ࡱ > bjbj++ p I I l >) >) >) >) >) $ b) b) b) P ) , + T b) ݣ x 20 : l0 0 0 0 "2 P r3 4 3 , . . . . . . $ U R E >) 3 "2 "2 3 3 R >) >) 0 0 4 v7 v7 v7 3 >) 0 >) 0 , v7 3 , v7 v7 t h 0 4 ^ 0 ݣ ~ 4 T , >) h 3 3 v7 3 3 3 3 3 R R 46 B 3 3 3 ݣ 3 3 3 3 3 3 3 3 3 3 3 3 3 ( : Victorian Public Sector General Conditions of Contract for Minor Works (VPS MWC September 2017) Revision:Date:Clause reference:Details:Endorsed by:September 2012N/ASeptember 201726 September 20173Minor change made to variation provisions.DTF The copyright in these General Conditions of Contracts for Minor Works is owned by the State of Victoria (Department of Trasury and Finance). State of Victoria 2017 HYPERLINK "http://creativecommons.org/licenses/by/3.0/au/" You are free to re-use these Special Conditions under a HYPERLINK "http://creativecommons.org/licenses/by/4.0/" Creative Commons Attribution 4.0 licence, provided you credit the State of Victoria (Department of Treasury and Finance) as author, indicate if changes were made and comply with the other licence terms. The licence does not apply to any branding, including Government logos. Copyright queries may be directed to HYPERLINK "mailto:IPpolicy@dtf.vic.gov.au" IPpolicy@dtf.vic.gov.au CONTRACT FORM Contract Reference Date of this Contract Between the Principal And the Contractor of ACN ABN Registered Building Practitioner Details CategoryNumber Contract Sum (exclusive of GST) $ The Contractor will carry out the work under the Contract and otherwise comply with and be bound by this Contract. The Principal will pay to the Contractor the Contract Sum, and any other sums which become payable under this Contract, in accordance with this Contract and otherwise comply with and be bound by this Contract. The contract between the Contractor and the Principal is effective even if the execution page following is only executed by the Contractor, provided the Principal, or the Principals Representative, has affirmed the contract by the issuing of a Letter of Acceptance or an instruction to commence work. EXECUTION PAGE Execution THE CONTRACTOR Signed by a duly authorised Officer for and on behalf of the Contractor in the presence of the WitnessSignatoryWitnessName of SignatoryName of WitnessDate of Signing THE PRINCIPAL Signed by a duly authorised Officer for and on behalf of the Principal in the presence of the WitnessSignatoryWitnessName of SignatoryName of WitnessDate of Signing ANNEXURE ItemCl.32Works [Insert a brief description of the Works] The Works are defined and if no description is inserted the Works will be in accordance with the Contract DocumentsSite Address Contract Documents [Insert a brief and accurate description of each of the documents relevant to the Works or the way in which the work is to be executed. If relevant, insert an order of precedence]This Document Principals Representative Principals DetailsAddress Telephone NumberFacsimile NumberSuperintendent Superintendents DetailsAddress Telephone Number Facsimile NumberContractors RepresentativeContractors DetailsAddress Telephone Number Facsimile Number32Commencement Date If no date is stated the date determined in accordance with the definition of this expression32Date for Practical Completion 32Delaying Event Exclusions [Identify those events which would otherwise give rise to a right to an extension of time {refer to the definition of the expression Delaying Event and clause 8} but which are to remain at the risk of the Contractor] If no events are identified there are no such events.10Defects Liability Period If no period is stated the period is 26 weeks21Rate of Liquidated Damages$per day If no amount is stated the damages for late completion are determined in accordance with general principles of law14Principal Contractor Appointment: Yes N o T i c k t h e r e l e v a n t b o x d e p e n d i n g o n w h e t h e r o r n o t t h e C o n t r a c t o r i s a p p o i n t e d a s P r i n c i p a l C o n t r a c t o r 1 5 C o n s t r u c t i o n R i s k I n s u r a n c e A l t e r n a t i v e 1 2 T i c k t h e a l t e r n a t i v e 1 f o r C o n t r a c t o r I n s u r a n c e a n d 2 f o r P r i n c i p a l I n s u r a n c e ] - I f n o a l t e r n a t i v e i s t i c k e d t h e a l t e r n a t i v e i s 1 . I f C o n s t r u c t i o n R i s k A l t e r n a t i v e 2 : E x c e s s : & & & & & & & & & & & & & & . . 1 5 P u b l i c L i a b i l i t y I n s u r a n c e A l t e r n a t i v e 1 2 T i c k t h e a l t e r n a t i v e 1 f o r C o n t r a c t o r I n s u r a n c e a n d 2 f o r P r i n c i p a l I n s u r a n c e ] - I f n o a l t e r n a t i ve is ticked the alternative is 1.If Public Liability Alternative 1: The amount of Public Liability cover required: If Public Liability Alternative 2: Excess: .. 16Retention amount If no amount is stated the amount is 5% of the initial Contract Sum20Security 20Interest % per annum If no amount is stated the amount is the amount prescribed pursuant to the Penalty Interest Rates Act (1983) CONDITIONS OF CONTRACT PRIMARY OBLIGATIONS cONTRACTORS PRIMARy Obligations, RISKS and indemnities The Contractor must: execute and complete the work under the Contract in accordance with the Contract Documents and any directions of the Superintendent; comply with all Legislative Requirements, all Industrial Requirements and all Policies and Procedures; and otherwise comply with this Contract. The Contractor agrees to the Contract Undertakings in performing its obligations. Each Contract Undertaking must be given full effect in its own right. No individual Undertaking will be read down by reason of the existence, or absence of any other Undertaking. The Contractor accepts the Contract Risks. The Contractor indemnifies the Principal, and will keep the Principal indemnified, against all loss, damage, cost or expense suffered or incurred by the Principal by reason of any breach of this Contract by the Contractor or in any way connected with the carrying out of the work under the Contract, including: loss or damage to property of the Principal (including existing property in or upon which the work is being carried out); and claims by any person against the Principal, the Superintendent, employees or agents of the Principal in respect of personal injury or death or loss of or damage to any property. The entitlement of the Principal pursuant to this clause will be reduced proportionately having regard to any contribution of the Principal to any such loss, damage, cost or expense. Principals PRIMARY Obligations The Principal must pay to the Contractor any moneys which become due under this Contract in accordance with this Contract; and otherwise comply with this Contract. The Principal must ensure that at all times there is a Superintendent and that in the exercise of the functions of the Superintendent, the Superintendent acts honestly and fairly, and makes reasonable determinations with respect to time and money. THE WORK UNDER THE CONTRACT VARIATIONS The Superintendent may direct the Contractor to carry out a Variation to the work under the Contract. The Contractor must comply with any such direction. The Contractor must not vary the work under the Contract except as directed by the Superintendent. The variation will be valued by the Superintendent and the Contract Sum will be adjusted, in respect of Variations, in accordance with clause 19. The Principal may carry out, or engage others to carry out, any work which is deleted from the work under the Contract pursuant to a direction given under this clause. QUALITY OF MATERIALS AND WORKMANSHIP Unless otherwise specified, all materials to be incorporated in the Works must be new and of a kind which is suitable for their purpose and consistent with the nature and character of the work under the Contract. The work must be performed in accordance with recognised methods and standards of trade practice to a satisfactory level in accordance with the Contract Documents. Construction methods and standards of finish must, except as otherwise specified in the Contract Documents, be in accordance with all relevant Australian Standards. The Superintendent may make a determination as to quality and quantity of the work. The Contractor has the right to attend all examinations, inspections and measurements of the work. The Contractor shall be represented on site at all times when any part of the work is being executed. All work is to be carried out or supervised by experienced and qualified personnel. DEFECTS If the Contractor becomes aware of a Defect it must advise the Superintendent as soon as practicable. If the Superintendent discovers or is made aware of a Defect, the Superintendent may: direct the Contractor to rectify the Defect at the Contractors expense; advise the Contractor that the Principal accepts the work as it is and reduce the Contract Sum by an amount which represents fair compensation to the Principal for the existence of the Defect; or after the expiration of the Defects Liability Period or after non compliance by the Contractor with a direction under paragraph (a), advise the Contractor that the Principal intends to engage others to rectify the Defect. If the Defect is not rectified within the stated time, the Principal may rectify the Defect at the Contractors expense. The reasonable cost incurred by the Principal in so doing shall be a debt due from the Contractor to the Principal which may be deducted or recovered by the Principal pursuant to clause 22. The Superintendent may give a Direction under this clause 5 at any time before the issue of the Final Certificate under clause 11. SITE CLEANING The Contractor must keep the site and the work clean and tidy and ensure that rubbish is regularly removed from the site. On completion of the Works, the Contractor must remove from the site, all constructional plant, surplus materials, rubbish and temporary works of every kind and must leave the site of the Works, existing structures and areas adjacent thereto in as good a state of repair as when the work under the Contract commenced. time Commencement, Progress, PROGRAMMING and Completion 7.1 Rate of progress The Contractor must: give the Superintendent two (2) Business Days notice in writing of the date upon which it intends to commence execution of the work under the Contract; commence the work under the Contract by the Commencement Date; proceed with the work under the Contract with due expedition and without delay; and bring the work under the Contract to Practical Completion by the Date for Practical Completion. Construction Program Within five (5) Business days of the date of the Letter of Acceptance, the Contractor must furnish a construction program to the Superintendent for approval. A construction program is a statement in writing showing the dates by which or the times within which the various parts of the work under the Contract are to be executed or completed. The Contractor shall not, without reasonable cause, depart from a construction program. Extension of Time If the Contractor considers that a delay in the progress of the work under the Contract is likely to occur, or has occurred, it must give a written notice to the Superintendent of such occurrence. This notice must be given as soon as practicable, and in any event, within two (2) Business Days (or such longer time as may be permitted by the Superintendent) of the occurrence of the event which may give or has given rise to the delay. The notice must set out a description of the event which may give or has given rise to the delay, the date of commencement of the event, the nature, cause and likely extent of the delay and the basis of any claim for an extension of time. The Contractor must take all reasonable steps to minimise the effect of any delay including, without limitation, reallocation of resources and the reprogramming of the work under the Contract. If: progress of the work under the Contract is delayed such that the work might not reach the stage of Practical Completion by the Date for Practical Completion; the delay is caused by a Delaying Event; and the Contractor has otherwise strictly complied with this clause; then the Contractor shall be entitled to an extension of time for Practical Completion. Where more than one event causes concurrent delays and at least one of those events, but not all of them, is not a Delaying Event, then, to the extent that the delays are concurrent, the Contractor shall not be entitled to an extension of time for Practical Completion. If the Contractor gives the Superintendent a written claim for an extension of time for Practical Completion, the Superintendent shall assess the claim and shall grant a reasonable extension of time. Notwithstanding that the Contractor has not made a claim for an extension of time for Practical Completion, the Superintendent may at any time and from time to time, extend the Date for Practical Completion for the benefit of the Principal. A delay or failure by the Superintendent to grant a reasonable, or any, extension of time shall not cause the Date for Practical Completion to be set at large. The Superintendent may suspend the whole or any part of the work under the Contract because of an act or omission of the Principal; because of an act or omission of the Contractor; for the protection or safety of any person or property; or to comply with an order of a court. If the extension of time granted by the Superintendent, or the suspension, is due to an act or omission of the Principal, the Superintendent or an employee, consultant or agent of the Principal and the delay or the suspension causes the Contractor to incur additional costs, the Contractor shall be entitled to claim such additional costs. Nothwithstanding that the Contractor may not have claimed such additional costs, the Superintendent may value the additional costs as a variation pursuant to clause 3. Additional costs are costs incurred and do not include overheads, profit or attendance. The right of the Contractor to make a claim for extension of time pursuant to this clause and the entitlement to additional costs pursuant to the last paragraph of this clause, is the Contractors sole remedy in respect of any delay(s) or suspension. The Contractor is not entitled to any additional increase or adjustment to the Contract Sum or any other monetary compensation or damages (including damages for breach of contract or negligence) as a result of any such delay or suspension. completion COMPLETION When the Contractor is of the opinion that the work under the Contract has reached the stage of Practical Completion, the Contractor must advise the Superintendent in writing. In giving this advice, the Contractor must also identify any claim which it may have against the Principal in relation to the carrying out of the work under the Contract (including claims in relation to breach of contract or negligence). The Contractor must not bring any claim against the Principal which is not stated in the Contractor's advice. The Principal will have no liability in respect of any claim which is not stated in the Contractor's advice. Within five (5) Business Days of receipt of the notice of completion by the Superintendent from the Contractor, the Superintendent must: if it is satisfied that the work under the Contract has reached the stage of Practical Completion, issue a certificate to this effect; or if it is not satisfied that the work under the Contract has reached the stage of Practical Completion, advise the Contractor by notice in writing of the reasons for this. The Contractor must, upon receipt from the Superintendent of a notice under (b) that the work under the Contract has not reached the stage of Practical Completion, promptly attend to the matters described in the notice. When the Superintendent is satisfied that the work under the Contract has reached the stage of Practical Completion, the Superintendent may issue a certificate of practical completion, whether or not the Contractor has given a notice of completion to the Superintendent. This clause will continue to apply until the Superintendent issues a certificate of practical completion. DEFECTS LIABILITY PERIOD Upon certification by the Superintendent that the work under the Contract has reached the stage of Practical Completion, the Defects Liability Period shall commence. Upon the issue of the certificate of practical completion, 50% of the security will be released to the Contractor, unless the Superintendent determines a different percentage to be more just and equitable. Subject to the Principals rights at law, the Contractor must, during the Defects Liability Period, rectify at its own expense all Defects which exist at the commencement of the Defects Liability Period or are notified in writing by the Superintendent during the Defects Liability Period or within ten (10) Business Days after the expiration of the Defects Liability Period. The Contractor must rectify the Defect within the time stated by the Superintendent or, if no time is stated, within ten (10) Business Days of the giving of the notice by the Superintendent or such longer time as may be agreed by the Superintendent. The Superintendent may extend the Defects Liability Period for such time as the Superintendent determines to allow for the rectification of defects. If the Defect is not rectified within the stated time, the Principal may either: (a) rectify the Defect at the Contractors expense, or (b) accept the work and clause 5(b) will apply. The reasonable cost incurred by the Principal in proceeding with (a) shall be a debt due from the Contractor to the Principal which may be deducted or recovered by the Principal pursuant to clause 22. FINAL CERTIFICATE Within ten (10) Business Days of the later of the expiration of the Defects Liability Period, the rectification of all Defects notified by the Superintendent, or the acceptance of defects under clause 5 (b), the Contractor must forward its final claim in relation to the work under the Contract. The Contractor shall include in that claim all moneys which the Contractor considers to be due from the Principal under or arising out of or in connection with the Contract or any alleged breach thereof. After the expiration of the period for lodging a final claim, any claim which the Contractor could have made against the Principal and has not been made shall be barred. Within ten (10) Business Days of receipt of the final claim, the Superintendent must issue to the Contractor a Final Certificate certifying the final amount, if any, due to the Contractor. If the Contractor does not submit a final claim in accordance with this clause, the Superintendent may issue a Final Certificate which must include valuations of all claims made by the Contractor. Such Final Certificate must be issued within twenty (20) Business Days after the expiration of the Defects Liability Period or any extended Defects Liability Period determined by the Superintendent under clause 10. Where the Contractor submits a final claim, the Contractor releases the Principal from any claim which it has or might have had where that claim has not been included in the final claim. Where the Superintendent issues a Final Certificate without the Contractor having submitted a final claim, the Contractor releases the Principal from any claim which it has or might have had where that claim has not previously been made against the Principal. A Final Certificate is a payment certificate for the purposes of clause 16. Within ten (10) Business Days of the issue by the Superintendent of the Final Certificate, the Principal shall release to the Contractor the remainder of the security held by the Principal. Unless either party, either before the Final Certificate has been issued or not later than ten (10) Business Days after the issue thereof, serves a notice of dispute under clause 24, the Final Certificate shall be evidence in any proceedings of whatsoever nature of satisfactory discharge of each partys obligations in connection with the subject matter of the contract, except in the case of (a) fraud, dishonesty or fraudulent concealment relating to the work under the Contract or any part thereof or to any matter dealt with in the said certificate; (b) any defect (including omission) in the work under the Contract or any part thereof which was not apparent at the end of the defects liability period, or which would not have been disclosed upon reasonable inspection at the time of the issue of the Final Certificate; or (c) any accidental or erroneous inclusion or exclusion of any work, plant, materials or figures in any computation or any arithmetical error in any computation. liability CARE AND PROTECTION OF PROPERTY AND PERSONS The Contractor must provide, erect and maintain all temporary works including barricades, guards, fencing, temporary roadways, footpaths, signs and lighting and anything else required by the relevant authorities or necessary for the protection of the Works, people or property or for the safety and convenience of the public and others including people who may use or occupy the site of the Works and must remove such temporary works when no longer required. The Contractor must avoid interference with, or damage to property on or adjacent to the site of the Works and must provide temporary protection for and must repair and reinstate all damage caused thereto by the Contractor, its employees, agents, suppliers or Subcontractors, or the employees of any such agents or Subcontractors. Until the commencement of the Defects Liability Period the Contractor shall be liable for any loss or damage to the Works from any cause whatsoever, except loss or damage caused by any negligent act, omission or default of the Principal, its servants or agents and must at his own cost make good any such loss or damage. CONTRACTORS MANAGEMENT PLANS The Contractor must submit to the Superintendent the following plans before the commencement of the work: Environmental Management Plan (where described in the Specification and otherwise where required by the Contract); an Health and Safety Management Plan the Occupational Health and Safety Coordination Plan, where required and as described in Clause 14; and any other plans falling within the Contractor's Management Plans. The Contractor's Management Plans must demonstrate how the Contractor will undertake the activities required to be the subject of the relevant plan in a manner which will result in compliance with the Contract. The Contractor must comply with the Contractor's Management Plans. The Contractor must not amend any of the Contractor's Management Plans without the consent of the Superintendent. If the Superintendent forms the view that any of the Contractor's Management Plans do not comply with this Clause 13, and the Contractor is advised of this view and the reasons for this view, then the Contractor must amend the relevant plans so that the plans do comply with this Clause 13 within five (5) Business Days. The Contractor is not entitled to rely upon any assumption contained in or capable of inference from the Contractor's Management Plans. OCCUPATIONAL HEALTH AND SAFETY The Contractor must not do anything, or fail to do anything it is otherwise obliged to do, which may result in the Principal being in breach of any OH&S Law. The Contractor must cooperate with the Principal in supporting compliance with any OH&S Law. The Contractor must immediately comply with any direction, instruction or requirement arising under or given pursuant to any OH&S Law. Unless otherwise specified in the Annexure and where the contract sum exceeds the threshold level stated in the Occupational Health & Safety Regulations (2007), the Contractor shall be and is hereby appointed the Principal Contractor for the purposes or the requirements in such regulations. In such a case the Contractor must comply with and discharge all obligations attaching to a Principal Contractor and the Contractor acknowledges that it has full authority from the Principal to discharge this function. If the Contractor is not the Principal Contractor, the Contractor must cooperate with and comply with the directions of the Principal Contractor, where such Principal Contractor exists. The Contractor must: prepare and maintain the Occupational Health and Safety Coordination Plan (where the Contractor has been appointed as the Principal Contractor); conduct a general hazard identification, risk assessment and control process in relation to the Works (controls shall be included in site safety rules); conduct a job specific hazard identification, risk assessment and control process at each place where the Works will be performed. Control process shall be documented in safe work method statements for all high risk construction work as defined in the OH&S Law; train, induct and brief all the Contractor's employees, agents and subcontractors on safe work practices and their environmental and workplace health and safety obligations and responsibilities before they commence any work under the Contract, as is necessary to enable them to perform their work in a safe manner; notify the Superintendent and the relevant regulatory authority of any incident involving a personal injury or breach of OH&S Law occurring during the performance of the Contract and must provide copies of all relevant documents with respect to the matter to the Principal (including all corrective actions); maintain a workplace health and safety system consistent with the requirements of AS 4801:2001 Occupational Health and Safety Management Systems. Contractors may elect to use any management system, framework, structure, or audit tool as required; and where the Works includes demolition, prepare the work plan required pursuant to AS 2601:2001 The Demolition of Structures, to ensure, so far as is practicable, that the Works are performed without endangering the health and safety of any person. insurances CONSTRUCTION RISK AND PUBLIC LIABILITY INSURANCE The insurance obligations of the Contractor and the Principal are set out in this clause. The Alternative applying for each of Construction Risk and Public Liability Insurance is set out in the Annexure. Where the Contractor is required to effect policies of insurance under this clause 15, the policies must cover the Principal, the Contractor, the Superintendent and all Subcontractors engaged from time to time in relation to the work under the Contract and must be maintained until the issue of the Final Certificate. The Contractor must, on request of the Superintendent, promptly produce evidence of currency on all the policies required under this clause. Where the Principal is required to effect a policy or policies of insurance under this clause 15, a copy of such policies may be inspected by appointment with the Principals Representative. 15.1 CONSTRUCTION RISK INSURANCE ALTERNATIVE 1 CONTRACTORS INSURANCE Before commencing the work, the Contractor must effect a policy of insurance covering loss or damage in relation to the work under the Contract for an amount not less than the total of the Contract Sum, plus 30%, and the value of materials provided by the Principal, temporary work under the Contract and materials, constructional plant and other things brought onto the site by or on behalf of the Contractor. ALTERNATIVE 2 PRINCIPAL CONTROLLED INSURANCE On or before the Commencement Date, the Principal shall effect a policy of insurance in relation to the Works which the Principal shall maintain until the issue of the Final Certificate. The policy shall be in the joint names of the Principal, the Contractor and all Subcontractors in respect of material damage and third party legal liability. The Contractor must makes its own assessment of the cover afforded by the policy and the Principal makes no representation as to whether the policy might respond in any particular circumstance. The Contractor must not do any act or omit to do any act which will result in the policy not responding. The Contractor shall be responsible for the payment of any excess under the policy. The amount of the excess is stated in the Annexure. 15.2 PUBLIC LIABILITY INSURANCE ALTERNATIVE 1 CONTRACTORS INSURANCE Before commencing the work, the Contractor must effect a policy of insurance covering public liability for an amount not less than $10,000,000 for any single occurrence, unless a different amount is stated in the Annexure. ALTERNATIVE 2 PRINCIPAL CONTROLLED INSURANCE On or before the Commencement Date, the Principal shall effect a public liability policy of insurance in the joint names of the Principal and the Contractor which covers the Principal, the Contractor, the Superintendent and all Subcontractors engaged from time to time in relation to the work under the Contract and which covers their liability to third parties. The Principal shall maintain such policy until the issue of the Final Certificate. The Contractor shall be responsible for the payment of any excess under the policy. The amount of the excess is stated in the Annexure. financial PAYMENTS The Principal will pay to the Contractor the Contract Sum in accordance with and subject to this Contract. The Contractor may, not more than monthly, submit to the Superintendent a progress payment claim, in a form satisfactory to the Superintendent. If the second alterantive is adopted pursuant to clause 17.5 the claim must show the value of the work carried out to date and incorporated into the Works. The invoice for the claim must be in the form of a tax invoice as defined in the relevant GST legislation, including supplying the Contractors Australian Business Number. The GST component of the invoice shall be separately identified. Within ten (10) Business Days of receipt by the Superintendent of a claim complying with this Contract and any documents which are required by this Contract to accompany a claim for payment, the Superintendent must determine the value of the claim and issue a payment certificate to the Contractor and the Principal. A payment certificate issued under this clause 16 is a payment schedule for the purposes of the Building and Construction Industry Security of Payment Act (2002) (Vic) ('Security of Payment Act'). A reference to a payment certificate in this clause is a reference to a payment schedule, and vice versa. The Principal must, within ten (10) Business Days of the issue of the payment certificate, pay to the Contractor the amount of the payment certificate, less any moneys that may be deducted by the Principal pursuant to this Contract. The Principal may deduct the following moneys from the payment certificate: the retention amount if any stated in the Annexure; any progress payment already made in respect of work covered by that payment certificate; and any other amount that the Principal may be entitled to deduct. The payment of moneys under a payment certificate shall not be evidence of the value of work or evidence that work has been executed satisfactorily but shall be payment on account only. If required by the Principal, before final payment is made the Contractor must furnish a declaration that all wages due and owing to workers employed by the Contractor in association with the work under the Contract have been paid. If the 'Security of Payment Act applies: the Contractor must ensure that, within 24 hours after any notice is given or received under the Security of Payment Act by the Contractor or any subcontractors, a copy of that notice is given to the Principal and the Superintendent; the amount (if any) set out in a payment certificate or payment schedule is the amount of the 'progress payment' (as defined in the Security of Payment Act) which the Contractor is entitled to be paid; and the parties agree that for the purpose of the Security of Payment Act, the authorised nominating authority shall be a person authorised by the Building Commission under section 42 of the Security of Payment Act to nominate persons to determine the adjudication application; the Contractor acknowledges and agrees that the Principal has nominated the Superintendent to receive the Contractors payment claims and to provide payment schedules under the Security of Payment Act as if the Superintendent were the respondent under that Act. The Principal accepts service of payment claims upon the Superintendent under Section 14 of the Security of Payment Act in lieu of service upon the Princiapl, and the Contractor agrees that the provision of payment schedules by the Superintendent complies with the Principals obligations under Section 15 of the Security of Payment Act. For the avoidance of doubt, the parties agree that the nomination of the Superintendent to perform the above functions under the Security of Payment Act will not derogate from the Superintendents independent functions under the Contract. GST 17.1 Definitions The terms "GST" and "GST Act" have the meanings ascribed to those terms by the A New Tax System (Goods and Services Tax) Act 1999 (Cwlth) (as amended from time to time) or any replacement or other relevant legislation and regulations enacted to validate, recapture or recoup tax collected as GST. 17.2 Contract Sum excludes GST Unless expressly stated otherwise, the Contract Sum and any other amounts or rates stated in the Contract exclude GST. 17.3 GST payable If GST is payable under the GST Act in relation to any supply under this Contract, the parties agree that: an additional amount will be payable by the party providing consideration for that supply equal to the amount of GST payable on that supply; and subject to this clause 17, the additional amount is payable at the same time as payment is otherwise due under the Contract. 17.4 Reimbursement of costs, expenses and other amounts If a party is required under this Contract to reimburse or pay to the other party an amount calculated by reference to a cost, expense, or an amount paid or incurred by that party, the amount of the reimbursement or payment will be reduced by the amount of any input tax credits to which that party is entitled in respect of any acquisition relating to that cost, expense or other amount. 17.5 Tax Invoice agreement The parties shall agree on the appropriate Tax Invoice format prior to the submission of the first payment claim. Alternative 1: Recipient Created Tax Invoice agreement The Contractor and the Principal agree, in relation to supplies made under this Contract, that: the Principal will issue Tax Invoices for those supplies; and the Contractor will not issue Tax Invoices for those supplies. Alternative 2: Contractor to provide tax invoice The Contractor and the Principal agree, in relation to supplies made under this Contract, that: the Contractor shall provide the Principal with a tax invoice for the supply; and the Principal shall not be obliged to make payment to the Contractor under clause 16, until the Contractor has complied with its obligation under the previous paragraph. RATES If the Principal has accepted rates in respect of all or part of the work under the Contract, the Contract Sum includes the amount ascertained by multiplying the measured quantity of each section or item of work actually carried out under this Contract by the accepted rate for that section or item. Such rates are exclusive of GST but are inclusive of all other costs, expenses, insurances, duties, imposts, charges and taxes payable by the Contractor. VALUATION Where this Contract requires a matter to be valued under this clause or where this Contract does not otherwise provide for the valuation of a matter, the matter shall be valued as follows: where the matter can be valued by the application of rates accepted by the Principal, by the application of those rates by the Superintendent; where there are no relevant rates, the Superintendent shall determine a reasonable value. Where the valuation relates to any work which is deleted from the Contract pursuant to a Variation direction the Contract Sum shall be reduced to reflect the value of the deleted work but the Contractor shall be entitled to include a reasonable amount for profit (but not overheads) related to the deleted work. SECURITY The Contractor must, within five (5) Business Days of the earlier of the Date of this Contract or a written request from the Principal, provide security in the amount and in the form shown in the Annexure. Where the security is in the form of a Bank Guarantee, the Bank Guarantee must be unlimited as to time, irrevocable, unconditional and in a form approved by the Principal. The Principal may call upon the Bank Guarantee to satisfy any debt owed by the Contractor to the Principal under this Contact. The Contractor agrees that it will not take any action against the Principal with a view to preventing the Principal calling upon the Bank Guarantee. If the Principal calls upon the Bank Guarantee in circumstances when it was not entitled to do so the Principal will only be liable to return to the Contractor the amount called together with interest on that amount from the date of receipt by the Principal to the date of repayment to the Contractor such interest being at the rate set in the Annexure. If the Contractor does not comply with this clause the Principal may withhold moneys otherwise due to the Contractor until the Contractor complies with this clause. LIQUIDATED DAMAGES If the Contractor fails to bring the work under the Contract to the stage of Practical Completion by the Date for Practical Completion, the Contractor shall be indebted to the Principal for liquidated damages calculated at the rate set out in the Annexure for every day after the Date for Practical Completion until the Works have been completed. The parties agree that the liquidated damages at the rate stated in the Annexure constitute a fair and reasonable pre-estimate of the loss that will be suffered by the Principal. The amount of liquidated damages under this clause shall be a debt due from the Contractor to the Principal, and may be deducted by the Principal pursuant to clause 22. The Principal may deduct from moneys otherwise due to the Contractor, the amount in respect of which the Contractor is indebted to the Principal in respect of liquidated damages and an amount, being the Principals estimate of the amount in respect of which the Contractor might become indebted in respect of liquidated damages. If, after the Contractor has paid or the Principal has deducted liquidated damages or held money on account of liquidated damages, the time for Practical Completion is extended, the Principal must, at the time of the next progress payment, repay to the Contractor any liquidated damages paid or deducted or any money held on account of liquidated damages in respect of the period to and including the new Date for Practical Completion. Should no amount for liquidated damages be referred to in the Annexure the Principal is entitled to damages from the Contractor under general principles of law. RIGHT OF PRINCIPAL TO RECOVER MONEY Any debt due from the Contractor to the Principal under this Contract may be deducted by the Principal from any sum which is or may become due and payable to the Contractor and if the debt exceeds such sum, from the security. Nothing in this clause or the preceding clause affects the right of the Principal to otherwise recover from the Contractor the whole of the debt or any balance owing in respect thereof. default DEFAULT If the Contractor commits a Performance Default the Principal may give a notice in writing requiring the Contractor to show cause why the Principal should not proceed in accordance with its rights upon a Termination Default. The Contractor must, within the time specified in the notice (or if no time is specified within five (5) Business Days) give good reason why the Principal should not proceed in accordance with its rights upon a Termination Default. If the Contractor does not give good reason within the required time, the Principal may proceed as if there had been a Termination Default. Following the giving of the notice to show cause the Principal may suspend payment under this Contract until the notice has been responded to in accordance with this Contract. If the Contractor commits a Termination Default the Principal may suspend payment under this Contract and may, by notice in writing, take the whole or any part of the work under the Contract remaining to be completed out of the hands of the Contractor, exclude the Contractor from the site and complete that work by any other means. On completion of the work, the Superintendent must certify the cost incurred by the Principal in completing the work. Should the amount so certified be greater than the further amount which would have been paid to the Contractor if the whole of the work under the Contract had been completed by the Contractor, the difference between the two amounts shall be a debt due from the Contractor to the Principal, recoverable under clause 22. disputes SETTLEMENT OF DISPUTES Any Dispute shall be notified in writing by either party to the Superintendent and the other party. The notice must set out details of the Dispute. Within fifteen (15) Business Days of such notification the Superintendent shall provide to each party a determination on the Dispute. If the Dispute continues, within ten (10) Business Days after the determination by the Superintendent, representatives from each party must meet to attempt to resolve the Dispute. At any such conference, each party must be represented by a person having the authority to agree to a resolution of the dispute. If the Dispute or difference continues then, within 10 days after the above conference, the parties must endeavour to settle the dispute by mediation. The mediation is to be conducted by a mediator independent of the parties, appointed by agreement between the parties or, failing agreement, by a person appointed by the Victorian Small Business Commissioner or by reference to the Institute of Arbitration and Mediation Australias Rules for the Mediation of Commercial Disputes. No Dispute may be referred to litigation before the above conference has occurred and mediation has been attempted. administration Directions The Superintendent may give Directions to the Contractor and the Contractor must comply with the Directions. In giving a Direction, or after the giving of a Direction, the Superintendent may nominate a time within which the Direction must be complied with. Subject to this clause the Contractor must comply with a Direction within the time nominated by Superintendent. If the Contractor believes compliance with a Direction will result in the Contractor being entitled to Relief, the Contractor must, within two (2) Business Days of the Direction or prior to complying with the Direction (whichever is the earlier) advise the Superintendent of this. Upon receipt of this advice from the Contractor, the Superintendent may confirm or revoke the Direction. In confirming the Direction the Superintendent is not accepting the Contractors entitlement to Relief as claimed by the Contractor. The Contractors entitlement to Relief, if any, will be determined in accordance with clause 8 or 19 of this Contract (as may be relevant). If the Contractor does not comply with this clause the Contractor is not entitled to any Relief by reason of the giving of the Direction or compliance with the Direction. SUPERINTENDENTS REPRESENTATIVE The Superintendent may from time to time in writing appoint individuals to exercise any functions of the Superintendent under this Contract but not more than one Superintendent's representative shall be delegated any one function at the same time. PRINCIPALS REPRESENTATIVE The Principal may from time to time in writing appoint a representative to exercise any functions of the Principal and to perform the role of the Principals Representative under this Contract. The Superintendent may not be appointed as the Principals Representative. ASSIGNMENT AND CONTRACTING The Contractor must not assign the whole of this Contract without the written approval of the Principal. The Contractor must not sub-contract any part of the work under the Contract without the written approval of the Principal. Approval to subcontract shall not relieve the Contractor from any liability or obligation under the Contract. Sub-contract conditions of contract and payment obligations must be compatible with this Contract. The Principal may, in its absolute discretion and at any time, do one of the following: assign any or all of the rights or benefits which it enjoys under this Contract to any other person or persons; assign this Contract to any other person; or require the Contractor to enter into a deed of novation whereby this Contract is novated from the Principal to another person or persons nominated by the Principal. CONTRACTORS PERSONNEL The Contractor must at the request of the Superintendent immediately remove from the site any person engaged thereon who may, in the opinion of the Superintendent, be incompetent or misconduct themselves and such person must not be engaged again on the site without the permission of the Superintendent REGISTRATION Whenever any plant or equipment or any of the Contractor's staff is required to be registered or licensed or to hold any permit or certificate or any exemption certificate or other qualification, the Contractor at its expense must ensure that the legislation is complied with and proof thereof must be produced to the Superintendent on request. The Contractor must, on the written request of the Superintendent, produce evidence that all on-site employees of the Contractor and Subcontractors have current registration with COINVEST (Long Service Leave) (where appropriate), and when requested to do so, produce wages books, receipts, evidence of tax deductions for PAYE and any other item which may reasonably be requested by the Superintendent. NOTICES Any notice to be given or served upon the Principal or the Contractor shall be in writing and may be delivered by mail or transmitted by facsimile to the addresses or numbers specified in the Annexure. Any notice that has been posted shall be deemed to have been duly received at the time at which in the ordinary course of post it would have reached that address. Any notice transmitted by facsimile shall be deemed to have been received upon completion of transmission if completed on or before 5:00 pm on a Business Day or at 9:00 am on the next Business Day if completed after 5:00 pm on a Business Day or a day which is not a Business Day. The parties may agree on the acceptance or otherwise of emails. DEFINITIONS & INTERPRETATIONS Definitions and Interpretations In this Contract: Business Day means a day on which trading banks are open for general banking business in Melbourne, Victoria not including a Saturday or Sunday; Commencement Date means the earlier of the expiration of five (5) Business Days from the Date of this Contract or the date nominated in the Annexure (if any) or such other date as is nominated in writing by the Principals Representative; Contract means the agreement between the Principal and the Contractor: Contract Documents means the documents described as such in the Annexure; Contractor means the person bound to execute the work under the Contract and named in the Contract Form as such; Contractor's Management Plans means the Environmental Management Plan, the Occupational Health and Safety Coordination Plan, the Health and Safety Management Plan and any other plans described in the Contract documents. Contract Risks means all risks associated with the carrying out of the work under the Contract (whether ascertainable or not) including, without limitation risks associated with or arising in relation to: all Industrial Requirements; all delays, cost increases, re-execution of work or modification of the methodology for the carrying out of the work under the Contract caused by: adverse site or weather conditions; the physical conditions and characteristics of the site (including sub-surface, latent conditions or hidden defects and asbestos or contamination of any kind) and its surroundings; the work under the Contract progressing at a rate different than may have been anticipated by the Contractor; or the availability and occupation of part of the work under the Contract as described in this Contract; and the availability of labour or materials necessary for the carrying out of the work under the Contract; Contract Sum means the amount described as such on the Contract Form; Contract Undertakings means the following undertakings to which the Contractor agrees in performing its obligations. The Contractor: will at all times be suitably qualified and experienced, and will exercise due skill, care and diligence in the execution and completion of the work under the Contract; has taken into account all of the Contract Risks, and the costs of bearing those risks; has made proper allowance in the Contract Sum for: all matters contained in or capable of inference from this Contract; all matters which might impact upon the Contractors ability to complete the work under the Contract or to complete the work within any particular time, cost or quality constraints; and the Contract Risks; has informed itself as to all matters which might impact on the Contract Risks; has, or will be able to, obtain all the necessary consents, permits or authorities necessary in order for the Contractor to carry out the work under the Contract; has carefully examined the Contract Documents and there are no ambiguities or discrepancies in the Contract Documents; owns (or is otherwise entitled to use) the copyright or other intellectual property in relation to the Works. is not insolvent within the meaning of s.95A of the Corporations Law or otherwise and there is no unfulfilled or unsatisfied judgment or Court order outstanding against the Contractor; if required by law, is a registered Building Practitioner (within whatever category as is necessary so as to permit the Contractor to enter into this Contract), pursuant to the Building Act (1993), and its registration has not been suspended; if required by law, carries the insurance required under the Building Act (1993); in the offer by the Contractor , in any interview or discussion leading up the entering of this Contract or in response to any request from the Principal, has provided accurate and complete information and has not provided any false , inaccurate or misleading information or failed to provide any material information relevant relevant to the Contractors ability to carry out the work under the Contract; and will comply fully with all of its obligations under this Contract; Date for Practical Completion means: where the Annexure provides a date for Practical Completion, that date; or where the Annexure provides a period of time for Practical Completion, the last day of that period, 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; Date of this Contract means the earlier of the date of acceptance by the Principal of any offer from the Contractor to carry out the work under the Contract or the date upon which this Contract was executed by the Contractor and the Principal; Day means calendar day; Defect any work or material that is not in accordance with this Contract, any work or material which is required to be performed or provided as part of the work under the Contract that has not been performed or supplied, or any damage to the Works for which the Contractor is responsible under clause 12; Defects Liability Period means the period commencing in accordance with clause 10 and ending at the expiration after the period described as such in the Annexure; Delaying Event means any act, omission or default by or on behalf of the Principal or any other event beyond the control of the Contractor but excluding any event nominated as being excluded in the Annexure; Direction includes agreement, approval, authorisation, certificate, decision, demand, determination, explanation, instruction, notice, order, permission, rejection, request or requirement; Dispute means any dispute or difference which is in any way connected with, or arises out of or in relation to this Contract (including the interpretation or termination of this Contract) or the Works, whether that dispute arises before or after the ending of this Contract; Final Certificate has the meaning in clause 11; "GST" has the meaning in clause 17; Industrial Requirements means any requirement (whether legislative or merely reflective of good industrial practice) including, without limitation any requirement, obligation or prohibition arising under the Accident Compensation Act (1985) (Victoria); and the Construction Industry Long Service Leave Act (1997) (Victoria); and any Code of Conduct which is included in or referred to in this Contract or which is a Contract Document; and any Compliance Code issued from time to time pursuant to the Occupational Health and Safety Act (2004) (Victoria); and any site agreement relevant to or applicable to the site upon which the Works are being constructed; and any Enterprise Bargaining Agreement executed between the Contractor and any relevant union; Legislative Requirements means all requirements in relation to the Works, or the conduct of the Contractor in carrying out the work under the Contract, including all relevant laws, orders, awards, certificates, licences, consents, permits, approvals and requirements of organisations having jurisdiction in connection with the carrying out of the work under the Contract and the payment of any fees and charges payable in connection with the foregoing; OH&S Law means the Occupational Health & Safety Act (2004) (Victoria) and or the Occupational Health & Safety Regulations (2007) Performance Default means a circumstance where the Contractor: commits a substantial breach of this Contract; refuses or fails to comply with any Direction issued under the Contract; or commits a Termination Default; Policies and Procedures means all policies and procedures issued by the Principal from time to time in relation to the work under the Contract of the type being performed under this Contract or the conduct of a person such as the Contractor in carrying out such work; Practical Completion means that stage in the execution of the work under the Contract when: the Works are complete except for minor omissions and minor defects; those tests which are required by this Contract to be carried out and passed before the work under the Contract reach Practical Completion, have been carried out and passed; the Contractor has delivered to the Principal the following: all original warranties; all notices, permits, approvals and certificates required to be obtained from relevant authorities; an executed Deed of Release in a form approved by the Superintendent whereby the Contractor releases the Principal from all claims it has or may have had in relation to the carrying out of the work under the Contract other than claims that have been identified in the deed; and documents and other information required under this Contract which, in the opinion of the Contractor, are essential for the use, operation and maintenance of the Works; the Contractor has: thoroughly cleaned the site on which the Works are being executed and the Works; connected or reconnected all services relevant to the Works; and complied with all relevant aspects of the quality Undertaking system including, but not limited to, having undertaken all final inspections and testing of the work under the Contract required by that system; Principal means the party described as such in the Contract Form; Principals Representative means the person described as such in the Annexure or the person otherwise appointed by the Principal from time to time; Relief means the payment of money, an extension to the Date for Practical Completion, some other relief from the obligations otherwise arising under this Contract, or damages for breach of contract or negligence; Subcontractor means any subcontractor engaged by the Contractor to perform the work under the Contract or any part of the work under the Contract; Superintendent means the person described as such in the Annexure or otherwise the person appointed as such by the Principal from time to time; Termination Default means a circumstance where the Contractor: being an individual, commits an act of bankruptcy, has a bankruptcy petition presented against it or is made bankrupt; or being a company, is placed under official management, has a receiver, liquidator or administrator appointed to it or has a winding up order made in respect of it; or has its registration under the Building Act (1993) cancelled or suspended; or fails to respond (in accordance with this Contract) to a notice to show cause upon the occurrence of a Performance Default Variation means any: increase, decrease or omission from any part of, or all of the work under the Contract; change in the character or quality of any material or work or of anything described in the Contract Documents; or additional work. work under the Contract means the work which the Contractor is or may be required to execute under the contract, as generally described in the Contract Documents, and includes variations, remedial work, constructional plant and temporary work under the Contract. It includes any other work which: should reasonably have been anticipated by an experienced and competent Contractor as being necessary for the carrying out of the work described in the Contract Documents; or was otherwise capable of inference from the Contract Documents. Works means the whole of the work to be executed in accordance with the Contract, including variations provided for by the Contract, which by the Contract, is to be handed over to the Principal. PAGE 1 MINOR WORKS CONTRACT DOCPROPERTY DocumentID \* MERGEFORMAT ME_131156010_2 Victorian Public Sector Minor Works Contract Version: September 2017 MINOR WORK UNDER THE CONTRACT CONTRACT Revision 0 27 July 1998 FILENAME \p \* MERGEFORMAT l m } ! 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