all statutory requirements for occupational health and safety; and

(3) the Contractor Persons comply with the requirements referred to in this clause.

(b) The Contractor will indemnify and keep indemnified the Principal against all Loss which may be imposed under or which may arise out of the Contractor's breach of any statutory or contractual obligation in relation to workplace health and safety.

(c) The Contractor must notify the Principal of every work related illness or work injury and of every serious bodily injury which occurs on the Site in connection with the Maintenance Work as soon as possible but not later than 24 hours after an occurrence.

21.7 Contractor’s skill and judgment The Contractor warrants to the Principal that, when entering into this Agreement, the Contractor relied exclusively on the skill and judgment of the Contractor and the Contractor’s consultants and representatives independently of any statements, inducements or representations made by or on behalf of the Principal (including by the Principal’s officers, employees, or agents or any other person acting on the Principal’s behalf).

21.8 No representations or warranties by Principal Except for:

(a) the express terms set out in this Agreement;

(b) those implied terms or warranties that are imposed by any Act that are mandatory and cannot be excluded,

the Principal gives no warranties regarding:



(c) the Maintenance Work; or

(d) any other matter relevant to this Agreement,

and all other conditions, warranties, stipulations or other statements whatsoever, whether express or implied, by Act or at common law are expressly excluded.

21.9 Survival of representations and warranties The representations and warranties in this clause survive the execution, termination or completion of this Agreement.

21.10 Independent warranties Each warranty in this clause is independent and is not limited by reference to any other warranty in the relevant clause.

21.11 Contractor has informed itself (a) Subject to any changes requested by the Principal and carried out under the

Construction Contract before completion of the Prison, the Contractor warrants that the Contractor has and is treated as having:

(1) examined all information relevant to the risks, contingencies and other circumstances which could affect the Maintenance Work and which the Contractor could have obtained by making detailed enquires;

(2) visited and examined the Site;

(3) obtained all necessary information as to risk, contingencies and other circumstances which could have an effect on the performance of the Maintenance Work;

(4) informed itself as to:

(A) the nature and requirements of the Maintenance Work and materials necessary for the execution of the Maintenance Work;

(B) the means of access to and facilities at the Site;

(C) transport facilities for deliveries to or from the Site; and

(D) the implications of performing the Maintenance Services for an occupied and operating prison, including the security restrictions which arise;

(5) been fully informed as to the availability and cost of labour; and

(6) informed itself of all Legislative Requirements relevant to the Maintenance Work.

(b) Failure by the Contractor to do all or any of the things the Contractor is treated as having done under this clause will not relieve the Contractor of the Contractor’s liability to perform and complete this Agreement in accordance with its terms and conditions.

21.12 No collusion The Contractor represents and warrants that:



(a) the Contractor had no knowledge of the tender price of any other tenderer for the Maintenance Work or any part of the Maintenance Work at the time of submission by the Contractor of the proposal to undertake the design, construction, operation and maintenance of the Prison;

(b) except as disclosed in writing to the Principal, the Contractor has not entered into any contract, arrangement or understanding to pay or allow any money directly or indirectly to a trade or industry association (above the published standard fee) or to or on behalf of any other tenderer in relation to the formal request for proposal process referred to in paragraph B of the background to this Agreement or any contract to be entered as a consequence of process nor paid or allowed or will pay or allow any money on that account;

(c) the Contractor has not paid or allowed or entered into any contract, arrangement or understanding to pay or allow any money directly or indirectly to or on behalf of any other tenderer, nor received any money or allowance from or on behalf of any other tenderer in relation to the process specified in subclause (b); and

(d) in the event of the Contractor paying or allowing to or on behalf of a trade or industry association or another tenderer any money in breach of these conditions, the money will be held on trust for and become immediately payable to the Principal and the Principal will be entitled to withhold from any payment due to the Contractor on any account an equivalent sum as damages.

22 Security during the Maintenance Period 22.1 Maintenance Performance Guarantee

(a) Subject to subclause (b), the Contractor must provide to the Principal a properly executed Maintenance Performance Guarantee in the Maintenance Security Amount to ensure that the Contractor will duly and punctually:

(1) perform and complete the Maintenance Service;

(2) reimburse the Principal for any Loss incurred by the Principal as a result of a Default; and

(3) without limiting subclauses (a) and (b), otherwise comply with the Contractor Obligation throughout the Maintenance Period.

(b) The obligation of the Contractor under subclause (a) will, for the period:

(1) commencing on the Commencement Date; and

(2) ending on the Date of Final Completion,

be satisfied by the Contractor providing to the Principal, not later than 10 Business Days before the Anticipated Commencement Date, the Construction Performance Guarantee on the basis that the Construction Performance Guarantee is amended so that the Construction Performance Guarantee will also apply in respect of:

(3) the obligation of the Contractor under; and



(4) the matters specified in,

this Agreement which apply in respect of the Maintenance Performance Guarantee.

(c) Every reference in this Agreement to the Maintenance Performance Guarantee will, during the period commencing on the Commencement Date and ending on the Date of Final Completion, be treated as a reference to the Construction Performance Guarantee.

(d) For clarification the Contractor must, not later than the Date for Final Completion, provide to the Principal a properly executed Maintenance Performance Guarantee, in the Maintenance Security Amount, to ensure that the Contractor will duly and punctually:

(1) perform and complete the Maintenance Service;

(2) reimburse the Principal for any Loss incurred by the Principal as a result of a Default; and

(3) without limiting subclauses (d)(1) and (d)(2), otherwise comply with the Contractor Obligation throughout the Maintenance Period.

22.2 Maintenance Security Amount (a) On each LD/PG Adjustment Date, the Maintenance Security Amount will

become the amount which is the amount of the Maintenance Security Amount on the day prior to LD/PG Adjustment Date multiplied by the CPI Adjustment.

(b) On each LD/PG Adjustment Date the Contractor must provide to the Contract Manager a substitute or additional Performance Guarantee in respect of the Maintenance Security Amount specified in subclause (a).

22.3 Form of Maintenance Performance Guarantee (a) The Maintenance Performance Guarantee must be:

(1) an unconditional guarantee;

(2) in a form and on terms and conditions approved the Principal;

(3) by a guarantor approved by the Principal.

(b) In approving the matters referred to in subclause (a), the Principal will act reasonably.

22.4 Principal to have recourse & replacement of security (a) The Principal may have full recourse to the whole or part of the

Maintenance Performance Guarantee in any manner or order as the Principal may determine, where:

(1) the Contractor has committed, or permitted to occur, a Termination Default; or

(2) the Contractor has:

(A) committed or permitted to occur a Relevant Default; and



(B) has failed to remedy the Relevant Default to overcome the Relevant Default in a manner acceptable to the Principal within the time specified in the Notice of Default; or

(3) the Principal has otherwise become entitled to exercise a power under this Agreement in respect of money due and payable to the Principal,

to reimburse and compensate the Principal for Loss suffered or incurred by the Principal as a result of a Default.

(b) The amount of the Maintenance Performance Guarantee retained by the Principal on a Default will be an amount determined by the Contract Manager as necessary to compensate the Principal for the Loss suffered by the Principal as a consequence of the Default.

(c) Subject to subclause (d), the Contractor must, within 10 Business Days after receiving the Principal’s request:

(1) replace the whole or any part of the Maintenance Performance Guarantee used or applied by the Principal; or

(2) provide additional security,

to ensure that the total amount of the security available to the Principal remains, at all times, at the Maintenance Security Amount.

(d) The provisions of subclause (c) do not apply if this Agreement has been terminated.

22.5 Interest on Maintenance Performance Guarantee If part or all of the Maintenance Performance Guarantee takes the form of cash, then interest earned on the Maintenance Performance Guarantee will be for the benefit of the Principal.

22.6 Maintenance Performance Guarantee to be kept in force The Contractor will ensure that the Maintenance Performance Guarantee is kept in full force and effect for the Maintenance Period.

22.7 Return of Maintenance Performance Guarantee When the Contractor’s Obligations under this Agreement in relation to the Maintenance Work have been performed to the satisfaction of the Principal, the Maintenance Performance Guarantee or the balance of the Maintenance Performance Guarantee will be returned to the Contractor.

23 Insurance 23.1 Insurances

The Contractor must effect and maintain the following insurances, with an Insurer approved by the Principal on terms and conditions, including all exclusions and excesses, acceptable to the Principal.

(a) Employer's Indemnity Insurance



Employer's Indemnity Insurance and Workers Compensation Insurance for the Maintenance Period covering all claims and liabilities in respect of any Act and at common law for the death of or disability, illness or injury to any Contractor Person or in connection with the execution of the Maintenance Work. The common law component of the policy must be for the maximum amount specified by law or, if the law does not specify a maximum amount, not less than the amount specified in item 3(a) of the Schedule.

To the extent permitted by law, the policy must be extended to indemnify the Principal for the Principal’s statutory and common law liability for Contractor Persons.

(b) Public and Product Liability Insurance Public Liability Insurance and Product Liability Insurance covering all Claims and Loss, however caused, including but not limited to:

(1) in respect of:

(A) any injury or illness to or death of any person;

(B) any physical loss, damage or destruction to any property including that of the Principal; and

(C) the loss of use of tangible property whether that tangible property has been physically lost, destroyed or damaged or not; and

(2) arising out of or connected with any act, matter or thing relating to the Maintenance Work.

These insurances must each:

(A) provide cover in respect of each and every occurrence to an amount of not less than the amount shown in item 3(b) of the Schedule, in respect of all Loss; and

(B) be maintained for the Maintenance Period.

(c) Professional Indemnity Insurance

Professional Indemnity Insurance to an amount of not less than the amount shown in item 3(c) of the Schedule to be maintained for the Maintenance Period.

(d) Motor Vehicle Third Party Liability Insurance Motor vehicle third party property damage liability insurance in respect of all Motor Vehicles used in connection with this Agreement regardless of whether any Motor Vehicle is licensed as a Motor Vehicle pursuant to the provisions of any Act, for an amount of not less than the amount shown in item 3(d) of the Schedule in respect of each and every loss and unlimited in the aggregate in respect of all Loss occurring during the Maintenance Period. This insurance must extend to include third party bodily injury gap protection.

(e) Other Insurances Any other insurances required by law or reasonably required by the Principal during the Maintenance Period.



23.2 Increase in amount of cover Subject to the rights of the Contractor under clause 26, the Principal may during the Maintenance Period require that the sum insured under Clause 23.1 be increased to an amount reasonably determined by the Principal.

23.3 Insurance terms The insurances referred to in this clause (other than clause 23.1(c)) must, unless prohibited at law, be endorsed or amended to include:

(a) the Principal, the Principal Employee and all subcontractors and suppliers, as joint insured with the Contractor; and

(b) clauses whereby:

(1) the Insurers waive all express or implied rights of subrogation the Insurers may have against the Principal and the Principal Employee;

(2) insofar as any insurance may cover more than one insured, all insuring agreements and endorsements (with the exception of limits of liability) will operate as if there were a separate policy of insurance covering each person comprising the insured;

(3) acts, omissions, non-disclosures or misrepresentations by any insured will not affect or prejudice the insurance in regard to any other insured;

(4) the Insurers will not:

(A) vary any insurance to the detriment of the Principal, or

(B) cancel any insurance or allow any insurance to lapse,

until the Insurers have given the Principal 20 Business Days written notice of the intention to so vary, cancel or allow to lapse; and

(5) if GST is payable by the Principal or the Principal Employee or any subcontractors or suppliers in respect of, or otherwise arising out of, a payout by the Insurers under the insurance policies, the total amount recoverable by the Principal and the Principal Employee and all subcontractors and suppliers under the policies includes or is otherwise increased by an amount equal to that GST.

23.4 Evidence of insurance (a) The Contractor must, not later than 10 Business Days prior to the

Anticipated Commencement Date provide to the Contract Manager:

(1) a copy of each policy of insurance taken out by the Contractor, under this clause, except for the Professional Indemnity Insurance policy; and

(2) written proof that the insurance specified in subclause (a)(1) and the Professional Indemnity Insurance is current.

(b) On, or prior to the date for renewal of a policy of insurance specified in this clause, the Contractor must provide to the Contract Manager, proof of the renewal of that policy of insurance.



(c) Where, in accordance with the provisions of clause 23.7, the policy of insurance is varied, or replaced, the Contractor must, not later than 5 Business Days following the date of variation or replacement, provide to the Contract Manager:

(1) a copy of the varied policy of insurance, showing in particular each variation; or

(2) where the policy of insurance is replaced, a copy of the replacement policy of insurance.

(d) The Contractor must, on written request by the Contract Manager, reasonably made by the Contract Manager at any time during the Maintenance Period, provide to the Contract Manager written evidence that a policy of insurance as specified by the Contract Manager is current.

23.5 Default If the Contractor fails to take out or maintain the insurance required under this clause, the Principal may in the Principal’s sole discretion:

(a) take out and maintain the insurance, and the cost incurred by the Principal in that regard will be a debt due to the Principal from the Contractor; or

(b) treat that failure to insure, or failure to maintain insurance, as an event of default.

23.6 Notification The Contractor must:

(a) as soon as practicable, inform the Contract Manager, in writing, of any occurrence of which the Contractor becomes aware, that may give rise to a claim under any policy of insurance taken out by the Contractor under this clause;

(b) keep the Contract Manager informed of subsequent developments concerning the occurrence; and

(c) use the Contractor’s best endeavours to ensure that the Contractor’s subcontractors, in respect of their operations, similarly inform the Contract Manager.

23.7 No variation to insurances The Contractor must not do, omit to do, or permit or allow to be done, anything whereby any insurance required to be taken out and maintained under this clause is:

(a) varied, or

(b) cancelled or allowed to lapse,

unless:

(c) the Contract Manager has been notified in writing of a proposed variation as specified in subclause(a) and the Contract Manager has agreed to that variation; or

(d) the Contract Manager has been notified in writing of a matter specified in subclause (b), and the proposal of the Contractor to take out an alternative



policy of insurance, and the Contract Manager has granted approval in writing for the alternative insurance.

23.8 Warranty by Insurer (a) The Contractor must, if the Contractor has not already done so, on the

Signature Date, provide to the Contract Manager a written warranty by the Insurer or by an insurance broker that the insurance policy complies with the relevant provisions of this clause.

(b) Where the policy of insurance is:

(1) varied; or

(2) cancelled, or allowed to lapse,

in accordance with the provisions of clause 23.7, the Contractor must provide to the Contract Manager, for the benefit of the Principal, not later than 5 Business Days after the variation, or issue of a new policy, a written warranty by the Insurer that:

(3) that the policy of insurance as varied; or

(4) a replacement policy of insurance which has been issued in substitution for the policy of insurance which has been cancelled or allowed to lapse,

complies with the relevant provisions of this clause.

23.9 Access to Insurer (a) Subject to subclause (b), the Contractor authorises:

(1) the Contract Manager or the Principal to communicate directly with the Insurer in writing, or orally, in respect of:

(A) the insurance taken out under this clause; or

(B) any occurrence which has been notified to an Insurer in respect of the policy of insurance under this clause; and

(2) the Insurer to provide any information requested by the Contract Manager in respect of any insurance taken out for the purposes of this clause, including any information requested by the Contract Manager in respect of an occurrence or claim, under the policy of insurance issued by the Insurer.

(b) The provisions of subclause (a) will not apply to the insurance specified in clause 23.1(c).

(c) The Contractor must, on written request from the Contract Manager, provide to the Contract Manager, in a form determined by the Contract Manager, an executed authority in writing from the Contractor to an Insurer which:

(1) confirms the authorities specified in subclause (a); and

(2) expressly authorises the Insurer to provide any information requested by the Contract Manager in respect of the policy of insurance and any occurrence or claim under a policy of insurance issued by the Insurer under this clause.



23.10 Admissions and settlement Without the Principal’s prior consent, the Contractor must not:

(a) make any admission of liability on the Principal’s behalf; nor

(b) settle any Claim relating to any insurance under this Agreement.

23.11 Not affect Contractor’s other obligations The effecting of any insurance referred to in this clause does not limit any liability or obligation of the Contractor under the provisions of this Agreement.

23.12 Subcontractors The Contractor must ensure that each subcontractor takes out and maintains insurance of a kind consistent with that contemplated by this clause.

24 General indemnity 24.1 Indemnity

The Contractor will indemnify the Principal and will keep the Principal indemnified against all Loss arising out of any act or default of the Contractor under this Agreement, including:

(a) any Loss arising out of or in consequence of any breach, non-observance or non-performance of any provision of this Agreement by the Contractor or a Contractor Person;

(b) any Loss arising out of or resulting from any negligence or breach of duty on the part of the Contractor or a Contractor Person;

(c) any Loss arising out of or resulting from the use of the Site by the Contractor or a Contractor Person; and

(d) any Loss arising out of:

(1) death of or injury to a natural person; or

(2) damage to or destruction of property,

on the Site as a result of Maintenance Work.

24.2 Exclusion The Contractor’s liability to indemnify the Principal will be reduced to the extent that the Loss was caused or contributed to by the Principal or a Principal Employee.

25 Dealing with Agreement and subcontracting 25.1 Contractor may not deal

(a) Subject to subclause (b), without the Principal’s prior written consent, the Contractor may not deal with:

(1) this Agreement;

(2) the Contractor’s interest under this Agreement;



(3) the right to any money or payment under this Agreement; or

(4) any other interest under this Agreement.

(b) Subclause (a)(3) does not apply to money that has been paid to the Contractor by the Principal under this Agreement.

25.2 No change in control Except as otherwise provided under clause 25.4, the Contractor must not permit or allow, without the prior written consent of the Principal, a change in the control, management or ownership of the Contractor or any Nominated Subcontractor.

25.3 Notice of change of control The Contractor must give notice in writing to the Principal immediately the Contractor becomes aware of a change in the control, management or ownership of the Contractor or any Nominated Subcontractor.

25.4 Subcontracting (a) The Contractor must not, without the prior written consent of the Contract

Manager, which will not be unreasonably withheld or delayed:

(1) subcontract; or

(2) allow a subcontractor approved by the Contract Manager under this clause, including the Nominated Subcontractor, to assign or subcontract,

any of the work to be undertaken by the Contractor under this Agreement.

(b) The Contractor’s request for consent to subcontract must include particulars in writing of:

(1) the part of the Maintenance Work which the Contractor proposes to subcontract; and

(2) the name and address of the proposed subcontractor.

(c) Subject to subclause (d), where the provisions of subclause (b) apply the Contractor must also provide to the Contract Manager any other information which the Contract Manager reasonably requests, including the proposed subcontracting document.

(d) The Contractor is not obliged to provide to the Principal any information as to rates or prices applicable to work to be undertaken by a subcontractor for the purposes of subclause (c).

(e) The Contract Manager’s consent may be conditional on the subcontract including:

(1) a provision that the subcontractor will not assign or sub-contract without the written consent of the Principal;

(2) provisions which are reasonably necessary to enable the Contractor to fulfil the Contractor’s obligations to the Principal;

(3) a provision that the subcontractor must effect and maintain the types of insurance to be maintained by the Contractor and on the same terms as are required of the Contractor under this Agreement;



(4) a provision that if this Agreement is terminated by the Principal:

(A) the Contractor and the subcontractor will promptly execute a deed of novation in favour of the Principal in a form to be approved by the Contract Manager; and

(B) that the Contractor appoints the Contract Manager to be the Contractor’s attorney to execute the documents as may be necessary for that purpose; and

(5) any other conditions imposed by the Contract Manager.

(f) The Contract Manager’s consent to subcontract will not relieve the Contractor from any liability or obligation under this Agreement.

(g) The Contractor must ensure that any subcontractor engaged in connection with the Maintenance Work and the persons employed or contracted by the subcontractors, are suitably skilled and experienced.

(h) The Contractor will be liable to the Principal for the acts and omissions of subcontractors, and employees and agents of subcontractors, as if they were the acts or omissions of the Contractor.

(i) At no time will any subcontractor or its employees or agents be, or held out to be, employees or agents of the Principal without the prior written consent of the Principal.

25.5 Provisions to apply (a) The provisions of clause 25.4 will apply to the Nominated Subcontractor

in addition to the provisions of clause 3.4.

(b) If any inconsistency between the provisions of clause 3.4 and clause 25.4 arises when applying the provisions of clause 25.4 to the Nominated Subcontractor, the provisions of clause 3.4 prevail.

25.6 Novation (a) If:

(1) the Contractor is in Default; and

(2) the Principal has served a Termination Notice,

the Contract Manager may direct the Contractor to execute a deed of novation in accordance with subclause (b).

(b) When directed by the Contract Manager under subclause (a), the Contractor, without being entitled to compensation, must promptly execute a deed of novation between the Principal, the Contractor and the subcontractor for a particular part of the Maintenance Work in a form to be approved by the Contract Manager:

(1) under which the subcontractor agrees to undertake that part of the Maintenance Work which is the subject of the subcontract; and

(2) for the Principal in the terms of the subcontract between the Contractor and the subcontractor.



26 Dispute resolution 26.1 General

The parties must attempt to resolve a Dispute that arises, wherever possible, at the level where the Dispute initially arises.

26.2 Requirement to give Dispute Notice If a Dispute arises and it is clear that:

(a) the Dispute will not be resolved at the level at which the Dispute arose; or

(b) it is unlikely that the Dispute will be resolved at the level at which the Dispute arose,

within 15 Business Days of the Dispute arising, the Principal or the Contractor may serve a Dispute Notice on the other.

26.3 Appointment of Dispute Representative (a) Within 10 Business Days of the service of a Dispute Notice on, or on

behalf of the Principal, the Principal must:

(1) appoint a person as the Principal Dispute Representative who has authority to settle the Dispute; and

(2) at the same time as appointing the Principal Dispute Representative, serve on the Contractor a notice specifying:

(A) the full name;

(B) the address; and

(C) the contact telephone and facsimile number,

of the person appointed as the Principal Dispute Representative.

(b) The Principal must maintain the appointment of a person as the Principal Dispute Representative until the Dispute the subject of the Dispute Notice has been resolved.

(c) Without affecting subclause (b), the Principal may, before a Dispute has been resolved, appoint another person as the Principal Dispute Representative for the purpose of resolving the Dispute the subject of a Dispute Notice.

(d) If the Principal appoints another person as a substitute for a previously appointed Principal Dispute Representative, the Principal must, on making the appointment, immediately notify the Contractor in writing of:

(1) the full name;

(2) the address; and

(3) the contact telephone and facsimile number,

for the person appointed as the substitute Principal Dispute Representative.

26.4 Contractor Dispute Representative (a) Within 10 Business Days of the service of a Dispute Notice on or by the

Contractor, the Contractor must:



(1) appoint a person as the Contractor Dispute Representative who has authority from the Contractor to resolve the Dispute; and

(2) at the same time as the Contractor appoints the Contractor Dispute Representative, notify the Principal in writing of:

(A) the full name;

(B) the contact address; and

(C) the contact telephone and facsimile number,

of the person appointed as the Contractor Dispute Representative by the Contractor.

(b) The Contractor must maintain the appointment of a person as the Contractor Dispute Representative until the Dispute the subject of the Dispute Notice has been resolved.

(c) Without affecting subclause (b), the Contractor may, before a Dispute the subject of a Dispute Notice has been resolved, appoint another person as the Contractor Dispute Representative.

(d) If the Contractor appoints another person as the Contractor Dispute Representative in place of a person previously appointed, the Contractor must, at the time of the appointment, immediately notify the Principal in writing and when doing so, must notify the Principal of:

(1) the full name;

(2) the contact address; and

(3) the contact telephone and facsimile number,

of the person appointed as the Contractor Dispute Representative in place of the person previously appointed.

26.5 Agreement or procedure to determine Dispute (a) Within 20 Business Days of the service of a Dispute Notice, the Principal

Dispute Representative and the Contractor Dispute Representative must meet for the purpose of:

(1) resolving the Dispute by agreement; or

(2) determining the basis on which the Dispute will be resolved, and if applicable, the procedure under which the Dispute will be resolved.

(b) Without affecting subclause (a)(2), the Principal Dispute Representative and the Contractor Dispute Representative may agree that:

(1) the Dispute will be referred to an independent expert for determination or for a report;

(2) the Dispute will be resolved in accordance with the mediation and arbitration procedures which are set in the following provisions of this clause; or

(3) the Dispute will be resolved by arbitration or by court proceedings.

(c) If the Principal Dispute Representative and the Contract Dispute Representative agree that:



(1) a Dispute will be resolved by; or

(2) the Dispute, or a matter involved in the Dispute will be the subject of a report by,

an independent expert, the Principal Dispute Representative and the Contractor Dispute Representative must also agree:

(3) the expert who is to determine or provide a report in respect of the Dispute, or the basis on which the expert will be appointed;

(4) the issue which is to be resolved by the expert or the issue in respect of which the expert is to provide a report;

(5) the basis and time within which the expert must provide a report; and

(6) the basis on which the costs of the independent expert are to be paid by the Contractor and the Principal.

(d) The Principal Dispute Representative and the Contractor Dispute Representative may agree in writing to:

(1) extend any of the periods specified in this clause for the resolution of a Dispute; or

(2) the making of a decision with regard to the Dispute.

(e) If the Principal Dispute Representative and the Contractor Dispute Representative agree in writing any issue or matter as specified in subclause (d), the issue or matter agreed will apply despite any other provisions of this clause.

26.6 Mediation and arbitration procedure If the Principal Dispute Representative and the Contractor Dispute Representative are not able to:

(a) resolve the Dispute; or

(b) agree the basis on which the Dispute should be resolved in accordance with the provisions of clause 26.5,

within 30 Business Days following the service of a Dispute Notice, the Dispute will be resolved in accordance with the following mediation and arbitration procedure as specified below.

26.7 Mediation If the Principal Dispute Representative and the Contractor Dispute Representative are unable to resolve a Dispute or agree on a process or procedure for resolving the Dispute as specified in clause 26.6, the Dispute must be resolved:

(a) by mediation; and

(b) if mediation is not successful, then by arbitration,

in accordance with the following provisions of this clause.



26.8 Appointment of mediator If a Dispute is referred to mediation under clause 26.7, the Principal Dispute Representative and the Contractor Dispute Representative must appoint a mediator as follows:

(a) they may jointly appoint a sole mediator within 5 Business Days after the Dispute is referred to mediation; or

(b) if they do not jointly appoint a mediator within that period, either party may request the Chair of the Western Australian Branch of LEADR or the Chair’s nominee to appoint the mediator; and

(c) that Chair or Chair’s nominee may appoint the mediator.

26.9 Mediator's Functions The mediator:

(a) is to assist the parties to resolve the issue of difference by agreement between them; and

(b) is not to act as an arbitrator, or determine the issue, or be the advocate of either party.

26.10 Mediation Procedure The parties must carry out the mediation in accordance with the mediation rules of the Law Society of Western Australia and any other rules that the parties may agree.

26.11 Place of mediation The parties must hold the mediation in Perth, Western Australia and, subject to the succeeding clauses, must comply with any resolution facilitated between them by the independent mediator.

26.12 Mediator's Fees The parties are jointly and severally liable to pay the mediator's fees, whether or not the mediation is terminated without the Dispute being resolved.

26.13 Confidential Information Confidential Information disclosed by a party during the mediation is not to be further disclosed by the other party or the mediator.

26.14 Termination of the Mediation (a) Unless the Principal and the Contractor otherwise agree, the mediation will

terminate if:

(1) either party at any time withdraws from the mediation by a notice to the mediator and the other party; or

(2) the mediator decides at any stage of the mediation that, for any reason, the mediator will not be able to further assist the parties to resolve the Dispute, and gives a notice to the parties to that effect.

(b) If the mediation is terminated under subclause (a), the Dispute must be determined by arbitration.



26.15 Condition to arbitration A party may not commence arbitration procedures relating to a Dispute unless and until:

(a) that party has complied with clauses 26.1 to 26.11; and

(b) mediation under this clause does not result in a settlement of the Dispute and this has been confirmed by the mediator giving each party, at the request of the other party, a signed statement that the mediation has been unsuccessful.

26.16 Arbitration If a Dispute is referred to arbitration, the arbitration is to be conducted in accordance with the Commercial Arbitration Act 1985 and the other provisions of this clause.

26.17 Appointment of arbitrator The parties may appoint an arbitrator as follows:

(a) the parties may jointly appoint a sole arbitrator within 10 Business Days after they decide to refer the Dispute to arbitration; or

(b) if they do not jointly appoint an arbitrator within the period referred to in subclause (a), either party may request the President or acting President of the Institute of Arbitrators Australia (Western Australian Branch) to appoint an arbitrator; and:

(1) that President or acting President may appoint the arbitrator; or

(2) if that President or acting President fails to appoint the arbitrator, the arbitrator will be appointed in accordance with the provisions of the Commercial Arbitration Act 1985.

26.18 Conduct of arbitration The parties must conduct the arbitration in Perth and in accordance with and subject to the Legislative Requirements of Western Australia.

26.19 Representation by legal practitioner Each party may be represented by a qualified legal practitioner or other representative in any arbitration proceedings.

26.20 Arbitrator’s authority The arbitrator may give a party any rights that could be ordered by a court having jurisdiction with respect to the subject matter.

26.21 Privacy The Principal and the Contractor must conduct any arbitration proceedings in private, and information disclosed by any party in the course of the proceedings is to be kept confidential by the parties and their advisers, except as otherwise agreed by the parties, directed by a court or required by any Legislative Requirements.

26.22 Contractor must continue to perform Maintenance Work



(a) The Contractor must continue to perform the Maintenance Work and comply with the Contractor Obligation, notwithstanding any Dispute, mediation, arbitration or the commencement of any proceedings.

(b) Despite:

(1) a Dispute having arisen; and

(2) the procedures specified in this clause being implemented in relation to that Dispute; and

(3) the Dispute not having been resolved,

the Contractor must comply with any instruction given by the Principal even if the instruction given by the Principal is the subject of the Dispute.

26.23 Principal must continue to comply with obligations except payment (a) Subject to subclause (b), the Principal must continue to comply with the

Principal’s obligations under this Agreement, notwithstanding any Dispute, mediation, arbitration or the commencement of any proceedings.

(b) The Principal is not obliged to make a payment to the Contractor where:

(1) the payment is the subject of a Dispute;

(2) the procedures specified in this clause are being implemented in relation to that Dispute; and

(3) the Dispute has not been resolved.

27 Force Majeure 27.1 Notice by Force Majeure Party

If a Force Majeure Party:

(a) is unable, wholly or in part, by reason of Force Majeure to undertake any obligation imposed on the Force Majeure Party under this Agreement; and

(b) notifies the Non Affected Party that the Force Majeure Party is affected by Force Majeure,

the obligation of the Force Majeure Party will be suspended during, and the time for undertaking the obligation under this Agreement will be extended by, the period:

(c) from the giving of the notice that the Force Majeure Party is affected by Force Majeure; and

(d) until the Force Majeure, and the effects of Force Majeure, cease.

27.2 Notice to provide particulars The notice claiming Force Majeure must contain:

(a) the particulars of the Force Majeure; and

(b) the extent to which the Force Majeure Party is unable to perform or will be delayed in performing an obligation under this Agreement.



27.3 Force Majeure Party will implement reasonable procedures A Force Majeure Party must implement all reasonable procedures to remedy, or remove the Force Majeure, and the effect of the Force Majeure, as soon as practicable.

27.4 Force Majeure Party to keep Non Affected Party advised of developments Where a Force Majeure Party gives a notice under this clause, the Force Majeure Party must, after the giving of the notice, and during the continuance of the Force Majeure, at least every 3 Business Days, give notice to the Non Affected Party of:

(a) the extent to which the Force Majeure Party will be unable to perform, or be delayed in performing the obligation of the Force Majeure Party; and

(b) any significant changes relative to Force Majeure since the Force Majeure Party gave its last notice to the Non Affected Party.

27.5 Termination if Force Majeure continues Despite any other provision of this Agreement, a party may terminate this Agreement by 5 Business Days’ notice to the other party, if the event of Force Majeure:

(a) affects more than 50% of the Available Prisoner Places; or

(b) otherwise substantially detracts from that party’s ability to perform its obligations under this Agreement,

for a period of 2 months or more from the date of service of notice of an event of Force Majeure in accordance with this Agreement.

27.6 Reduction in Maintenance Fee (a) In the event that Force Majeure results in a reduction of Maintenance

Work undertaken, the Maintenance Fee will be reduced by agreement between the parties to reflect the reduction in Maintenance Work.

(b) In the event that agreement cannot be reached as to the reduction in the Maintenance Fee, the provisions of clause 26 will apply.

28 Default and Termination 28.1 Service of Notice of Default

Subject to clause 28.6, if:

(a) the Contractor is in Default; and

(b) the Principal wishes to terminate this Agreement,

the Principal must serve a Notice of Default on the Contractor.

28.2 Termination for Termination Default (a) If:

(1) the Principal serves on the Contractor a Notice of Default; and



(2) the Default, the subject of the Notice of Default is a Termination Default,

the Contractor may, within 10 Business Days of service of the Notice of Default, make representations in writing to the Principal as to why the Principal should not terminate this Agreement.

(b) If:

(1) the Contractor makes representations to the Principal in accordance with subclause (a); and

(2) the Principal accepts the contentions of the Contractor, including any proposal of the Contractor to rectify the Termination Default if the Termination Default is capable of being rectified,

the Principal may by notice in writing to the Contractor withdraw the Notice of Default specified in subclause (a).

(c) If the Principal serves a notice in accordance with subclause (b), the Notice of Default specified in subclause (a) will be terminated and for all purposes will be treated as having been withdrawn.

(d) If:

(1) the Contractor does not make representations as specified in subclause (a) within the time specified in subclause (a); or

(2) the Principal does not:

(A) accept the Contractor’s representations as specified in subclause (a); and

(B) withdraw the Notice of Default under subclause (b),

the Principal may terminate this Agreement.

28.3 Termination for Relevant Default (a) If:

(1) the Principal serves on the Contractor a Notice of Default;

(2) the Default the subject of the Notice of Default is a Relevant Default,

the Contractor must, within the period specified in the Notice of Default:

(3) remedy the Relevant Default; or

(4) implement procedures to overcome the Relevant Default in a manner acceptable to the Principal.

(b) If:

(1) the Principal serves a Notice of Default for a Relevant Default under subclause (a); and

(2) the Contractor:

(A) remedies the Relevant Default; or

(B) implements procedures to overcome the Relevant Default in a manner acceptable to the Principal,



within the time specified in the Notice of Default the Principal must by notice in writing to the Contractor withdraw the Notice of Default.

(c) If:

(1) the Principal serves a Notice of Default for a Relevant Default under subclause (a); and

(2) the Contractor fails to remedy the Relevant Default or implement procedures acceptable to the Principal to overcome the Relevant Default within the time specified in the Notice of Default,

the Principal may terminate this Agreement.

28.4 Termination for Default during the Maintenance Period (a) If in accordance with clauses 28.2 or 28.3 the Principal elects to terminate

this Agreement, the Principal must serve a Termination Notice on the Contractor.

(b) If the Principal terminates this Agreement under subclause (a), this Agreement will, subject to the further provisions of this clause, be terminated and on service of the Termination Notice, the Contractor must:

(1) subject to clause 14.3 remove from the Prison all the Contractor’s tools, equipment and chattels;

(2) terminate all subcontracts, except those which, in accordance with the Termination Notice, are required to be assigned or novated to the Principal; and

(3) insofar as Contractor Persons are within the Prison, withdraw all Contractor Persons from the Prison.

(c) If the Agreement is terminated under subclause (a):

(1) subject to any dispute between the Principal and the Contractor as to payment of the Maintenance Fee, the Contractor is entitled to the Maintenance Fee up to the date of termination; and

(2) each party will be entitled to make a claim against the other for damages arising from the termination.

28.5 Principal may remedy Default (a) Subject to subclause (b), the Principal may, without prejudice to any other

right, power, remedy or claim of the Principal under this Agreement, take all action which the Principal considers necessary to remedy any Default by the Contractor, in which case the cost incurred by the Principal constitutes a debt due by the Contractor to the Principal payable on demand.

(b) Except where, in the opinion of the Contract Manger, it is an emergency in which case no notice will be required before the Principal exercises the powers specified in subclause (a), the Principal must not exercise the rights of the Principal under subclause (a) unless:

(1) the Principal has served a notice on the Contractor, which notice must:



(A) specify the action which the Principal intends to take under subclause (a); and

(B) require the Contractor to undertake that action within the time specified in the notice, being not more than 10 Business Days after the service of the notice; and

(2) the Contractor fails to take the action specified in the notice given under subclause (b)(1) within the time specified in the notice given under subclause (b)(1).

(c) The provisions of this clause do not affect any other right of the Principal to remedy any failure by the Contractor to undertake Maintenance Service under this Agreement.

28.6 Special right of Principal to terminate (a) The Principal may terminate this Agreement by serving on the Contractor

a Termination Notice where:

(1) the termination is in the public interest;

(2) the Contractor ceases to provide the Prison Service and the Principal determines that it is no longer practicable for the Contractor to continue providing the Maintenance Service; or

(3) the Services Agreement is terminated.

(b) If a Termination Notice is served on the Contractor in accordance with subclause (a):

(1) this Agreement will be terminated, as at the date of service of the Termination Notice;

(2) the provisions of clause 28.4(b) will apply, as if incorporated in this clause; and

(3) subject to clause 28.7 no party will have a Claim against the other arising out of the termination except in respect of any matter which arose prior to the termination.

28.7 Contractor’s rights where termination other than for Contractor Default If the Agreement is terminated for any reason other than a Default by the Contractor:

(a) the Contractor will not be liable to the Principal for any Loss arising from the termination:

(b) the Principal will pay to the Contractor:

(1) the amount due to the Contractor for Maintenance Service provided prior to the date of termination;

(2) the cost of materials reasonably ordered by the Contractor for the Maintenance Work, which the Contractor is liable to accept, but only if the materials become the property of the Principal on payment;



(3) costs reasonably incurred by the Contractor in the expectation of continuing the Maintenance Service and not included in the Maintenance Fee payable by the Principal as at termination; and

(4) all cash security and retention moneys; and

(c) if the Contractor has provided security other than cash security, the Principal must promptly release that security to the Contractor.

28.8 Right of Principal to suspend (a) Where:

(1) the suspension is in the public interest; or

(2) the Contractor is in Default,

the Principal may suspend this Agreement.

(b) If, in accordance with subclause (a), the Principal elects to suspend this Agreement, the Principal must give written notice of the suspension to the Contractor.

(c) On the giving of notice to the Contractor under subclause (b), this Agreement will be suspended, and in particular:

(1) the obligation of the Contractor to undertake the Maintenance Work;

(2) all rights of the Contractor under this Agreement; and

(3) the obligation of the Principal to pay the Maintenance Fee,

will be suspended.

(d) Where this Agreement is suspended as a result of a Default, the Contractor must pay to the Principal all costs reasonably incurred by the Principal in undertaking or arranging for any Maintenance Work to be undertaken which should have been undertaken by the Contractor.

(e) Where the Agreement has been suspended by the Principal for any reason other than the Default of the Contractor, the following provisions will apply.

(1) Insofar as the Contractor has, acting reasonably, incurred a liability which:

(A) relates specifically to the Agreement;

(B) results in the Contractor becoming liable to make a payment after the date of suspension and while the Agreement is suspended; and

(C) relates to a supply of goods or services while the Agreement is suspended,

the Principal must, subject to the further provisions of this clause, make payment of that liability.

(2) Subject to prior approval by the Principal, the Contractor must, after consultation with the Principal, use the Contractor’s best endeavours to reduce or terminate any liability as specified in subclause (e)(1).



(3) The Contractor must comply with any reasonable requirement of, or any condition reasonably imposed by, the Principal, including the following.

(A) The production of copy documentation necessary to verify the liability.

(B) The assignment to the Principal of the benefit of any goods or services which are the subject of the payment to be made, or which is made by the Principal.

(f) If the Principal has suspended this Agreement the Principal may on notice to the Contractor revoke the suspension.

(g) If the Principal revokes the suspension:

(1) the Principal must serve notice on the Contractor that the Principal has revoked the suspension; and

(2) as from the date of service of notice under subclause (g)(1), all of the obligations and rights of the Contractor and the Principal under this Agreement will be reinstated.

(h) Any suspension of this Agreement will be without prejudice to the exercise by the Principal of any other entitlement of the Principal under this Agreement.

28.9 Rights of Principal preserved The expiry or termination of this Agreement will not affect:

(a) any rights of the Principal against the Contractor in respect of any act, omission, matter, or thing occurring or under this Agreement prior to that expiry or termination; and

(b) any obligation of the Contractor on termination or on the expiry of the Maintenance Period.

29 Confidential Information 29.1 Contractor to keep confidential

The Contractor must keep the Confidential Information confidential, and will not without the Principal’s prior consent:

(a) disclose the Confidential Information to any person, other than those of the Contractor Persons requiring the Confidential Information for the purposes of:

(1) this Agreement; or

(2) complying with any Act or Legislative Requirement; or

(b) use or permit any Contractor Person to use any of the Confidential Information for any purpose other than in relation to the performance of the Contractor’s obligations under this Agreement.



29.2 Third parties (a) Subject to subclause (b), the Contractor must ensure that any person to

whom Confidential Information is made available, communicated or disclosed is at all times subject to and maintains the obligations of confidentiality contained in this clause.

(b) The provisions of subclause (a) do not apply to any person to whom Confidential Information is made available in order to obtain an approval from a Government agency to undertake Maintenance Work.

29.3 Compulsory disclosure (a) In the event that the Contractor, or any Contractor Person to whom the

Contractor discloses the Confidential Information, becomes legally compelled to disclose the Confidential Information, the Contractor must immediately provide the Principal with written notice so that the Principal may seek a protective order or other appropriate relief.

(b) The Contractor may only disclose that part of the Confidential Information which is legally required to be disclosed and will take all reasonable steps to obtain a protective order or other assurances that the confidentiality of the Confidential Information will be maintained.

(c) Notwithstanding the provisions of this clause, the Confidential Information shall not include information which is in the public domain.

29.4 Media releases The Contractor must:

(a) not:

(1) issue any information, document or article in respect of the Maintenance Work for publication in any media; or

(2) nominate the Maintenance Work for any award,

without the Principal’s prior approval;

(b) give due recognition to the Principal where the Principal approves a matter specified in subclause (a); and

(c) refer all enquiries from any media concerning the Prison or the Maintenance Work to the Principal, and thereafter, promptly provide to the Principal details of all enquiries, and any material or information released by the Contractor following the Principal’s approval.

29.5 Public document (a) The Contractor acknowledges that this Agreement will, in the absolute

discretion of the Principal and at a time to be determined by the Principal, be released to the public and become a public document.

(b) Before disclosing this Agreement as a public document, the Principal will consult with the Contractor in order to identify and agree any provisions of this Agreement which should not be made public on the basis that the information in those provisions is commercially sensitive.



(c) If after consultation under subclause (b), there is no agreement as to which provisions should not be made public, the Principal will determine, in the Principal’s absolute discretion, which provisions, if any, should not be released for public information.

29.6 Intellectual Property Rights (a) All Intellectual Property Rights vested in the Contractor prior to the

Signature Date are and will remain vested in and the property of the Contractor or the third party owner, but the Contractor hereby grants to the Principal a perpetual, non-exclusive, royalty-free licence to use the intellectual property the subject of those Intellectual Property Rights for any purpose in Western Australia.

(b) All Intellectual Property Rights vested in the Principal whether before or after the Signature Date remain vested in and the property of the Principal or the third party owner and:

(1) the Principal grants to the Contractor a non-exclusive licence to use the intellectual property the subject of those Intellectual Property Rights for the purposes of undertaking the Maintenance Work during the Maintenance Period; and

(2) the Contractor has no other entitlement or interest in those Intellectual Property Rights and has no right to acquire an entitlement or interest in those Intellectual Property Rights.

29.7 Transfer of Intellectual Property Rights (a) The Contractor:

(1) acknowledges that:

(A) all intellectual property developed by the Contractor in undertaking the Maintenance Work, including any Intellectual Property Rights, is owned by the Principal; and

(B) the Principal is not obliged to make any payment or other compensation to the Contractor; and

(2) must, when requested by the Principal:

(A) provide to the Principal all statistics relating to the Maintenance Work recorded by the Contractor; and

(B) transfer or assign to the Principal any rights to the intellectual property developed by the Contractor in undertaking the Maintenance Work.

(b) The Principal grants to the Contractor a perpetual, non-exclusive, royalty-free licence to use for any purpose the intellectual property developed by the Contractor in undertaking the Maintenance Work, provided that the Contractor complies at all times with the provisions of clauses 29.1, 29.2, 29.3 and 29.4.

29.8 Survival of Part The provisions of this clause shall survive the termination of this Agreement.



30 Protection of the interests of Principal 30.1 Reputation

The Contractor must take all reasonable action to protect the Principal’s and the Ministry of Justice’s name, image, reputation and interests.

30.2 Conflict of interest The Contractor must not engage in any activity that would in any way adversely affect:

(a) the Contractor's ability to undertake the Maintenance Work independently and in the manner required under this Agreement; or

(b) the interests of the Principal and the Ministry of Justice.

30.3 No association The Contractor must not:

(a) use the Principal’s or the Ministry of Justice’s name or attempt to obtain a benefit from the Principal’s or Ministry of Justice’s image and reputation in any way; or

(b) hold out to any third party that the Contractor has an association or connection with the Principal or the Ministry of Justice other than the Contractor’s engagement under this Agreement,

without obtaining the Principal’s prior consent.

30.4 Provisions of any permitted association The Contractor acknowledges that the Principal may stipulate provisions in relation to the Principal’s consent to any proposal or action by the Contractor by which the Contractor may benefit from association or connection with the Principal, including a condition requiring the payment of remuneration to the Principal on provisions to be agreed.

30.5 Uniforms Uniforms to be worn by Contractor Persons must be distinguishable from those worn by other persons working in the Prison.

31 Contractor’s Relationship with the Principal 31.1 Independent contractor

The Contractor is an independent contractor and must, unless otherwise provided by this Agreement, exercise independent control, management and supervision in the performance of the Maintenance Work.

31.2 Relationship The relationship between the Principal and the Contractor is that of principal and independent contractor, and nothing in this Agreement is to be taken as constituting the Contractor or any Contractor Person to be employees, consultants or agents of the Principal.



31.3 No agency (a) The Contractor acknowledges that, except to the extent otherwise

expressly provided in this Agreement:

(1) the Contractor is not, for the purposes of this Agreement, the legal representative, agent, joint venturer or partner of the Principal for any purpose; and

(2) neither the Contractor nor any Contractor Person has any right or authority to assume or create any obligations of any kind, or to make any representations or warranties or behalf of the Principal or to bind the Principal in any respect.

(b) The Principal acknowledges that, except to the extent otherwise expressly provided in this Agreement:

(1) the Principal is not, for the purposes of this Agreement, the legal representative, agent, joint venturer or partner of the Contractor for any purpose; and

(2) the Principal has no right or authority to assume or create any obligations of any kind, or to make any representations or warranties on behalf of the Contractor or to bind the Contractor in any respect.

31.4 No employment Notwithstanding that any person employed by the Contractor may be, or be treated as being under the control or direction of the Contract Manager:

(a) the Principal is not to be considered the employer of that person; and

(b) the Contractor is fully responsible for all obligations and liabilities arising out of the employment of that person in connection with any work under this Agreement whether in respect of the death of or injury to that person or anything else relating to that person.

31.5 Contrary Legislative Requirement Clause 31.4 is subject to any contrary Legislative Requirement.

32 Service Of Notices 32.1 Notices

Every Notice:

(a) must be in writing and given in accordance with the following details, and where more than one person is specified under the details of a party, then to every person at the address or in accordance with the details specified in item 4 of the Schedule.

(b) must be signed by

(1) an attorney; or

(2) in the case of a party which is a corporation - a director, manager or secretary or under the common seal of the corporation; or



(3) in the case of the Principal - by the Contract Manager or an officer in the Western Australian Public Service; or

(4) by a solicitor on behalf of the sender; and

(c) will be treated as having been given by the sender and received by or served on the addressee:

(1) if by delivery in person when delivered to the addressee;

(2) on the day which is the third Business Day after the date of posting - where posted by registered post within Australia to an address within Australia;

(3) on the day which is the eighth Business Day after the date of posting - where posted by air mail registered post from a place within Australia to an address outside Australia or posted from a place outside Australia to an address within Australia; and

(4) if by facsimile transmission, on the date of transmission where a transmission report is produced by the facsimile machine by which the facsimile message was transmitted which indicates that the facsimile message was transmitted in its entirety to the facsimile number of the recipient,

but if the transmission (in the case of facsimile) is on a day which is not a Business Day or is after 4.00 pm (addressee's time) it will be treated as having been duly given on the succeeding Business Day.

33 Miscellaneous 33.1 Act by agents

Except as otherwise specified in this Agreement anything to be done or performed by the Principal may be done and performed by any person duly authorised by the Principal, including the Principal’s employees, consultants engaged by the Principal or independent third parties.

33.2 Approvals, consents, determinations or waivers Subject to any express provision of this Agreement, where any approval, consent, determination or waiver is required from or to be made by the Principal or Contract Manager:

(a) the Contractor must obtain that approval, consent, determination or waiver in writing;

(b) the Principal or Contract Manager may:

(1) grant or refuse that approval or consent, make that determination or waiver, in the Principal’s discretion, without giving any reason for that grant or refusal or making; and

(2) grant that approval or consent or make that determination or waiver subject to any conditions the Principal may impose.



33.3 Authority to complete blanks The Principal and any Principal Employee or solicitor acting for the Principal may date this Agreement and complete any blanks in the Agreement.

33.4 Responsibility for and cost of compliance (a) Unless this Agreement expressly states otherwise, where a provision of

this Agreement imposes an obligation on the Contractor or a Contractor Person, the Contractor must bear and pay all costs and expenses of compliance with that provision or the performance of that obligation.

(b) The Contractor is responsible for:

(1) each act or omission of a Contractor Person; and

(2) ensuring that each Contractor Person complies with the relevant provisions of this Agreement,

and indemnifies the Principal against any Loss incurred by the Principal arising from a breach of this subclause.

33.5 Enforcement of indemnity A party need not incur expense or make payment before enforcing a right of indemnity conferred by this Agreement.

33.6 Ensure compliance by others (a) Where a provision of this Agreement prohibits the Contractor from doing a

thing, the Contractor must ensure that the Contractor Persons and others over whom the Contractor exercises control comply with that provision.

(b) The Contractor indemnifies the Principal against any loss the Principal incurs arising from a breach of subclause (a).

33.7 Entire Agreement This Agreement constitutes the entire agreement between the parties and supersedes any prior agreement between the parties.

33.8 Exercise of Powers (a) Subject to subclause (b), a party may exercise a Power at that party’s

discretion and separately or concurrently with any other Power.

(b) A party exercising a Power under this Agreement must exercise that Power reasonably unless this Agreement provides that the party is entitled to exercise an absolute discretion.

(c) A single exercise of a Power by a party does not prevent a further exercise of that, or of any other Power by that party.

(d) If a party fails to exercise or delays in exercising, a Power, that does not prevent its exercise.

33.9 Further assurances Each party will promptly, at that party’s expense, do any thing that any other party reasonably requires to effect, perfect or complete the provisions of this Agreement and any transaction contemplated by it.



33.10 Legal costs Subject to any express provision in this Agreement to the contrary, each party will bear its own legal and other costs and expenses relating to this Agreement.

33.11 Powers cumulative Subject to any express provision in this Agreement, the Powers of a party under this Agreement are cumulative and are in addition to any other Powers of that party.

33.12 Severance If any provision of this Agreement is or becomes for any reason invalid or unenforceable, that provision will be treated as having been deleted from this Agreement without affecting the remainder of this Agreement and that remainder will continue to be valid and enforceable.

33.13 Stamp duty The Contractor indemnifies the Principal against any amount of stamp duty payable in respect of this Agreement in the event that any stamp duty is payable in respect of this Agreement, including in respect of any fine or penalty except where a fine or penalty arises from default by the Principal, in which case the Principal will make payment of the amount of the fine or penalty due to the Principal’s default.

33.14 Statutory powers Nothing contained in or implied by this Agreement has the effect of constraining, or placing any fetter on any person in exercising any statutory power.

33.15 Survival Nothing will release the Contractor from any Contractor Obligation that, by its nature, survives completion of the Maintenance Work, or the termination of this Agreement, including all warranties and obligations of indemnity or confidentiality.

33.16 Variation A provision of, or right created under, this Agreement may not be:

(a) waived except in writing signed by the party granting the waiver; or

(b) varied except by an instrument in writing signed by the parties.

33.17 Waiver The waiver by a party of a breach by another party of any provision of this Agreement does not operate as a waiver of another or continuing breach by that party of the same or any other provision of this Agreement.

33.18 Counterpart (a) This Agreement may be executed in any number of counterparts.

(b) All counterparts, taken together, constitute one instrument.

(c) A party may execute this Agreement by signing any counterpart.



Schedule Item

1 Anticipated Commencement Date (clause 1)

20 September 2000

2 Maintenance Security Amount (clause 1 and 22)

$1,000,000

1 Amount applicable for insurance cover on Commencement Date (Clause 23)

(a) Subcontractor employees insurance amount

(b) Public and Product Liability Insurance Amount

(c) Professional Indemnity Insurance Amount

(d) Motor Vehicle Insurance Amount

$100 million each occurrence

$30 million each occurrence

$5 million for any one claim and $10 million in the aggregate

$20 million

1 Address for Service of Notices(clauses 32)

As set out below or to any other address specified by any party to the sender by notice

(a) Principal Care of Executive Director Department of Contract and Management Services 10th Floor, Dumas House 2 Havelock Street West Perth Facsimile 08 9222 5220 Attention: Mr Max Naismith

and to:

Ministry of Justice Level 16 Westralia Square 141 St Georges Terrace Perth WA 6000 Attention: Director General Facsimile: (08) 9264 1121

(b) Contractor Corrections Corporation of Australia Pty Ltd Level 4, Sherwood House, 39 Sherwood Road Toowong, QLD 4066 Facsimile: (07) 3870 0018 Attention: Terry Lawson



2 Interest Rate (clause 15.5)

The standard commercial overdraft rate of interest charged by a bank carrying on business in Perth nominated by the Principal.



Annexure A - Site Plan



Annexure B - Maintenance Fee The Maintenance Fee payable for each Maintenance Year during the Maintenance Period is as follows:

Maintenance Year Maintenance Fee Allocation

Maintenance Fee

1 Maintenance Expense $830.000 $830,000

2 Maintenance Expense $830,000 $830,000


4 Maintenance Expense $847,000

Upgrade/Replacement of Prison Equipment $20,000

$867,000



$1,654,000





$867,000



Upgrade/Replacement of Prison Equipment $1,810,000

$2,673,000




$883,000




Upgrade of Prison Building $270,000


$2,352,000


Upgrade of Building $40,000


$941,000







$921,000



$938,000




$2,998,000



Annexure C - Prison Equipment Upgrade Schedule Maintenance Year Particulars of Upgrade/Replacement of Prison Equipment

4 Access Control Computer Processing Unit & Hard Disk Drive

5 Closed Circuit Television Matrix Switcher, Monitors & Cameras

Access control doors

Alarm Points

Uninterrupted Power Supply Batteries & Emergency Lighting


10 Visitor Registration System

Walk through metal detector

Baggage X-ray machine

Closed Circuit Television Matrix Switcher, Monitors & Cameras

Security Alarm mimic panel

Video Imaging system

Evaporative Cooler


Communications Software

Pressure Pump

Boiler systems

Water boiling units

Cold water drinking units


15 Closed Circuit Television Matrix Switcher, Monitors & Cameras

Access control doors

Alarm Points


Exhaust Equipment

Air-conditioning plant


Diesel electric fire pump system

Dishwasher

Laundry equipment

Refrigerators





Visitor Registration System

Walk through metal detector

Baggage X-ray machine

Closed Circuit Television Matrix Switcher, Monitors & Cameras

Security Alarm mimic panel

Video Imaging system

Evaporative Cooler


Communications Software

Pressure Pump

Boiler systems

Water boiling units

Cold water drinking units



Executed as an agreement: Signed for Corrections Corporation of Australia Pty Ltd by its attorney in the presence of:

________________________________ ________________________________ Witness Attorney

________________________________ ________________________________ Name (please print) Name (please print)

The common seal of the Minister for Works was hereunto affixed by The Honourable Rob Johnson JP, MLA, Minister for Works for the time being in the presence of:

________________________________ ________________________________ Witness The Honourable Rob Johnson JP, MLA

________________________________ Name (please print)



Table of contents Clause Page

1 Definitions 1

2 Interpretation 10 2.1 Headings 10 2.2 Last day not a Business Day 10 2.3 Joint and several covenants 10 2.4 Reference to a Party 10 2.5 Reference to other document 11 2.6 Reference to a thing 11 2.7 Reference to a clause or subclause 11 2.8 Singular, plural and gender 11 2.9 Reference to a person and a body corporate 11 2.10 Reference to body which ceases to exist 11 2.11 Month 12 2.12 Governing Law 12 2.13 Cost of and undertaking obligations 12 2.14 Continuing obligation 12 2.15 Reference to comply with, permit, including, expiry and termination 12 2.16 Reference to Act or Legislative Requirement 12 2.17 Reference to the Principal and the State 12

3 Engagement 12 3.1 Engagement of Contractor 12 3.2 Maintenance Fee 13 3.3 Assumption of Risk by Contractor 13 3.4 Appointment of Nominated Subcontractor 13

4 Maintenance Period 15 4.1 Appointment 15 4.2 Obligations prior to Commencement Date 15 4.3 Continuation of Maintenance Service 15

5 Contract Manager and Contractor’s Representative 15 5.1 Instructions from Contract Manager only 15 5.2 Appointment of the Contract Manager 16 5.3 Agent of the Principal 16 5.4 Contract Manager to act reasonably 16 5.5 Functions of the Contract Manager 16 5.6 Appointment of Contract Manager Assistant 17 5.7 Appointment of Contractor Representative 17 5.8 Notification of Contractor Representative 17 5.9 Authority of Contractor Representative 17 5.10 Knowledge of Contractor Representative 17 5.11 Appointment of Contractor Representative Assistant 17 5.12 Availability of Contractor Representative 18


Clause Page


5.13 Replacement 18 5.14 Dispute about Contract Manager’s decision 18

6 Maintenance Obligation - General 18 6.1 General Obligation 18 6.2 Suitable Personnel 19 6.3 Standard of Maintenance Work 19 6.4 Other issues relating to general obligation 19 6.5 Access to the Prison and the Site 20

7 Maintenance manual 20 7.1 Proposed Maintenance Manual 20 7.2 Content of maintenance manual 21 7.3 Approval 21 7.4 Non Approval 22 7.5 Obligation Not Affected 22 7.6 Cost 22 7.7 Status once approved 22 7.8 Compliance 22 7.9 No Variation 23 7.10 Variations by the Principal 23 7.11 Inconsistency 23

8 Maintenance Obligation - Prison Building and Structures 23 8.1 Contractor to Maintain 23 8.2 No alterations 24 8.3 Painting 24 8.4 Prison Building Upgrade 25

9 Plant and Prison Equipment 26 9.1 Contractor to maintain 26 9.2 Maintenance contracts 26 9.3 Prison Equipment Upgrade and/or Replacement 26

10 Restriction on access to Prison - Contractor Person 28 10.1 Restriction of access 28 10.2 Application for Prison Access Permit 28 10.3 Issue of Prison Access Permit 28 10.4 Custody and issue of Prison Access Permit to Contractor Person 29 10.5 Withdrawal of Prison Access Permit 29 10.6 Compliance with other requirements 29

11 Survey and inspection by Principal 30 11.1 Annual program 30 11.2 Asset management survey 30 11.3 Inspection 31 11.4 Co-ordination of inspections 32


Clause Page


11.5 Contractor Obligation not affected 32 11.6 Maintenance Work not undertaken 32 11.7 Withdrawal of Cell Certificate 33 11.8 Withdrawal of Prison Certificate 33

12 Destruction of or damage to Prison 34 12.1 Suspension of Obligations 34 12.2 Substantial Destruction 34

13 Expansion of the Prison 35 13.1 Principal may instigate expansion 35 13.2 Contractor must permit or undertake Expansion Work 35 13.3 Principal may make alternative construction arrangements for Expansion Work 35 13.4 Co-operation with other Contractor 35

14 Obligation on termination 35 14.1 General obligation on termination 35 14.2 Removal of property 36 14.3 Option - Special Tools 36

15 Maintenance Fee 37 15.1 Payment of Maintenance Fee 37 15.2 Adjustment of Maintenance Fee 37 15.3 Maintenance Fee all inclusive 38 15.4 Goods and Services Tax 38 15.5 Basis of, and allocation of Maintenance Fee 40 15.6 Invoices 40 15.7 Payment of invoices 40 15.8 Failure to adjust 40 15.9 Disputing an invoice 41 15.10 Deductions from Maintenance Fee 41 15.11 Overpayment 41 15.12 Set-off and security 41 15.13 Suspension of payments 41 15.14 Liquidated Damages 42 15.15 Interest payable by parties 43 15.16 Interest to Accrue Daily 43 15.17 Payment not evidence that Maintenance Work is satisfactory 43 15.18 Variation of the Maintenance Fee for change to the Prison 43

16 Cost savings 44

17 The Site and responsibility for the Site 44 17.1 Keep Site Clean 44 17.2 Contractor’s responsibility - tools 44 17.3 Protection of persons and property 44 17.4 Urgent Protection 45


Clause Page


17.5 Removal of hazardous substances 45

18 New Structure Maintenance Works 46 18.1 Written direction for new structure maintenance work 46 18.2 Written proposal from Contractor 46 18.3 Variation to Maintenance Fee 46 18.4 Contract manager to determine variation to Maintenance Fee 46 18.5 Determination of Management Fee in case of dispute 46 18.6 Variation to Maintenance Fee all inclusive 46

19 Quality Assurance 47 19.1 Quality Plan 47 19.2 Review of Quality Plan 47 19.3 Audit of Quality Plan Implementation 47 19.4 No additional payment 48

20 Records and Financial Records of the Contractor 48 20.1 Contractor to keep Records 48 20.2 Place for keeping of records 48 20.3 Right to inspect, and provision of facilities 48 20.4 Principal’s right to defer 49 20.5 Contractor must permit access 49 20.6 No Destruction of Records 49 20.7 Contractor’s financial records 49 20.8 Provision of information to Principal 49

21 The Contractor’s warranties and other obligations 50 21.1 Compliance with Legislative Requirements 50 21.2 Compliance with Government Policies 50 21.3 Ensure Compliance by Others 51 21.4 Contractor’s representations and warranties 51 21.5 Labour, Materials and standards of workmanship 51 21.6 Workplace Health & Safety 52 21.7 Contractor’s skill and judgment 52 21.8 No representations or warranties by Principal 52 21.9 Survival of representations and warranties 53 21.10 Independent warranties 53 21.11 Contractor has informed itself 53 21.12 No collusion 53

22 Security during the Maintenance Period 54 22.1 Maintenance Performance Guarantee 54 22.2 Maintenance Security Amount 55 22.3 Form of Maintenance Performance Guarantee 55 22.4 Principal to have recourse & replacement of security 55 22.5 Interest on Maintenance Performance Guarantee 56 22.6 Maintenance Performance Guarantee to be kept in force 56 22.7 Return of Maintenance Performance Guarantee 56


Clause Page


23 Insurance 56 23.1 Insurances 56 23.2 Increase in amount of cover 58 23.3 Insurance terms 58 23.4 Evidence of insurance 58 23.5 Default 59 23.6 Notification 59 23.7 No variation to insurances 59 23.8 Warranty by Insurer 60 23.9 Access to Insurer 60 23.10 Admissions and settlement 61 23.11 Not affect Contractor’s other obligations 61 23.12 Subcontractors 61

24 General indemnity 61 24.1 Indemnity 61 24.2 Exclusion 61

25 Dealing with Agreement and subcontracting 61 25.1 Contractor may not deal 61 25.2 No change in control 62 25.3 Notice of change of control 62 25.4 Subcontracting 62 25.5 Provisions to apply 63 25.6 Novation 63

26 Dispute resolution 64 26.1 General 64 26.2 Requirement to give Dispute Notice 64 26.3 Appointment of Dispute Representative 64 26.4 Contractor Dispute Representative 64 26.5 Agreement or procedure to determine Dispute 65 26.6 Mediation and arbitration procedure 66 26.7 Mediation 66 26.8 Appointment of mediator 67 26.9 Mediator's Functions 67 26.10 Mediation Procedure 67 26.11 Place of mediation 67 26.12 Mediator's Fees 67 26.13 Confidential Information 67 26.14 Termination of the Mediation 67 26.15 Condition to arbitration 68 26.16 Arbitration 68 26.17 Appointment of arbitrator 68 26.18 Conduct of arbitration 68 26.19 Representation by legal practitioner 68 26.20 Arbitrator’s authority 68 26.21 Privacy 68


Clause Page


26.22 Contractor must continue to perform Maintenance Work 68 26.23 Principal must continue to comply with obligations except payment 69

27 Force Majeure 69 27.1 Notice by Force Majeure Party 69 27.2 Notice to provide particulars 69 27.3 Force Majeure Party will implement reasonable procedures 70 27.4 Force Majeure Party to keep Non Affected Party advised of developments 70 27.5 Termination if Force Majeure continues 70 27.6 Reduction in Maintenance Fee 70

28 Default and Termination 70 28.1 Service of Notice of Default 70 28.2 Termination for Termination Default 70 28.3 Termination for Relevant Default 71 28.4 Termination for Default during the Maintenance Period 72 28.5 Principal may remedy Default 72 28.6 Special right of Principal to terminate 73 28.7 Contractor’s rights where termination other than for Contractor Default 73 28.8 Right of Principal to suspend 74 28.9 Rights of Principal preserved 75

29 Confidential Information 75 29.1 Contractor to keep confidential 75 29.2 Third parties 76 29.3 Compulsory disclosure 76 29.4 Media releases 76 29.5 Public document 76 29.6 Intellectual Property Rights 77 29.7 Transfer of Intellectual Property Rights 77 29.8 Survival of Part 77

30 Protection of the interests of Principal 78 30.1 Reputation 78 30.2 Conflict of interest 78 30.3 No association 78 30.4 Provisions of any permitted association 78 30.5 Uniforms 78

31 Contractor’s Relationship with the Principal 78 31.1 Independent contractor 78 31.2 Relationship 78 31.3 No agency 79 31.4 No employment 79 31.5 Contrary Legislative Requirement 79


Clause Page


32 Service Of Notices 79 32.1 Notices 79

33 Miscellaneous 80 33.1 Act by agents 80 33.2 Approvals, consents, determinations or waivers 80 33.3 Authority to complete blanks 81 33.4 Responsibility for and cost of compliance 81 33.5 Enforcement of indemnity 81 33.6 Ensure compliance by others 81 33.7 Entire Agreement 81 33.8 Exercise of Powers 81 33.9 Further assurances 81 33.10 Legal costs 82 33.11 Powers cumulative 82 33.12 Severance 82 33.13 Stamp duty 82 33.14 Statutory powers 82 33.15 Survival 82 33.16 Variation 82 33.17 Waiver 82 33.18 Counterpart 82

Schedule 83 Annexure A - Site Plan Annexure B - Maintenance Fee Annexure C - Prison Equipment Upgrade Schedule


Clause Page


Maintenance Agreement

Acacia Prison

Minister for Works

and

Corrections Corporation of Australia Pty Ltd

B A R R I S T E R S & S O L I C I T O R S AMP Building 140 St Georges Terrace

Perth 6000 Western Australia Telephone (08) 9211 7777 Int + (61 8) 9211 7777 Facsimile (08) 9211 7878

DX 104 Perth Reference: JGS: MLC:9852244

P E R T H S Y D N E Y M E L B O U R N E C A N B E R R A B R I S B A N E S I N G A P O R E H A N O I H O C H I M I N H C I T Y C O R R E S P O N D E N T O F F I C E I N J A K A R T A

Documents

Acacia Prison Services Agreement · Acacia Prison Maintenance Agreement Freehill Hollingdale & Page PERC4\Maintenance Agreement.doc page 5 Dispute means a dispute between the parties