SWITCHBOARD AND SCADA INSTALLATION AT NYNGAN WTP - …

GENERAL CONDITIONS OF CONTRACT SECTION B

SWITCHBOARD AND SCADA INSTALLATION AT NYNGAN WTP CONTRACT NO: 2016/4/SWITCH BOARD AND SCADA

Engineering Department 5/09/2016

Bogan Shire Council A.B.N. 68 886 242 083 1 General Conditions of Contract - Section B

SWITCHBOARD AND SCADA INSTALLATION AT NYNGAN WTP 2016/4/Switch Board and SCADA

Section B

GENERAL CONDITIONS OF CONTRACT SWITCHBOARD AND SCADA INSTALLATION AT

NYGAN WTP



CONTENTS

B1 DEFINITIONS ..................................................................................................................................... 1

B2 CONTRACT ........................................................................................................................................ 1

B3 DESIGN AND CONSTRUCTION ....................................................................................................... 1

B4 PATENTS, COPYRIGHT AND OTHER INTELLECTUAL PROPERTY RIGHTS ............................. 2

B5 CARE OF THE WORK AND OTHER PROPERTY ............................................................................ 2

B6 INSURANCE....................................................................................................................................... 3 B6.1 General insurance ............................................................................................................ 3 B6.2 Additional insurance ......................................................................................................... 3 B6.3 Insurance policies and proof of cover ............................................................................... 4

B7 SECURITY.......................................................................................................................................... 4

B8 INFORMATION SUPPLIED BY THE PRINCIPAL ............................................................................. 4 B8.1 Site Condition Information ................................................................................................ 4 B8.2 Survey Data ...................................................................................................................... 4 B8.3 Errors and Omissions ....................................................................................................... 5 B8.4 Indemnity .......................................................................................................................... 5

B9 DISCLOSURE OF INFORMATION .................................................................................................... 5 B9.1 Media Releases ................................................................................................................ 5 B9.2 GIPA Act requirements ..................................................................................................... 5

B10 SITE AND POSSESSION .................................................................................................................. 5

B11 SITE CONDITIONS ............................................................................................................................ 5

B12 EXISTING SERVICES ........................................................................................................................ 6

B13 NONCONFORMING WORK .............................................................................................................. 6

B14 PROPRIETARY ITEMS ...................................................................................................................... 6

B15 WORK METHOD ................................................................................................................................ 7

B16 VARIATIONS ...................................................................................................................................... 7

B17 SUSPENSION .................................................................................................................................... 7

B18 PRACTICAL COMPLETION OF THE WORKS ................................................................................. 7

B19 DELAY IN PRACTICAL COMPLETION ............................................................................................ 7

B20 PAYMENT .......................................................................................................................................... 8

B21 DEFECTS RECTIFICATION PERIOD ............................................................................................... 9

B22 DEFAULT AND INSOLVENCY .......................................................................................................... 9

B23 DISPUTES ........................................................................................................................................ 10

B24 WORKING HOURS AND WORKING DAYS ................................................................................... 11

B25 COLLUSIVE ARRANGEMENTS ..................................................................................................... 11

B26 LONG SERVICE LEVY .................................................................................................................... 11

B27 EXCHANGE OF INFORMATION BETWEEN GOVERNMENT AGENCIES ................................... 11

B28 TERMINATION FOR CONVENIENCE ............................................................................................. 12 B28.1 Termination ..................................................................................................................... 12 B28.2 Costs ............................................................................................................................... 12 B28.3 Deemed termination for convenience ............................................................................. 12



B29 SECURITY OF PAYMENT ACT ....................................................................................................... 12 B29.1 Service and reference dates ........................................................................................... 12 B29.2 Payment schedule not conclusive ................................................................................... 13 B29.3 Nominating Authority ....................................................................................................... 13 B29.4 Indemnity ......................................................................................................................... 13

B30 WARRANTIES .................................................................................................................................. 13

B31 INNOVATION .................................................................................................................................... 14

B32 PROPORTIONATE LIABILITY ......................................................................................................... 14

B33 SUPERINTENDENT ......................................................................................................................... 14

B34 PRINCIPAL’S REPRESENTATIVE .................................................................................................. 15

B35 CONTRACTOR’S REPRESENTATIVE ............................................................................................ 15

SCHEDULE 1 - APPROVED FORM OF UNCONDITIONAL UNDERTAKING .......................................... 16

SCHEDULE 2 - STATUTORY DECLARATION ......................................................................................... 18

ANNEXURE ................................................................................................................................................. 22



B1 DEFINITIONS

The Principal is Bogan Shire Council ABN 68 886 242 083.

The Principals representative will be the Principal’s agent and not an independent certifier, valuer or assessor.

The Works means the whole of the work to be carried out and materials and services to be provided under the Contract.

Work under the Contract means the work which the Contractor is or may be required to execute under the Contract and includes variations, remedial work, constructional plant and temporary works, and all things necessary or incidental to the Works and the performance by the Contractor of its obligations under the Contract, whether or not specifically referred to in this Contract.

The Contract Sum means:

(a) where the Principal accepted a lump sum, the lump sum;

(b) where the Principal accepted rates, the amount calculated by firstly multiplying the rates by their respective quantities in the schedule of rates and then adding those products;

but excluding any additions or deductions which are made under the Contract.

Day means calendar day.

Business day has the meaning in the Security of Payment Act.

GIPA Act means the Government Information (Public Access) Act 2009 (NSW).

Security of Payment Act means the Building and Construction Industry Security of Payment Act 1999 (NSW).

Site means the lands and other places to be entered to enable the Contractor to perform the contract.

A variation is any change to the character, form, quality and extent of the Works directed in writing by the Superintendent. A variation shall not invalidate the Contract.

The Works have reached Practical Completion when the Works are capable of use for their intended purpose, and free from any omissions or defects, and the Contractor has made good the Site and its surroundings, all required documentation has been submitted to the Superintendent and any other requirement specified in the Contract for reaching Practical Completion has been satisfied.

No rule of construction applies to the disadvantage of one party on the basis that it put forward this Contract or any part of it.

Note: Words shown in italics in the Conditions of Contract are for guidance only.

B2 CONTRACT

The written agreement between the Principal and the Contractor for the performance of the Works, including all documents and parts of documents to which reference may properly be made to determine the rights and obligations of the parties (the Contract Documents) shall evidence the Contract.

The Contract Documents shall be taken as mutually explanatory and anything contained in one but not in another shall be treated as if contained in all. The Contractor must check the documents and notify the Superintendent of any ambiguity or discrepancy discovered by the Contractor at least 15 business days before the Contractor proposes to use those documents.

The Superintendent shall direct the Contractor as to the interpretation to be followed by the Contractor in carrying out the work. If the direction causes the Contractor to incur more or less cost than the Contractor could reasonably have anticipated at the time of tendering, the difference shall be valued under Clause B16.

If the Contractor fails to provide the notification of the ambiguity or discrepancy at least 15 business days before the Contractor proposes to use those documents, the valuation under Clause B16 will not include the costs for delay and / or the cost of any aborted work.

B3 DESIGN AND CONSTRUCTION

The Contractor must supply all materials and construct the Works in accordance with the design



developed under the Contract. All items needed for the satisfactory completion of the Works must be provided by the Contractor.

If the Contractor is to undertake design as part of the Works, the Contractor is to develop the Principal’s design and submit the completed design comprising drawings, specifications, calculations and any statutory certificates required to the Superintendent within the period stated in the Annexure.

The Contractor is not to depart from the Principal’s design, unless directed by the Superintendent.

The Contractor’s completed design is to comply with the Contract and be fit for the intended purpose of the Works which can be reasonably inferred from the Contract Documents.

The Principal is not bound to check the completed design for errors, omissions or compliance with the requirements of the Contract. The Principal is not liable to the Contractor for any claim whatsoever due to the Principal not detecting or notifying the Contractor of any errors, omissions or non-compliance with the requirements of the Contract in the completed design.

Responsibility for the completed design and its satisfaction of the Contract requirements remains solely with the Contractor and the Principal is relying on the Contractor’s knowledge, skill and judgement to carry out this responsibility.

The Contractor is to grant to the Principal an irrevocable licence to use the Contractor’s design for the Works. Such licence is also to include any subsequent repairs to, maintenance or servicing of (including the supply of replacement parts), or additions or alterations to, the Works.

B4 PATENTS, COPYRIGHT AND OTHER INTELLECTUAL PROPERTY RIGHTS

The Principal warrants that unless otherwise provided in the Contract—

(i) design;

(ii) materials;

(iii) documents; and

(iv) methods of working

specified in the Contract or provided or directed by the Principal or the Superintendent will not infringe any patent, registered design, trademark or name, copyright or other protected right.

The Contractor warrants that:

(a) any other design, materials, documents and methods of working provided by the Contractor will not infringe any patent, registered design, trademark or name, copyright or other protected right.

(b) all individuals who may have ‘moral rights’ (as that expression is defined in the Copyright Act 1968 (Cwlth)) in any material (including plans, drawings and specifications) provided as part of work under the Contract or any works constructed in accordance with that material have validly provided their written consent (pursuant to section 195AWA of that Act) to the Principal (or any other person); and

(c) the consent referred to in Clause B4(b) allows the Principal (or any other person) to deal with that material or those works (including by way of destruction or alteration) in connection with the completion, operation, development, marketing, use, extension, redevelopment, demolition or improvement of the Works on the Site or property or any merchandising, marketing or promotions associated with the Works on the Site in such manner as the Principal (or any other person) may decide, without being held to have infringed any moral right of the individual.

Intellectual Property and all sketches, plans, drawings, specifications, estimates, designs, calculations, computer programs, reports, models, or other documents produced in the course of the Contract shall be and shall remain vested exclusively in the Principal. The Contractor is to ensure that an assignment of Intellectual Property is arranged between the Contractor and any Sub- Contractors or other agents engaged by the Contractor. The Intellectual Property in all manuals, standard drawings, computer programs and other documents produced by the Principal and supplied to the Contractor for reproduction or guidance for the Contract are vested in the Principal and may not be used or reproduced for any works other than for the Principal without the prior written approval of the Principal.

B5 CARE OF THE WORK AND OTHER PROPERTY

From and including the date the Site is made available to the Contractor to the date of Practical Completion of the Works, the Contractor is responsible for the care of the Works, constructional plant and things entrusted to the Contractor by the Principal for the purpose of the Works.



The Contractor is to make good at the Contractor’s expense any damage which occurs to the Works while responsible for their care.

The Contractor is also liable for damage caused by the Contractor during the Defects Rectification Period.

The Contractor is to indemnify and keep the Principal indemnified against any loss or damage to the property of the Principal (including existing property in, about or adjacent to the Works) and against any legal liability for injury, death or damage to property of others arising from the performance of the Works.

Nothing in Clause B5 relieves the Principal from liability for the Principal’s own default and defaults of others for whom the Principal is liable.

B6 INSURANCE

B6.1 General insurance

On acceptance of the tender, the Contractor is to hold or take out an insurance policy covering Workers’ Compensation in the State of NSW and shall also ensure that every subcontractor must hold or take out insurance covering Workers’ Compensation.

If any subcontractor is not legally able to have Worker’s Compensation Insurance covering accidents to itself, the Contractor is to ensure the subcontractor holds or takes out a Personal Accident policy before the subcontractor commences any Contract work with minimum cover for death or permanent disability of $500,000 and $800 per week for temporary disability.

The Contractor, before commencing work on the Site, is to hold or take out policies of insurance covering the Contractor, Principal and subcontractors for:

(a) Public Liability to an amount of not less than $20,000,000 for any single occurrence; and

(b) Motor Vehicles and Plant under a policy of insurance that satisfies the requirements of the Motor Accidents Compensation Act 1999 (NSW) and in addition, maintain on each motor vehicles and plant Third Party Property Insurance with a limit of indemnity of not less than $10M; and

(c) loss or damage to the Works, any temporary works and all materials, constructional plant and other things that are brought onto the Site by or on behalf of the Contractor or are entrusted to the Contractor by the Principal. The amount insured shall be for an amount not less than the sum of:-

- the Contract Sum, and

- the value stated in the Annexure of any materials or things to be supplied by the Principal for the purposes of the work under the Contract.

The Principal is to be named as an insured in the policies.

B6.2 Additional insurance

If the Works includes work described in (a), (b) and (c) below, the Contractor is to take out the following additional insurance policies before starting such work:

(a) The use of water-borne craft (unless the craft is covered under the Contractor’s Public Liability Insurance); Marine Liability Insurance;

(b) Design of the Works undertaken by the Contractor; Professional Indemnity Insurance;

(c) Asbestos decontamination, including stripping, encapsulation or removal; Asbestos Indemnity Insurance.

The policy under (a) is to be in the name of the Contractor with the Principal as an additional name insured and is to cover the Contractor, the Principal, and all subcontractors employed from time to time in relation to the Works for their respective rights and interests and cover their liabilities to third parties. The policy is to be for an amount not less than $20,000,000 for any one occurrence and shall include a cross-liability clause in which the insurer agrees to waive all rights of subrogation or action against any of the persons covered.

The policy under (b) is to cover the Contractor for liability to the Principal for a minimum amount of $1,000,000 or 20% of the Contract Sum, whichever is greater, to a maximum of $5,000,000 for loss (whether economic loss only or other loss) in a single occurrence arising from errors or omissions in design of the Works carried out by the Contractor or any subcontractor.



The policy under (c) is to be in the name of the Contractor with the Principal as an additional name insured and is to cover the Contractor, the Principal, the Superintendent, and all subcontractors employed from time to time in relation to the Works for their respective rights and interests and cover their liabilities to third parties. The policy shall be in terms acceptable to the Principal and is to be effected prior to asbestos decontamination work commencing. The policy shall be maintained by the Contractor by the payment of all necessary premiums for the period of the Contract.

B6.3 Insurance policies and proof of cover

The required policies are to be with insurers and in terms approved by the Superintendent. Approvals will not be unreasonably withheld.

The Contractor is to maintain all required insurance policies (except Professional Indemnity Insurance) until the end of the Defects Rectification Period, or Practical Completion if there is no Defects Rectification Period. Professional Indemnity Insurance shall be maintained for six years after Practical Completion of the Contract.

If the Contractor fails to effect or maintain any insurance required under the Contract, the Principal may effect or maintain the insurance and pay any premiums. The Contractor is to pay the Principal the amount of any premiums paid by the Principal plus an amount of $250 to cover the Principal’s costs.

Proof of insurance cover is to be submitted to the Superintendent within 7 days of the date of the acceptance of the tender. Evidence of currency of insurances is required together with details of the actual policies noting any exclusion/s. When submitting proof of insurance cover, submit an original of the insurer's Certificate of Currency.

B7 SECURITY

The Contractor shall provide security in the amount of 5% of the Contract Sum in the form detailed in Schedule 1 - Unconditional Undertaking. The unconditional undertaking is to be by:

(a) a bank within the meaning of the Banking Act 1959 or a bank constituted by a law of a State or of the Commonwealth or of a Territory of Australia; or

(b) a building society or credit union authorised by the Australian Prudential Regulation Authority as a Deposit-Taking Institution; or

(c) an insurance company which is authorised under the Insurance Act 1973 and subject to supervision by the Australian Prudential Regulation Authority.

Security is to be lodged within 14 days after the Principal accepted the tender. The Principal shall release the security in accordance with Clause B21.

B8 INFORMATION SUPPLIED BY THE PRINCIPAL

B8.1 Site Condition Information

The Principal does not represent that information made available shows completely the existing Site conditions. The Principal is not responsible for any interpretation, deductions and conclusions made by the Contractor from the information made available and the Contractor shall accept full responsibility for any such interpretations, deductions or conclusions.

Where the Principal has not given possession of all the Site, the Contractor may apply for approval which shall not be unreasonably withheld to carry out further Site investigation.

B8.2 Survey Data

Copyright in all survey data provided by the Principal in digital form is owned only by either the Principal or Land and Property Information New South Wales, whether or not a copyright notice is attached to the data. Where data includes a copyright notice, the notice shall not be removed or obscured.

The data shall only be used for work under the contract.

The data shall not be copied, lent, resold, altered, decompiled, disassembled or otherwise disposed of. All reasonable efforts shall be taken to protect the data from use, reproduction, distribution or publication by unauthorised parties. Parties shall only be authorised by the Principal in writing. Where access may have been obtained as a consequence of this contract, ensure that no information is made available to any other party or used for any purpose other than in direct relation to the work under this contract.

Data shall only be stored in a temporary state where it is not kept in the format provided.

Prior to Practical Completion or at termination of the contract, cease using the data, erase all data for



temporary storage and return all data to the Superintendent in the same form as provided.

No warranty for the accuracy of the data is provided and errors may occur in the data. The Principal shall not be liable in any way for any loss, damage or injury suffered by the Contractor, its employees or sub-contractors or any other person(s) or organisation(s) consequent upon errors in the data.

Ensure that any party provided with the data by the Contractor, is aware of and agrees to these conditions prior to the transfer of the data.

B8.3 Errors and Omissions

The documents stated in the Annexure as supplied by the Principal to the Contractor before the Date of Acceptance of Tender could include errors or omissions or could be misleading. Notwithstanding that the Principal may have been negligent, or would but for clause "Information Supplied by the Principal" be vicariously liable for the negligence of others, in preparing or supplying the information, the Contractor shall have no claim in tort, contract or otherwise against the Principal arising from the errors or omissions or the fact that the Contractor was misled.

B8.4 Indemnity

If the Contractor supplied to anyone else, including a subcontractor, any information supplied by the Principal, the Contractor shall indemnify the Principal against any claim by that person arising out of errors or omissions or the misleading nature of the advice.

B9 DISCLOSURE OF INFORMATION

B9.1 Media Releases

The Contractor shall not issue any information, publication, document or article for publication concerning the project in any media without prior written approval of the Principal, which approval shall not be unreasonably withheld. The Contractor shall refer to the Principal any enquiries concerning the project from any media.

B9.2 GIPA Act requirements

The Contractor acknowledges that the Principal is required under the GIPA Act to provide access to information relating to the Contract.

The Contractor must provide all reasonable assistance to the extent necessary to enable the Principal to comply with its obligations under the GIPA Act.

Without limiting its obligations under this clause, the Contractor must, within 7 days of receiving a written request from the Principal, provide the Principal with immediate access to its records containing details of any related body corporate (within the meaning of the Corporations Act 2001 (Cwlth)) in respect of which the Contractor, or which any other private sector entity in which the Contractor has an interest, that will be:

(a) involved in carrying out any of the Contractor’s obligations under the Contract; or

(b) will receive a benefit under the Contract.

B10 SITE AND POSSESSION

The Principal will give the Contractor possession of the Site by the time stated in the Annexure.

The Principal will give the Contractor sufficient possession to allow the Contractor to perform the Works but is not required to give the Contractor sole or uninterrupted possession of or access to the Site.

The Contractor must begin work on the Site as soon as practicable after being given possession of the Site by the Principal.

The Contractor must give the Superintendent, the Principal, any of their agents and employees, and any contractors authorised by the Principal, reasonable access to the Site for any purpose.

B11 SITE CONDITIONS

If the Contractor discovers that the conditions on, about or below the Site differ from what ought to have reasonably been anticipated at Tender time the Contractor must inform the Superintendent immediately and, where possible, before the conditions are disturbed.

The Contractor will not be entitled to any extra payment for different Site Conditions unless the Site Conditions cause the Contractor to:



(a) carry out additional work,

(b) use additional construction plant, or

(c) incur extra cost

which the Contractor could not reasonably have anticipated at the time of tendering.

B12 EXISTING SERVICES

Existing services (such as drains, watercourses, public utility and other services) obstructing the Works or damaged in the course of performing work under the Contract, shall be dealt with as follows:

(a) if the service is to be continued: repair, divert, relocate as required;

(b) if the service is to be abandoned: cut and seal or disconnect and make safe as required;

Where an existing service obstructs the Works and requires diversion or relocation, the Contractor shall bear all resulting costs and delays, unless the obstruction is a Latent Condition.

Where an existing service is damaged by the Contractor for any reason whatsoever, the Contractor shall bear all costs and any delays for repairing or disconnecting the service.

Notify the Superintendent immediately upon the discovery of services obstructing the Works not shown in the Contract documents; also advise the proposed course of action.

B13 NONCONFORMING WORK

The Contractor is to supply materials (which are new, free from defects and suitable for the purpose) and use standards of workmanship (including design) and work methods which are in conformity with the Contract, the Building Code of Australia, relevant Australian Standards and all lawful requirements of Commonwealth, State, Territory and local legislation and subordinate regulations, ordinances, by laws, orders and proclamations.

The Contractor is to comply with any direction of the Superintendent to:

(a) uncover and recover work; or

(b) carry out additional testing or re-testing.

Compliance with the direction is at the Contractor’s cost unless the work uncovered, recovered, tested or re-tested is in conformity with the Contract, in which case the Superintendent is to meet with the Contractor to decide on the reasonable costs payable to the Contractor. If they are unable to agree within 14 days after the meeting, the Superintendent is to assess those costs.

Refer to Clause B20 if assessed cost agreed or Clause B23 if assessed cost is disagreed.

The Superintendent may direct the Contractor to correct, including remove or replace, non-conforming work within the time specified by the Superintendent.

If the Contractor does not correct the non-conforming work within the time specified, the Superintendent may have the work corrected by others.

The Superintendent is to assess the reasonable costs of having the non-conforming work corrected by others and the Contractor is to pay the Principal those costs.


The Superintendent may notify the Contractor that the Principal elects to accept all or some of the non-conforming work. The resulting reasonable increase or decrease in the value to the Principal of the Works and any other reasonable loss or detriment suffered by the Principal is to be assessed by the Superintendent and the amount paid to or deducted from the Contractor.


B14 PROPRIETARY ITEMS

Specification by the Principal of a proprietary item does not necessarily imply exclusive preference for the item so identified, but indicates the required properties of the item.

The Contractor may offer alternatives to any proprietary item. If alternatives are offered, apply in writing for approval to use the alternative, provide samples and available technical information and describe how, if at all, the alternative differs from the specified item and how it will affect other parts of the Works and performance of the Works.



B15 WORK METHOD

If the Contract prescribes a particular work method or the Principal or Superintendent directs that a particular work method must be used to the exclusion of the other work methods, then that work method is part of the Contract.

Otherwise, the work method is not part of the Contract and the Contractor is free to use any work method. This is so even though, before or after acceptance of the tender, the Contractor made known to the Principal the Contractor's proposed work method and the Principal accepted or approved the work method.

If the work method is not part of the Contract, the fact that the proposed work method is impractical or impossible or the Contractor, with or without the approval of the Superintendent, uses another work method will:

(a) not entitle the Contractor to make a claim on the Principal;

(b) not be grounds for an extension of time for Practical Completion;

(c) not cause the Contract to be frustrated.

B16 VARIATIONS

The Contractor shall not vary the work under the Contract except as directed by the Superintendent.

The Superintendent may direct the Contractor to carry out a variation and the Contractor is to carry out the direction.

The Superintendent and Contractor are to meet to agree on the reasonable amount payable to or deducted from the Contractor for the variation. If they do not agree within 14 days after the meeting, the Superintendent is to assess that amount.

Refer to Clause B19 if assessed amount agreed or Clause B23 if assessed amount is disagreed.

B17 SUSPENSION

The Superintendent may direct the Contractor to suspend all or part of the Works and the Contractor is to carry out the direction.

If the direction to suspend the work is due to any act or omission of the Principal, the Superintendent and Contractor are to meet to agree on the reasonable extra costs payable to the Contractor which resulted from the suspension. If they do not agree within 14 days after the meeting, the Superintendent is to assess those extra costs.

Refer to Clause B19 if assessed amount agreed or Clause B23 if assessed amount is disagreed.

The Contractor is to recommence the Works as soon as practicable after being directed to do so by the Superintendent.

B18 PRACTICAL COMPLETION OF THE WORKS

The Contractor is to achieve Practical Completion of the Works within the period stated in the Annexure, and including any extensions under Clause B19.

The Contractor is to inform the Superintendent when, in the Contractor’s opinion the Works have reached Practical Completion.

The Superintendent is to:

(a) determine if the Works have reached Practical Completion, and if so, the date of Practical Completion; and

(b) give the Contractor written notice of the determination.

B19 DELAY IN PRACTICAL COMPLETION

If the Contractor is delayed in reaching Practical Completion then the Contractor is to notify the Superintendent in writing within 14 days after the commencement of the delay and to meet with the Superintendent to determine the cause of delay.

The Contractor is not entitled to any extension of time for Practical Completion or payment under the Contract or otherwise at law in relation to a cause of delay in respect of which the Contractor has failed to give a written claim to the Superintendent within 14 days after the commencement of the delay.



Provided the Contractor has complied with this Clause, where such a delay is caused by:

(a) a direction given by the Superintendent except under:

- Clause B13; or

- Clause B17 where the event giving rise to the direction was not beyond the control of the Contractor; or

(b) a breach of the Contract by the Principal; or

(c) any event beyond the control of the Contractor,

the period for Practical Completion is to be extended.

If the Superintendent and the Contractor do not agree on an extension to the period for Practical Completion within 14 days of the meeting to determine the cause of delay, the Superintendent is to assess a reasonable extension of time.

The Superintendent may for any reason and at any time extend the period for Practical Completion; however the Superintendent is not required to exercise its discretion for the benefit of the Contractor.

Refer to Clause B23 if assessed extension of time is disagreed.

If the Contractor does not achieve Practical Completion of the Works by the last day of the period for Practical Completion then the Contractor is to pay to the Principal liquidated damages from, but excluding that date, to and including the date Practical Completion is achieved, at the rate stated in the Annexure.

B20 PAYMENT

No later than 2 business days after the expiry of each payment period, the Contractor shall submit a draft payment claim to the Superintendent for review.

The Contractor will serve on the Superintendent a written payment claim at the time or times stated in the Annexure. (Note: GST compliant ‘Tax Invoices’ are not to be lodged as or with payment claims. ‘Tax Invoices’ are to be raised by the Contractor upon receipt of, and in the amount due corresponding with, the payment schedule). The payment claim must identify, the amount claimed, how the amount is calculated, deductions to which the Principal is entitled and, when additions are claimed and the legal and factual basis of the claim. Additions are extra costs or other amounts to which the Contractor is entitled under or in connection with the subject matter of the Contract.

The amount which the Contractor is entitled to claim and be paid is the sum of:

- for work for which the Principal accepted rates, an amount calculated by applying the rates to the quantities of work carried out to that date;

- for work for which the Principal accepted a lump sum, the percentage stated in the Contract;

- for any additions for which the Principal has approved an amount in writing or for which an amount has been finally determined by an Expert under Clause B23, the amount approved or determined;

- for any other additions, an amount on account but not exceeding 10% of the Contract Sum;

less payments previously made (including under Clause B23), costs payable by the Contractor to the Principal and deductions to which the Principal is entitled to deduct, whether under or in connection with the subject matter of the Contract (including but not limited to retention moneys, liquidated damages and other damages whether liquidated or unliquidated), any other contract or for any other reason.

With each payment claim, and at any other time as requested by the Superintendent the Contractor is to give the Superintendent a completed statutory declaration, as detailed in Schedule 2 – Statutory Declaration. If the Statutory Declaration shows moneys as unpaid, the Superintendent may withhold payment to the Contractor of the unpaid moneys.

Within 10 business days after receipt of the Contractor’s payment claim, the Superintendent as agent of the Principal will provide to the Contractor a payment schedule identifying the payment claim to which it relates and stating the payment, if any, which the Superintendent as agent of the Principal will be making. If the scheduled amount is less than the claimed amount the payment schedule will provide reasons for why it is less.

Within 5 business days of receipt of the payment schedule the Contractor shall submit to the Superintendent a ‘Tax Invoice’ in the amount due corresponding with the scheduled amount on the payment schedule.



Any claim by the Contractor on the Principal is to be made within 28 days after the date of the Superintendent’s written notice of Practical Completion under Clause B18. All claims whatsoever by the Contractor against the Principal made after that time are barred.

However, if the Contract includes a Defects Rectification Period, and the Contractor has a claim against the Principal under Clause B21 or because of an event which occurred during the Defects Rectification Period, the Contractor may make that claim up to 28 days after the end of the Defects Rectification Period. If the claim is made after that time it is barred.

Payment is not evidence of the value of work or an admission of liability or that the work is satisfactory but is a payment on account only.

B21 DEFECTS RECTIFICATION PERIOD

The Contractor is to make good any part of the Works which is not in conformity with the Contract either at Practical Completion or which becomes apparent during the Defects Rectification Period stated in the Annexure.

The Superintendent may direct the Contractor to correct, including remove or replace, any non-conforming work during the Defects Rectification Period and specify a reasonable time within which the Contractor is to comply with the direction. The direction may provide that in respect of the work of rectification there shall be a separate Defects Rectification Period of a stated duration not exceeding the period stated in the Annexure. The separate Defects Rectification Period shall commence on the date the Contractor completes the work of rectification. Clause B21 shall apply in respect of the work of rectification and the Defects Rectification Period for that work.

If the Contractor does not correct the non-conforming work within the time specified, the Superintendent may have the work corrected by others.

The Superintendent is to assess the reasonable costs of having the non-conforming work corrected by others and the Contractor is to pay the Principal those costs.

At the end of the Defects Rectification Period the Principal is to pay the Contractor retention moneys or return any unconditional undertakings less any amounts the Contractor is to pay the Principal.

This clause does not reduce the Contractor’s liability, whether arising under the Contract or otherwise. The Contractor’s liability continues until any limitation period under statute expires.

B22 DEFAULT AND INSOLVENCY

Without prejudice to any other rights which the Principal has, if the Contractor commits a substantial breach of the Contract, including:

(a) failing to carry out a direction of the Superintendent within the time specified or if no time is specified, within a reasonable time;

(b) failure to adequately protect the health and safety of workers and the public;

(c) not progressing Works at a reasonable rate,

the Principal may, in writing, specify the breach and ask the Contractor to give reasons why the Principal should not take further action.

If the Contractor either fails to give a written response within 7 days of receiving the Principal’s notice, or fails to give reasons satisfactory to the Principal, then the Principal may:

(a) immediately take over the uncompleted Works by notice in writing;

(b) suspend payments due or which would become due under Clause B20; and

(c) have the Works completed by others.

The Principal, through the Superintendent may immediately terminate the Contract by notice in writing to the Contractor, in which case the respective rights and liabilities of the parties shall be the same as they would be at common law if the Contractor had wrongfully repudiated the Contract.

The Superintendent is to calculate the difference between:

(a) the costs of having the Works Completed by others; and

(b) the amount of suspended payments and retention moneys held by the Principal.

If the calculation results in a shortfall to the Principal, the Contractor is to pay the amount of the shortfall to the Principal within seven days of a written demand for payment.



If the calculation results in an excess to the Principal, the Principal is to pay the amount of the excess to the Contractor.

B23 DISPUTES

It shall be a condition precedent to commencing litigation that the parties follow the procedures set out in this Clause B23.

If either party is dissatisfied with an act or omission of the other party in connection with the Contract, including assessment of a claim, failure to agree, or an instruction, that party is to notify the Superintendent and the other party in writing of a dispute within 14 days of the act or omission. The notifying party is to provide particulars, including the factual and legal basis of any claimed entitlement.

If a party gives notice of a dispute but not within the time provided by this Clause, then it is not entitled to interest for the period before the party gave notice.

Within 7 days of the giving of the notice, the Contractor and Superintendent are to meet to attempt to resolve the dispute.

If the dispute is not resolved within 14 days after the notice providing particulars of the dispute, the parties are to appoint an independent Expert. If the parties fail to agree upon an Expert, either may request the Chief Executive Officer of the Australian Commercial Disputes Centre Ltd Sydney to nominate an Expert. If there is no Chief Executive Officer or the Chief Executive Officer fails to make a nomination within a reasonable time, the Principal is to nominate an Expert.

The person nominating the Expert is not to nominate:

- an employee of the Principal or Contractor,

- a person who has been connected with the Contract, or

- a person upon whose appointment the Principal and the Contractor have previously failed to agree.

When the person to be the Expert has been agreed on or nominated, the Principal, on behalf of both parties is to appoint the expert in writing, with a copy to the Contractor, setting out:

- the dispute being referred to the Expert for a decision,

- the Expert's fees,

- the procedures detailed in this Clause, and

- any other matters which are relevant to the engagement.

The Principal and the Contractor are to share equally the Expert's fees and out-of-pocket expenses, including security deposit if required. Each party is to otherwise bear their own costs and share equally any other costs of the process.

Each party is to make written submissions to the Expert and provide a copy to the other party as follows:

(a) Within 7 days after the appointment of the Expert, the notifying party is to submit details of the claimed act or omission.

(b) Within 14 days after receiving a copy of that submission, the other party is to submit a written response. That response can include cross-claims.

The Expert is to decide whether the claimed event, act or omission did occur and, if so:

- when it occurred,

- what term of the Contract or other obligation in law, if any, requires the other party to pay the claimant money in respect of it, and

- the merits in law of any defence or cross-claim raised by the other party.

The Expert then decides the amount, if any, which one party is legally bound to pay the other on account of the event, act or omission.

The Expert is also to decide any other questions required by the parties, as set out in the dispute referred to the Expert.

In making the decision, the Expert acts as an expert and not as an arbitrator and is:

(a) not liable for acts, omissions or negligence;



(b) to make the decision on the basis of the written submissions from the parties and without formalities such as a hearing;

(c) required within 35 days of appointment to give the decision in writing, with brief reasons, to each party; and

(d) bound by the rules of natural justice.

The parties are to treat each decision of the Expert as final and binding and give effect to it:

(a) for amounts up to $500,000 excluding GST (calculated without including interest on the amount, and after allowing for set-offs). ;

(b) for amounts in excess of $500,000 excluding GST (calculated without including interest on the amount, and after allowing for set-offs), unless either party gives written notice to the other party within 14 days of receiving the decision that it does not accept the Expert’s decision and commences litigation within 42 days from the date of that notice.

Unless a party has a right to commence litigation under Clause B23,

if the Expert decides that one party owes the other party money, that party is to pay the money within 14 days of the receiving the decision of the Expert.

B24 WORKING HOURS AND WORKING DAYS

Working hours and working days shall be up to 9 hours per day worked between 7.00 a.m. and 5.00 p.m., Monday to Friday inclusive, but excluding public holidays and one day every 4 weeks, usually a Monday which is a rostered day off, unless otherwise stated in the Contract.

Working hours and working days shall not be varied without the prior approval of the Superintendent except when in the interests of safety of the work under the Contract or to protect life or property the Contractor finds it necessary to carry out work outside the working hours or on other than the working days stated in the Contract. In such cases the Contractor shall notify the Superintendent in writing of the circumstances as early as possible.

All costs attributable to the supervision by or on behalf of the Principal of work during times approved pursuant to the preceding paragraph shall be borne by the Principal, except where a variation to the working hours or working days is approved by the Superintendent for the convenience of the Contractor.

B25 COLLUSIVE ARRANGEMENTS

In the event of the Contractor paying or allowing any money to or on behalf of a trade or industry association (above the published standard fee) or another tenderer in relation to this Contract and if such payment or allowance was not disclosed in the tender and approved by the Principal, this shall be a deemed breach of contract which will entitle the Principal to withhold from any payment due to the Contractor on any account an equivalent sum as liquidated damages.

In the event of the Contractor receiving any money or allowance from or on behalf of a trade or industry association or another tenderer in relation to this Contract and if such money or allowance was not disclosed in the tender and approved by the Principal, such money or the value of any allowance shall be held in trust for and become immediately payable to the Principal. Should such payment not be forthcoming the Principal shall be entitled to withhold from any payment due to the Contractor on any account an equivalent sum as liquidated damages.

B26 LONG SERVICE LEVY

Pay to the Building and Construction Industry Long Service Payments Corporation (www.lspc.nsw.gov.au) or their agent the amount of long service levy payable under the Building and Construction Industry Long Service Payments Act, 1986 in respect of the work under the contract. Submit evidence that the levy has been paid before commencing work under the Contract.

Payment of the amount stated in the annexure has already been made by the Principal towards the long service levy due for the work under the Contract. The Contractor is only liable to pay the balance.

B27 EXCHANGE OF INFORMATION BETWEEN GOVERNMENT AGENCIES

The Contractor authorises the Principal to make information concerning the Contractor available to NSW government departments or agencies. Such information may include, but is not limited to, any information provided by the Contractor to the Principal and any information relating to the Contractor’s performance under the Contract.

http://www.lspc.nsw.gov.au/



The Contractor acknowledges that any information about the Contractor from any source, including substantiated reports of unsatisfactory performance may be taken into account by NSW government departments and agencies in considering whether to offer the Contractor future opportunities for NSW government work.

The Contractor acknowledges and agrees that the communication of such information by the Principal to any NSW government department or agency is a communication falling within Section 30(1) of the Defamation Act 2005 (NSW).

The Contractor releases and indemnifies the Principal and the State of NSW from and against any claim in respect of any matter arising out of such communications.

Without limitation of the above, the Contractor releases the Principal and the State of NSW from any claim it may otherwise have for any loss to the Contractor arising out of the Contractor’s performance under the Contract by the Principal, the communication of information relating to such assessment to any NSW government department or agency, or the use of such information by the recipient.

B28 TERMINATION FOR CONVENIENCE

B28.1 Termination

Without prejudice to any of the Principal’s other rights under the Contract, the Principal may:

(a) at any time for its sole convenience, and for any reason, by written notice to the Contractor, terminate the Contract effective from the date stated in the Principal’s notice, or if no such time is stated, at the time the notice is given to the Contractor; and

(b) then, at its absolute discretion, complete the uncompleted part of the Works, either by itself or by engaging other contractors.

B28.2 Costs

If the Principal terminates the Contract under Clause B28.1:

(a) the Contractor may make a Progress Claim under Clause B20;

(b) the Principal will only be liable for any reasonable costs (excluding, without limitation, loss of prospective income or profits) unavoidably and properly incurred by the Contractor prior to the date of termination, which are directly attributable to the termination as determined by the Superintendent;

(c) the Contractor must immediately hand over to the Principal all copies of any documents provided by the Principal under the Contract and any documents prepared by the Contractor to the date of termination (whether complete or not); and

(d) within 30 days after any termination of the Contract under Clause B28.1, the Principal shall release to the Contractor any security then held by the Principal.

The amount to which the Contractor is entitled under this Clause B28.2 will be a limitation on the Principal’s liability to the Contractor arising out of, or in any way in connection with, the termination of the Contract. The Contractor releases the Principal against any claim under the Contract or otherwise at law, arising out of or in connection with the termination of the Contract under Clause B28.1, other than for the amount payable under this Clause B28.2.

This Clause B28.2 survives the termination of the Contract by the Principal under Clause B28.1.

B28.3 Deemed termination for convenience

If purported termination for cause by the Principal under Clause B22 is determined by a competent authority not to be properly a termination for cause, then that termination by the Principal will be deemed a termination for convenience under Clause B28.1, which termination has effect from the date of the notice of termination referred to in Clause B22, and the Contractor’s sole rights in such circumstances will be only those set out in Clause B28.2.

B29 SECURITY OF PAYMENT ACT

B29.1 Service and reference dates

The Contractor agrees that:

(a) it will serve on the Superintendent, on the day on which it is received, a copy of any notice given to the Contractor, or to any subcontractor (which in this clause includes any supplier or secondary



subcontractor) under the Security of Payment Act;

(b) a payment schedule under the Security of Payment Act may be provided by the Superintendent as agent for the Principal;

(c) the reference date is the 20th calendar day of the month; and

(d) for the purpose of s11 of the Security of payment Act, the Contractor is deemed to be a subcontractor.

B29.2 Payment schedule not conclusive

Failure by the Superintendent to set out in a Payment Schedule an amount which the Principal is entitled to retain, deduct, withhold or set-off from the amount which would otherwise be payable to the Contractor by the Principal will not prejudice the Superintendent's ability to set out in a subsequent Payment Schedule an amount which the Principal is entitled to retain, deduct, withhold or set-off from the amount which would otherwise be payable to the Contractor by the Principal.

B29.3 Nominating Authority

Pursuant to section 17(3) of the Security of Payment Act, the Contractor irrevocably chooses the Institute of Arbitrators and Mediators, Australia, as the authorised nominating authority.

B29.4 Indemnity

The Contractor indemnifies the Principal against any claim, action, damage, loss, liability, cost, charge or expense (including legal costs on a solicitor/client basis) which the Principal pays, suffers, incurs or is liable for in connection with any suspension by a subcontractor under the Security of Payment Act or a failure by the Contractor to comply with its obligations under this Clause B29.

B30 WARRANTIES

Without limiting any other provision of the Contract, the Contractor warrants to the Principal that:

(a) the Contractor is a body corporate which is duly incorporated in accordance with all legislative requirements, validly exists under all legislative requirements and has the capacity to sue or be sued in that name and to own property and conduct its business as it is being conducted;

(b) the Contractor has full power and authority to enter into, perform and observe its obligations under this Contract;

(c) the execution, delivery and performance of this Contract has been duly and validly authorised by the Contractor;

(d) this Contract constitutes valid and legally binding obligations on it and is enforceable against it by the Principal in accordance with its terms;

(e) each authorisation from, and filing and registration with, a government agency necessary to enable it to unconditionally execute and deliver and comply with its obligations under this Contract and carry on its principal business or activity has been obtained, effected and complied with;

(f) the unconditional execution and delivery of, and compliance with its obligations by it under this Contract do not:

(i) contravene any legislative requirement to which it or any of its property is subject or any order or directive from an authority binding on it or any of its property;

(ii) contravene its constituent documents;

(iii) contravene any agreement or instrument to which it is a party;

(iv) contravene any obligation of it to any other person; or

(v) require it to make any payment or delivery in respect of any financial indebtedness before the scheduled date for that payment or delivery;

(g) no litigation, arbitration, mediation, conciliation or administrative proceedings are taking place, pending, or to the knowledge of any of its officers after due inquiry, are threatened which, if adversely decided, could have an adverse effect on its ability to perform its obligations under this Contract;

(h) unless otherwise disclosed in this Contract, it is not entering into this Contract as trustee of any trust or settlement;



(i) the Contractor has not made any false declaration in respect of any current or past dealings with the Principal, the Commonwealth or any authority, including in any tender or application process or in any agreement;

(j) the Contractor has had no significant deficiency in the performance of any substantive requirement or obligation under any prior agreement with the Principal, the Commonwealth or any authority which would adversely affect its ability to perform this Contract;

(k) the Contractor at all times will have the necessary resources to perform the project and will use those resources to perform work under the Contract.

(l) the Contractor at all times shall be suitably qualified and experienced, and shall exercise due skill, care and diligence in the carrying out and completion of work under the Contract;

(m) the Contractor shall carry out work under the Contract so that the Works, when completed, shall:

i) be fit for the purposes stated in, or reasonably inferred from, the Contract; and

ii) comply with all requirements of the Contract; and

(n) the Contractor will use its best endeavours, including all reasonable building aids and methods, to prevent and/or minimise delays to work under the Contract.

The warranties in this clause remain unaffected notwithstanding any variation or any review, comment or direction of the Superintendent.

B31 INNOVATION

The Contractor may, at its own cost, submit in writing to the Principal a proposal for changes to the Works, including the design or materials, which are likely to offer significant benefits (including long-term or repeated benefits) to the Principal. The proposal must include:

i. details of the proposed change to the Works and the estimated change in the Contract Sum;

ii. potential risks to the Principal and the Contractor if the proposal is accepted;

iii. any changes required to Date for Practical Completion;

iv. projected changes in Operating and maintenance costs;

v. projected changes in whole-of-life costs; and

vi. any benefit the Contractor will receive.

The proposal must not include anything which might adversely affect the quality of design, construction, operation, maintenance or the fitness for purpose of the Works. Proposed changes must be consistent with the purposes of the Contract.

The Principal must consider the Contractor’s proposal, but is not bound to accept any proposal or proposed change. The Principal may accept the proposal subject to conditions but the Contractor may withdraw the proposal if such conditions are not acceptable to the Contractor. No claim will arise out of the Principal’s consideration of, or failure to accept, any proposal.

The parties must agree on the financial benefit to each party of a proposal before any proposal proceeds. The agreed financial benefit will be shared equally between the parties.

B32 PROPORTIONATE LIABILITY

The parties agree that, to the extent permitted by law, the operation of Part 4 of the Civil Liability Act 2002 (NSW) is excluded in relation to all and any rights, obligations and liabilities of the parties under this Contract, whether such rights, obligations or liabilities are sought to be enforced as a breach of contract or a claim in tort or otherwise.

Without limiting the above, the parties agree that their rights, obligations and liabilities are as specified in this Contract and not otherwise whether such rights, obligations and liabilities are sought to be enforced by a claim in contract, tort or otherwise.

B33 SUPERINTENDENT

The parties agree that the Superintendent shall act as agent and representative of the Principal (including for the purpose of receiving payment claims, providing payment schedules and making payment on behalf of the Principal, under the Security of Payment Act), and not as an independent certifier, valuer or assessor.

The Contractor must comply with all directions given by the Superintendent.



If the Contractor does not comply with a direction given by the Superintendent, then:

(a) the Superintendent may issue a notice to the Contractor requiring compliance within a reasonable time stated in the notice; and

(b) if the Contractor does not comply with the requirements of the Superintendent’s notice, the Superintendent as agent of the Principal may engage and pay others to carry out the direction within the time and manner specified by the Superintendent as agent of the Principal, and all costs and expenses incurred by the Principal in so doing may be recovered by the Principal as a debt due to the Principal by the Contractor, or may be deducted by the Superintendent as agent of the Principal from any moneys which may then be or later become payable to the Contractor by the Principal.

B34 PRINCIPAL’S REPRESENTATIVE

The Superintendent may from time to time appoint individuals to exercise any functions of the Superintendent under the Contract but not more than one Superintendent / Principal’s Representative shall be delegated the same function at the same time. The appointment of a Superintendent's Representative shall not prevent the Superintendent from exercising any function.

The Superintendent shall forthwith notify the Contractor in writing of:

- the appointment and the name of any Superintendent's Representative and the functions delegated to the Superintendent's Representative;

- the termination of the appointment of a Superintendent's Representative.

If the Contractor makes a reasonable objection to the appointment, the Superintendent shall terminate the appointment.

B35 CONTRACTOR’S REPRESENTATIVE

The Contractor shall personally superintend the execution of the work under the Contract or, at all times during which any activities relating to the execution of the work under the Contract are taking place, have a competent representative present on the Site and, if required by the Superintendent, at other places at which activities relating to the execution of the work under the Contract are taking place.

The Contractor shall notify the Superintendent in writing of the name of the representative and of any subsequent changes. Any direction shall, if given to any Contractor’s representative be deemed to have been given to the Contractor.

Matters within the knowledge of a representative of the Contractor shall be deemed to be within the knowledge of the Contractor.

If the Superintendent makes a reasonable objection to the appointment of a representative, the Contractor shall terminate the appointment and appoint another representative.



SCHEDULE 1 - APPROVED FORM OF UNCONDITIONAL UNDERTAKING

At the request of ___________________________________________________ ('the Contractor’) and in

consideration of _________________________________________________ ('the Principal') accepting

this undertaking in respect of the contract

for__________________________________________________________________________________

__________________________________ (‘the Contract’),

______________________________________ ('the Financial Institution') unconditionally undertakes to

pay on demand any sum or sums which may from time to time be demanded by the Principal to a

maximum aggregate sum of

____________________________________________________________________________________

_____ _________________________________________ ($_________________________) (‘the Sum’).

The undertaking is to continue until notification has been received from the Principal that the Sum is no longer required by the Principal or until this undertaking is returned to the Financial Institution or until payment to the Principal by the Financial Institution of the Sum or such part as the Principal may require.

Should the Financial Institution be notified in writing, purporting to be signed by or for and on behalf of the Principal that the Principal requires payment to be made of the whole or any part or parts of the Sum, it is unconditionally agreed that the Financial Institution will make the payment or payments to the Principal forthwith without reference to the Contractor and notwithstanding any notice given by the Contractor not to pay same.

Provided always that the Financial Institution may at any time without being required so to do pay to the Principal the Sum less any amount or amounts it may previously have paid under this undertaking or such lesser sum as may be required and specified by the Principal and thereupon the liability of the Financial Institution hereunder shall immediately cease.

DATED at ___________________________ this _________________ day of ________________ 20__



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SCHEDULE 2 - STATUTORY DECLARATION

Definitions

The Principal is: ______________________________________________________________________ (insert name of Principal)

The Contractor is: ____________________________________________________________________ (insert name of Contractor)

ACN/ABN _____________________________________ (insert ACN and/or ABN of Contractor)

The Contract is: Contract No _____________________ (insert Contract No)

Contract Title __________________________________________________________

__________________________________________________________ (insert Contract Title)

Dated _____________________ (insert date at which the Contract came into effect e.g.: date of Letter of Acceptance)

between the party identified as the Principal and the party identified as the Contractor.

Declaration

I, __________________________________________________________________________________ (insert full name of Declarant)

of _________________________________________________________________________________ (insert address)

do hereby solemnly declare and affirm that:

1 I am the representative of the Contractor in the Office Bearer capacity of

______________________________________________________________________________ (insert position title of the Declarant)

2 I am in a position to make this statutory declaration about the facts attested to.

REMUNERATION OF CONTRACTOR'S EMPLOYEES ENGAGED TO CARRY OUT WORK IN

CONNECTION WITH THE CONTRACT

3 All remuneration payable to the Contractor’s relevant employees for work done in connection with the Contract to the date of this statutory declaration has been paid and the Contractor has made provision for all other benefits accrued in respect of the employees.

Relevant employees are those engaged in carrying out the work done in connection with the Contract.

Remuneration means remuneration or other amounts payable to relevant employees by legislation, or under an industrial instrument, in connection with work done by the employees [s127(6) of the Industrial Relations Act 1996].

REMUNERATION OF THE EMPLOYEES OF SUBCONTRACTORS ENGAGED TO CARRY OUT

WORK IN CONNECTION WITH THE CONTRACT

4 The Contractor is / is not a principal contractor for the work done in connection with the (delete the words in italics that are not applicable)

Contract, as defined in section 127 of the Industrial Relations Act 1996.



5 Where the Contractor is also a principal contractor for work done in connection with the Contract, the Contractor has been given a written statement in its capacity of principal contractor under section 127(2) of the Industrial Relations Act 1996 by each subcontractor in connection with that work stating that all remuneration payable by each subcontractor to the subcontractor’s relevant employees for work done in connection with the Contract to the date of this declaration has been paid, and each subcontractor has made provision for all other benefits accrued in respect of each subcontractor’s employees.

6 I am aware that the Industrial Relations Act 1996 requires any written statement provided by subcontractors must be retained for at least 6 years after it was given and declare that the Contractor has accordingly made arrangements for the secure retention of the written statements.

WORKERS COMPENSATION INSURANCE OF THE CONTRACTOR’S WORKERS

7 All workers compensation insurance premiums payable by the Contractor to the date of this statutory declaration in respect of the work done in connection with the Contract have been paid. This statutory declaration is accompanied by a copy of any relevant certificate of currency in respect of that insurance.

WORKERS COMPENSATION INSURANCE FOR WORKERS OF SUBCONTRACTORS

8 The Contractor is / is not a principal contractor for work done in connection with the (delete the words in italics that are not applicable)

Contract, as defined in section 175B of the Workers Compensation Act 1987.

9 Where the Contractor is also a principal contractor for work done in connection with the Contract, the Contractor has been given a written statement under section 175B of the Workers Compensation Act 1987 in the capacity of principal contractor in connection with that work to the intent that all workers compensation insurance premiums payable by each subcontractor in respect of that work done to the date of this statutory declaration have been paid, accompanied by a copy of any relevant certificate of currency in respect of that insurance.

10 I am aware that the Workers Compensation Act 1987 requires any written statement provided by subcontractors and any related certificate of currency must be retained for at least 7 years after it was given and declare that the Contractor has accordingly made arrangements for the secure retention of the written statements.

EMPLOYER UNDER THE PAY-ROLL TAX ACT

11 The Contractor is registered as / is not required to be registered as an employer (delete the words in italics that are not applicable)

under the Pay-roll Tax Act 2007 (NSW).

12 All pay-roll tax payable by the Contractor in respect of wages paid or payable to the relevant employees for work done in connection with the Contract to the date of this statutory declaration has been paid.

13 The Contractor is / is not a principal contractor for work done in connection with the (delete the words in italics that are not applicable)

Contract, as defined in section 17 of Schedule 2 to the Pay-roll Tax Act 2007 (NSW).

14 Where the Contractor is also a principal contractor for work done in connection with the Contract, the Contractor has been given a written statement under section 18 of Schedule 2 to the Pay-roll Tax Act 2007 (NSW) in the capacity of principal contractor in connection with that work to the intent that all pay-roll tax payable by each subcontractor in respect of the wages paid or payable to the relevant employees for that work done to the date of this statutory declaration has been paid.

15 I am aware that the Pay-roll Tax Act 2007 (NSW) requires any written statement provided by subcontractors must be retained for at least 5 years after it was given and declare that the Contractor has accordingly made arrangements for the secure retention of the written statements.



PAYMENTS TO SUBCONTRACTORS

16 The Contractor has paid every subcontractor, supplier and consultant all amounts payable to each of them by the Contractor as at the date of this statutory declaration with respect to engagement of each of them for the performance of work or the supply of materials for or in connection with the Contract.

17 The provisions of clause “SECURITY OF PAYMENT”, if included in the Contract, have been complied with by the Contractor.

18 The Contractor has been informed by each subcontractor and consultant to the Contractor (except for subcontracts and agreements not exceeding $25,000 at their commencement) by written statement in equivalent terms to this declaration (made no earlier than the date 14 days before the date of this declaration):

.1 that their subcontracts with their subcontractors, consultants and suppliers comply with the requirements of clause “SECURITY OF PAYMENT”, if included in the Contract, as they apply to them; and

.2 that all of their employees, subcontractors, consultants and suppliers, as at the date of the making of such a statement have been paid all remuneration and benefits due and payable to them by, and had accrued to their account all benefits to which they are entitled from, the subcontractor or consultant of the Contractor or from any other of their subcontractors or consultants (except for their subcontracts and agreements not exceeding $25,000 at their commencement) in respect of any work for or in connection with the Contract.

19 I am not aware of anything to the contrary of any statutory declaration referred to in paragraph 18 of this declaration and on the basis of the statements provided, I believe the matters set out in paragraph 18 to be true.

20 And I make this solemn declaration, as to the matters aforesaid, according to the law in this behalf made, and subject to the punishment by law provided for any wilfully false statement in any such declaration.

_______________________________________

(Signature of Declarant)

Declared at ___________________________________________________________ on

(insert place)

_______________________________________________________________________

(day) (month) (year)

Before me:

_______________________________________

(Signature of legally authorised person* before whom the declaration is made)

_______________________________________

(Name of person* before whom the declaration is made)

_______________________________________

(Title of person* before whom the declaration is made)



Notes:

1. In this declaration:

1. the words “principal contractor”, “employee”, “employees” and “relevant employees” have the meanings applicable under the relevant Acts;

2. the word “subcontractor” in paragraphs 5, 6, 9, 10, 14 and 15 has the meaning applicable under the relevant Act; and

3 otherwise the words “Contractor”, “subcontractor”, “supplier” and “consultant”, have the meanings given in or applicable under the Contract.

2. * The declaration must be made before one of the following persons:

(a) where the declaration is sworn within the State of New South Wales:

i) a justice of the peace of the State of New South Wales;

ii) a solicitor of the Supreme Court of New South Wales with a current practising certificate;

iii) a notary public; or

iv) another prescribed person legally authorised to administer an oath under the Oaths Act (NSW);

or

(b) where the declaration is sworn in a place outside the State of New South Wales:

i) a notary public; or

ii) any person having authority to administer an oath in that place.



ANNEXURE

This Annexure shall be read as part of the General Conditions of Contract.

The Superintendent: The Principal may at any time change the person for any reason by giving written notice (Clause B1)

Bogan Shire Council

The period to submit the completed design: (Clause B3)

6 weeks from Contract award

For insurance purposes, the value of materials to be supplied by the Principal: (Clause B6)

$5000.00

The documents supplied prior to the Date of Acceptance of Tender: (Clause B8.3)

Nil

The time for giving possession of the Site: (Clause B10)

the Contractor is deemed to have possession of the Site on submission of evidence of insurances in accordance with Clause B6, attendance at the WHS Management Meeting, and submission of complying WHS Management Plan

The time for Practical Completion: (Clause B18)

28 weeks from Contract award

Liquidated Damages per day: (Clause B19)

$500.00

The time for submission of written claim for payment: (Clause B20)

end of each calendar month

The Defects Rectification Period: (Clause B21)

twelve months

The amount of Long Service Levy already paid by the Principal: (Clause B26)

Nil

[END GENERAL CONDITIONS OF CONTRACT]



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