Date: Seqwater [insert Contractor name] Contract Number: Project Name:
Minor Works Contract
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Contract [insert number] Minor Works Parties Queensland Bulk Water Supply Authority trading as Seqwater ABN 75 450 239 876 of 240 Margaret Street, Brisbane, QLD 4000 (Principal ) Company ABN insert ABN of insert Address (Contractor)
Agreed terms 1 Definitions “Business Day” means a day other than a Saturday, Sunday or public holiday in Brisbane. “Certificate of Practical Completion” has the meaning in clause 13. “Commencement Date” means the date determined in accordance with clause 12 and Annexure A, item 9 “Contract” means the agreement in writing between the Principal and the Contractor constituted by: (a)
the Letter of Engagement;
(b)
these Conditions of Contract (including Annexure A);
and (c)
the documents (if any) referred to in Annexure A, item 7.
The order of precedence of the terms and conditions of the Contract shall be as follows: (i)
the Letter of Engagement;
(ii)
these Conditions of Contract; and
(iii)
the documents as listed (in descending order) in Annexure A, item 7.
“Contract Price” means:
(a)
where the Principal accepted a lump sum, the lump sum in Annexure A, item 8;
(b)
where the Principal accepted rates in Annexure A, item 8, the sum of the products ascertained by multiplying the rates by the corresponding quantities in the schedule of rates; or
(c)
where the Principal accepted a lump sum and rates in Annexure A, item 8, the aggregate of the sums referred to in (a) and (b)
“Contractor” means the person or company specified in Annexure A, item 3 and its executors, administrators, successors or permitted assigns. “Contractor Material” means all documents, equipment, information and data (however stored) that is owned by the Contractor (or which the Contractor otherwise has the right to use) prior to the commencement of the performance of the Works or acquired independently of this Contract and that is provided by the Contractor to the Principal for the purposes of this Contract and performing the Works “Contractor’s Representative” means the person specified in Annexure A, item 4 who is nominated by the Contractor to exercise the functions of the Contractor under the Contract. “Date for Practical Completion” means: (a)
where a date specified in Annexure A, item 10, that date; or
(b)
where a period of time is specified in Annexure A, item 10, the last day of that period,
“Intellectual Property Right” means any patent, registered design, trademark or name, copyright or other protected right. “Letter of Engagement” means the Principal’s letter accepting the Contractor’s offer to carry out the Works. “Practical Completion” means that stage in the execution of the Work under the Contract when the Works are complete in accordance with the Contract except for minor omissions and defects which do not (and the rectification of which will not) prevent or impair the normal use and occupation of the Works. “Practical Completion Date” means the date evidenced in a Certificate of Practical Completion but if any extension of time for Practical Completion is granted by the Superintendent or allowed in any arbitration or litigation, it means the date resulting therefrom. "Principal" means the organisation contracting with the Contractor for the completion of the Works. For these Works, the Principal is the owner of the workplace, Queensland Bulk Water Supply Authority trading as Seqwater. “Security” means the security specified in Annexure A, item 16. TRIM: D13/69432
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“Site” means the site specified in Annexure A, item 15.
“Superintendent” means the person specified in Annexure A, item 1 nominated by the Principal to exercise the functions of the Superintendent under the Contract. “Superintendent’s Representative” means the person specified in Attachment A, item 2 who is nominated by the Superintendent to exercise the function of the Superintendent under the Contract, except to the extent that this function concerns extensions of time, payment claims, variations, defects or Practical Completion. “Work under the Contract” means the work which the Contractor is or may be required to execute under the Contract including any variations. “Works” means the whole of the work and services to be executed and completed in accordance with the Contract as set out in the Works Description in Annexure A, item 6, including all variations provided for by the Contract, which by the Contract is to be handed over to the Principal. 2 Execution of Works The Contractor shall execute and complete the Work under the Contract in accordance with the requirements of the Contract. Unless otherwise provided in the Contract, the Contractor is responsible for all things, including items not expressly mentioned in the Contract which are necessary for satisfactory completion of the Works. The Contractor shall comply with the requirements of legislation and public or other authorities affecting the Work under the Contract and the Works, and unless otherwise specified pay all fees, give all notices and obtain all necessary consents required to complete the Works. The Contractor shall maintain all licences, consents and approvals that are required for the Contractor to perform all its obligations under the Contract. 3 Assignment and subcontracting The Contractor shall not assign any part or any other right, benefit, payment or interest under the Contract, without the prior written approval of the Superintendent. The Contractor shall not, without the prior written approval of the Superintendent, subcontract any of the Work under the Contract, or allow a subcontractor to subcontract any of the Work under the Contract. The Superintendent may, in its absolute discretion and without giving reasons, reject any request for approval by the Contractor pursuant to this clause. The Contractor shall be liable to the Principal for the acts, defaults and omissions of subcontractors and employees and agents of subcontractors as if they were those of the Contractor. 4 Workplace health and safety (a)
(b)
For the purpose of this clause 4: (i)
"WHS Legislation" means the Work Health and Safety Act 2011 (Qld) and the Work Health and Safety Regulation 2011 (Qld); and
(ii)
the terms “principal contractor”, “construction work” and “workplace” have the same meanings assigned to those terms under the WHS Legislation.
Without limiting the Contractor's obligations under any other provision of this Contract, where Annexure A, Item 5 states that the Contractor is engaged as principal contractor, the Principal: (i)
engages the Contractor as principal contractor in respect of the construction work; and
(ii) authorises the Contractor to have management and control of each workplace at which construction work is to be carried out and to discharge the duties of a principal contractor, under the WHS Legislation. (c)
The Contractor accepts the engagement as principal contractor and accepts responsibility for compliance with the WHS Legislation (including responsibility for compliance with the obligations of, and performance of the functions of, principal contractor).
(d)
The Contractor's engagement and authorisation as principal contractor will continue: (i)
until the Works have reached Practical Completion; and
(ii)
while any rectification work that is "construction work" (as that term is defined under the WHS Legislation) is carried out during the defects liability period,
unless sooner revoked by the Principal taking over as principal contractor or engaging a third party principal contractor or terminating the Contract pursuant to any provision of the Contract or according to law. (e)
Without limiting its obligations, the Contractor must: (i)
comply, and must ensure that its subcontractors and any other person engaged by the Contractor for the purposes of this Contract comply, with the WHS Legislation (including its obligation under the WHS Legislation to consult, cooperate and coordinate activities with all other persons who have a work health and safety duty in relation to the same matter);
(ii)
if requested by the Superintendent or required by WHS Legislation, demonstrate compliance with the WHS Legislation, including providing evidence of any approvals, certificates, authorisations, licences, prescribed qualifications or experience, or any other information relevant to work health and safety matters;
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(iii) notify the Superintendent immediately of any accident, injury or damage to property arising out of, or in any way in connection with, the Work under the Contract and, within 2 days, provide a written report to the Superintendent and Principal detailing the cause of the accident, injury or damage to property and the loss or damage suffered as well as any other information requested by the Principal and comply with the requirements of investigations carried out by Seqwater; (iv) insofar as the Contractor, in carrying out the Work under the Contract is under any duty imposed by the WHS Legislation, do everything necessary to comply with any such duty; and (v)
ensure that it does not do anything or fail to do anything that would cause the Principal to be in breach of the WHS Legislation.
(f)
To the extent not prohibited by law, the Contractor indemnifies the Principal against damage, expense, loss or liability suffered or incurred by the Principal arising out of or in connection with the failure of the Contractor to discharge the duties imposed on a principal contractor under the WHS Legislation or otherwise comply with this clause 4.
(g)
Except as stated elsewhere in the Contract, if material which may contain asbestos or any other hazardous substance is discovered during the Work under the Contract, the Contractor shall not disturb it and shall inform the Superintendent who shall direct the action to be taken.
5 Protection of persons and property The Contractor shall take all measures necessary to protect people and property (including the Works), avoid unnecessary interference with passage of people and vehicles, and prevent nuisance and unreasonable noise and disturbance. If the Contractor or its employees, agents or subcontractors damage any property, the Contractor shall promptly make good the damage (at its cost) and pay any compensation which the law requires the Contractor to pay. 6 Care of work and reinstatement of damage The Contractor shall be responsible for the care of the whole of the Work under the Contract from and including the date of commencement of the Work under the Contract until 4.00pm on the date that Practical Completion is achieved. The Contractor shall also be responsible for the care of things entrusted to the Contractor by the Principal for the purpose of carrying out the Work under the Contract, things brought onto the Site by subcontractors for that purpose, or transported or delivered to the Site for that purpose. If loss or damage occurs to the Work under the Contract, the Contractor shall, at the Contractor’s cost, rectify such loss or damage except for loss or damage to the extent caused by a negligent act or omission of the Principal, or its employees or agents, or caused by defects in the design of the Works where the Contractor did not perform the design. 7 Indemnity by the Contractor The Contractor indemnifies the Principal against any claim arising out of or in connection with: (a) loss of or damage to the Principal’s property; and (b) claims by any person in respect of injury, death or loss of or damage to any property, resulting from or in any way connected with the Contractor carrying out the Work under the Contract or any activity for which the Contractor is responsible and which is directly or indirectly associated with the Works (including remedying any defect in the Works), but the Contractor’s liability to indemnify the Principal shall be reduced proportionally to the extent that an act or omission of the Principal, or its employees or agents, contributed to the loss, damage, death or injury. This clause 7 shall not apply to: (a) exclude any other right of the Principal to be indemnified by the Contractor; and (b) things for the care of which the Contractor is responsible under clause 6. 8 Public liability insurance Before commencing the Work under the Contract, the Contractor shall effect a public liability policy of insurance for a total aggregate cover of not less than the sum specified in the insurance requirements in Annexure A, Item 13. The insurance policy shall cover the Contractor’s liability to the Principal for loss of or damage to property and the death of or injury to any person (other than liability which is required by law to be insured under a workers compensation policy of insurance). The Contractor shall maintain such insurance for the duration of the Contract and produce evidence of insurance prior to commencing work in the first instance for the Principal, and at any time thereafter if so requested by the Superintendent. 9 Professional indemnity insurance Before commencing the Work under the Contract, the Contractor shall effect a professional indemnity policy of insurance for a total aggregate cover of not less than the sum specified in the insurance requirements in Annexure A, Item 13. The Contractor shall maintain such insurance for the duration of the Contract and thereafter for a period stated in the insurance requirements in Annexure A, Item 13, and, prior to commencing work in the first instance for the Principal, produce evidence of insurance and at any time thereafter if so requested by the Superintendent.
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10 Insurance of employees (WorkCover) Before commencing the Work under the Contract, the Contractor shall insure against liability for death of or injury to persons employed by the Contractor. Where the Contractor is a self employed person, the Contractor shall maintain an equivalent insurance policy for itself. The Contractor shall maintain such insurance for the duration of the Contract and produce evidence of insurance prior to the Commencement Date and at any time thereafter if so requested by the Superintendent. The Contractor shall ensure that every subcontractor is similarly insured and must provide the Superintendent with evidence of each and every subcontractor’s insurance prior to commencing work in the first instance for the Principal, and at any time thereafter if so requested by the Superintendent. 11 Materials and workmanship All materials used in the Work under the Contract and the standards of workmanship shall be in conformity with the provisions of the Contract or the relevant Australian Standard (whichever is the higher standard). In the absence of any requirement to the contrary, the material or standard of workmanship as the case may be shall be of a kind which is suitable for its purpose and is consistent with the nature and character of the Works. Unless otherwise specified, all materials shall be new and of a merchantable quality, and workmanship shall be proper and tradesmanlike and in accordance with the relevant manufacturer's recommendations or, if none, the relevant Australian Standard where applicable. Apart from any tests specified, the Superintendent may at any time direct that any materials or work be examined and/or tested. The Contractor shall comply with any direction by the Superintendent to remedy any work not in accordance with the Contract within the period of time stipulated in writing by the Superintendent. If the Contractor fails to comply with such a direction to carry out rectification work within the time stipulated, the Principal may have the rectification work the subject of the direction carried out by others at the Contractor’s expense, or may accept the work at a reduced value to be reasonably determined at the sole discretion of the Superintendent. The Principal may deduct the cost of rectification work or reduced value from payments due to the Contractor or recover the cost or reduced value as a debt due from the Contractor. The Principal may deduct the estimated cost of rectification work from payments due to the Contractor until such time as the Principal has incurred the cost of rectification at which time the actual rectification cost must be reconciled by the Superintendent and the relevant adjustments made. The Contractor must assign to the Principal the benefit of all guaranties and warranties obtained by the Contractor from subcontractors and from manufacturers and suppliers of plant, equipment, materials and other items incorporated into the Works where such warranties continue to operate beyond the expiration of the defects liability period. These warranties and the assigned rights must be such that they can be directly enforced by the Principal against the parties giving the warranties. The warranties and documents evidencing the assignment of rights must be delivered to the Superintendent at the times required by the Contract, and if no time is stated, then prior to the issue of the Certificate of Practical Completion. 12 Time for commencement The Contractor shall commence the Work on the written instruction of the Superintendent or the Superintendent’s Representative. The Contractor shall, unless otherwise permitted, give at least two (2) days written notice to the Superintendent or the Superintendent’s Representative confirming the date of commencement of the Work. 13 Time for completion The Contractor shall execute the Work under the Contract to Practical Completion by the Date for Practical Completion or within any extended time granted in writing by the Superintendent. When the Contractor is of the opinion that Practical Completion has been reached, the Contractor shall in writing request the Superintendent to issue a Certificate of Practical Completion. Within 14 days after receiving the request, the Superintendent shall give the Contractor and the Principal either a Certificate of Practical Completion evidencing Practical Completion or written reasons for not doing so. The Contractor shall be entitled to such reasonable extensions of time to the Date for Practical Completion as the Superintendent assesses if: (a)
(b)
the Contractor is or will be delayed in reaching Practical Completion in circumstances where that delay has been caused by: (i)
a breach of contract by the Principal;
(ii)
a variation to the Works directed in writing by the Superintendent;
(iii)
inclement weather beyond any allowances made by the Contractor; or
(iv)
the Superintendent, the Principal or its consultants, agents or other contractors engaged by the Principal; and
the Contractor gives the Superintendent, within 14 days of the first occurrence of the relevant cause of the delay, a written claim for an extension of time to the Date for Practical Completion setting out: (i)
detailed particulars of the delay and the cause of the delay;
(ii)
the number of days claimed as an extension of time; and
(iii)
evidentiary material demonstrating the existence and cause and duration of the delay.
The Contractor is not entitled to an extension of time for delays caused by the Contractor, its subcontractors or others for which the Contractor is responsible whether occurring before or after the Date for Practical Completion, nor for any delays due to inclement weather or industrial conditions occurring after the Date for Practical Completion.
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13A Suspension of Works and delay costs (a) Suspension of Works The Superintendent may direct the Contractor to suspend the carrying out of the whole or part of the Works for such time as the Superintendent thinks fit, if the Superintendent is of the opinion that it is necessary: (i) (ii) (iii)
because of an act, default or omission of a party, consultant or subcontractor; or for the protection or safety of any person or property; or to comply with a court order
The Principal in its absolute discretion and for any reason it thinks fit, may direct the Contractor to suspend the carrying out the whole or part of the Works for such time as the Principal thinks fit. (b) Delay costs A suspension of the Works by the Superintendent or Principal under subclause 13A(a) will entitle the Contractor to be paid delay costs except to the extent that the suspension was necessary due to an act, default or omission of the Contractor, a subcontractor or any of their respective employees or agents. Any claim for delay costs shall be submitted in writing and include detailed particulars of the cost to the Contractor resulting from the delay. Claims for delay costs shall be assessed by the Superintendent. The delay costs under this subclause 13A(b) must not exceed the amount calculated by multiplying the applicable daily rate stated in Annexure A, item 11A by the number of days the Superintendent determines that the Contractor has been delayed. 14 Liquidated damages If the Contractor fails to complete the Works by the Date for Practical Completion (as may be extended by the Superintendent), the Contractor shall be liable to the Principal for liquidated damages in the amount stated in Annexure A, item 11, for every day after that date until Practical Completion has been achieved or the Contract is terminated, whichever is sooner. 15 Defects liability period The Contractor shall promptly rectify all defects and omissions notified to the Contractor during the defects liability period stated in Annexure A, item 12, which shall commence at 4:00 pm on the Practical Completion Date. If the Contractor fails to rectify any defects or omissions after being notified to do so by the Principal or Superintendent, the Principal may have the omission or defect remedied by other persons and the cost so incurred shall be a debt due to the Principal which may be deducted from any payments due to the Contractor. 16 Cleaning of site The Contractor shall keep the Site and the Works clean and tidy and regularly remove from the Site rubbish and surplus material arising from the execution of the Work under the Contract. Within 14 days of completion of the Works, the Contractor shall clear away and remove from the Site all construction plant, surplus materials, rubbish and temporary works of every kind. 17 Variations (a) Directing variations The Superintendent may direct in writing a variation to any Work under the Contract and the Contractor shall promptly comply with that direction. The Contractor shall submit to the Superintendent a detailed price for the variation within 14 days of the direction. The variation shall be valued by agreement between the Contractor and the Superintendent or, failing agreement, by the Superintendent, and the Contract Price shall be adjusted accordingly. Prior to the Contractor being entitled to payment for any additional work, that work must be authorised in writing by the Superintendent. (b) Urgent variations In circumstances where the Superintendent is of the opinion that the matter is of an urgency requiring an immediate instruction, the Superintendent may issue an oral instruction to proceed with a variation. The Contractor must immediately proceed with the variation, which will then be valued in accordance with this Clause 17. If an oral instruction is given, the Superintendent will confirm it in writing as soon as possible thereafter. (c) Proposing variations The Superintendent may give the Contractor written notice of a proposed variation. The Contractor shall as soon as practicable (but not later than 7 days) after receiving such notice, notify the Superintendent whether the proposed variation can be effected, together with, if it can be effected, the Contractor’s estimate of the: (i) effect on the construction program (including the date for practical completion); and (ii) cost (including all time-related costs, if any) of the proposed variation. The Superintendent may direct the Contractor to give a detailed quotation for the proposed variation supported by measurements or other evidence of cost. (d) Notice of variations If the Contractor considers that any notice or direction given by the Superintendent (other than a Superintendent directed variation under subclause 17 (a) which states that the work is a variation) constitutes or involves a variation, the TRIM: D13/69432
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Contractor must, within 14 days of receipt of the notice or direction (and in any event, before complying with that notice or direction), request the Superintendent to provide written confirmation to the Contractor whether or not the notice or direction constitutes or involves a variation. Unless the Contractor receives written confirmation from the Superintendent under this subclause before it commences to comply with a notice or direction of the Superintendent, the Contractor will not be entitled to make a claim in relation to that notice or direction.
18 Latent conditions If the Contractor discovers physical conditions on the Site or its surroundings, excluding weather conditions, which differ materially from those which should reasonably have been anticipated at the time of offer if the Contractor had: (a) examined all information made available in writing by the Principal to the Contractor for the purpose of tendering; and (b) examined all information relevant to the risks, contingencies and other circumstances having an effect on the offer and obtainable by the making of reasonable enquiries; and (c) inspected the Site and its surroundings, the Contractor shall immediately notify the Superintendent in writing and may request that a variation be directed pursuant to clause 17. The Superintendent may issue a direction in respect of the latent condition, and the Contractor shall be entitled to claim an extension of time for any delays directly caused by the latent condition, and may be entitled to reimbursement of costs incurred as a consequence of the latent condition and directions issued in respect thereof. 19 Payment The Principal shall pay the Contractor the Contract Price, adjusted by any additions or deductions made pursuant to the Contract. At the times stated in Annexure A, item 14, the Contractor shall give the Superintendent a detailed claim for payment on account of the moneys payable by the Principal supported by information the Superintendent may reasonably require. Within 10 days after receiving such a claim, the Superintendent shall assess that claim and issue a certificate (“progress certificate”) setting out: (a)
the value of the Work under the Contract completed in accordance with the Contract;
(b)
the amount (if any) already paid to the Contractor;
(c)
the amount (if any) the Principal is entitled to retain, deduct, withhold or set-off under the Contract;
(d)
(e)
the amount (if any) that the Superintendent considers to be then payable: (i)
the Principal to the Contractor under the Contract; or;
(ii)
by the Contractor to the Principal under the Contract.
if the amount the Superintendent considers payable is less than the amount claimed by the Contractor, the reason as to why that is so;
Subject to the provisions of clause 20, payment of the amount that the Superintendent considers payable by the Principal to the Contractor or by the Contractor to the Principal (as set out in the progress certificate will be made as follows: (a)
where this Contract is a ‘building contract’ as that term is defined in the Queensland Building and Construction Commission Act 1991 (Qld), payment will be made within 15 Business Days of receipt of a valid claim; and
(b)
in all other cases, payment will be made within 22 Business Days of receipt of a valid claim.
Payment shall take into account the deduction of retention moneys (if any) and any other amount which the Principal may be entitled to deduct or which is due and payable by the Contractor to the Principal whether under the Contract, any other contract or independent of contract. If the moneys to be deducted are insufficient to discharge the liability of the Contractor, the Principal may have recourse to retention moneys or unconditional undertakings provided in lieu of retention. Payment of moneys to the Contractor shall not be evidence of the value of work done or an admission of liability or evidence that work has been executed satisfactorily but shall be a payment on account only. The Principal may, in a later payment, correct an error in a previous payment. Nothing in this Contract shall oblige the Principal to pay for work that is not in accordance with the Contract, or for plant or materials not incorporated in the Works on Site. For the purposes of the Building and Construction Industry Payments Act 2004 (Qld), the Superintendent is authorised to receive payment claims and to issue payment schedules on behalf of the Principal. 20 Default of Contractor (a)
Subject to clause 20(c), if the Contractor fails to commence the Work under the Contract by the Commencement Date, or fails to proceed with the Work under the Contract at a reasonable rate of progress, or commits any substantial breach of the Contract, or indicates that it is unable or unwilling to complete the Works, the Principal may, by written notice, require the Contractor to show cause by the date specified in the notice, which shall be not less than five (5) days, why the Principal should not exercise a right under clause
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(b)
If the Contractor fails to show reasonable cause by the date specified by the Principal, then the Principal shall have the power upon notice in writing to the Contractor to terminate the Contract or suspend payment and take the remaining Work under the Contract to be completed wholly or partly out of the hands of the Contractor without prejudice to any rights of the Principal under the Contract or at common law.
(c)
If the Contractor: (i)
fails to hold a current licence required to perform the Work under the Contract; or
(ii)
becomes insolvent or bankrupt, or being a company goes into liquidation, or takes or has instituted against it any action or proceedings which has as an object or may result in bankruptcy or liquidation; or
(iii)
enters into a debt agreement, a deed of assignment or a deed of arrangement under the Bankruptcy Act 1966 (Cth), or, being a company, enters into a deed of company arrangement with its creditors, or an administrator or controller is appointed; or
(iv)
has a liquidator, provisional liquidator, receiver or a receiver and manager appointed or a mortgagee goes into possession of any of its assets,
the Principal may, without giving a notice to show cause, exercise a right under clause 20(b). (d)
In the event that the Principal takes the Work under the Contract out of the hands of the Contractor, the Principal may itself or by means of other persons, complete the whole or any part of that work and may without payment of compensation take possession of the constructional plant and other things on or in the vicinity of the Site as are owned by the Contractor. If the cost incurred by the Principal in completing the Work under the Contract is greater than the amount which would have been paid to the Contractor if the Contractor had completed the Work under the Contract, the difference shall be a debt due from the Contractor to the Principal, otherwise any difference shall be a debt due from the Principal to the Contractor.
21 Disputes Within 14 days of a dispute arising either party may refer it to the Superintendent by way of issuing a notice of dispute under this clause. Within 28 days of receiving notice of dispute the Superintendent shall consider the notice of dispute and provide its written decision as to the appropriate resolution of the dispute to each party. If the Superintendent fails to give the decision, or if either party is dissatisfied with it, the parties shall within 14 days of receipt of the decision, or the date upon which it should have been given, confer at least once to attempt to resolve the dispute. 22 GST and PAYG (a)
GST Included in Price
Payments for any taxable supplies under the Contract include GST. (b)
Tax Invoices The Contractor must issue to the Principal a tax invoice or adjustment note (as the case may require) within five (5) Business Days after each of the following occurring in relation to that taxable supply: (i)
the Contractor submitting a claim for payment that is not in the form of a valid tax invoice;
(ii)
the Superintendent certifying an amount for payment different to the amount claimed;
(iii)
the amount for payment being otherwise determined to be different to the amount claimed or (if applicable) certified.
(c) PAYG Withholding Whenever the Principal reasonably considers itself bound by law to do so, the Principal shall be entitled to withhold from any payment otherwise due to the Contractor, amounts calculated and to be withheld in accordance with the law. 23 Security Security shall be provided by the Contractor to the Principal in accordance with Annexure A, item 16. The Principal shall have the discretion to approve or disapprove the form of unconditional undertaking and the financial institution giving it or other form of security offered. Without limiting any of the Principal’s rights, the Principal may at any time do either or both of the following things: (a) Convert into money any security that does not consist of money and then use that money; or (b)
Use any security that does consist of money (including retention moneys), for any one or more of the following purposes: (i)
in order to satisfy any debt or other moneys due from the Contactor to the Principal;
(ii)
in order to pay for any costs (including rectification costs) that the Principal asserts should have been borne by the Contractor under the Contract but which the Contractor has failed or refused to bear and which the Principal claims it therefore has incurred or will incur;
(iii)
in order to pay for any costs (including rectification costs), losses, expenses or damages that the Principal
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claims it has incurred or suffered as a consequence of any act or omission of the Contractor that the Principal asserts constitutes a breach of the Contract;
(c)
as otherwise provided in the Contract
The Contractor shall not at any time take any steps to injunct or otherwise restrain: (a)
any issuer of the security from paying the Principal pursuant to the security;
(b)
the Principal from taking any steps (such as making a demand) which may be a precondition to obtaining payment under the security; or
(c)
the Principal using the proceeds of any security.
The Principal is not liable for any loss occasioned by the conversion of any security into money. Without any limitation upon the Principal’s rights set out above under this clause, upon the issue of the certificate of practical completion, the Principal’s entitlement to security shall be reduced by an amount equal to the percentage or amount in Item 16(f). Upon the Principal’s entitlement to security ceasing, the Principal shall release and return the remaining security (if any) to the Contractor. The Principal does not hold any security, or any moneys resulting from the conversion of the security, on trust for the Contractor and is not obliged to hold any moneys resulting from the conversion of the security in any particular defined account. 24 Intellectual Property Rights (a)
Warranty and indemnity
The Contractor warrants that designs, materials, documents and methods of working provided by the Contractor shall not infringe any Intellectual Property Right. The Contractor warrants to the Principal that it, and its suppliers' or subcontractors' or consultants' use of the Contractor Material, and the Works does not breach any other persons Intellectual Property Rights. The Contractor shall indemnify the Principal against the infringement of any other person’s Intellectual Property Rights. (b)
Newly created
Title to, copyright in and other Intellectual Property Rights in any documents or other property created by the Contractor for or in connection with the Works vests in the Principal, and the Principal grants the Contractor an irrevocable licence to use those documents or other property in connection with performance of the Works. The Contractor shall do everything necessary to perfect such vesting. (c) Contractor Material The Contractor: (i)
(ii)
(iii)
grants to the Principal a perpetual worldwide, non-exclusive, royalty-free licence (including the right to sublicence to third persons and related bodies corporate) to use, reproduce, modify, adapt and otherwise exercise all Intellectual Property Rights in the Contractor Material including those referred to in clause 24(b) to the extent necessary for the Principal to be able to fully use, operate and maintain the Works; must obtain, at the Contractor's cost, all third party assignments, licences, consents and waivers, including waivers of moral rights, to give effect to this Contract and to enable the Principal to exercise its Intellectual Property Rights under paragraph (i); and undertakes to, and to procure any person to, do anything reasonably required by the Superintendent to perfect the licence granted under this clause
25 Termination for convenience Without prejudice to any of the Principal's other rights or entitlements or powers under the Contract, the Principal may: a) at any time for its sole convenience by written notice to the Contractor terminate the Contract from the date stated in the notice; and b) thereafter either itself or by third parties complete the uncompleted part of the Works. If the Principal terminates the Contract under clause 25, the Contractor, subject to the right to deduct or retain amounts under clause 19, will be entitled to payment for the Work carried out prior to the date of termination as determined by the Superintendent, which would have been payable if the Contract had not been terminated and the Contractor submitted a payment claim for work carried out to the date of termination.
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SIGNED AS AN AGREEMENT: ……………………………………………….. ACN ………………….. in accordance with Section 127 of the Corporations Act 2001
Signature of director
Signature of director/company secretary (Please delete as applicable)
Name:
Name:
Date:
Date
Signed for and on behalf of Queensland Bulk Water Supply Authority trading as Seqwater By its duly authorised officer
_____________________________________ (Signature) _____________________________________ (Name)
this ______ day of ____________ 2013
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ANNEXURE A – CONTRACT PARTICULARS Item 1
Superintendent
2
Superintendent’s Representative
3
Contractor
4
Contractor’s Representative
5
Principal Contractor and or Contractor with management and control of the workplace
[The Contractor will be nominated as Principal Contractor for Works of $250,000 or more – otherwise Seqwater will remain Principal Contractor.]
6
Works Description
[Describe the work under the Contract]
7
Contract - other documents forming the Contract.
[Detail the relevant specification, drawings and other documents describing the Work under the Contract. Ensure documents are listed in order of precedence in the event of any inconsistency between documents]
8
Contract Price (Inclusive of GST)
[Should be either a lump sum, schedule of rates or a combination of lump sum and schedule of rates]
9
Commencement date
[Most likely not known at RFO stage so specify: “In accordance with the Superintendent’s instruction”]
10
Date for Practical Completion
[Insert either date or period of time from Commencement Date]
11
Liquidated Damages Amount
[insert daily amount]
(clause 14)
[NOTE: Must be able to be substantiated]. 11A 12
(clause 13A)
[Insert capped amount of maximum daily delay costs that may be claimed by the Contractor if applicable]
Defects Liability Period
[If nothing stated, 12 months]
Delay costs
(clause 15)
13
Insurance Requirements: (a) Public Liability
(a) [Minimum $20,000,000; if nothing stated $20,000,000]
(clause 8)
(b) Professional Indemnity (clause 9)
(b) [Minimum $10,000,00, for a period of no less than 6 years; if nothing stated $10,000,000, for a period of no less than 6 years]
(c) WorkCover (clause 10)
(c) As required by law 14
Times for making payment claims (clause 19)
TRIM: D13/69432
[insert relevant milestones and proportion of Contract Price]
Version 3
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Contract [insert number] Minor Works 15
Site
16
Contractor’ Security
[Insert description of Site]
(clause 23)
(a) Form of security
(a) [Retention moneys / Bank guarantee / NA]
(b) Amount or maximum
(b) [$ amount OR % of the contract price] [Must not exceed 5% of contract price]
17
(c) If retention monies, percentage of each progress certificate (not exceeding the maximum prescribed by item (b) above
(c) [ __%, until the limit in (b) is reached].
(d) If Bank guarantee
(d) [Bank guarantee: 2 x unconditional bank guarantees each for 2.5 % of the Contract Price on terms acceptable to the Principal and provided by a financial institution acceptable to the Principal.]
(e) Time for provision of security
(e) Within 14 days of execution of this Contract.
(f) Contractor’s security upon certificate of practical completion is reduced by
(f)
Governing law
Queensland
TRIM: D13/69432
50%
Version 3
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