Deed of Variation and Settlement No.3 - Separable …...Deed of Variation and Settlement - Separable Portions D&E 12. Entire Agreement This Deed and the Project Deed (as amended) contains

Legal\111200264.3

Deed of Variation and Settlement

No.3 - Separable Portions D & E

Queensland Motorways Limited

Le~ton Contractors Pty Limited and Abigroup Contractors Pty

Limited

Gateway Upgrade Project

Deed of Variation and Settlement - Separable PortionsD&E

Date

Parties

I. Queensland Motonvays Limited (ABN 50067242513) of 7 Brandl Street, Eight Mile

Plains, Qld 4122 (QML)

2. Leighton Contractors Ply Limited (ABN 98 000 893 667) of level 3, 143 Coronation

Drive, Milton, Qld 4064 and Abigroup Contractors Ply Limited (ABN 40 000 20 I 516) of

Abigroup House, Stanley Street, Southbank, Brisbane QlD 410 I, as the Leighton Abigroup

Joint Venlure (together, the Contractor)

Recitals

A QML and the Contractor entered into a Design, Construct and Maintain Project Deed dated

26 September 2006 (the Project Deed) in connection with the duplication of the Gateway

Bridge and the upgrade of part of the Gateway Motorway in Brisbane.

B QMl and the Contractor subsequently varied the Project Deed by Deed of Variation

Separable Portion A, B, C, D & E dated 18 September 2008 (Deed of Variation No. I).

C QMl and the Contractor subsequently further varied the Project Deed by Deed of Variation -

Separable Portions B, C, D & E dated 2009 (Deed of Variation No.2).

D QML and the Contractor have agreed to further amendments to the Project Deed in relation to

Separable Portions D and E of the Project and to release each other from certain claims and

matters on the lemlS and conditions set out in this Deed.

It is agreed as follows.

1. Definitions and Interpretation

(a) Expressions used herein shall be given the meaning given to them by clause 1.1 of the

Project Deed unless the context otherwise requires.

(b) Clauses 1.2, 1.3, 1.4, 1.5, 1.6, 1.8 and 1.10 of the Project Deed apply to this Deed as if they

were set out in full.

(c) For the purposes of this Deed:

(i) Early Separable Portion D means the portion of the Project Works identified as

such in Schedule I.

(ii) Relevant Claims and Matters means the clainlS and matters identified in Schedule

2.

(iii) Relevant Dates has the meaning given to that tenn in clause 4(a).

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(iv) Revised Dale for COllstrllClioll Completioll means the Date for Construction

Completion of the relevant Separable Portion as inserted or revised pursuant to this

Deed.

(v) Selliemelll Dale means the date of payment of the Settlement Sum under clause 5.

(vi) SelllemelllSllm means the sum of$18 million (exclusive ofGST, ifany) payable

by QML to the Contractor on the tenns set out in this Deed.

2. Separable Portions 0 and E

(a) The Project Deed is further varied in the manner and to the extent specified in Schedule I

to this Deed.

(b) Notwithstanding anything to the contrary in this Deed or the Project Deed, the Contractor

must carry out all Work under this Project Deed necessary for the New Gateway Bridge to

be opened for the lawful and safe passage of pedestrians and relevant equipment and

vehicles to allow the conduct ofa public open day and pedestrian walk over the New

Gateway Bridge on 22 May 20 IO.

(c) If, on or before 22 December 2009, the Contractor provides written notification to QML

that the date of the public open day is or is likely to be earlier than 22 May 20 I0, then:

(i) the parties will discuss bringing forward the date on which the public open day

referred to in clause 2(b) above is to be held; but

(ii) the date on which the public open day referred to in clause 2(b) above is to be held

may only be brought forward with QML's prior written consent (and without any

liability on the part ofQML for any Clainls in connection with any such bringing

forward).

3. Separable Portion C

(a) QML and the Contractor will consider options for a staged opening of Separable Portion C.

(b) Nothing in this Deed affects either party's Rights or Obligations in respect of reaching

Construction Completion ofSeparable Portion C by the Date for Construction Completion

of Separable Portions C, unless and to the extent otherwise agreed by the parties in writing

in the form 0 f a deed.

4. No claim

Without limiting the other provisions of this Deed, QML and the Contractor each acknowledge and

agree that:

(a) the Project Deed has been amended under this Deed to, amongst other things, insert a Date

for Construction Completion for Early Separable Portion D, and to amend the Date for

Construction Completion of Separable Portion E (the Relevalll Dales);

(b) the Relevant Dates and the Date for Construction Completion for Separable Portion Dare

inclusive of all extensions of time which the Contractor has been granted, which ought to

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have been granted or should be granted in the future, under the Project Deed for or in

relation to any of the Relevant Claims and Matters;

(c) they will promptly jointly direct a change to ti,e Independent Verifier's "Services" pursuant

to the Deed of Appointment of Independent Verifier to require the hldependent Verifier to

carry out any necessary or additional services as a result of the amendments that have been

made to the Project Deed under this Deed;

(d) notwithstanding any other provision in the Project Deed, the Relevant Dates, other

amendments made to the Project Deed under this Deed and other matters agreed under this

Deed have been agreed for the sake of the convenience ofQML and the Contractor, and the

Contractor is not cntitled to (and QML has no liability to the Contractor) for any Claims

which it has, may have had, or but for this Deed, might have had in the future:

(i) for, or in relation to the Relevant Claims and Matters;

(ii) which arises merely from the amendments that have been made to the Project

Deed under this Deed, including any Claim:

(A) due to the fact that there is a new Early Separable Portion D; and

(8) due to the fact that the Date for Construction Completion of Separable

POl1ion E has been brought forward pursuant to this Deed; and

(iii) which arises from compliance with the Obligations imposed on the Contractor

pursuant to clauses 2(b) and (c) and 4(c); and

(e) except to the extent expressly stated in this Deed, nothing arising out ofor in connection

with this Deed:

(i) limits or otherwise affects the Contractor's Rights or Obligations under the Project

Deed; or

(ii) limits or otherwise affects QML's Rights or Obligations under the Project Deed.

5. Payment

5.1 Payment

(a) The Contractor may only claim for paymcnt of the Settlement Sum by including that

amount in any monthly progress claim to be submitted by the Contractor after the date of

this Deed in accordance with clause 12 of the Project Deed.

(b) Providing that the Contractor has complied with clause 12 of the Project Deed in making its

progress claim, QML shall pay to the Contractor the Settlement Sum in accordance with

clause 12.3 of the Project Deed.

5.2 No admission by QML

The payment of the Settlement Sum referred to in clause 5.1 is not an admission of liability by

QML. QML expressly denies any liability in respect of the facts, matters and circumstances the

subject of the Relevant Claims and Matters.

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6. Relevant Claims and Matters

Payment of the Settlement Sum is in full and final satisfaction of the Relevant Claims and Matters

and, on and from the Settlement Date, the Contractor releases and discharges QML from any and all

Claims which its has, may have had or, but for this Deed, might have had in the future for, in

relation to the Relevant Claims and Matters.

7. Road Occupancy Licence fees

QML and the Contractor agree that, despite Schedule 29 of the Project Deed:

(a) the Contractor shall have no Obligation under clause 3.2 of Schedule 29 of the Project Deed

to make any payment to QML; and

(b) QML shall have no Obligation under clause 3.4 of Schedule 29 of the Project Deed to make

any payment to the Contractor.

8. Indemnity

The Contractor indemnifies, and shall keep indemnified, QML from and against any losses, costs,

expenses, damages, liabilities and claims arising out of or in connection with, any claim, demand,

dispute, proceeding, suit or action brought by the hldependent Verifier against QML in relation to

any of the Relevant Claims or Matters.

9. Confidentiality

Each party agrees that clause 17.13 of the Project Deed applies as ifset out herein in full.

10. Ratification and confirmation by QML and the Contractor

QML and the Contractor acknowledge and agree that:

(a) this Deed amends the Project Deed, and the amended Project Deed takes effect on and from

the date of this Deed;

(b) in all other respects, the Project Deed as amended by this Deed is ratified and con finned;

and

(c) this Deed does not (and will not) have the effect oftemlinating the Project Deed.

11. Further Assurances

Each party agrees to do all things and execute all deeds, instruments, transfers or other documents as

may be necessary or desirable to give full effect to the provisions of this Deed and the transactions

contemplated by it.

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12. Entire Agreement

This Deed and the Project Deed (as amended) contains the entire agreement between the panies with

respect to its subject matter. It supersedes all earlier conduct and prior agreements and

understandings between the parties in connection with its subject matter.

13. Counterparts

This Deed may be executed in any number ofcounterpans. All counterpans together will be taken

to constitute one document.

Executed and delivered as a Deed in Brisbane.

Print Name

Peter Geoffrey Pollard

Executed as a deed in accordance with

section 127 of the Corporations Act 2001 by

Queensland Motorways Limited ABN 50 067

242 513 111 the presence of:

~~e,,,~~MarkRobinMcKeon

Print Name

Executed as a deed in accordance with section

127 of the Corpora 0 s Act 2001 by Leighton

Contractors PtX . ni d ABN 98 000 893 667

Print

Executed as a deed in accordance with

section 127 of the Corporations Act 2001 by

Abigroup Contractors Ply Limited ABN 40 000

201516:

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Print Name

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-~---Director Signature

DAVID LINDSAY WALKER

Print Name

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CHRISTOPHER PAUL MOTIRAM

Print Name

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Schedule 1

Separable Portions D and E

1. Amendments relating to Separable Portion D Works

1.1 (Date for Construction Completion) In the table in clause 1.3 of Schedule 1, the Date for

Construction Completion in respect of Separable Portion 0 remains as 15 August 2010.

1.2 (Condition Precedent) The Contractor must, as a condition precedent to achieving

Construction Completion in respect of Separable Portion 0, achieve Construction

Completion of the Early Separable Portion 0 Works.

1.3 Liquidated Damages

(a) For Early Separable Portion 0, TAPsp means the sum of the amounts paid by QML

to the Contractor (exclusive of GST) on account of the Design and Construct

Contract Sum which are referable to those parts of the 0 & C Activities carried out

by the Contractor in respect of Early Separable Portion 0 up to and including the

date of the calculation to the extent certified in the payment schedules issued

under clause 12.3 plus Interest, where Interest means the interest on each of the

amounts paid from the date of payment up to and including the date of calculation

using INTo.

(b) For Separable Portion 0, TAPsp means the sum of the amounts paid by QML to

the Contractor (exclusive of GST) for Separable Portion 0 on account of the

Design and Construct Sum, which are referable to those parts of the 0 & C

Activities carried out by the Contractor in respect of Separable Portion 0 (excluding

the sum of the amounts paid by QML to the Contractor (exclusive of GST) on

account of the Design and Construct Sum which are referrable to those parts of the

D&C Activities carried out by the Contractor in respect of Early Separable Portion

D) up to and including the date of the calculation to the extent certified in the

payment schedules issued under clause 12.3 plus Interest, where Interest means

the interest on each of the amounts paid from the date of payment up to and

including the date of calculation using INTo.

(c) In the event that liquidated damages are payable for Early Separable Portion 0

and Separable Portion 0, QML will not be entitled to recover the IDC component of

SPLD for late completion of Separable Portion 0 until the delay period in calendar

days exceeds the period for which liquidated damages were deducted for late

completion of Early Separable Portion D.

(d) If the period of delay in achieving Construction Completion of Early Separable

Portion 0 is more than the delay in achieving Construction Completion of

Separable Portion 0, QML will not be obliged to refund any of the liquidated

damages deducted for late completion of Early Separable Portion D.

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2. Amendments relating to Early Separable Portion D Works

2.1 (Definition of Separable Portions) In the table in clause 1.1 of Schedule 1, a new row for

Early Separable Portion D is inserted as follows:

Separable Description of Separable Portion

Portion

Early D All elements of the Project Works, the Temporary Works and the D&C

Activities forming part of Separable Portion D and necessary to open the

New Gateway Bridge and approaches for four permanent lanes for the

safe and continuous passage of traffic.


Construction Completion in respect of Early Separable Portion D is inserted as being 31

May 2010.

2.3 (Liquidated damages)

(a) In the table in clause 4.1 of Schedule 1, a new row for Early Separable Portion D is

inserted as follows:

Separable Portion Relevant Internal Delay Costs

(excluding GST)

Early D $14,100/day

(b) Nothing in this clause otherwise limits or affects any Right QML has in relation to a

breach of the Project Deed by the Contractor.

3. Amendments relating to Separable Portion E Works


Construction Completion in respect of Separable Portion E is replaced with 29 November

2010.

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Schedule 2

Relevant Claims and Matters

SIN Relevant Claim I Matter Details of Claim or Matter

1. Change in Law - NGER Act The introduction of the National Greenhouse and

Energy Reporting Act 2007 (Cth) including the

Contractor's compliance with that Act as introduced.

The related correspondence for this Claim is the

Contractor's letters to OML dated 15 July 2008, 23

October 2008 and 5 May 2009.

2. Change in Law - Fuel Subsidy The enactment of the Fuet Subsidy Repeal and

Act Revenue and Other Legislation Amendment Act 2009

(Old) including the Contractor's increase in costs

resulting from that Act as enacted.


Contractor's letter to OML dated 14 July 2009.

3. Change in Law - Fair Work Act The introduction of the Fair Work Act 2009 (Cth)

including the Contractor's compliance with that Act as

introduced.


Contractor's letter to OML dated 14 July 2009.

4. Change in Law - Fire Ants A notice of declaration of restricted areas for fire ants

under, including the time and cost implications

resulting from that declaration under, the Plant

Protection Regulation 2002 (Old) published in the

Courier Maii on 13 May 2009.


Contractor's letters to OML dated 18 May 2009.

5. Change on Standards I Codes- Changes to the design of the single slope pre-cast

Pre-cast Concrete Barriers concrete barriers (as shown in Main Roads Standard

Drawing SD 1473 Revs D and E) and associated

recommendations, including the Contractor's

compliance with the changes and recommendations

and the loss of value of each barrier, as

communicated by the Department of Main Roads via

letters dated 8 April 2008 and 27 February 2009.


Contractor's letters to OML dated 13 March 2009 and

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23 June 2009.

6. Design and Construction of The Contractor's Claim for additional payment referred

Shared User Path to in its letters to QML dated 23 June 2009, 22 July

2009 and 24 August 2009 relating to the design or

construction of the shared pedestrian and bike path on

the New Gateway Bridge (Shared Path).

7. Recovery by the Contractor of Any Obligation by QML to reimburse or pay the

Independent Verifier Costs Contractor (as appropriate) for any payment the

Contractor has made, or is liable to make, or may in

the future be required to make, to the Independent

Verifier (including all or part of the Fee (as that term is

defined in the Deed of Appointment of Independent

Verifier», except to the extent of the Independent

Verifier's additional costs incurred in carrying out:

• Design Phase Services (as that term is defined in

the De~d of Appointment of Independent Verifier);

and

• Services (as that term is defined in the Deed of

Appointment of Independent Verifier) in relation to

extensions of time,

due to any Change Order issued by QML's

Representative under clause 6.2 of the Project Deed

after 25 November 2009.

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Documents

Deed of Variation and Settlement No.3 - Separable …...Deed of Variation and Settlement - Separable Portions D&E 12. Entire Agreement This Deed and the Project Deed (as amended) contains