AGREEMENT FOR THE SUPPLY, FABRICATION - Formsite · PDF file10.01 Supply Only Agreement – RCTI by Lend Lease ... The Proforma Payment Claim Statements for clauses 4.2.2(a) ... AGREEMENT

10.01 Supply Only Agreement – RCTI by Lend Lease (rebranded) Rev. AC (12.07.06)

Page 1

AGREEMENT No. ............................ FOR THE SUPPLY, FABRICATION

AND DELIVERY OF ......................................................................

BETWEEN

LEND LEASE PROJECT MANAGEMENT & CONSTRUCTION (AUSTRALIA) PTY LIMITED ABN 97 000 098 162

AND

......................................................... ABN ................................

PROJECT: BARANGAROO

PROJECT No. 160526


Page 2

SUPPLY AGREEMENT FOR ...................................................

AGREEMENT NO. ............................ THIS AGREEMENT is made on the ........................................... day of ........................................... 20.….... between the following parties:

1. LEND LEASE PROJECT MANAGEMENT & CONSTRUCTION (AUSTRALIA) PTY LIMITED ABN 97

000 098 162 of 30 The Bond, 30 Hickson Road, Millers Point NSW 2000 ("Lend Lease"); and

2. ..............................................................................….. ABN ................................................. of

......................................................................................................................... ("the Supplier"). THE PARTIES AGREE: A. The Supplier must supply ..............................................................................................................

(“Goods”) to Lend Lease in accordance with the Contract. B. Lend Lease must pay the Contract Sum to the Supplier in accordance with the Contract. C. The Contract means the entire, final and concluded agreement between Lend Lease and the Supplier

relating to the fabrication and supply of the Goods which agreement supersedes all previous communications whether oral or written and is evidenced by the following documents (the "Contract Documents"):

(i) The Contract Terms annexed hereto.

(ii) The Appendix.

(iii) Annexure A: Advance Payments.

(iv) Annexure B: The format of the Deed of Novation.

(v) Annexure C: The format of the Warranty.

(vi) Schedule 1: The Goods.

(vii) Schedule 2: The Design Requirements.

(viii) Schedule 3: The Quality Requirements.

(ix) Schedule 4: The Programming Requirements.

(x) Schedule 5: Schedule of Information Management.

(xi) Schedule 6: Sustainability Requirements.

(xii) The drawings listed in the Appendix.

(xiii) The Proforma Payment Claim Statements for clauses 4.2.2(a) and 4.10

(xiv) Subcontractor Statement [NSW Only] and Notes.

(xv) The Specification numbered ........................ and dated ........................

(xvi) [The Request for Tender and Supplier‟s Tender].


Page 3

TABLE OF CONTENTS CLAUSE NO. CLAUSE HEADING 1. Interpretation 2. Fabrication and Delivery 2.1 The Supplier to Fabricate and Supply Goods 2.2 Programme Requirements 2.3 Supply of Shop Detail Drawings & Other Materials 2.4 Inspection 2.5 Testing 2.6 Storage 2.7 Package and Transportation 2.8 Delivery 2.9 Liquidated Damages 2.10 Personnel 2.11 Personnel on Site 2.12 Risk for Errors, Omissions, Ambiguities or Discrepancies 3. Warranties, Liabilities, Indemnities & Insurance 3.1 Warranties and Liabilities 3.2 Indemnities 3.3 Insurance 4. Progress Payments 5. Variations 6. Cancellation, Suspension and Termination 6.1 Cancellation 6.2 Suspension 6.3 Termination for Default 7. General Provisions 7.1 Assignment and Subcontractors 7.2 Notices 7.3 No General Lien 7.4 Secrecy 7.5 Publicity 7.6 Compliance with Statutory and Other Regulations 7.7 Taxes 7.8 Arbitration of Disputes 7.9 Counting of Days 7.10 Approval by Lend Lease 7.11 Governing Law 7.12 Industrial Matters


Page 4

8. Notification of Claims 9. Operation and Maintenance Information 9.1 Operation and Maintenance Manuals 9.2 Work As-Executed Drawings 9.3 Information Management 10. Supply of Spares 11. Quality Requirements 12. Lend Lease‟s Liability 13. Software Functionality Warranty 14. Goods and Services Tax 15. Software Source Codes 16. Lend Lease‟s Right to Novate 17. Sustainability Requirements


Page 5

CONTRACT TERMS 1. INTERPRETATION 1.1 In the Contract unless the context otherwise requires: “BDA” means the Barangaroo Delivery Authority (ABN 94 567 807 277)

“Client” means the other party or parties with Lend Lease to the Head Contract, named in the Appendix.

“Delivery Date” (or “Delivery Dates”) means the date or dates by which the Supplier must deliver the

Goods or the relevant part or parts of the Goods to Lend Lease as set out in the Appendix and any amendments to a Delivery Date made pursuant to the provisions of this Contract.

“Delivery Point” means the place or places at which the Supplier must deliver the Goods to Lend

Lease, being the specific place nominated in the Appendix or as nominated by Lend Lease from time to time. The parties acknowledge that the Delivery Point will be the Site or in the vicinity of the Site.

“Goods” means the items specified in Schedule 1 to be fabricated (where applicable) and supplied in

accordance with the Contract. Unless the context otherwise requires, reference in this Contract to Goods shall include part or parts of the Goods.

“GST” has the same meaning as in A New Tax System (Goods and Services Tax) Act, 1999. “Head Contract” means the agreement, arrangement or understanding with the Client under which

Lend Lease will execute certain work and for which the Goods are required. “Site” means the place specified in the Appendix. “Specification” means the specification attached or incorporated by reference hereto or if amended

during the performance of the Contract, the specification as amended. 1.2 In the event of any conflict between the Supplier‟s Tender, if included as a Contract Document, and any

of the other Contract Documents the conflicting provision of the Supplier‟s Tender will be disregarded. 1.3 Lend Lease may for its own purposes incorporate this Contract into a purchase order in which event the

terms and conditions of such purchase order will have no effect unless the parties expressly agree to set aside this provision 1.3.

1.4.1 For the purposes of this Contract the word fabricate will include one or more of the processes of

manufacture, modification, filling, printing logos and other processes necessary to satisfy the requirements of Schedule 1, the Specification and Drawings.

1.4.2 If the Contract requires the Supplier to undertake any design associated with the Goods then the word

fabricate will be deemed to include design and the provisions of Schedule 2 will apply. 1.5 The Supplier may with Lend Lease‟s consent subcontract the process of fabrication of the Goods. 1.6 This Contract operates retrospectively from the date of commencement of the work to which this

Contract relates. 2. FABRICATION AND DELIVERY 2.1 The Supplier to Fabricate and Supply Goods


Page 6

The Supplier must fabricate, supply and deliver the Goods to the Delivery Point in accordance with the requirements of this Contract. The Supplier must not deliver the Goods prior to the Delivery Date, except with the prior approval in writing of Lend Lease. Time will be of the essence of this Contract. 2.2 Programme Requirements The Supplier must comply with Schedule 4 with respect to Programming Requirements. 2.3 Supply of Shop Detail Drawings and Other Materials 2.3.1 The Supplier must submit to Lend Lease for approval at the times specified in Schedule 4 or such other

times as are reasonably required by Lend Lease, the shop drawings, and other materials identified in the Appendix.

2.3.2 The Supplier will be responsible for and will bear the cost of any alteration to the work to be performed

on the Goods arising from a discrepancy or error in, or omission from any drawings, or other material issued by the Supplier whether the same has been reviewed by Lend Lease or not.

2.3.3 Unless otherwise agreed, the minimum period required by Lend Lease for the review and approval of

shop drawings will be as follows:

(i) 3 weeks from the date of submission; or (ii) 1 week from the date of re-submission where drawings are amended.

2.4 Inspection 2.4.1 Lend Lease or its authorised representative may inspect and examine the Goods and witness tests on

the materials, workmanship and performances of the Goods and the process of fabrication at any time during or subsequent to fabrication at the Supplier's premises, at the premises of its sub-contractors (if any), or at the Delivery Point. For the purposes of this sub-clause, the Supplier must ensure that Lend Lease or its authorised representative is given a right of access to any premises on which work in respect of the Contract is being carried out.

2.4.2 Lend Lease will be entitled to reject at any time Goods which do not comply with the requirements of this

Contract and may, in its absolute discretion, direct the Supplier to either repair or replace promptly and within any reasonable time specified by Lend Lease any rejected Goods wholly at the Supplier's expense.

2.5 Testing 2.5.1 The Supplier must give not less than three (3) day's prior written notice to Lend Lease of the place, date

and time of any tests to be carried out on the Goods. Lend Lease or its nominated representative will be entitled to attend any such tests and the Supplier must provide any test results requested by Lend Lease.

2.5.2 The Supplier must carry out all additional tests reasonably requested by Lend Lease. If the Goods fail

any test so requested, the cost of such test will be borne by the Supplier. If the Goods pass the test or tests so requested by Lend Lease the cost of all such tests will be borne by Lend Lease.

2.5.3 Where the Goods or any part of the Goods fail to meet test requirements or in the reasonable opinion of

Lend Lease are defective the relevant tests on the Goods as repaired or replaced must be repeated within a reasonable time if so requested by Lend Lease. All costs associated with such retesting will be borne by the Supplier. Any costs associated with such retesting incurred by Lend Lease may be deducted from the moneys due otherwise to the Supplier under the Contract.

2.6 Storage


Page 7

2.6.1 Upon completion of fabrication, all Goods which have been made ready for delivery must be stored by the Supplier and must be:

(i) available for immediate delivery; (ii) free from any form of lien, mortgage or guarantee in favour of any third party; (iii) properly stored and protected against damage or deterioration; (iv) when payment has been made pursuant to Clause 4 clearly marked as the property of Lend

Lease, and set aside in a secure area separate from other Goods and materials not relating to this Contract.

2.6.2 If Lend Lease extends any Delivery Date pursuant to Clause 2.8.2(v) or Clause 2.8.5 and the Goods are

required to be stored beyond the earlier Delivery Date the Supplier must store the Goods fabricated and ready to be delivered at no cost to Lend Lease for up to the period of months, specified in the Appendix, however if Lend Lease requires that the Goods fabricated and ready for delivery be stored by the Supplier for a longer period, the Supplier will be entitled to claim the additional amount specified in the Appendix per week in respect of such storage until the Goods are delivered.

2.7 Packing and Transportation 2.7.1 The Supplier must load the Goods at its own cost for transportation in accordance with the requirements

of the Specification, or if not so specified, to suitably acceptable standards. 2.7.2 A detailed list identifying the Goods must be handed to Lend Lease or its representative by the Supplier

at the time of delivery. 2.7.3 All items comprising the Goods must be clearly tagged or marked for identification in the manner as

instructed by Lend Lease. 2.7.4 Each item must be marked legibly with Lend Lease's name, the name of the Project and any relevant

description and item number specified in the Contract. 2.7.5 The risk of loss, damage or depreciation in the Goods will rest with the Supplier until the Goods have

been delivered by the Supplier to the Delivery Point and have been unloaded whereupon risk of loss, damage or depreciation will pass to Lend Lease or their representative provided that the risk of unloading will be that of the Supplier.

2.8 Delivery 2.8.1 The Supplier must notify Lend Lease in writing two (2) days prior to the dispatch of the Goods of the

name of its carrier and the estimated time of arrival at the Delivery Point. 2.8.2 (i) If the Supplier is delayed or anticipates being delayed in the performance of the Contract for

any reason whatsoever, it must promptly notify Lend Lease in writing of such delay or such anticipated delay and must include in such notice the manner in which it intends to avoid or minimise such delay or anticipated delay.

(ii) If the delay is caused by an event beyond the reasonable control of the Supplier and, of the

type referred to in the Appendix, occurring on or prior to the Delivery Date, and the delay might reasonably be expected to result in a delay to the delivery of the Goods, the Supplier must, if it desires to claim an extension of the Delivery Date, give to Lend Lease, not later than the number of days stated in the Appendix after the cause of the delay arose, notice in writing of its claim for an extension of the Delivery Date, together with a statement of facts on which it bases its claim.


Page 8

The Supplier must also include in that notice the details of the duration and effects of any continuing delay previously notified to Lend Lease.

(iii) If Lend Lease determines that the cause of the delay is such as to justify an extension to the

Delivery Date(s), Lend Lease must grant the Supplier such extension to the Delivery Date(s) as Lend Lease considers reasonable and must as soon as practicable after it has granted the extension, notify the Supplier thereof.

(iv) It will be a condition of becoming entitled to an extension of time that the Supplier must

constantly use its best endeavours to avoid delay in the progress of the work under the Contract and do all that may reasonably be required by Lend Lease to expedite the execution of the Contract so as to complete the same within the time required by this Contract.

(v) If the Supplier is delayed in circumstances where the progress of the works under the Head

Contract is delayed then the Supplier will not be entitled to an extension of time in excess of the period of the extension of time granted to Lend Lease under the Head Contract. This sub-clause (v) will not apply if the delay is caused by an act of prevention or breach of contract by Lend Lease or if the cause of the delay is a type for which Lend Lease is not entitled to an extension of time under the Head Contract.

(vi) Lend Lease may at any time by notice in writing to the Supplier extend the Delivery Dates or

any of them for any reason. (vii) If a variation ordered pursuant to Clause 5 involves or may involve a reduction in time for the

execution of the supply and fabrication of the Goods, Lend Lease and the Supplier must attempt to agree upon the reduction or reductions of time to apply and failing such agreement Lend Lease must determine an appropriate reduction or reductions in time and in either case, must notify the Supplier in writing of the adjusted Delivery Date or Delivery Dates.

(viii) Under no circumstances will the Supplier be entitled to claim from Lend Lease any costs,

losses or expenses incurred or damages suffered owing to any such delay or to the extension of any or all of the Delivery Dates.

2.8.3 If the Supplier fails to make deliveries within the date or dates specified Lend Lease will be entitled to do

one or more of the following:

(i) determine this Contract by written notice to the Supplier; (ii) direct the Supplier not to supply some or all of the Goods which have not been delivered within

the specified times in which case the Contract Sum will be reduced by a reasonable amount in respect of those goods; and

(iii) claim liquidated damages in accordance with Clause 2.9.

2.8.4 The Supplier must deliver the Goods to the Delivery Point in accordance with the details set out in the notice from Lend Lease given pursuant to Clause 2.8.5.

2.8.5 Lend Lease must notify the Supplier in writing at least one (1) day prior to requiring delivery of any

Goods of:

(i) the date and time for delivery; (ii) details of the Goods required; (iii) the Delivery Point.

Where the date for the delivery of the Goods stated in the notice is later than the Delivery Date in respect of those Goods, the notice must be deemed to be a notice given pursuant to Clause 2.8.2(vi) hereof and the Delivery Date shall be deemed to be extended to the date for delivery contained in the notice.


Page 9

2.8.6 If Lend Lease requires Goods to be delivered on a Sunday, the Supplier will be entitled to a reasonable

amount in respect of any additional delivery costs incurred by the Supplier. 2.8.7 If the Supplier has fabricated and stored Goods before the Delivery Date, Lend Lease may require early

delivery of those Goods at no additional cost to Lend Lease. 2.9 Liquidated Damages If the Supplier fails to deliver the Goods in the condition required by the Contract, by the Delivery Date or Dates specified in the Appendix, as adjusted, the Supplier must pay to Lend Lease by way of pre-estimated and liquidated damages and not as a penalty the amount stated in the Appendix for each day that elapses between the relevant Delivery Date and the date of delivery of the Goods. 2.10 Personnel The Supplier must ensure that its personnel are competent and experienced in the type of work they are undertaking. At least 10 days prior to its personnel commencing any work under this Contract the Supplier must make available to Lend Lease satisfactory evidence of the qualifications and job history of those personnel. 2.11 Personnel on Site Where any personnel of the Supplier are required to enter upon the Site, those personnel must comply with Lend Lease‟s safety requirements and must adhere to any relevant legislation to the extent to which it applies on the Site. 2.12 Risk for Errors, Omissions, Ambiguities or Discrepancies If either party becomes aware of an error, omission, ambiguity or discrepancy in the Contract it must immediately give written notice to the other party of the error, omission, ambiguity or discrepancy. Lend Lease must issue written instructions to the Supplier explaining, determining or correcting any such errors, omissions, ambiguities or discrepancies. The Supplier agrees and acknowledges that any instruction issued by Lend Lease under this Clause 2.12 in respect of any ambiguity or discrepancy is not a variation and that Lend Lease will not be liable for any losses incurred by the Supplier arising from any instruction issued by Lend Lease under this Clause 2.12 in respect of any ambiguity or discrepancy. 3. WARRANTIES, LIABILITIES INDEMNITIES AND INSURANCES 3.1 Warranties and Liabilities 3.1.1 The Supplier warrants to Lend Lease that the Goods will be new and of the specified quality and will be

fit, sufficient and suitable for their purpose, merchantable, of good material and workmanship and free from defect and shall be in accordance with the requirements of the Contract and consistent with any representation, express or implied upon which Lend Lease may be entitled to rely.

3.1.2 All warranties and conditions implied by law or by Statute in contracts for the sale of Goods will apply to

the Contract. 3.1.3 (i) Without limiting Lend Lease's rights at law or under any statute, any Goods rejected by Lend

Lease or found defective owing to the Goods not being in accordance with the Contract within the period stated in the Appendix ("the Defects Liability Period") must either be repaired or replaced, at the absolute discretion of Lend Lease, by the Supplier, within the reasonable time specified by Lend Lease, at the Supplier's sole expense.

(ii) Any remedial work carried out during the Defects Liability Period must not unreasonably

disrupt, or inconvenience the activities of the occupants of the Project. Subject to any restrictions on the access to the Project and associated facilities that Lend Lease may


Page 10

determine to be necessary for the execution of remedial work by the Supplier, the use of the Project and associated facilities by its occupants will not relieve the Supplier from any liability or obligation under this Contract.

3.1.4 The Supplier warrants to Lend Lease that:

(i) all payments for royalties, patent rights and governmental fees due or payable for the Goods are included in the Contract Sum and will be paid by the Supplier;

(ii) the Goods will not infringe any Australian or foreign patent, copyright, registered design or other

protected right; (iii) the Supplier will defend at its own cost and indemnify Lend Lease, the Client and the BDA in

respect of costs, losses and expenses, including any damages arising from any claim, action or suit made against Lend Lease, the Client and/or the BDA for patent or copyright infringement. The Supplier must obtain all permits, licences and give all notices necessary to comply with the requirements of any legislation or statutory authority in respect of the Goods and the work under the Contract and must pay and bear all fees, deposits and taxes payable in connection therewith.

3.1.5 The Supplier warrants that the Goods will be, at the time property passes to Lend Lease, free and clear

of all liens, charges and encumbrances. 3.1.6 The Supplier must:

(i) ensure that any warranties provided or to be provided by manufacturers or suppliers of the Goods are provided to Lend Lease naming Lend Lease and the Client jointly as beneficiaries; and

(ii) ensure that the benefit of each warranty required to be provided under the Contract is capable

of assignment at Lend Lease‟s option to Lend Lease, the Client, their assigns or any of them; and

(iii) assign the benefit of each warranty to Lend Lease, their assigns or any of them as Lend Lease

may direct.

3.1.7 Notwithstanding any other provision of this Contract the Supplier will not be entitled to any payment until it has duly executed (in duplicate) and delivered to Lend Lease the warranty in the form contained at Annexure C.

3.1.8 The Supplier will attain from its suppliers warranties in the form contained at Annexure C. 3.2 Indemnities 3.2.1 The Supplier must indemnify Lend Lease against claims in relation to injury (including death) to persons

or damage to property arising out of or in connection with the use of the Goods or any part of the Goods owing to defects in such Goods provided that such defects are caused by the negligence of the Supplier or by its failure to comply with the requirements of the Contract.

3.2.2 In addition to any other liability, the Supplier indemnifies Lend Lease against any liquidated or

unliquidated damages for which Lend Lease may be liable under the Head Contract (whether for late completion or otherwise) to the extent that Lend Lease‟s liability for those damages arises out of or is connected with a breach by the Supplier of the Contract. The rate of liquidated damages under the Head Contract is stated in the Appendix.

3.3 Insurance 3.3.1 The Supplier at its own cost must effect and maintain the following policies of insurance:


Page 11

(i) Workers Compensation Insurance and any additional insurance as required by the laws and the

awards applicable to the relevant State; (ii) A policy of insurance in respect of the Goods including Goods in storage or in transit in

Australia until they have been unloaded at the Delivery Point. The insurance policy must cover loss, destruction or damage to the Goods, for their full reinstatement and replacement value, while they are in storage, during loading, in transit, during unloading and during fabrication if fabricated in Australia by the Supplier.

(iii) Public Liability insurance in the joint names of the Supplier, the Client and Lend Lease to cover

their respective liabilities to third parties in relation to the work to be carried out under this Contract, including without limitation, the liabilities set out in clause 3.2.1. The Public Liability insurance must be for an amount of not less than $10,000,000.00.

(iv) Air/Marine Transit Insurance (if the Goods are imported) to provide cover at all times in respect

of loss, destruction or damage to the Goods for their full reinstatement and replacement value during transit from their place of manufacture or supply until they have cleared customs in Australia.

3.3.2 The Supplier must provide evidence acceptable to Lend Lease that the insurances referred to above

have been effected. If the Supplier fails to insure or maintain the insurance in force, Lend Lease may itself effect the insurances and deduct the amount of the premiums paid in respect thereof from any moneys that may be or become payable under the Contract.

4. PROGRESS PAYMENTS 4.1 Lend Lease must pay to the Supplier the Contract Sum stated in the Appendix progressively during the

execution of the work under this Contract in the manner set out below. 4.2.1 Each month, up to the month following the month in which the delivery of the last of the Goods, required

to be delivered under this Contract, has been effected, on the day stated in the Appendix, the Supplier may submit to Lend Lease a payment claim in a form satisfactory to Lend Lease, showing:

(a) the value of the Goods fabricated and ready to be delivered but not yet delivered at the date of

the payment claim; and (b) the cumulative value of Goods which have been delivered to Lend Lease to the date of the

payment claim; and (c) the amount previously paid to the Supplier in respect of the Goods.

4.2.2 The Supplier must submit with each payment claim:

(a) a written statement in the form attached; and; (b) if the Site is located in New South Wales, a duly completed statement, in the form attached

hereto and titled “SUBCONTRACTOR STATEMENT [NSW ONLY]”. 4.3.1 Within the number of days stated in the Appendix after the receipt by Lend Lease of a payment claim

Lend Lease must determine the contract value of the Goods which have been delivered to Lend Lease and must certify to the Supplier that amount less:

(a) the amount of previous payments in respect of the Goods; (b) 5% of that amount by way of retention (unless an undertaking has been provided in accordance

with clause 4.5); and


Page 12

(c) any amount that Lend Lease may be entitled to deduct or withhold from the moneys otherwise

due in accordance with this Contract or any other contract with Lend Lease; plus (d) the GST payable by the Supplier.

4.3.2 Lend Lease will issue to the Supplier a recipient created tax invoice for the amount certified under clause 4.3.1. The Supplier will not issue a tax invoice.

4.3.3 At the time stated in the Appendix Lend Lease must pay to the Supplier the amount certified under

clause 4.3.1. 4.4 Any payment by Lend Lease to the Supplier for Goods fabricated and ready to be delivered, but not

delivered, will be subject to the provisions of Annexure A hereto. 4.5 Within 14 days after the execution of this Contract or such longer period of time as may be approved in

writing by Lend Lease, in lieu of the retention of 5% of payments referred to in Clause 4.3 above, the Supplier may provide to Lend Lease two irrevocable and unconditional undertakings in a form and provided by a party acceptable to Lend Lease each equal to two and one half percent (2.5%) of the Contract Sum as security for the performance of the Suppliers obligations. One undertaking or half the retention referred to in clause 4.3 may be held by Lend Lease until the delivery of all Goods required to be delivered under this Contract has been effected and the other undertaking or remainder of the retention may be held by Lend Lease until the expiry of the defects liability period under the Head Contract.

4.6 Payments made pursuant to Clause 4.3 will not be taken as evidence against or as an admission by

Lend Lease of the value of the Goods or that they have been fabricated in accordance with the Contract, but will be taken to be payment on account only.

4.7 Where payment for any Goods is made by Lend Lease, title to and property in the Goods will pass to

Lend Lease and the Supplier must mark the same appropriately. Risk therein will remain with the Supplier until the Goods are delivered to the Delivery Point and unloaded provided that the risk of unloading will be that of the Supplier.

4.8 The Contract Sum will be reduced by the aggregate of any amounts deducted under this Contract or

drawn down from the undertaking referred to in clause 4.5. 4.9 Lend Lease will not be obliged to make any payment to the Supplier under this Contract until the

Supplier has provided to Lend Lease an ASIC Company Extract, dated on or about the date of its submission to Lend Lease, obtained from the Espreon (formerly Legalco) Online Information System or another such service provider.

4.10 In the month following the month in which the delivery of the last of the Goods, required to be delivered

under this Contract has been effected, the Supplier must provide its final payment claim together with the statements, in the forms attached, in respect of clause 4.2.2(a) and this clause 4.10.

5. VARIATIONS 5.1 Lend Lease may, for any reason including for the purpose of having all or part of the Goods supplied by

others, vary or amend the quantities, the Goods specified in the Specification or the method of fabrication of the Goods or make any other variation whatsoever in relation thereto by notice in writing to the Supplier. The Supplier must comply with the requirements of such notice. The varied work or goods will be subject to the terms of the Contract. No variation shall vitiate this Contract.

5.2 If a variation pursuant to Clause 5.1 results in a reduction in the quantity, the Specification or the method

of fabrication of the Goods, the Supplier will not, except as provided in Clause 6.1, be entitled to any payment, including any payment for overhead and profit, in respect of such reduction.


Page 13

5.3 Lend Lease will not be liable to pay the Supplier for a variation, which increases the supply, unless it is

instructed by Lend Lease by notice in writing prior to commencement of the work comprising the variation.

5.4 The parties must endeavour to agree on the value of a variation, which increases the supply, prior to the

commencement of the work comprising the variation but if there be any failure to agree to the valuation of a variation prior to the commencement of the work comprising the variation, the Supplier must proceed to carry out the variation without delay in the execution of the work under the Contract.

5.5 If Lend Lease and the Supplier fail to agree the value of a variation, Lend Lease must pay a reasonable

amount in respect of the variation. 6. CANCELLATION, SUSPENSION AND TERMINATION 6.1 Cancellation 6.1.1 Lend Lease may at any time prior to delivery of the Goods omit from the Contract all or part of the

Goods to be fabricated, supplied and delivered under the Contract but not yet delivered. 6.1.2 Where such omission does not result from default by the Supplier Lend Lease:

(i) must give written notice to the Supplier whereupon the Supplier must cease all work in relation to the Goods as applicable and must immediately do everything possible to mitigate any costs incurred by it consequent upon such cancellation;

(ii) will be liable, where the Goods are not yet completed for delivery, only for:-

(a) costs actually incurred by the Supplier up to the date of cancellation and (b) a reasonable amount in respect of winding down expenses incurred by the Supplier as

a direct result of the omission;

(iii) will be liable where the Goods are completed and ready for delivery in accordance with the Contract but for which payment has not yet been made, for the cost thereof.

6.2 Suspension At any time prior to delivery of the Goods Lend Lease may direct the Supplier to suspend all or part of the work in respect of the Goods to be supplied under the Contract or to suspend for a further period work already suspended under this clause in which event the Supplier may, provided the suspension does not result from default by the Supplier, submit a claim for those storage costs necessarily incurred by the Supplier and which have been approved in writing by Lend Lease, acting reasonably, prior to those costs being incurred by the Supplier. 6.3 Termination for Default 6.3.1 If the Supplier at any time commits any substantial breach of this Contract or defaults in any one or more

of the following respects:

(i) if without reasonable cause it wholly suspends the supply, fabrication or delivery of the Goods; or

(ii) if it fails to proceed with the supply, fabrication and delivery of the Goods with reasonable

diligence or in a competent manner; or (iii) if it refuses or persistently neglects to comply with written notices from Lend Lease; or


Page 14

(iv) if a receiver and/or manager is appointed to carry on the Supplier's business for the benefit of

its creditors or any of them, or if an order is made or a resolution passed for the winding up of the Supplier, other than a voluntary winding up by members for the purposes of reconstruction or amalgamation, or if the Supplier is placed under official management or enters into a compromise or other arrangement with its creditors or if a liquidator or provisional liquidator is appointed to the Supplier's business or if Lend Lease on reasonable grounds suspects that the Supplier is insolvent;

then Lend Lease may send to the Supplier a written notice specifying the breach or default and if the

Supplier continues in breach or default for three (3) days after the receipt of such a notice, or if Lend Lease has previously issued a notice under this Clause and the Supplier commits a further breach or default, Lend Lease may:

(a) terminate the Contract or omit from the Contract any of the Goods not yet supplied and

delivered; and (b) take possession of all Goods or part thereof for which Lend Lease has paid or which have been

completed and are ready for delivery (subject to Lend Lease making payment for such Goods); and

(c) procure elsewhere merchandise similar to the Goods and the Supplier shall be liable for any

costs incurred by Lend Lease in excess of the Contract Sum in satisfying the requirements of this Contract;

provided however that the Supplier must continue the performance of this Contract to the extent to

which any Goods are not omitted by Lend Lease. 6.3.2 If Lend Lease terminates the Contract it will not be obliged to make any payment to the Supplier until the

Project is completed. 6.3.3 The Supplier will be liable for and indemnifies Lend Lease against any losses, costs, damages and

expenses Lend Lease may suffer arising out of or connected with the termination. 6.3.4 Any right or remedy created by, or arising upon, a breach of or a default under this Contract, or upon an

event of default, is not waived by any failure to exercise or delay in the exercise, or a partial exercise of that right or remedy.

6.3.5 The Supplier may only make one payment claim after the termination of the Contract, which payment

claim must be submitted to Lend Lease within 20 days of the date of termination of the Contract. 6.4 Termination of Head Contract 6.4.1 If the Head Contract is terminated by any party (or Lend Lease‟s employment under the Head Contract

is determined) for any reason whatsoever, Lend Lease may by written notice to the Supplier either:

(i) terminate the Contract; (ii) novate the Contract, on its existing terms, to the Client or the Client‟s nominee. The Supplier

hereby appoints Lend Lease to act as its attorney to execute all documents and take all other steps necessary to give effect to any such novation; or

(iii) novate the Contract on the terms in the Pro Forma Deed of Novation at Annexure B or on

terms reasonably required by Lend Lease to the BDA, the BDA‟s nominee, the Client or the Client‟s nominee. The Supplier hereby appoints Lend Lease to act as its attorney to execute all documents and take all other steps necessary to give effect to any such novation.


Page 15

6.4.2 If the Contract is terminated in accordance with clause 6.4.1 Lend Lease's liability in respect of any Claim by the Supplier arising out of or in connection with such termination, will be limited solely to the unpaid value of the cumulative value of Goods which have been delivered to Lend Lease by the Supplier prior to termination.

7. GENERAL PROVISIONS 7.1 Assignment and Subcontractors 7.1.1 This Contract or any part thereof may not be assigned by the Supplier except with the prior written

approval of Lend Lease, which approval may be withheld in its absolute discretion. 7.1.2 The Supplier must not without the prior approval in writing of Lend Lease subcontract the whole or any

part of the work to be performed in relation to the Goods. 7.1.3 Any subcontracting by the Supplier in respect of the Contract will not relieve it from the full and entire

responsibility for the performance of the obligations of the Supplier under this Contract. 7.2 Notices 7.2.1 Any notice or other document required to be served upon the Supplier or Lend Lease under this

Contract may be either sent by certified mail or served personally at the registered office of the Supplier or Lend Lease as the case may be or such other address as is notified by the parties in writing. Any notice or document sent by certified mail will be deemed to have been served three (3) days after posting.

7.2.2 The Supplier must notify Lend Lease in writing at least two (2) days prior to the dispatch of Goods of the

name of its carrier and the estimated time of arrival of the Goods at the Delivery Point. 7.3 No General Lien To the extent permitted by Statute, the Supplier shall have no general lien in the Goods or any part of the Goods. 7.4 Secrecy All plans, drawings and specifications prepared by or on behalf of Lend Lease must be kept secret and confidential by the Supplier and will remain the property of Lend Lease and must not be used by the Supplier other than for performing the work and complying with the terms of this Contract and must be returned to Lend Lease on completion of the Contract or upon request at any time by Lend Lease. 7.5 Publicity The Supplier must not make any arrangement for or undertake any publicity in relation to the Goods or to the Project for which the Goods are being fabricated and supplied without the prior written approval of Lend Lease. 7.6 Compliance with Statutory and Other Regulations The Supplier must comply with the requirements of all relevant statutory enactments and acts of parliament and of all ordinances, regulations, by-laws, orders and proclamations made or issued under any such enactment or Act and with any lawful requirements thereunder and with the lawful requirements of governmental, public, municipal and other authorities in any way affecting or applicable to the work or the Project. Before making any departure from the terms of the Contract which may be necessary to comply with any such requirements the Supplier must give Lend Lease prior written notice specifying the proposed departure and the reason therefore. The Supplier must not proceed with such departure until it has received from Lend Lease consent to such course which may include instructions on the work to be performed in relation to such departure.


Page 16

7.7 Taxes The Supplier must pay all taxes which are or may become payable in respect of the Goods to be fabricated and supplied under this Contract. The Supplier must indemnify Lend Lease against all costs incurred or damages suffered owing to the failure of the Supplier to pay the taxes assessed in relation to the Goods. 7.8 Arbitration of Disputes (a) If any dispute or difference arises out of or in connection with this Contract whether raised before or after

the execution of the work under the Contract, then either of the parties may give the other a notice identifying the particulars of the dispute.

(b) After the expiration of ten (10) days from the issue of the notice the party issuing the notice may notify

the other party that it requires the dispute to be referred to arbitration and the dispute, upon the issue of that notice, thereupon without further notice being required will be referred to arbitration.

(c) The arbitrator will be appointed by the President of the Australasian Dispute Centre. (d) The arbitrator will be bound by the rules of evidence where the amount involved in the dispute exceeds

$50,000.00. (e) The parties are entitled to be represented by a duly qualified legal practitioner or other representative if

the amount involved in the dispute exceeds $50,000.00. (f) The arbitrator will not have the power to order the parties to a dispute to take any steps to achieve

settlement including attendance at a conference conducted by the arbitrator unless the amount involved in the dispute is less than $50,000.00.

(g) Notwithstanding any referral to arbitration under the provisions of (a), the Supplier must proceed without

delay with the execution of the work under the Contract. (h) The Supplier must accept as final and binding upon it any award obtained in accordance with the

arbitration provisions of the Head Contract so far as the same may concern the quality and/or workmanship of the Goods. Without prejudice to the final and binding nature of the award Lend Lease, as soon as practicable after becoming aware of the issue of a notice of dispute or difference under the arbitration provisions of the Head Contract as relating to the Goods, must inform the Supplier of the issue of the notice and the contents thereof.

7.9 Counting of Days 7.9.1 Where under any provision of this Contract any notice is to be given or any other act matter or thing is to

be done (including without limitation any payment or release of security or allowance of time made for delay in performance of the Contract) in a stated period of days the following days will not be counted, namely, Sundays, Statutory or Public Holidays and any officially recognised building industry non-work day.

7.9.2 The days comprising any period of days computed in accordance with the preceding paragraph will be

deemed consecutive if interrupted only by days which are not to be taken into account under the preceding paragraph.

7.10 Approval by Lend Lease Unless otherwise stated expressly in the Contract, each reference in the Contract to Lend Lease reviewing, examining, approving or checking means, methods, techniques, designs, drawings, plans, diagrams, measurements, sequences, tests and procedures or other matters employed or to be employed by the Supplier in the execution of the Contract will mean only that those matters will be reviewed by Lend Lease for the purpose of administering the Contract and the Supplier‟s responsibility for those matters will not thereby be diminished.


Page 17

7.11 Governing Law The laws of the State or Territory in which the Site is located will govern the Contract and any dispute resolution procedures. 7.12 Industrial Matters To the extent required by law or any applicable written government codes of practice, the Supplier must comply and must ensure that its personnel, consultants, subcontractors and suppliers comply with The National Code of Practice and the Implementation Guidelines for the Construction Industry and all relevant State codes of practice to the extent applicable, legislation, awards and enterprise agreements. The Contract Sum includes for all amounts which may be payable as a result of these matters. 8. NOTIFICATION OF CLAIMS 8.1 Lend Lease will not be liable upon any claim by the Supplier in respect of any matter arising out of the

Contract unless:

(a) the claim, together with full particulars thereof, is lodged in writing with Lend Lease within the periods specified in the Contract, and if no period is specified then not later than 15 days after the date of the occurrence of the events or circumstances on which the claim is based; or

(b) written notice of intention to make the claim specifying the nature of the claim is lodged with

Lend Lease within the time referred to above and the claim, together with full particulars thereof, is lodged in writing with Lend Lease not later than 10 days after the work under this Contract is complete.

8.2 The Supplier agrees that Lend Lease may not by conduct, representations (oral or written or implied) or

otherwise howsoever waive its rights under Clause 8.1 or otherwise in favour of the Supplier. 9. OPERATION AND MAINTENANCE INFORMATION 9.1 Operation and Maintenance Manuals Where the Contract calls for the provision of operation and maintenance manuals, within the time specified in the Appendix the Supplier must provide Lend Lease with the number as stated in the Appendix complete originals of the operation and maintenance manuals in a form and including such details as acceptable to Lend Lease. 9.2 Work As-Executed Drawings Where the Contract calls for the provision of work as-executed drawings, during the execution of the work under this Contract the Supplier must progressively complete and submit to Lend Lease for approval as-executed drawings in respect of the work under this Contract. Prior to completion of the work under this Contract the Supplier must lodge with Lend Lease final copies of the approved executed drawings of the work under this Contract in the form and in the quantities specified in the Appendix. 9.3 Information Management The Supplier must comply with all requirements of Schedule 5 (Schedule of Information Management) unless otherwise agreed in writing with Lend Lease. 10. SUPPLY OF SPARES


Page 18

10.1 Where the Contract calls for the supply of spare materials, on or before the date 4 weeks prior to completion of the work under this Contract or such other date instructed by Lend Lease in writing, the Supplier must supply Lend Lease with the spare materials nominated in the Appendix (the “Spare Materials”).

10.2 The Supplier must adequately pack the Spare Materials for long term storage and deliver, unload and

store as directed by Lend Lease. 10.3 The Supplier must clearly and permanently mark on the exterior of the packaging of the Spare Materials

the following details:

(a) the contents; (b) the Supplier's name; (c) the Client's name.

11. QUALITY REQUIREMENTS The Supplier must comply with the provisions of Schedule 3 with respect to quality requirements. 12. LEND LEASE’S LIABILITY Lend Lease will not be liable in contract, negligence or otherwise for losses, costs, damages or expenses suffered by the Supplier which in any way whatsoever arise out of or are connected with the suspension of the performance of the Contract, a direction or requirement in relation to programming, a delay, disruption or interference to the progress or completion of the Contract or a change to a Delivery Date which arises out of or is in any way connected with any of the following: 12.1 the acts or omissions of others (including but not limited to other suppliers, subcontractors or

consultants but not the Client), whether engaged by Lend Lease or otherwise; or 12.2 a matter beyond the direct control of Lend Lease. 13. SOFTWARE FUNCTIONALITY WARRANTY

13.1 The Supplier must ensure that all software, hardware and firmware including computer programmes,

and any other material, facility or device (the "Programs") contained within the Goods which are in any way affected by dates:

(a) have been specifically designed, programmed and comprehensively tested to provide full

functionality and operate without adverse effect with respect to all dates: and (b) if required by this Contract, have been specifically designed, programmed and

comprehensively tested to operate in conjunction with hardware, software and firmware or any other products or components, not contained within the Goods but which have been specified by Lend Lease ("Other Components"), such that both the Programs and Other Components will when operating in conjunction with each other provide full functionality and operate without adverse effect with respect to all dates; and

(c) will in all circumstances provide full functionality and operate without adverse effect with

respect to all dates; and (d) will without limitation deal properly with: (i) the year, decade and century date transitions;


Page 19

(ii) leap years;

(iii) all calculations based on dates, including calculations such as subtractions, additions, percentages, sequences and comparisons; and

(iv) functions that are programmed to commence or end on a particular date.

13.2 The Supplier must ensure that all modifications, including revision, additions, omissions and upgrades to the Programs must comply with the requirements of this Clause 13.

13.3 The Supplier must ensure that all contracts it enters into with its consultants, subcontractors and

suppliers for the provision of any services or goods associated with the Goods must contain a specification whose provisions comprehensively reflect the requirements of this Clause 13.

14.1 GOODS AND SERVICES TAX 14.1.1 All amounts and consideration in respect of a supply made under or in connection with the Contract are

exclusive of GST to the extent it is not otherwise expressly included. 14.1.2 If GST is imposed on or in respect of any supply made under or in connection with the Contract, then the

consideration payable for that supply is increased by an amount determined by multiplying the consideration otherwise payable by the rate at which GST is imposed. Amounts payable under this clause 14.1.2 will be payable at the same time the other consideration for the supply is payable.

14.1.3 If there is an adjustment to the consideration payable for a supply, then Lend Lease must issue an

Adjustment Note to the Supplier and, in addition to the amendment to the GST exclusive consideration payable for the relevant supply, either:

(a) Lend Lease must pay an additional amount to the Supplier calculated as the increase in the

consideration payable for the relevant supply multiplied by the prevailing GST rate; or (b) the Supplier must refund an amount to Lend Lease calculated as the decrease in the

consideration payable for the relevant supply multiplied by the prevailing GST rate.

Lend Lease may deduct from or set off against any amount otherwise owing to the Subcontractor any amount which is required to be refunded by the Supplier under clause 14.1.3(b).

14.1.4 Each party:

(a) warrants to the other that at the time of each supply occurring or deemed to occur it will have an Australian Business Number and will be registered for GST purposes; and

(b) indemnifies the other against any losses resulting from it not having an Australian Business

Number or being registered for GST purposes.

14.1.5 Any policy of insurance to be effected or maintained under the Contract must cover any liability for GST which may arise upon settlement of a claim pursuant to that policy.

14.2 Recipient Created Tax Invoices The parties agree that:

(a) Lend Lease can issue tax invoices in respect of all supplies under or in connection with the Contract;

(b) Subject to the terms of this Contract, the Supplier will not issue tax invoices in respect of

supplies under or in connection with the Contract;


Page 20

(c) A progress claim under the Contract is not a tax invoice; (d) The Supplier acknowledges that it is registered for GST when it enters into this Contract and

that it will notify Lend Lease if it ceases to be registered; (e) Lend Lease acknowledges that it is registered for GST when it enters into this Contract and that

it will notify the Supplier if it ceases to be registered or if it ceases to satisfy any of the requirements of any relevant tax ruling relating to the issue of recipient created tax invoices;

(f) If for any reason one or more of the criteria which must be satisfied to allow Lend Lease to

issue recipient created tax invoices is not satisfied such that Lend Lease cannot issue a tax invoice in respect of supplies made under or in connection with the Contract then the Supplier must, when requested by Lend Lease, issue tax invoices to Lend Lease for the amount specified by Lend Lease. If Lend Lease has made a request under this clause 14.2(f), Lend Lease will not be required to make a payment under this Contract to which the request relates until the Supplier has provided a tax invoice in relation to that payment in the form and the amount required by Lend Lease.

14.3 Definitions and Interpretations Terms defined in the GST Law (as that term is defined under the A New Tax System (Goods and

Services Tax) Act 1999) have the same meaning in this Contract unless provided otherwise. 15. SOFTWARE SOURCE CODES 15.1 To the extent that:

(a) the Goods contain any software; and (b) for any reason the Supplier is unable to maintain such software or is not prepared to maintain

such software for a reasonable price,

then the Supplier must promptly make available to Lend Lease the source code and other necessary information but only for the purpose of enabling Lend Lease to maintain such software.

15.2 The provisions of this clause 15 will survive the termination or expiry of this Contract. 16. LEND LEASE’S RIGHT TO NOVATE 16.1 Lend Lease may at any time assign or novate, or otherwise transfer all or any part of its rights or

liabilities under this Contract without the consent of the Supplier and the Supplier agrees to execute any document reasonably required by Lend Lease to give effect to the assignment, novation or other transfer, including a deed of novation in the form set out in the Pro Forma Deed of Novation at Annexure B or on any other terms reasonably required by Lend Lease.

16.2 The Supplier must not assign, novate or otherwise transfer all or any payment, right, benefit or interest

under this agreement without the prior written consent of Lend Lease, the Client and the BDA (which consent must not be unreasonably withheld).

16.3 Without limiting clause 16.1 the Supplier agrees that Lend Lease may novate the Supplier, on its

existing terms, to the Client, the BDA or to any financial institution that is providing funding for the Project or a nominee of any of them. In this case, the Supplier shall promptly execute the deed of novation in the form set out in the Pro Forma Deed of Novation at Annexure B.

17. SUSTAINABILITY REQUIREMENTS


Page 21

The Supplier must comply with the Schedule of Sustainability Requirements, unless indicated otherwise in the Appendix. Signed for and on behalf of LEND LEASE PROJECT MANAGEMENT & CONSTRUCTION (AUSTRALIA) PTY LIMITED By .................................................................................. .................................................................................. Title Signed for and on behalf of ........................................................................ By .................................................................................. .................................................................................. Title


Page 22

APPENDIX Drawings Drawings Description Drawing No. Clause 1.1 The Client is: Lend Lease (Millers Point) Pty Limited (ABN 15 127 727 502) The Delivery Date(s) is: Item Date The Delivery Point is: The Site is: Clause 2.2 - Detailed Programme The detailed programme is: Clause 2.3.1 – Shop Drawings The shop drawings and other materials required are: Clause 2.6.2 - Extended Storage (i) The period is: (ii) The additional amount payable per week is: Clause 2.8.2 - Delay Events (i) The events entitling an extension of the Delivery Date are:

(a) Breach of the Contract by Lend Lease; and (b) A variation.

(ii) The notice must be given within 10 days. Clause 2.9 - Liquidated Damages The amount payable is: $10,000 per day. Clause 3.1.3- Defects Liability Period The Defects Liability Period will be ........................................................... commencing on Practical Completion of the Head Contract. Clause 3.2.2 - Indemnities The liquidated damages for which Lend Lease is liable under the Head Contract is $10,000 per day. Clause 4.1 - The Contract Sum


Page 23

The Contract Sum is $................................ plus GST in accordance with Clause 14. Clause 4.2.1 – Payment Claim Until the month after the month in which the delivery of the last of the Goods required to be delivered under this Contract has been effected, the day for submission of the payment claim is the 15th day of the month. Clause 4.3.1 – Amount Certified The number of days is .............................. (if nothing stated: 14 days) Clause 4.3.3 – Progress Payments The progress payment will be made on ............................. (if nothing stated: the end of the month following the month in which the progress claim was submitted). Clause 9.1 - Manuals The time is: ......................... The number is: ........................ Clause 9.2 - As Executed Drawings The quantity is: ............................. The form is: ............................. Clause 10- Supply of Spares Item: ............................. Quantity: ............................. Clause 17 – Schedule of Sustainability Requirements Does/does not apply (delete one – if neither is deleted the Schedule applies) SCHEDULE OF QUALITY MANAGEMENT SYSTEM (QMS) REQUIREMENTS [Retain, delete or add as appropriate] The Supplier must submit …………….. weeks prior to commencement of the performance of the Contract a Project specific Quality Plan including the following:

Quality Management Policy

Evidence of QMS Accreditation / Certification if applicable

Staff Organisational chart setting out reporting responsibilities

Documented procedures/processes that will be undertaken on the Project to plan/manage/control the following:

Design, fabrication and supply related documentation

Records

Non-conforming or defective product, services, or work methods;

Corrective action

Preventative action

Internal audits

Documentation related to systems to plan/manage/control:


Page 24

Inspection & testing of products or services constituting Contract performance ie Inspection and Test Plans (ITPs) and any associated checklists;

Handling, preservation and storage of products/materials;

Inspection Measuring and Test Equipment

The Supplier must submit the following Quality Management System Records:

Inspection reports, testing and commissioning results within 5 days of undertaking the activity.

Details of proposed internal and independent audits 5 days prior to the audit and copies of the associated audit reports within 5 days of the audit.

Non-conformance/corrective action summary report to be submitted monthly.

Calibration records and test results of all inspection measuring and test equipment used in the fabrication and supply of the Goods submitted monthly.

Quality records as detailed within the Specification.

Records that may be requested by Lend Lease from time to time.


Page 25

ANNEXURE A

ADVANCE PAYMENTS 1. Where prior written approval has been given by Lend Lease, the Supplier may include in its progress

claim the Contract value of Goods intended for but not yet delivered to the Site, subject to the Supplier providing evidence satisfactory to Lend Lease that the Goods are:

(1) in good repair and condition; (2) in the Supplier's possession at all times (except where otherwise directed under the Contract); (3) not subject to a charge, lien or other matter which may affect Lend Lease's ownership of the

Goods; (4) stored in adequate facilities separately from other Goods; (5) marked in the name of the Project and in the name of Lend Lease or the Client as Lend Lease

directs; (6) fully paid for; and (7) insured for their full replacement value in the joint names of the Supplier, Lend Lease and the

Client.

2. Ownership of the Goods vests immediately in Lend Lease upon the making of payment for the Goods and remains with Lend Lease despite the use of the Goods by the Supplier. The Supplier must not remove the goods from the Site or the place of storage approved by Lend Lease without the prior written approval of Lend Lease.

3. Upon request from Lend Lease, the Supplier must grant or arrange for the granting of access to Lend

Lease to the places where off-site goods are stored. 4. The Supplier must deliver up possession of off-site goods to the Site in accordance with the Supplier's

Programme or by such date as may be required by Lend Lease. 5. At any time Lend Lease may enter upon premises where the Goods are stored and take possession of

them. 6. Prior to Lend Lease making payment, the Supplier must furnish to Lend Lease an unconditional and

irrevocable undertaking in a form and provided by a party acceptable to Lend Lease for an amount equal to the amount claimed by the Supplier for off-site goods. The undertaking will be returned to the Supplier when the Goods are installed in the Project.

Legal\301586110.1

ANNEXURE B

PRO FORMA DEED OF NOVATION

Deed of Novation made at on Parties LEND LEASE PROJECT MANAGEMENT & CONSTRUCTION (AUSTRALIA) PTY

LIMITED ABN 97 000 098 162 ("Retiring Party") [Supplier] ("Continuing Party") ("Substitute Party") Recitals

A. The Retiring Party and the Continuing Party are parties to the Agreement.

B. The Retiring Party and the Substitute Party have asked the Continuing Party to agree to the novation of the Agreement on the terms and conditions of this Deed of Novation ("Deed").

C. The Continuing Party has agreed to the novation of the Agreement on the terms and conditions of this Deed.

This Deed provides

1. Definitions and interpretation

1.1 Definitions

Defined terms in the Agreement have the same meanings in this Deed, unless the contrary intention appears.

In this Deed:

"Agreement" means the agreement between the Retiring Party and the Continuing Party described in the Schedule.

"Claim" means any claim, notice, demand, action, proceeding, litigation, investigation or judgment whether based in contract, tort, statute or otherwise.

"Effective Date" means the date of this Deed.

"GST" means the Goods and Services Tax as defined in the A New Tax System (Goods and Services) Act 1999 (Cth.).

"Liability" means all liabilities, losses, Claims, damages, outgoings, costs and expenses of whatever description.

"Related Entity" has the meaning ascribed to that term in section 9 of the Corporations Act 2001 (Cth).

1.2 Interpretation

In this Deed:

Legal\301586110.1

(a) headings are for convenience only and do not affect interpretation;

and unless the context indicates a contrary intention:

(b) an obligation or a liability assumed by, or a right conferred on, 2 or more persons binds or benefits them jointly and severally;

(c) "person" includes an individual, the estate of an individual, a corporation, an authority, an association or a joint venture (whether incorporated or unincorporated), a partnership and a trust;

(d) a reference to a party includes that party's executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes a substituted or an additional trustee;

(e) a reference to a document (including this Deed) is to that document as varied, novated, ratified or replaced from time to time;

(f) a reference to a statute includes its delegated legislation and a reference to a statute or delegated legislation or a provision of either includes consolidations, amendments, re-enactments and replacements;

(g) a word importing the singular includes the plural (and vice versa), and a word indicating a gender includes every other gender;

(h) a reference to a party, clause, schedule, exhibit, attachment or annexure is a reference to a party, clause, schedule, exhibit, attachment or annexure to or of this Deed, and a reference to this Deed includes all schedules, exhibits, attachments and annexure to it;

(i) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;

(j) "includes" in any form is not a word of limitation; and

(k) a reference to "$" or "dollar" is to Australian currency.

2. Condition Precedent to Novation

Clause 3 of this Deed shall have no force and effect until the Effective Date.

3. Novation

3.1 Novation

(a) The parties novate the Agreement so that the Substitute Party and the Continuing Party are parties to a new agreement on the same terms as the Agreement.

(b) Any reference in the Agreement to the Retiring Party shall be read as a reference to the Substitute Party.

3.2 Assumptions of rights and obligations

(a) The Substitute Party:

(i) will be bound by and shall comply with the terms of the Agreement as amended by this Deed, and shall enjoy the rights and benefits conferred on the Retiring Party under the terms of the Agreement; and

Legal\301586110.1

(ii) will assume the obligations and Liability of the Retiring Party under the terms of the Agreement,

in all respects as if the Substitute Party had originally been named in the Agreement as a party instead of the Retiring Party.

(b) The Continuing Party will comply with the terms of the Agreement on the basis that the Substitute Party has replaced the Retiring Party under the Agreement in accordance with this Deed.

3.3 Release by Continuing Party

(a) As from the Effective Date, the Continuing Party releases the Retiring Party from:

(i) any obligation or Liability under or in respect of the Agreement; and

(ii) any action, claim and demand it has against the Retiring Party under or in respect of the Agreement.

(b) This release does not affect any rights the Continuing Party may have against the Substitute Party as a result of the assumption by the Substitute Party under the terms of this Deed of the obligations and Liability of the Retiring Party under the terms of the Agreement.

3.4 Release by Retiring Party

As from the Effective Date, the Retiring Party releases the Continuing Party from:

(a) any obligation or Liability under or in respect of the Agreement; and

(b) any action, Claim and demand it has, or but for this clause would have had against the Continuing Party under or in respect of the Agreement,

except that nothing in this clause affects the obligations of the Continuing Party to:

(c) the Substitute Party under the Agreement; and

(d) the Retiring Party in respect of any breach of the Agreement prior to the Effective Date.

3.5 Warrant by Continuing Party

(a) As of the Effective Date, the Continuing Party warrants that it has complied with the terms of the Agreement.

3.6 Insurance

As from the Effective Date:

(a) the Substitute Party must replace any insurances effected and maintained by the Retiring Party under the terms of the Agreement; and

(b) the Continuing Party must take the necessary steps to ensure that, for all insurances required to be effected by the Continuing Party under the terms of the Agreement, the Substitute Party is named in place of the Retiring Party as required by the Agreement.

4. Overriding effect

The parties agree that the execution and operation of this Deed will for all purposes be regarded as due and complete compliance with the terms of the Agreement relating to any requirement for consent to

Legal\301586110.1

assignment of the Agreement so far as any such provisions would apply with respect to the novation of the Agreement to the Substitute Party.

5. Representations and warranties

5.1 Authority

Each party represents and warrants to each other party that it has full power and authority to enter into and perform its obligations under this Deed.

5.2 Authorisations

Each party represents and warrants to each other party that it has taken all necessary action to authorise the execution, delivery and performance of this Deed in accordance with its terms.

5.3 Binding obligations

Each party represents and warrants to each other party that this Deed constitutes its legal, valid and binding obligations and is enforceable in accordance with its terms.

6. Duties, Costs and Expenses

6.1 Stamp Duty

The Substitute Party must pay all stamp duty, duties or other taxes of a similar nature (including but not limited to any fines, penalties and interest) in connection with this Deed or any transaction contemplated by this Deed (except to the extent the terms of the Agreement provide otherwise).

6.2 Costs

Except as otherwise provided in this Deed, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this agreement.

6.3 GST

The parties agree that:

(a) with any payment of amounts payable under or in connection with this Deed including without limitation, by way of indemnity, reimbursement or otherwise, the party paying the amount must also pay any GST in respect of the taxable supply to which the amount relates;

(b) the party receiving the payment will provide a tax invoice; and

(c) the payment of any amount referred to in paragraph (a) which is a reimbursement or indemnification of a cost, expense, loss or liability will exclude any part of the amount for which the other party can claim an input tax credit.

Legal\301586110.1

7. General

7.1 Governing Law

This Deed is governed by and must be construed according to the laws of the applicable State or Territory set out in the Schedule.

7.2 Jurisdiction

Each party irrevocably:

(a) submits to the non-exclusive jurisdiction of the courts of the applicable State or Territory set out in the Schedule, and the courts competent to determine appeals from those courts, with respect to any proceedings which may be brought at any time relating to this Deed; and

(b) waives any objection it may now or in the future have to the venue of any proceedings, and any claim it may now or in the future have that any proceedings have been brought in an inconvenient forum, if that venue falls within clause 7.2(a).

7.3 Amendments

This Deed may only be varied by a document signed by or on behalf of each party.

7.4 Waiver

(a) Failure to exercise or enforce, or a delay in exercising or enforcing, or the partial exercise or enforcement of, a right, power or remedy provided by law or under this Deed by a party does not preclude, or operate as a waiver of, the exercise or enforcement, or further exercise or enforcement, of that or any other right, power or remedy provided by law or under this Deed.

(b) A waiver or consent given by a party under this Deed is only effective and binding on that party if it is given or confirmed in writing by that party.

(c) No waiver of a breach of a term of this Deed operates as a waiver of any other breach of that term or of a breach of any other term of this Deed.

7.5 Counterparts

This Deed may be executed in any number of counterparts and by the parties on separate counterparts. Each counterpart constitutes the deed of each party who has executed and delivered that counterpart.

7.6 Severance

If at any time a provision of this Deed is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, that will not affect or impair:

(a) the legality, validity or enforceability in that jurisdiction of any other provision of this Deed; or

(b) the legality, validity or enforceability under the law of any other jurisdiction of that or any other provision of this Deed.

7.7 Further acts and documents

Each party must promptly do all further acts and execute and deliver all further documents (in form and content reasonably satisfactory to that party) required by law or reasonably requested by another party to give effect to this Deed.

Legal\301586110.1

7.8 Assignment

A party cannot assign, novate or otherwise transfer any of its rights or obligations under this Deed without the prior consent of each other party.

Legal\301586110.1

Schedule

Agreement (clause 1.1)

Agreement No.

State or Territory (clauses 7.1 and 7.2)

New South Wales

Legal\301586110.1

ANNEXURE C: THE FORMAT OF THE WARRANTY

THIS DEED POLL is made on .................................. 20.... by ........................................................... of

....................................................................................................................................... (“the Supplier”). RECITALS: A. The Supplier is desirous of supplying .................................................. (“the Goods”) which are detailed

in the specification (“Specification”) for the project known as Barangaroo Stage 1 (“the Project”). B. It is a requirement imposed by Lend Lease Project Management & Construction (Australia) Pty Limited

(“Lend Lease”) and the persons named in the Schedule on the Supplier that the Supplier must warrant to Lend Lease and persons named in the Schedule that the Goods will satisfy the relevant requirements of the Contract and the Specification (except in the event the Specification has been amended in which instance the Specification shall mean the Specification as amended).

C. The Specification is dated ......................................, titled ........................................................ and

consists of ................ pages. D. The Supplier has agreed to execute this Deed Poll. THIS DEED WITNESSES THAT THE SUPPLIER HEREBY COVENANTS, WARRANTS AND AGREES with and for the benefit of the persons named in the Schedule as follows: 1. Commencing on the Date of Practical Completion of the Project, the Goods will satisfy the requirements

of the Contract and the Specification and without limiting the generality of the foregoing:

(a) be of merchantable quality; and (b) fit for its intended purpose.

2. The persons named in the Schedule can assign the benefits and rights accrued under this Deed Poll. 3. The Supplier indemnifies the Client named in the Schedule below against all loss, damage, cost and

expense (Losses) which the Client suffers or is liable for arising out of the Supplier‟s negligence or its failure to comply with the requirements of the Contract. The indemnity under this clause 3 shall be reduced proportionally to the extent that such Losses are caused by a breach of the Contract by Lend Lease or the negligence of Lend Lease.

4. This Deed Poll is governed by the laws of New South Wales. PERSONS NAMED IN THE SCHEDULE TO THE DEED

1. Lend Lease Project Management & Construction (Australia) Pty Limited (ABN 97 000 098 162) 2. Lend Lease (Millers Point) Pty Limited (ABN 15 127 727 502) (“Client”) 3. The Barangaroo Delivery Authority (ABN 94 567 807 277)

.................................................................................... EXECUTED AS A DEED POLL:

SIGNED SEALED AND DELIVERED

.................................................................................... by

................................................................. ................................................................. (i) Director*/Secretary* Director

Legal\301586110.1

(ii) Sole Director and Sole Secretary* (iii) Sole Director*

................................................................. .................................................................

Name (please print) Name (please print) *You must delete the options in (i), (ii) and (iii) which do not apply. Company seal is not required.

Legal\301586110.1

SCHEDULE 1 THE GOODS

Legal\301586110.1

SCHEDULE 2 THE DESIGN REQUIREMENTS

1. The Specification The Supplier must without prejudice to Clause 3 of this Schedule, design the Goods in all respects to comply with the following: (a) the Specifications and Drawings (b) the Design Brief (c) [insert any other relevant document etc.] 2. Lend Lease’s Requirements, Information and Co-ordination 2.1 The Supplier must take all steps necessary to clarify and confirm Lend Lease‟s requirements for the

design of the Goods. 2.2 The Supplier must examine the information and documents referred to in Clause 1 and will be deemed

to have satisfied itself of their sufficiency for the purpose of satisfying its obligations under this Contract. If the Supplier is not so satisfied it must advise Lend Lease immediately in writing requesting the further information, documents or amendments it requires.

2.3 The Supplier must co-ordinate both its performance of the design related matters and the design with

the performance and designs of other parties engaged by Lend Lease. 3. Professional Service 3.1 The Supplier acknowledges that Lend Lease has entered into this Contract in reliance upon the skill,

experience and ability of the Supplier to design the Goods. 3.2 The Supplier must design the Goods with the degree of professional skill, care and diligence expected of

specialised contractors experienced in providing the same or similar services. 3.3 The Supplier must ensure that the designs:

(a) are suitable in all respects for their intended purposes; and (b) do not infringe patents, registered designs, copyrights or other protected rights (c) comply with all relevant legislation, subordinate legislation and Australian Standards (unless the

Contract provides otherwise).

3.4 The Supplier must effect and maintain in a form acceptable to Lend Lease and appropriate to the Suppliers activities, Professional Indemnity insurance for not less than $............................. (if nothing stated - $5,000,000) in respect of liability arising from a breach of a professional duty or from a negligent act, error or omission by the Supplier or its personnel.

Policy Number ........................................... Expiration date .................................. 20.... Policy must be effective before the Supplier commences professional duties whether in respect of

design, specification, supervision or otherwise and must be maintained for a period of 6 (six) years after the expiry of the Defects Liability Period.

4. Design 4.1 The Supplier warrants that the design will be undertaken only by or under the direction and direct control

of:

(a) a properly qualified architect, engineer or surveyor; or (b) a person with not less than 5 years relevant practical experience.

Legal\301586110.1

4.2 When requested by Lend Lease the Supplier must provide to Lend Lease all calculations, certificates

and other information relating to design carried out by the Supplier. 4.3 Lend Lease may engage a suitably qualified consultant to check the suitability of the design. If the

design is found to be faulty or unsuitable, without prejudice to Lend Lease‟s other rights, the Supplier will be liable for fees paid by Lend Lease to the consultant.

5. Copyright 5.1 Unless otherwise required by the Head Contract, copyright and ownership in all designs and other

information provided or prepared by the Supplier under this Agreement remains with the Supplier in which event Lend Lease and the Client will have a licence to use those designs and information for any purpose associated with the Project before or after its completion.

5.2 In the event that Lend Lease provides any concept designs or other preliminary information [“Concept

Designs”] then the copyright and ownership of the Concept Designs remains with Lend Lease and the Supplier will have a licence to use the Concept Designs for any purpose associated with performing its obligations under this Contract.

5.3 The Supplier must ensure that in respect of any Concept Designs all its drawings identify:

(a) that copyright in the Concept Designs vests in Lend Lease; and (b) that Lend Lease is the concept designer.

6. Design Development 6.1 All drawings, specifications and other documents relating to the design must be submitted to Lend

Lease for approval in accordance with a programme agreed with Lend Lease. The drawings, specifications and other documents must be revised and re-submitted promptly, if required, until approval is obtained from Lend Lease.

6.2 All drawings, specifications and other documents relating to the design must be reviewed by a properly

qualified and experienced independent consultant (“the Consultant”) acceptable to Lend Lease. The Consultant must provide a written certification to a level of detail and in a format approved by Lend Lease and the written certification must be included with the documents to be submitted in accordance with Clause 6.1.

6.3 The Supplier must ensure that:

6.3.1 any Consultant providing a written certification in accordance with Clause 6.2 effects Professional Indemnity insurance in the amount of $5,000,000 in respect of liability arising from a breach of professional duty or from a negligent act, error or omission by the Consultant‟s personnel.

6.3.2 the Consultant providing the written certification, upon request, provides Lend Lease with

evidence of the terms and currency of the insurance policy referred to in Clause 6.3.1. 6.3.3 the Consultant must, if requested by Lend Lease, comply with the requirements of Clause 7

hereunder.

6.4 Lend Lease reserves the right to appoint an authorised representative to review drawings, specifications and other documents submitted in accordance with Clause 6.1 and the Supplier must co-operate fully with that representative.

7. The Consultant

Legal\301586110.1

In the event that the Supplier has entered into (or intends to enter into) a consultative agreement (“the Consultative Agreement”) for the performance of any services in relation to the design the following will apply: 7.1 In the event of the termination of this Contract the Supplier must assign, if instructed by Lend Lease, the

benefit of the Consultative Agreement to Lend Lease. 7.2 Without the prior written consent of Lend Lease, the Supplier must not either:

(a) terminate the Consultative Agreement; or (b) change all or any provisions of the Consultative Agreement.

7.3 At least 10 days prior to the provision by the Supplier of any design brief or other information to the Consultant, the design brief or other information must be submitted to Lend Lease for approval.

Legal\301586110.1

SCHEDULE 3

SCHEDULE OF QUALITY MANAGEMENT SYSTEM (QMS) REQUIREMENTS (Clause 11)

1. Generally 1.1 Lend Lease requires to be assured that the quality of the fabrication and supply of the Goods will be in

accordance with

- the requirements of the Contract; - approved design documentation; - applicable product or work standards; - regulatory authority requirements; - systems agreed for managing the processes undertaken by the Supplier in the fabrication and

supply of the Goods; and that the procedures to achieve quality as defined in AS/NZS ISO 9001:2000 are being documented, implemented and monitored, such that no deficiencies and non conformances remain in the Goods.

1.2 The Supplier must have in place and must implement a QMS for managing the fabrication and supply of the Goods that is documented, regularly reviewed and monitored, with an established process for self improvement, supported and endorsed by senior management and generally in accordance with the requirements of AS/NZS ISO 9001:2000.

Integrated Management Systems, which incorporate Environment, Health, Safety and Quality Systems, are also acceptable.

1.3 Prior to commencement of the performance of the Contract, the Supplier must review its proposed

quality system with Lend Lease and obtain Lend Lease‟s approval to implement the system. 1.4 The Supplier‟s QMS and records may be audited by Lend Lease at any time during the course of, and

after completion. The Supplier must co-operate with Lend Lease in this regard and provide reasonable access to quality records.

1.5 Notwithstanding any statements to the contrary in any part of the Specification, Terms of the Contract or

the Supplier‟s QMS, no part of the QMS shall be used to pre-empt, preclude or otherwise negate the technical requirements of the Contract. The QMS is to be an aid in recording conformance or otherwise with the Contract and will not relieve the Supplier of its responsibility to comply with the Contract.

2. Quality Management System (QMS) Requirements

The QMS must include, but not be limited to, the items listed in clause 2.1 to 2.12 for which supporting documentation is to be submitted to Lend Lease as listed in and at the times stated in the Appendix:

2.1 Policy

A policy defining the commitment the Supplier has towards its quality management processes, as formally supported and endorsed by senior management.

2.2 Accreditation / Certification

A current copy of an accreditation or certification, where the Supplier is accredited or certified to a QMS standard.

2.3 Staff Organisation

Legal\301586110.1

The Supplier must appoint a management representative (quality manager) who will be responsible for the Supplier‟s QMS (including any goods and/or services provided by suppliers to the Supplier) and for the Supplier‟s participation in Lend Lease‟s overall QMS.

2.4 Documented Processes/Procedures

Documented procedures/processes that will be undertaken on the Project to plan/manage/control the following: - Design, fabrication and supply related documentation - Records - Non-conforming or defective product, services, or work methods; - Corrective action - Preventative action - Internal audits

The Supplier shall also develop and document systems to plan/manage/control:

- Inspection & testing of products or services constituting Contract performance i.e. Inspection and

Test Plans (ITPs) and any associated checklists; - Handling, preservation and storage of products/materials; - Inspection Measuring and Test Equipment

2.5 Design and Fabrication Related Documentation

The Supplier must develop and document procedures/processes that will be undertaken on the Project to manage/control design and fabrication related documentation;

2.6 Records & Archiving

The Supplier must develop and document procedures/processes that will be undertaken to manage/control records produced including storage and archiving. Where ProjectWeb is used for the Project, all documentation and records are to be transmitted and stored via ProjectWeb, which is archived automatically.

2.7 Inspection and Test Plans (ITP)

The Supplier must develop and document a system of planned inspection and tests to verify the fabrication and supply process of the Goods. The ITP must identify the acceptance criteria for any particular part of the process and be able to establish conformance to the specified requirements. The ITP, and all associated checklists, must be submitted to Lend Lease for review prior to commencement of the fabrication and supply of the Goods.

2.8 Non Conformances

The QMS must identify and document instances where the functioning of the QMS or the fabrication and supply of the Goods do not comply with the requirements of the Contract. A summary of non-conformances and corrective actions shall be issued to Lend Lease monthly (or as otherwise agreed). The Supplier must implement a conformance completion system involving progressive listing and sign off of defects, outstanding work and non conformances.

2.9 The Supplier must ensure that its QMS is applied to all components of the fabrication and supply of the

Goods that are provided by subcontractors and suppliers to the Supplier. 2.10 Inspection Measuring and Test Equipment

The QMS must require that all testing and measuring equipment be regularly checked for accuracy. Records of calibration certificates are to be kept by the Supplier.

Legal\301586110.1

2.11 Internal Auditing

The Supplier must ensure that planned and documented quality audits are carried out on all aspects of the Supplier‟s QMS and also that of their suppliers and subcontractors.

2.12 The Supplier must provide Lend Lease with the QMS documentation required by and at the times stated in the Appendix.

Legal\301586110.1

SCHEDULE 4 THE PROGRAMMING REQUIREMENTS

1. Overall Target Schedule and Medium Range Schedules 1.1 The Supplier acknowledges that it has examined Lend Lease‟s Overall Target Schedule. No allowance

has been made in the Overall Target Schedule for the impact of delays or disruption that may occur subsequent to the preparation of the Overall Target Schedule. The Overall Target Schedule does not list all activities or items of work required for completion of the Contract or all interfaces with the work of other parties engaged by Lend Lease.

1.2 From time to time Lend Lease may update or amend the Overall Target Schedule. 1.3 Lend Lease may issue Medium Range Schedules. A Medium Range Schedule will detail particular

activities shown on the Overall Target Schedule. 1.4 In the Contract, “Overall Target Schedule” means the Overall Target Schedule as updated or amended

by Lend Lease and “Medium Range Schedule” means the Medium Range Schedule most recently issued by Lend Lease.

2. Supplier’s Programme 2.1 Within 10 days of being notified of the award of the Contract the Supplier must submit to Lend Lease for

approval a programme (the “Supplier‟s Programme”) which must:

2.1.1 be consistent with the dates shown on the Overall Target Schedule for commencement and completion of:

(1) the Contract; (2) the Stages of the Contract (if any); and (3) the activities and items required for completion of the Contract making due allowance

for delays since the issue of the Overall Target Schedule.

2.1.2 show all on and off-site activities necessary to permit weekly comparisons between the Contract as programmed and the actual progress of the Contract.

2.1.3 show the dates or periods for:

(1) supply of drawings and information from Lend Lease; (2) approvals from Authorities and Lend Lease; (3) provision and approval of shop drawings and as-constructed drawings; (4) provision of all maintenance and operations manuals; (5) supply of essential materials including samples; (6) sequences and labour requirements for commissioning; and (7) all other activities which have a significant bearing on the time required for completion.

2.1.4 allow for the activities of other parties engaged by Lend Lease on the Site which may affect the execution of the Contract.

2.1.5 show further information that Lend Lease may require.

2.2 From time to time Lend Lease may direct the Supplier to revise or update the Supplier‟s Programme. Within 5 days of receipt of a direction from Lend Lease the Supplier must submit to Lend Lease for approval a revised or updated Supplier‟s Programme which must:

2.2.1 take account of delays and disruptions since the issue of the preceding Supplier‟s Programme; 2.2.2 incorporate changes in methods, times or sequences of activities; and

Legal\301586110.1

2.2.3 modify portions of the Supplier‟s Programme which Lend Lease determines to be impractical or

unreasonable.

2.3 If Lend Lease does not approve a Supplier‟s Programme, Lend Lease must advise the Supplier of its reasons. The Supplier must submit a further Supplier‟s Programme to the satisfaction of Lend Lease within 5 days of receipt of Lend Lease‟s advice. If the further Subcontractor‟s Programme is not to Lend Lease‟s satisfaction Lend Lease may issue a Supplier‟s Programme.

2.4 At any time the Supplier may submit to Lend Lease for approval a revised or updated Supplier‟s

Programme incorporating changes or amendments recommended by the Supplier. If Lend Lease does not approve a revised or updated Supplier‟s Programme, Lend Lease must advise the Supplier of its reasons.

2.5 In the Contract, “Supplier‟s Programme” means the Supplier‟s Programme most recently approved or

issued by Lend Lease. 3. Deviation or Acceleration 3.1 Lend Lease may direct a deviation from or acceleration of the Supplier‟s Programme. 3.2 If a direction by Lend Lease to accelerate requires the Supplier to bring the Contract or a Stage to

completion prior to the Delivery Date then the Delivery Date will be adjusted accordingly. 3.3 Subject to the provisions of Clause 12 of the Contract terms Lend Lease must pay the Supplier a

reasonable amount in respect of additional costs incurred by the Supplier in complying with a direction to accelerate issued under Clause 3.1 of this Schedule.

3.4 The Supplier will not be entitled to payment under Clause 3.3 unless within 5 days of receipt of Lend

Lease‟s direction it provides Lend Lease with a written estimate of the additional costs it is likely to incur in complying with Lend Lease‟s direction to accelerate.

4. Short Range Schedules 4.1 Each week Lend Lease may issue a Short Range Schedule. Lend Lease may confer with the Supplier

prior to issuing a Short Range Schedule. A Short Range Schedule may cover the two week period following the date of the Short Range Schedule and may detail particular activities shown on the Supplier‟s Programme.

4.2 In the Contract, “Short Range Schedule” means the Short Range Schedule most recently issued by

Lend Lease.

Legal\301586110.1

5. Supplemental Programming Information From time to time Lend Lease may require the Supplier to submit supplemental programming information not otherwise expressly required in the Contract in any form or manner. 6. Assistance by Lend Lease Lend Lease may assist the Supplier with the preparation of a programme or schedule required by the Contract. The Supplier must co-operate with Lend Lease and comply with Lend Lease‟s directions in relation to the preparation of programmes and schedules. 7. Supplier’s Obligations 7.1 Unless otherwise directed or agreed by Lend Lease, the Supplier must maintain progress in accordance

with the Supplier‟s Programme and any relevant Short Range Schedule. 7.2 Unless expressly provided otherwise, any assistance, approval, issuing, requirement or direction given

by Lend Lease under Clauses 1 to 6 of this Schedule will not:

7.2.1 relieve the Supplier of its obligations under the Contract; 7.2.2 constitute or be construed as an order or instruction for a variation to the Contract; or 7.2.3 entitle the Supplier to claim an extension of time.

7.3 Strict compliance with this Schedule by the Supplier is a condition precedent to the Supplier‟s entitlement to an extension of time under Clause 2.8 of the Contract Terms.

Legal\301586110.1

SCHEDULE 5

SCHEDULE OF INFORMATION MANAGEMENT

This Schedule is a necessary part of this contract. It defines: - Minimum hardware and software requirements of Consultants and Subcontractors - Criteria for Information Management systems and procedures The current version of the Schedule is located in the Related Info\Guidelines in Section 5 of the Blue Book. The following link provides direct access to the document: Schedule of Information Management

http://ikonnect.llease.com/iknow/controller.jsp?CMD=DISPLAY_MAIN_SENDLINK&ATTR_TERMID=204042

Legal\301586110.1

TO BE SUBMITTED IN THE FORM OF A LETTER OR STATUTORY DECLARATION, AT THE OPTION OF Lend Lease [CLAUSE 4.2.2 (a) PROFORMA STATEMENT TO BE SUBMITTED WITH EACH PAYMENT CLAIM] SUPPLIER'S LETTERHEAD PAPER OR STATUTORY DECLARATION Date: ................................................................. Lend Lease Project Management & Construction (Australia) Pty Limited [Insert agreed address] Attention: The Construction Manager Re: .................................................................................. Supply Agreement (the "Contract") Dear Sirs, As regards the attached payment claim, dated ....................................................... in respect of the Contract for the .................................................................................. Project, we state as follows: 1. All remuneration and other entitlements payable to or on behalf of our employees for work under the

Contract during the period up to submission of the payment claim, that is up to [insert date] .................................................................................. have been paid.

2. All amounts due to our subcontractors and suppliers in respect of work under the Contract have been paid. 3. All relevant taxes, duties, statutory fees, charges and other amounts due in respect of the Contract and

payable by us have been paid. Yours faithfully, (Supplier) Pty Limited

Legal\301586110.1

TO BE SUBMITTED IN THE FORM OF A LETTER OR STATUTORY DECLARATION, AT THE OPTION OF Lend Lease [CLAUSE 4.10 DRAFT PROFORMA FINAL STATEMENT] SUPPLIER'S LETTERHEAD PAPER OR STATUTORY DECLARATION Date: ................................................................. Lend Lease Project Management & Construction (Australia) Pty Limited [Insert agreed address] Attention: The Construction Manager RE: FINAL STATEMENT Dear Sirs, Please find set out below (Supplier) Pty Limited's Final Statement. Project Number: .......................................... Supply Agreement Number: ...................................

Project: ........................................................................................................................................

Location: ........................................................................................................................................ The following has been agreed to our mutual satisfaction and allowed for in the final Contract Sum amount of $..........................: (a) all adjustments to the Contract Sum; (b) all claims under the Contract; (c) all extensions of time; and (d) all other entitlements or claims arising out of or in connection with the Contract. Yours faithfully, (Supplier) Pty Limited

Legal\301586110.1

SUBCONTRACTOR’S STATEMENT [NSW ONLY] REGARDING WORKERS COMPENSATION, PAY-ROLL TAX

AND REMUNERATION (Note 1)

- Remuneration s175B Workers Compensation Act 1987 Part 5B s31G-31J Pay-roll Tax Act 1971 ss127, 127A Industrial Relations Act 1996 Sub Contractor: __________________________________________________ ABN: ________________________

(Business name) of _________________________________________________________________________________________

(Address of subcontractor) has entered into a contract with_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ (Note 2)

(Business name of principal contractor) ABN: _____________________ For work between: ____/____/____ and ____/____/____ (Note 3)

Date Date

and/or Payment Claim Details: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ___ (Note 4) Nature of contract work: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ (Note 5) DECLARATION I, _________________________________ a Director of / a person authorised by the subcontractor on whose behalf this declaration is made, hereby state that the abovementioned subcontractor: (delete as appropriate)

Is either

(Note 6). OR

(Policy Number) held with ______________________________________ as indicated on the attached Certificate of (Insurance Company) Currency dated ___________________, in respect of work done in connection with the contract, during any period of the contract and has paid all workers compensation insurance premiums payable in connection with the contract (Note 7).

also a principal contractor in connection with the work under contract (Note 8).

been given a written statement by subcontractors in connection with the work.

required to be registered as an employer under the Pay-roll Tax Act 1971 _________. (Pay-roll tax client No.)

Has paid all pay-roll tax due in respect of employees who performed the work for the principal contractor, as required at the date of this statement (Note 9).

Has paid all remuneration payable to relevant employees, for work done under the contract during the period outlined above (Note 10).

Signature __________________________ Full Name ___________________________ (please print) Position/Title ________________________ Dated _______________________________

WARNING • Any subcontractor, who knowingly provides a principal contractor with a written statement that is false, is guilty of an offence (Maximum penalty 100 units or $11,000). • Any written statement will not relieve the principal contractor of liability if, at the time the written statement was provided,

Legal\301586110.1

the principal contractor believed the written statement to be false. • The principal contractor must retain a copy of any written statement for a period of not less than five years (Pay-roll tax), six years (Remuneration) or seven years (Workers compensation). • This statement must be accompanied by the relevant Certificate of Currency to comply with section 175B of the Workers Compensation Act 1987

Legal\301586110.1

NOTES [SUBCONTRACTOR’S STATEMENT] 1. This form is prepared for the purpose of section 175B of the Workers Compensation Act 1987, Part 5B

section 31G-31J of the Pay-roll Tax Act 1971 and section 127 of the Industrial Relations Act 1996. If this form is completed in accordance with these provisions, a principal contractor is relieved of liability for workers compensation premiums, pay-roll tax and remuneration payable by the subcontractor.

2. For the purpose of this statement, a principal contractor is a person (or other legal entity), who has entered

into a contract with another person (or other legal entity), referred to as the subcontractor, and employees/workers of that subcontractor will perform the work under contract. The work must be connected to the business undertaking of the principal.

3. In order to meet the requirements of s127 Industrial Relations Act 1996, a statement in relation to

remuneration must state the period to which the statement relates.

Section 127(6) Industrial Relations Act 1996 defines remuneration as „remuneration or other amounts payable to relevant employees by legislation, or under an industrial instrument, in connection with work done by the employees.‟ Section 127(11) of the Industrial Relations Act 1996 states „to avoid doubt, this section extends to a principal contractor who is the owner or occupier of a building for the carrying out of work in connection with the building so long as the building is owned or occupied by the principal contractor in connection with a business undertaking of the principal contractor.‟

4. Payment claim details – Where a subcontractor has entered into a payment schedule with a principal contractor they must identify the period or payment to which the statement applies.

5. An accurate description of the work covered by the contract must be included. 6. In completing the statement, a subcontractor declares that they are a sole trader or partnership without

workers or subcontractors and is not required to hold workers compensation insurance. 7. In completing the statement, a subcontractor declares that workers compensation premiums payable up to

and including the date(s) on the statement have been paid, and all premiums owing during the term of the contract will be paid.

8. It is important to note that a business could be both a subcontractor and a principal contractor, if a business

„in turn‟ engages subcontractors to carry out work. If your business falls within this category you should also obtain statements from your subcontractors.

9. In completing the statement, a subcontractor declares that all pay-roll tax payable relating to work undertaken

as part of the contract has been paid. 10. In completing the statement, a subcontractor declares that all remuneration payable has been paid.

It is noted that definitions of employer, employee, remuneration, and specific provisions for employers of outworkers in the clothing trades are as defined in s127A of the Industrial Relations Act 1996.

11. Failure to complete this statement may result in the principal contractor withholding any payment due to the subcontractor. Any penalty for late payment under the contract does not apply to any payment withheld under this subsection. Subcontractors may wish to keep a copy of the statement for their own records.

For more information, please visit the WorkCover website www.workcover.nsw.gov.au, Office of State Revenue website www.osr.nsw.gov.au, or Office of Industrial Relations, Department of Commerce website www.commerce.nsw.gov.au. Copies of the Workers Compensation Act 1987, the Pay-roll Tax Act 1971 and the Industrial Relations Act 1996 can be found at www.legislation.nsw.gov.au.

Legal\301586110.1

SCHEDULE 6

SCHEDULE OF SUSTAINABILITY REQUIREMENTS

1. Sustainability Requirements

Barangaroo South is to be a world leading example of sustainability in a mixed use development. The aspirations of the Project are to achieve carbon neutral, zero waste and water positive outcomes. The ultimate aim of Lend Lease is to deliver on these commitments and to bring Project partners and stakeholders, including all subcontractors, along with it to achieve a world leading sustainability outcome.

The Supplier acknowledges and agrees that the overall co-ordination of all sustainability requirements, both environmental and social, relating to the Project will be exercised by Lend Lease. Notwithstanding, the Supplier must implement appropriate work practices and operating procedures as well as exercise due diligence in its execution of the Works to ensure the sustainability requirements for the Project are achieved. 2. Environmental Legislative Requirement compliance Without limiting the Supplier‟s obligations in clause 7.6 of the Contract, the Supplier must comply with all Legislative Requirements concerning: (a) Emissions of substances into the atmosphere, waters and land; (b) Pollution and contamination of the atmosphere, waters and land; and (c) Production, use, handling, storage, transportation and disposal of:

(i) waste; (ii) hazardous substances; (iii) dangerous goods; (iv) threatened, endangered and other flora and fauna species; and (v) conservation, heritage and natural resources; and

(d) The health and safety of people.

3. Social Sustainability (a) Apprenticeships The Subcontractor must ensure that no less than 20% (or such lesser number as prescribed in the Scope of Work) of any Tradespersons employed in the performance of the Works are apprentices or trainees, meaning that for every five Tradespersons employed by the Subcontractor in performance of the Works at least one apprentice or trainee is employed and is provided with appropriate training (all costs associated with providing appropriate training to apprentices and trainees shall be borne by the Subcontractor). The Subcontractor must provide Lend Lease with a written report (signed by an authorised employee of the Subcontractor) on no less than a monthly basis providing evidence of the attainment or otherwise of the apprentice/trainee target contained in this clause 3(a). The written report provided in accordance with this clause 3(a) must be in the form attached to this Schedule. For the purposes of this clause 3(a) "Tradespersons" include persons over the age of 18 years who are engaged in work ordinarily undertaken by tradespersons whether or not they have formal trade qualifications.

Legal\301586110.1

(b) Aboriginal participation Barangaroo South aims to exceed by 10% the Aboriginal Participation Guidelines and make all reasonable endeavours to employ Aboriginal persons for the performance of the Works. Employment opportunities can include:

Work experience programs

Pre employment to employment pathways

Permanent employees

Casual employees

Apprenticeship/Trainee Program

Non construction employment

Employment through procurement (Indigenous businesses will employ Indigenous employees)

School based trainees, undergraduates

Mentoring

Cadetships

University. The following ratios of Aboriginal participation should be applied:

Max 1 full time employee („FTE‟): (if the Subcontractor has between 1 and 20 employees)

Between 1 - 2 FTE: (if the Subcontractor has between 20 and 40 employees)

Min 5 % employees (if the Subcontractor has over 40 employees). The Subcontractor must provide Lend Lease a written Statement of Support and Statement of Opportunities per the Category 3 Projects within the Aboriginal participation Guidelines. The Subcontractor must provide Lend Lease with a written report of its attainment or otherwise of the target for Aboriginal participation contained in this clause 3(b). The written report provided in accordance with this must be in the form attached to this schedule. For the purposes of this clause 3(b) “Aboriginal Participation Guidelines” means the Aboriginal Participation in Construction Guidelines applying to projects commencing after 1 January 2007 issued by the NSW Government. For further information and assistance please refer to the NSW Government policies and guidelines and the Lend Lease Aboriginal Participation plan: http://www.nswprocurement.com.au/Government-Procurement-Frameworks/Construction/Policies-and-Guidelines.aspx Note: Links to service providers to support aboriginal participation included within the SOW. (c) Procurement from Minority Sources

http://www.nswprocurement.com.au/Government-Procurement-Frameworks/Construction/Policies-and-Guidelines.aspx

http://www.nswprocurement.com.au/Government-Procurement-Frameworks/Construction/Policies-and-Guidelines.aspx

Legal\301586110.1

Within a reasonable time of the commencement of the Works the Subcontractor must provide written evidence of the strategies it has in place to engage minority, local and Indigenous-owned suppliers in its supply chain, including supplier diversity policies and processes and the value and type of business it purchases from such suppliers. (d) Community Initiatives The Subcontractor must support and engage with the local community through initiatives led by Lend Lease such as mentoring programs, community events, social enterprise support, and working with disadvantaged community members. The Subcontractor must participate in the delivery of community learning programs associated with the Works, community learning items include initiatives such as showcasing construction skills and talking to school groups about the construction industry. The Community Learning Programs will include work-based training activities such as mentoring and work experience, primary, secondary and tertiary learning programs. The Subcontractor must comply with the Summary of Community and Stakeholder Engagement Strategy attached to this tender pack. 4. Environmental Sustainability (a) Construction waste The Supplier must ensure that no less than 97% of all Construction Site Waste, by weight, is diverted from landfill. To satisfy this requirement the Supplier must conform with the Lend Lease Waste Management Plan and its requirements such as on site waste segregation. Further, the Supplier must take all reasonable steps to work with their supply chain to minimise the amount of Construction Site Waste through initiatives such as reusable packaging, materials cut/made to size prior to delivery and bulk materials provision. (b) Reporting on sustainability performance To support the overall reporting requirements of the project the Supplier must provide data to support and demonstrate the achievement of the sustainability requirements detailed in this schedule, the scope of works and the specification. The Supplier must:

(ii) record;

(iii) report in a form directed by Lend Lease from time to time; and

(iv) on request, make available for inspection by Lend Lease or its representatives, information in relation to environmental metrics including energy, water and waste as well as materials selection strategies, including, with each progress claim, providing to Lend Lease:

(i) a monthly report signed by an authorised employee of the Supplier in the form attached

to this Schedule - refer attached subcontractor other environmental and sustainability metrics reporting form. Note that this is in addition to the NGER reporting requirements outlined in the NGER reporting schedule; and

(ii) copies of all supporting invoices, dockets, receipts records and other information.

Legal\301586110.1

The Supplier must provide information to support the development and reporting of the embodied carbon within the materials and / or services provided. The information for embodied carbon reporting to be provided by the Supplier must include:

The type of materials used;

The source of materials;

Material quantities; and

The transport and delivery details of material and equipment supplies. (c) Materials selection The Supplier must use its best endeavours to preserve natural resources as well as protect human health and ecosystems in respect of its materials selection for the Goods. The Supplier must use its best endeavours to support local industry and innovative approaches (e.g. minority supply groups) in respect of its materials selection for the Goods and provide evidence to Lend Lease prior to the letting of major procurement items. Potential resources include ecospecifier, www.ecospecifier.com.au and Good Environmental Choice, http://www.geca.org.au/ The Supplier is to include and demonstrate the following factors in the selection of all materials for the Works:

Preservation of natural resources;

Protection of human health and ecosystems; and Supporting local industry and innovative approaches (for example procurement from minority supply groups including AIMSC).

(d) Green Star

In respect of the Project, Lend Lease is required to ensure the Works are designed so as to achieve 6 Star Green Star Office Design and As Built Ratings, 5 Star Green Star Multi Unit Residential Design and 5 Star Green Star Retail Centre Design (“Green Star Requirements”). Generally, the Subcontractor must act reasonably to assist Lend Lease to achieve the Green Star Requirements. Further, any specific obligations on the Subcontractor in relation to the Green Star Requirements, which must be strictly complied with, are included in the Scope of Works and/or Specifications.

The Subcontractor must keep all records as expressly provided for in the Scope of Works and/or specifications in accordance with Green Building Council of Australia requirements. For more information please refer to: http://www.gbca.org.au/green-star/rating-tools/.

(e) NABERS

Lend Lease is required to ensure the Project achieves an average of 5 Star +30% NABERS Energy ratings for commercial office buildings (“NABERS Requirement”). The Subcontractor must act reasonably to assist Lend Lease to achieve the NABERS Requirement.

Any specific obligations on the Subcontractor in relation to the NABERS Requirement, which must be strictly complied with, are included in the Scope of Works and/or specifications. For more information please refer to: http://www.NABERS.com.au

(f) Embodied carbon

In respect of the Project Lend Lease is required to ensure a reduction in the embodied carbon footprint for all buildings by 20% compared to standard construction practice. The Supplier must act reasonably to assist Lend Lease to achieve this outcome.

http://www.ecospecifier.com.au/

http://www.geca.org.au/

http://www.gbca.org.au/green-star/rating-tools/

http://www.nabers.com.au/

Legal\301586110.1

The Supplier must use its best endeavours to utilise materials including but not limited to steel, concrete, aluminium and glass with reduced embodied carbon. Any further specific obligations on the Supplier in relation to the embodied carbon reduction are included in the Appendix and/or specifications.

(g) Building Handover

The Supplier must support the efficient handover of buildings through the provision of necessary documentation and guidance to ensure the specified system performance is achieved.