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L\335132745.19
Portfolio Delivery Management Partner
Contract Water NSW ABN 21 147 934 787
Principal
Aurecon Australasia Pty Ltd ABN 54 005 139 873
Kellogg Brown & Root Pty Ltd ABN 91 007 660 317 together, the Portfolio Delivery Management Partner or PDMP
Contract Number: (W0062849)
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Contents
1. Definitions and interpretation ................................................................................. 6
Definitions .................................................................................................. 6 Interpretation ......................................................................................... 20 No bias against drafting party ............................................................ 22 Provisions limiting or excluding liability .............................................. 22 Discretion ................................................................................................ 22 Authorities ............................................................................................... 22
2. Objectives, governance and collaboration ...................................................... 23
Objectives of Contract model ........................................................... 23 JLT functions ........................................................................................... 23 JLT Members ........................................................................................... 23 JLT Chairperson ...................................................................................... 24 Meetings of the JLT ............................................................................... 24
3. Parties' obligations ................................................................................................... 24
PDMP's obligations ................................................................................ 24 Principal's obligations ........................................................................... 25 No commitment as to exclusivity or volume .................................... 25
4. Personnel ................................................................................................................... 25
Principal's Representative .................................................................... 25 Replacement of Principal's Representative ..................................... 25 Principal's Representative's representative ...................................... 26 PDMP's Representative ........................................................................ 26 Nominated PDMP Personnel ............................................................... 26 Removal of persons .............................................................................. 28 Nominated Principal Personnel .......................................................... 29 Former public sector employees ....................................................... 31 Background checks .............................................................................. 31 Engagement of Personnel ................................................................... 32
5. Security ...................................................................................................................... 32
Form of security ..................................................................................... 32 5.1A Recourse to security ............................................................................. 32
Release of Security ................................................................................ 33 Replacement security .......................................................................... 33 Interest ..................................................................................................... 34 Parent Company Guarantee ............................................................. 34 PPSA ......................................................................................................... 34
6. Conflict of Interest ................................................................................................... 34
7. Risks and insurance ................................................................................................. 35
PDMP's indemnity .................................................................................. 35 Interpretation ......................................................................................... 35 PDMP insurance obligations ............................................................... 36 Period of insurance ............................................................................... 37 Insurers ..................................................................................................... 37 Insurance obligations ........................................................................... 37 Failure to insure ...................................................................................... 38 Notice of potential claim .................................................................... 38 Multiple insureds .................................................................................... 38 Waiver of subrogation .......................................................................... 38
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Liabilities unaffected ............................................................................ 39
8. Deliverables and Software .................................................................................... 39
Non-reliance .......................................................................................... 39 Principal's Material and ownership of Principal's Material ............ 39 Review of Principal's Material and Ambiguities .............................. 40 Management Plans .............................................................................. 40 Preparation of Deliverables ................................................................ 42 Principal's Representative may review Deliverables ...................... 42 No obligation to review ....................................................................... 43 Maintain integrity and functionality of Principal's software and
systems .................................................................................................... 43 Requirements for Software .................................................................. 43
Changes and Updates to Software and systems ........................... 44 Third Party Software/Services .............................................................. 44
9. Intellectual property and confidentiality ............................................................ 45
IP warranties and representations ..................................................... 45 Ownership ............................................................................................... 45 Pre-existing IPR ....................................................................................... 46 Indemnity and infringement ............................................................... 47 Source Code .......................................................................................... 47 Moral Rights ............................................................................................ 48 Confidentiality........................................................................................ 48 Media ...................................................................................................... 49
10. Principal and PDMP Supplied Items ..................................................................... 49
Principal Supplied Items ....................................................................... 49 PDMP Supplied Items ............................................................................ 50
11. Records and Audit .................................................................................................. 50
Records open for inspection and audit ........................................... 50 Auditing records .................................................................................... 51 Evidence of financial standing or financial arrangements .......... 52
12. General PDMP obligations .................................................................................... 53
Fundamental obligations..................................................................... 53 No authority to commit the Principal ................................................ 54 Restriction on self-performance ......................................................... 54 PDMP to inform itself ............................................................................. 55 Give notice of matters impacting on PDMP Services .................... 55 Co-ordination with Other Contractors .............................................. 56 Premises ................................................................................................... 57 Environment ........................................................................................... 57 Subcontracting ...................................................................................... 58
Compliance with Law .......................................................................... 59 Change in Law ...................................................................................... 59 Marketing or promotion of the Portfolio ........................................... 60 Work health and safety ........................................................................ 60 Policies and Procedures ...................................................................... 61 Principal’s operations ........................................................................... 61 Basis of Contract Price ......................................................................... 61 Continuous improvement .................................................................... 62 Access ..................................................................................................... 62 Shared learnings .................................................................................... 62 Anti-terrorism and anti-corruption ...................................................... 63 Notices relating to the PDMP JV Agreement and subcontracts . 64 Indemnity ................................................................................................ 65
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13. Quality ....................................................................................................................... 65
Quality assurance ................................................................................. 65 Non-complying Deliverables or PDMP Services .............................. 66 Re-performance of the non-complying PDMP Services ............... 66
14. General obligations of the Principal .................................................................... 67
Provide information .............................................................................. 67 Provide additional information ........................................................... 67 Make decisions ...................................................................................... 67
15. Procurement, completion and commissioning ................................................. 67
Tenders for Project Contracts ............................................................. 67 Co-ordination, supervision and contract administration of the
Project Contracts .................................................................................. 69 The PDMP's cost planning obligations ............................................... 70 Commissioning and handover obligations ...................................... 70 Roles reserved to the Principal ........................................................... 71
16. Services Orders......................................................................................................... 72
Draft Services Order Proposal ............................................................. 72 Services Order Proposal ....................................................................... 72 Services Order ........................................................................................ 73
17. Time ............................................................................................................................ 75
Progress ................................................................................................... 75 Suspension .............................................................................................. 75
18. Variation .................................................................................................................... 75
Variation price request ........................................................................ 75 Variation order ....................................................................................... 76 Adjustment for Variation ...................................................................... 76 Rates and prices .................................................................................... 77 Changes to the Works .......................................................................... 77 Omissions and deletions ...................................................................... 77 Variations requested by PDMP ........................................................... 77 Principal's Representative's determination ...................................... 78 Variation approved by Principal's Representative ......................... 78
19. Payment .................................................................................................................... 78
Payment obligation .............................................................................. 78 Payment claims ..................................................................................... 79 Payment statements ............................................................................ 79 Conditions precedent to payment ................................................... 80 Payment of amount set out in payment statement ...................... 80 Payment on account ........................................................................... 81 Right of set off ........................................................................................ 81 Evidence of payment of workers and Subcontractors ................. 81 Interest ..................................................................................................... 82
SOP Act ................................................................................................... 82 Subcontractor's statement .................................................................. 83 Payment of Subcontractors ................................................................ 83 GST ........................................................................................................... 84 Rate review ............................................................................................ 86
20. Termination ............................................................................................................... 87
Preservation of rights ............................................................................ 87 PDMP default ......................................................................................... 87
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Contents of notice of default ............................................................. 88 Termination for insolvency, dealing or breach ............................... 88 Principal's entitlements after termination ......................................... 89 PDMP’s entitlements after termination ............................................. 89 Termination for convenience ............................................................. 89 Costs ........................................................................................................ 90
21. Transition out ............................................................................................................. 90
Right to appoint successor .................................................................. 90 Assistance in securing continuity ....................................................... 90 Continuity of the PDMP Services ........................................................ 91 Non frustration of transfer .................................................................... 91
22. Disputes ..................................................................................................................... 91
Notice of Dispute .................................................................................. 91 Negotiation ............................................................................................ 92 Executive negotiation .......................................................................... 92 Expert determination ............................................................................ 92 The expert ............................................................................................... 92 Not arbitration ........................................................................................ 92 Procedure for determination .............................................................. 92 Disclosure of interest ............................................................................. 93 Costs ........................................................................................................ 93
Conclusion of expert determination ................................................. 93 Agreement with expert ........................................................................ 93 Determination of expert ...................................................................... 93 Arbitration ............................................................................................... 94 Urgent relief ............................................................................................ 94 Survive termination ............................................................................... 94 Continuation of PDMP Services .......................................................... 95
23. Notices ....................................................................................................................... 95
Notice of Variation ................................................................................ 95 Notice of other Claims ......................................................................... 95 Prescribed notices ................................................................................. 96 Continuing events ................................................................................. 96 Time bar .................................................................................................. 96 Other provisions unaffected ............................................................... 97
24. Privacy and the protection of Principal Data ................................................... 97
Definitions ................................................................................................ 97 General ................................................................................................... 98 No restrictions on privacy obligations ............................................... 98 Principal Data and security ................................................................. 98 Return of Principal Data ..................................................................... 100 Harmful Code and preventing Security Incidents ........................ 100 Data Protection Plan .......................................................................... 100 Evidence of compliance ................................................................... 101 Indemnity and infringement ............................................................. 101
25. Modern slavery ...................................................................................................... 102
26. Limitation of liability ............................................................................................... 103
27. Performance .......................................................................................................... 104
Purpose of the KRAs and KPIs ........................................................... 104 Recording performance against KRAs and KPIs ........................... 104 Gainshare or Painshare Amount ...................................................... 105 Rights and obligations not affected ............................................... 106
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KPIs ......................................................................................................... 106 Performance review ........................................................................... 107
28. Miscellaneous ......................................................................................................... 107
Address for service .............................................................................. 107 Governing Law .................................................................................... 109 Jurisdiction ............................................................................................ 109 Counterparts ........................................................................................ 109 Entire agreement ................................................................................ 110 Amendments ....................................................................................... 110 Waiver ................................................................................................... 110 Assignment, Change of Control and certain matters under the
PDMP JV Agreement and the subcontracts ................................. 110 Consents ............................................................................................... 112
Expense ................................................................................................. 112 Joint and several liability .................................................................... 112 Severance ............................................................................................ 113 Indemnities ........................................................................................... 113 English language ................................................................................. 113 Taxes ...................................................................................................... 113 No partnership, joint venture or other fiduciary relationship ...... 113 Proportionate liability .......................................................................... 114 Prior work ............................................................................................... 114 If the PDMP is a trustee ....................................................................... 114 Legal Opinion....................................................................................... 115 COVID-19 acknowledgements ........................................................ 115 Claims involving insurers ..................................................................... 115 Supply of essential and critical services and works ...................... 116 Survive termination ............................................................................. 116
Schedule 1 Key Details ........................................................................................................... 117
Schedule 2 Payment Schedule ............................................................................................ 120
Schedule 3 KPIs and Performance regime ......................................................................... 126
Schedule 4 Statement of Interests and Associations ........................................................ 141
Schedule 5 Nominated PDMP Personnel ............................................................................ 142
Schedule 6 Limits of Authority................................................................................................ 143
Schedule 7 Confidentiality Deed ......................................................................................... 145
Schedule 8 Escrow Deed ....................................................................................................... 156
Schedule 9 Form of Declaration ........................................................................................... 178
Schedule 10 Subcontractor's Statement ............................................................................ 183
Schedule 11 Terms of Expert Appointment ........................................................................ 187
Schedule 12 Approved form of Unconditional Undertaking .......................................... 195
Schedule 13 Parent Company Guarantee ........................................................................ 196
Schedule 14 Functions of the JLT .......................................................................................... 215
Schedule 15 Restrictions on self-performance ................................................................... 217
Schedule 16 Certificate of Completion .............................................................................. 218
Exhibit 1 Initial Portfolio Management Plan ........................................................................ 219
Exhibit 2 Services Brief ............................................................................................................. 220
Exhibit 3 Key Performance Indicators .................................................................................. 221
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Exhibit 4 Chargeable Rates ................................................................................................... 222
Exhibit 5 Pre-existing Draft Services Order Proposals ......................................................... 223
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Formal Instrument of Agreement
Formal Instrument of Agreement made at Sydney on the Award Date
Parties Principal:
Name: Water NSW ABN 21 147 934 787
Address: Level 14, 169 Macquarie Street, Parramatta NSW 2150
PDMP (together):
Name: Aurecon Australasia Pty Ltd ABN 54 005 139 873
Address: Level 8, 850 Collins Street, Docklands VIC 3008
Name: Kellogg Brown & Root Pty Ltd ABN 91 007 660 317
Address: 186 Greenhill Road, Parkside SA 5063
Background
A. The Principal is committed to:
(a) capturing, storing and releasing water in an efficient, effective, safe and financially responsible manner;
(b) supplying water in compliance with appropriate standards of quality;
(c) ensuring that declared catchment areas and water management works in such areas are managed and protected so as to promote water quality, the protection of public health and public safety, and the protection of the environment;
(d) providing for the planning, design, modelling and construction of water storages and other water management works; and
(e) maintaining and operating the works of the Principal efficiently and economically and in accordance with sound commercial principles.
B. The objectives for the PDMP Services are:
(a) planning, developing and delivering Projects within restricted timeframes, including to drive the completion of each Project by the committed date(s) for completion;
(b) delivering flexibility and responsiveness by:
(i) streamlining processes and accelerating the delivery of the Project while ensuring robust, transparent and accountable outcomes;
(ii) having the capacity to rapidly scale up and down delivery capability to respond to changes in the Portfolio at the highest level, and Project direction at a tactical level; and
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(iii) rapidly mobilising skilled and experienced resources in the planning and delivery of Project;
(c) ensuring safety is paramount, both during and after completion of each Project;
(d) driving better value for money and efficiencies in the overall delivery of each Project and the Portfolio (including optimised decisions for the development and delivery of the Portfolio, taking into consideration long-term strategies, short-term imperatives, the ability to develop and utilise pro-active, responsive and adaptable governance, processes, procedures, systems and techniques);
(e) meeting constrained budgetary requirements and ensuring that completion of each Project and the Portfolio occurs within the agreed budget;
(f) achieving the specified functional requirements of each Project and compliance with all Approvals;
(g) making the best use of available resources from the private and public sectors;
(h) enhance, upskill and improve the Principal's expertise, skills, capabilities, Personnel, processes and systems (and building the Principal's long-term capability in the development and delivery of projects similar in nature to those in the Portfolio);
(i) developing confidence and certainty that measures and actions that the PDMP takes for the delivery of the Portfolio will:
(i) provide certainty of successful outcomes for the Portfolio;
(ii) promote and enhance the Principal’s brand; and
(iii) demonstrate the Principal’s operational excellence, ability to deliver on commitments and ability to engage in productive, innovative, positive, constructive and meaningful stakeholder interactions, customer relations and community engagement;
(j) lifting the capability of industry;
(k) ensuring robust, accountable and transparent governance systems and structures;
(l) establish and develop a legacy of Best Industry Practice guidelines, processes, procedures and capabilities; and
(m) meeting the needs of stakeholders and providing controls to implement effective decision processes,
(together, the Objectives).
C. The Principal:
(a) requires the PDMP to perform the "Project Management Office" activities set out in the Services Brief (including in section 2.3 of the Services Brief); and
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(b) may, by issuing a Services Order to the PDMP, request the PDMP to manage and drive delivery of a project within the Portfolio.
D. Having regard to the Objectives, the PDMP has represented to the Principal that it has the necessary skill, experience, available resources and professional competence to carry out the PDMP Services.
E. In reliance upon the representations, warranties and promises made by the PDMP in the Contract, the Principal engages the PDMP to carry out and complete the PDMP Services and the PDMP has agreed to do so on the terms and conditions of the Contract.
The parties agree
The Principal and the PDMP promise to carry out and complete their respective obligations in accordance with the Contract.
Unless the context indicates otherwise, capitalised terms in this Formal Instrument of Agreement have the meaning given in the attached General Conditions of Contract.
Signed as a deed
Signed for and on behalf of Water NSW ARN 21147 934 787 by its authorised delegate in the presence of:
Executed by Aurecon Australasia Pfy Ltd ABN 54 005 139 873 in accordance with section 127 of the Corporations Act 200 l (Cth):
Signature of director
_Full name of director
Date
L \3351327 45.19
WaterNSW �
Signature of company secretary/director
Full name of company secretary/director
Date
4
GIPA Act Section 14 3(a) – Personal Information
GIPA Act Section 14 3(a) – Personal Information
GIPA Act Section 14 3(a) – Personal Information
GIPA Act Section 14 3(a) – Personal Information
GIPA Act Section 14 3(a) – Personal Information
GIPA Act Section 14 3(a) – Personal Information
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General Conditions of Contract
1. Definitions and interpretation
Definitions
In the Contract, unless the context indicates otherwise:
ABN has the meaning given in clause 19.13(i) (GST).
Alternative JLT Member means, in respect of a JLT Member, a person appointed inaccordance with clause 2.3(d) (JLT Members) to act as the alternative of that JLTMember.
Approval means any licence, permit, registration, consent, approval, determination,certificate, administrative decision, permission or other requirement of any Authorityhaving any jurisdiction in connection with the PDMP Services or under any applicableLaw, which must be obtained or satisfied to carry out the PDMP Services.
Auditor means an independent auditor or the Principal's internal auditor appointed forthe purposes of clause 11.2 (Auditing records).
Authority includes any governmental or semi-governmental or local governmentauthority, administrative or judicial body or tribunal, department, commission, publicauthority, agency, Minister, statutory corporation or instrumentality.
Award Date means the date on which the Formal Instrument of Agreement has beensigned by the last party to sign.
Benchmark Accounting Standards means, in respect of a person, the principles,policies, practices and procedures as were applied in preparing the Previous AuditedFinancial Statements of that person.
Best Industry Practice means the care, skill, diligence, prudence and foresightreasonably expected of a highly competent, qualified, skilled and experiencedprofessional working in a firm providing similar services to an organisation like thePDMP, seeking to comply with its contractual and legal obligations and having regardto the requirements of the Portfolio, any Project and any other circumstancesaffecting the carrying out of the PDMP Services.
Business Day means a day other than a Saturday, Sunday or public holiday in NewSouth Wales or 27, 28, 29, 30 or 31 December.
Change in Law means a change in an existing Law or a new Law, but does notinclude:
(a) a change in an Approval or a new Approval; or
(b) a change in an existing Law, or a new Law, relating to taxes or a COVID-19Related Event.
Change of Control means, in relation to a person constituting the PDMP or any of the PDMP's Subcontractors:
(a) if that person or Subcontractor (as applicable) comes under the Control of aperson (acting alone or together with its “Associates” (as defined in the
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Corporations Act)) who did not Control that person or that Subcontractor (as applicable) on the Award Date; or
(b) if a person (acting alone or together with its “Associates”) who was in Control of that person or that Subcontractor (as applicable) on the Award Date stops having Control of that person or that Subcontractor (as applicable),
other than as a result of:
(c) a restructure of that person, that Subcontractor or any "Related Entity" (as defined in the Corporations Act) of that person or that Subcontractor (as applicable) that does not change the "Ultimate Holding Company" (as defined in the Corporations Act) of that person or that Subcontractor (as applicable); or
(d) a transfer or issue of any securities listed on any recognised stock or securities exchange.
Change of Participation Interest means the "Participation Interest" (as defined in the PDMP JV Agreement) or legal, equitable or beneficial interest of a person constituting the PDMP in the "Joint Venture" (as defined in the PDMP JV Agreement), as at the Award Date, changes.
Chargeable Rates means the rates and prices set out in Exhibit 4 (Chargeable Rates).
Claim includes any claim for an increase in the Contract Price or the PDMP S.O. Budget or for payment of money (including damages) or for an extension of time:
(a) under, arising out of, or in any way in connection with, the Contract, including any Direction of the Principal's Representative;
(b) arising out of, or in any way in connection with, the PDMP Services or either party's conduct before the Contract; or
(c) otherwise at Law or in equity, including by statute, in tort (for negligence or otherwise, including negligent misrepresentation) or for restitution.
Code of Conduct means the Principal's Code of Conduct which is available, as at the Award Date, https://www.waternsw.com.au/ data/assets/pdf file/0007/134674/Code-of-Conduct-WaterNSW.pdf or upon request from the Principal's Representative, as updated from time to time.
Completion has the meaning given in Schedule 3 (KPIs and Performance regime).
Computer Programs has the meaning given in the definition of "Source Code" under clause 1.1 (Definitions).
Confidentiality Undertaking means a deed in the form of Schedule 7 (Confidentiality Deed).
Consequential Loss means any:
(a) loss of income, loss of revenue, loss of profit, loss of financial opportunity, loss of business or loss of business opportunity, loss of contract, loss of goodwill, loss of use or loss of production (whether the loss is direct or indirect); or
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(b) direct or indirect financing costs,
whether present or future, fixed or unascertained, actual or contingent.
Contract means the contractual relationship between the parties constituted by:
(a) the Formal Instrument of Agreement;
(b) these General Conditions of Contract;
(c) the Key Details; and
(d) the schedules to this Contract and exhibits to this Contract.
Contract Price means the amount specified in the Key Details as adjusted, subject to clause 23.5 (Time bar), under the Contract.
Contractor means a contractor engaged by the Principal pursuant to a Works Contract.
Control in relation to an entity (as defined in section 9 of the Corporations Act), has the meaning given in section 50AA of the Corporations Act as if section 50AA(4)(b) were replaced with the words "only has that capacity as a result of acting as the bare trustee for another person" and otherwise includes the capacity, direct or indirect, to direct or influence the performance, management or policy-making decisions of that entity, whether by means of trusts, agreements, arrangements, understandings, practices, the ownership of any interest in shares or stocks of that entity or otherwise.
Corporations Act means the Corporations Act 2001 (Cth).
COVID-19 means the respiratory virus or illness known as 'COVID-19', 'severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2)', 'coronavirus' or any of their present or future accumulated mutations, antigenic drifts or genetic reassortments, and any other like strain, virus, infection, illness or syndrome.
COVID-19 Related Event means any fact, matter or circumstance arising from, relating to or connected with COVID-19, whether presently manifested or arising in the future, including:
(a) any governmental, regulatory, statutory, policy or administrative direction, ordinance, instruction, advice or guidance issued in connection with COVID-19, whether precautionary, preventative or remedial;
(b) physical transborder restrictions imposed in respect of travel to or from Australia or any other country or jurisdiction (or to or from any areas or localities within any country or jurisdiction);
(c) quarantine or isolation requirements or practices, office closures or re-locations, remote working activities or other social distancing practices implemented in relation to any part of the workforce(s) of either the PDMP, its Subcontractors or the Principal (or their respective Personnel), whether temporary or extended; and
(d) the withdrawal, cancellation, delayed issuance or rejection of travel visas or other entry or departure permits or authorisations,
whether actual, threatened or predicted.
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Defect means an element of the Works which does not conform with the requirements of the Contract or a Project Contract.
Deliverables means all items, materials, documentation (including any plans, drawings, manuals and specifications) and products produced, created or developed for the Principal by or on behalf of the PDMP as part of providing the PDMP Services for the purposes of, or in anticipation of, this Contract, irrespective of whether they are produced, created or developed prior to the Award Date.
Direction means any decision, demand, determination, direction, instruction, notice, order, rejection or requirement.
Discrepancy means an inconsistency, discrepancy, ambiguity, inadequacy, deficiency, error or omission.
Draft Services Order Proposal means the draft services order proposal submitted by the PDMP to the Principal's Representative under clause 16.1 (Draft Services Order Proposal).
Early Warning Notice has the meaning given in clause 12.5(a) (Give notice of matters impacting on PDMP).
Environmental Law means any Law relating to planning or environmental protection, including all:
(a) environmental or planning conditions or the requirements of any Approval;
(b) Laws applicable to the actual or potential effect on the environment of the activities relating to a Project, including in, at or on a Site;
(c) Laws applicable to the disposal of materials or the discharge of chemicals, gases, liquids or other substances or materials into the environment, or the presence of such chemicals, gases, liquids or other substances or materials in, at or on the Site (including Hazardous Materials); and
(d) Laws applicable to the emanation of noise, including at or from a Site.
Environmental Requirements include:
(a) the Principal's environmental requirements or plans for any Project, the Works, the PDMP Services or a Site (as applicable);
(b) the requirements of Environmental Law; and
(c) the requirements or other provisions relating to planning or environmental protection issued by or under any Authorities, Approvals, notices or management plans for any Project, the Works, the PDMP Services or any Site (as applicable).
Excluded Supply has the meaning given in clause 19.13(g)(i) (GST).
Final Business Case or FBC means, in respect of a Services Order, the detailed description of the Project related to that Services Order and the anticipated cost estimate for that Project, including any Principal's Contingency, as set out in that Project’s final business case approved under the Infrastructure NSW Infrastructure Investor Assurance Framework (or such other approval framework as notified by the Principal to the PDMP from time to time).
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Formal Instrument of Agreement means the formal instrument of agreement to which these General Conditions of Contract are attached.
Funding Requirements means any State or Commonwealth funding requirements, conditions, or arrangements as notified by the Principal to the PDMP from time to time.
Gainshare Amount means any amount payable by the Principal to the PDMP under Schedule 3 (KPIs and Performance regime).
General Conditions of Contract means these General Conditions of Contract.
GIPA Act has the meaning given in clause 9.7(c)(i) (Confidentiality).
GST or Goods and Services Tax means the tax payable on taxable supplies under the GST Legislation.
GST Legislation means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any related Act imposing such tax or legislation that is enacted to validate, recapture or recoup such tax.
Harmful Code means any computer virus, malware or other code that is harmful, malicious, disabling or which is designed to enable, any alteration, denial of service, Security Incident or unauthorised access to, or disclosure or destruction or corruption of data.
Hazardous Materials means any hazardous materials, including any form of organic or chemical matter whether solid, liquid, gas, odour, heat, sand vibration, radiation, or substance which makes or has the capacity to make the environment:
(a) unsafe or unfit for habitation or occupation by persons or animals;
(b) degraded in its capacity to support plant life;
(c) contaminated; or
(d) otherwise environmentally degraded.
Independent Advisor has the meaning given in paragraph 5(a) of Schedule 14 (Functions of the JLT).
Initial Portfolio Management Plan means the initial version of each Management Plan which is included in the Contract in Exhibit 1 (Initial Portfolio Management Plan).
Insolvency Event means in relation to a party to the Contract, any of the following:
(a) the party informs the other party in writing, or its creditors generally, that the party is insolvent or is unable to proceed with the Contract for financial reasons;
(b) a trustee, receiver, receiver and manager, interim receiver, controller, administrator, custodian, sequestrator, provisional liquidator, liquidator or any foreign law equivalent or other person with similar power is appointed to the party;
(c) the party:
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(i) becomes bankrupt or insolvent within the meaning of section 95A of the Corporations Act or under any bankruptcy, insolvency or analogous Law;
(ii) would be presumed by a court to be insolvent under section 459C(2) of the Corporations Act;
(iii) fails to comply with a statutory demand (within the meaning of section 459F(1) of the Corporations Act) and fails to remedy that failure within 7 days after being required in writing to do so by the party issuing the statutory demand;
(iv) makes any assignment in bankruptcy or makes any other assignment for the benefit of creditors;
(v) seeks relief from its obligations to creditors under any bankruptcy, insolvency or analogous Law;
(vi) commences any proceeding, files a petition or proposal to take advantage of any act of bankruptcy or insolvency;
(vii) resolves to, consents to or acquiesces in the appointment of a trustee, receiver, receiver and manager, interim receiver, controller, administrator, custodian, sequestrator, provisional liquidator, liquidator or other person with similar power of itself or of all or a portion of its assets; or
(viii) files a petition or otherwise commences any proceeding seeking to enter into any compromise, reorganisation, arrangement, composition or readjustment under any applicable bankruptcy, insolvency or analogous Law affecting creditors’ rights or consents to, or acquiesces in, the filing of such a petition, or commencement of such proceedings; or
(d) any act is done or event occurs which, under applicable Law, has a similar effect to anything mentioned in paragraphs (b) or (c).
Intellectual Property Rights means all present and future rights in relation to patents, designs, trademarks, copyright or other protected intellectual property rights (or any rights to registration of such rights) whether created before or after the Award Date and whether existing in Australia or otherwise.
JLT Chairperson means the chairperson of the JLT as referred to in clause 2.4(a) (JLT Chairperson) and as otherwise appointed by the Principal from time to time.
JLT Member means, in respect of a party, a person appointed by that party as a member of the JLT, as replaced from time to time in accordance with clause 2.3 (JLT Members). Where the context permits, references to JLT Member include an Alternative JLT Member of that JLT Member.
Joint Leadership Team or JLT means the Joint Leadership Team described in clause 2.2 (JLT functions).
Key Details means the particulars which appear in Schedule 1 (Key Details).
KPI means a key performance indicator set out in Schedule 3 (KPIs and Performance regime) or in a Services Order that will be used to measure performance and delivery of individual KRAs.
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KRA means one or more key result areas:
(a) in respect of the financial key result areas, set out in Schedule 3 (KPIs and Performance regime), including those set out under paragraphs 1.3, 1.4 and 1.5 of Schedule 3 or in a Services Order; and
(b) in respect of the non-financial key result areas, set out in the Services Brief.
Law means:
(a) any legally binding law, legislation, statute, act, regulation, subordinate legislation, rule, by-law, order, proclamation, decree, ordinance, directive or code which is enacted, issued or promulgated by the Commonwealth of Australia or any State or Territory government of Australia;
(b) common law and equity;
(c) Approvals; and
(d) any other relevant Authority requirements.
Learnings has the meaning given in clause 12.19(a) (Shared learnings).
Legal Opinion means a legal opinion, as applicable under clause 28.20 (Legal Opinion):
(a) from lawyers to the:
(i) PDMP, authorised to practise in the place of incorporation of the PDMP, stating that the Contract is binding and enforceable against the PDMP; or
(ii) PDMP, authorised to practise in the place of incorporation of the Parent Company Guarantor, stating that the parent company guarantee required by clause 5.5 (Parent Company Guarantee) is binding and enforceable against the Parent Company Guarantor;
(b) which states that it may be relied upon by the Principal; and
(c) in a form reasonably satisfactory to the Principal.
Management Plan means any plan of the kind referred to in clause 8.4 (Management Plans) as that plan may be updated, amended and further developed under clause 8.4 (Management Plans) and the Services Brief.
Milestone Date has the meaning given in clause 17.1 (Progress).
Moral Rights means any of the moral rights defined in the Copyright Act 1968 (Cth) or other analogous rights arising under any other law that exists or may come to exist anywhere in the world.
Nominated PDMP Personnel means the persons named in Schedule 5 (Nominated PDMP Personnel) and any other person that the Principal consents to in writing.
Nominated Principal Personnel means the persons nominated by the Principal in accordance with clause 4.7 (Nominated Principal Personnel).
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Nominated Principal Personnel Cost means the salaries, statutory on-costs and overheads costs associated with the provision of Nominated Principal Personnel to the PDMP, as notified by the Principal to the PDMP.
Notice of Dispute has the meaning given in clause 22.1 (Notice of Dispute).
Objectives has the meaning given in paragraph B of the Background.
Other Contractor means any supplier, contractor, consultant, artist, tradesperson or other person engaged to do work in connection with the Portfolio or a Project other than the PDMP, its Subcontractors and the Project Contractors.
Painshare Amount means any amount payable by the PDMP to the Principal under Schedule 3 (KPIs and Performance regime).
Parent Company Guarantor means each entity so named in the Key Details.
PDMP JV Agreement means the unincorporated joint venture agreement between the persons constituting the PDMP dated on or around the Award Date.
PDMP PMO Profit means 8% of the PMO Costs payable to the PDMP in any given year of the Term.
PDMP S.O. Budget means:
(a) in respect of a Pre-FBC Services Order, the budget amount specified in that Services Order, which may only be increased or decreased in accordance with clauses 12.11 (Change in Law), 18.3 (Adjustment for Variation) and 18.9(b) (Variation approved by Principal's Representative); or
(b) in respect of a Post-FBC Services Order, the budget amount specified in that Services Order, which must:
(i) include the PDMP S.O. Budget for any associated Pre-FBC Services Orders; and
(ii) exclude any Principal's Contingency,
(the Post-FBC Approved Budget). The PDMP S.O. Budget, in respect of any Post-FBC Approved Budget, may only be increased or decreased in accordance with clauses 12.11 (Change in Law), 18.3 (Adjustment for Variation) and 18.9(b) (Variation approved by Principal's Representative).
For the avoidance of doubt, the Post-FBC Approved Budget cannot exceed the anticipated cost estimate in the relevant Final Business Case approved under the Infrastructure NSW Infrastructure Investor Assurance Framework (or such other approval framework as notified by the Principal to the PDMP from time to time), excluding any Principal's Contingency, unless the Post-FBC Approved Budget is increased in accordance with clauses 12.11 (Change in Law), 18.3 (Adjustment for Variation) and 18.9(b) (Variation approved by Principal's Representative).
PDMP Services means all things or tasks which the PDMP is, or may be, required to do to comply with its Contract obligations and includes the performance of the "Project Management Office" activities set out in the Services Brief (including in section 2.3 of the Services Brief), Variations, any services or work directed to be performed pursuant to a Services Order and rectification work.
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PDMP Supplied Items has the meaning given to that term in clause 10.2(a) (PDMP Supplied Items).
PDMP Trust has the meaning given in clause 28.19 (If the PDMP is a trustee).
PDMP's Representative means the person so named in the Key Details or any other person from time to time appointed as the PDMP's Representative in accordance with clause 4.4 (PDMP's Representative).
Personnel means:
(a) in respect of the PDMP, any directors, officers, employees, consultants, agents and Subcontractors of the PDMP; and
(b) in respect of the Principal, any directors, officers, employees, consultants, agents and contractors of the Principal (other than the PDMP, its Subcontractors and the Project Contractors).
Policies and Procedures means the most recent versions of the policies and procedures available at https://www.waternsw.com.au/about/information/policy, and any other policies or procedures of the Principal notified to the Contractor from time to time (including in relation to working in the Principal's premises, any COVID-19 Related Event or any policies and procedures developed by the PDMP as part of the PDMP Services), each as updated from time to time.
Portfolio means the collection of Projects described in Appendix A of the Services Brief.
Portfolio Documents includes:
(a) the Deliverables;
(b) Principal's Material;
(c) Approvals;
(d) without limiting paragraphs (a) to (c), any other material (including any Source Code):
(i) produced; or
(ii) provided, or required to be provided, to the Principal or the Principal's Representative,
under, for the purposes of or in connection with the Contract, the Works, a Project or the PDMP Services by, for or on behalf of the PDMP including all documents, papers, books of account, labour time sheets, invoices (whether for services, materials, plant hire or otherwise), financial accounts, reports, databases or other information stored in any electronically-retrievable medium, technical information, plans, designs, drawings (including as-built drawings), specifications, charts, calculations, tables, schedules, correspondence (including correspondence by third parties to the PDMP), internal memoranda, minutes of meetings, diary notes, audio material, visual material, audio-visual material, working papers, draft documents and any other material of a similar nature to those materials relating to or arising out of or in connection with the Contract, the Works, a Project or the PDMP Services; and
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(e) without limiting paragraphs (a) to (d), all material at any time derived from, or based on, the material described in paragraphs (a) to (d).
Potential Insolvency Event means any event which with the passage of time, giving of notice or the making of any determination or certification, would constitute an Insolvency Event.
PPSA means the Personal Property Securities Act 2009 (Cth) and regulations made under that Act.
Pre-existing IPR in respect of a party means:
(a) any Intellectual Property Rights belonging to that party that are pre-existing as at the Award Date, but does not include any Intellectual Property Rights developed by the PDMP or any of its Personnel for the purposes of, or in anticipation of, carrying out the PDMP Services; or
(b) any Intellectual Property Rights that are brought into existence by or on behalf of that party, other than as a result of the performance of that party's obligations under this Contract,
and used by a party in performing its obligations under this Contract.
Previous Audited Financial Statements means, in respect of a Parent Company Guarantor or an Ultimate Holding Company, the most recent audited financial statements of that person.
Principal Supplied Items means the facilities, office space, items, equipment and resources that the Principal may provide to the PDMP or its Personnel for the purpose of carrying out the PDMP Services as described in Appendix B of the Services Brief.
Principal's Contingency means, in respect of a Post-FBC Services Order, the allocated amount set out in the Final Business Case for that Services Order (as updated from time to time by the Principal), and which represents the Principal's cost estimate and allocated contingency in relation to:
(a) the Principal's risk and contingencies (including land acquisition costs (if any)); and
(b) any other relevant matter or amount as determined by the Principal (in the Principal's absolute discretion).
Principal's Material means all documents and materials provided to the PDMP by the Principal from time to time, including any documents (stored by any means). For the purposes of clauses 8.2(b) and 8.2(c), Principal's Material also includes software licensed by the Principal from a third party and information technology services procured by the Principal from a third party.
Principal's Representative means the person so nominated in the Key Details or any other person nominated by the Principal from time to time under clause 4.2 (Replacement of Principal's Representative) to replace that person.
Privacy Laws has the meaning given in clause 24.1 (Definitions).
Product Liability Insurance means a policy of product liability insurance:
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(a) covering the respective rights and interests and liabilities to third parties of the Principal, the PDMP, the Principal's Representatives and all Subcontractors from time to time;
(b) covering the parties' respective liability to each other; and
(c) which complies with the requirements set out in clause 7.3(c) (PDMP insurance obligations),
for loss or damage to property (including the Principal's property) and the death of or injury to any person (other than liability which the Law requires to be covered under a Workers Compensation Insurance policy) arising out of, or in any way in connection with, the PDMP Services.
Professional Indemnity Insurance means a policy of insurance to cover claims for breach of professional duty (whether owed in contract or otherwise) or any act or omission in rendering of services by the PDMP or its Subcontractors in carrying out the PDMP Services.
Professional Services Agreement means a contract between the Principal and a consultant for the performance of professional services in relation to a Project or the Works.
Professional Services Cost means the sum of all:
(a) amounts payable by the Principal to Professional Service Providers under the Professional Services Agreements; and
(b) costs or losses (including any legal costs and internal Principal costs, but excluding any losses of the kind referred to in clause 26(a)(i) (Limitation of liability)) incurred by the Principal associated with rectifying any Defects discovered in the Works or Temporary Works prior to Completion arising out of or in connection with the services provided under the Professional Services Agreements, to the extent the Principal does not recover such costs and losses from the Professional Service Provider under the relevant Professional Services Agreement.
Professional Services Providers means a consultant engaged by the Principal pursuant to a Professional Services Agreement.
Project means the performance of the "Project Management Office" activities set out in the Services Brief (including in section 2.3 of the Services Brief) by the PDMP and each project in the Portfolio that the Principal requests the PDMP to carry out the PDMP Services in respect of, by issuing a Services Order in accordance with the process in clause 16 (Services Orders) or by instructing a Variation in accordance with clause 18 (Variation).
Project Contractors means, collectively, the Contractors, the Supply Contractors, and the Professional Services Providers (and each of them is a "Project Contractor"), but does not include an Other Contractor or any Subcontractor.
Project Contracts means, collectively, the Works Contracts, the Supply Contracts and the Professional Services Agreements (and each of them is a “Project Contract"), but does not include any contract pursuant to which the Principal engages an Other Contractor or any contract pursuant to which the PDMP engages a Subcontractor.
Public Liability Insurance means a policy of public liability insurance:
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(a) covering the respective rights and interests and liabilities to third parties of the Principal, the PDMP, the Principal's Representatives and all Subcontractors from time to time;
(b) covering the parties' respective liability to each other; and
(c) which complies with the requirements set out in clause 7.3(c) (PDMP insurance obligations),
for loss or damage to property (including the Principal's property) and the death of or injury to any person (other than liability which the Law requires to be covered under a Workers Compensation Insurance policy) arising out of, or in any way in connection with, the PDMP Services.
RCTI has the meaning given in clause 19.3(d) (Payment statements).
RCTI Requirement has the meaning given in clause 19.13(h) (GST).
Recipient has the meaning given in clause 19.13(b) (GST).
Relevant Land has the meaning given in clause 12.18(c) (Access).
Risk Register means a register to be prepared and updated from time to time by the PDMP of all hazards and risks in the design prepared by the PDMP that have either been notified to the PDMP by the Principal or the Principal's Representative or which have been identified by the PDMP, and which sets out in respect of each hazard and risk details of:
(a) the nature of the hazard or risk;
(b) whether the hazard or risk has been considered in the preparation of the design and, if so, the steps that have been taken in preparing the design to either eliminate or mitigate the hazard or risk; and
(c) if a hazard or risk has not been considered in the preparation of the design the reasons why, and whether the PDMP proposes to consider the steps that can be taken to either eliminate or mitigate the hazard or risk in the design which it is preparing.
Safety Report means the report required to be prepared by a designer of a structure by regulation 295 of the Work Health and Safety Regulation 2017 (NSW), which without limiting the requirements of regulation 295 must include the Risk Register current at the time.
Security Incident has the meaning given to this term in clause 24.1 (Definitions).
Services Brief means the document in Exhibit 2 (Services Brief).
Services Order has the meaning given in clause 16.3(a)(i) (Services Order).
Services Order Proposal has the meaning given in clause 16.2(a) (Services Order Proposal).
Site means any site on which any Works are to be conducted.
Software means any software, firmware, computer code or configuration files provided, developed or modified or required to be provided, developed or modified, by the PDMP to or for the Principal in connection with the PDMP Services or the
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Deliverables (including any developments, modifications, enhancements, adaptations or derivative works made in respect of those items).
SOP Act means the Building and Construction Industry Security of Payment Act 1999 (NSW).
Source Code means, in respect of any software, firmware, computer code or configuration files (Computer Programs), the human readable code of such Computer Programs, and includes associated software including scripts and applets (collectively comprised in a complete copy of all of the foregoing in executable code) and all compliers, tools, language, documentation necessary to operate, maintain and modify the executable code copy of that Computer Program including all technical documentation and specifications in respect of that Computer Program, including any other information necessary for a reasonably skilled computer programmer to understand the program logic of the software, firmware, computer code or configuration files and to perform any of those acts in relation to it.
Subcontractor means any person engaged by the PDMP for the performance of any of the PDMP Services.
Supplier has the meaning given in clause 19.13(b) (GST).
Supply Contract means a contract between the Principal and a Supply Contractor for any of the following:
(a) the supply or design and supply of a part of the Works or any plant, equipment, material or other items for incorporation into the Works or for use in connection with the construction, testing or commissioning of the Works;
(b) the hire of any plant, equipment or other items in connection with the construction, testing or commissioning of the Works;
(c) the provision of transportation services in connection with the Works or a Project; and
(d) the provision of any other services (other than professional services and any services forming part of the PDMP's Services) in connection with the construction, testing or commissioning of the Works.
Supply Contractor means a contractor or supplier engaged by the Principal pursuant to a Supply Contract.
Supply Cost means the sum of all:
(a) amounts payable by the Principal to Supply Contractors for executing work, supplying items or performing services under the Supply Contracts; and
(b) costs or losses (including, without limitation, any legal costs and internal Principal costs, but excluding any losses of the kind referred to in clause 26(a)(i) (Limitation of liability) incurred by the Principal associated with rectifying any Defects discovered in the Works or Temporary Works prior to Completion arising out of or in connection with the work, items or services provided under the Supply Contracts, to the extent the Principal does not recover such costs and losses from the Supply Contractor under the relevant Supply Contract.
Temporary Works means work used in carrying out and completing the Works, but not forming part of the Works.
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Term means the period described as such in the Key Details.
Third Party Software/Services means software licensed by the PDMP from, and information technology services (including software-as-a-service, infrastructure-as-a-service and platform-as-a-service products) procured by the PDMP under a services agreement with, a third party.
Total S.O. Cost means, in respect of a Post-FBC Services Order, the amount equal to the sum of the following for that Services Order:
(a) the Direct Services Order Costs and the Services Order Margin, including the Direct Services Order Costs and the Services Order Margin for any associated Pre-FBC Services Orders;
(b) the Works Cost;
(c) the Supply Cost;
(d) the Professional Services Cost; and
(e) the Nominated Principal Personnel Cost.
Ultimate Holding Company has the meaning given in section 9 of the Corporations Act.
Unconditional Undertaking means an irrevocable and unconditional undertaking (duly stamped) issued in favour of the Principal capable of being presented for payment in Australia and on terms, and given by a financial institution with at least an A- by Standard and Poor's (Australia) Pty Limited or A3 by Moody's Investors Service, Inc credit rating, approved by the Principal (and the terms of the unconditional undertaking set out in Schedule 12 (Approved form of Unconditional Undertaking) are approved by the Principal).
Variation means, unless otherwise stated in the Contract, any change to the PDMP Services, including any addition, increase, decrease, omission, deletion or removal to or from the PDMP Services (including the addition, increase, decrease, omission, deletion or removal of or other change to the PDMP Services to be carried out pursuant to any Services Order).
Wage Price Index means the Wage Price Index with Series ID A2638819F published by the Australian Bureau of Statistics and if there is any suspension or discontinuance in the publication of the Wage Price Index with Series ID A2638819F, then until publication of the Wage Price Index with Series ID A2638819F is resumed, the Wage Price Index shall mean the index that measures changes in the price of labour services resulting from market pressures and which is the closest equivalent to the Wage Price Index with Series ID A2638819F.
Water NSW Act has the meaning given in clause 12.18(c) (Access).
WHS Legislation means legislation relating to health and safety at work including:
(a) the Work Health and Safety Act 2011 (NSW); and
(b) the Work Health and Safety Regulation 2017 (NSW).
Workers Compensation Insurance means a policy of insurance to insure against liability for death of or injury to employees, including liability by statute and at common law.
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Works means the physical works to be handed over to the Principal in connection with a Project.
Works Contract means a contract between the Principal and a Contractor for the supply, construction, design and construction, operation and maintenance, installation or erection of a part of the Works.
Works Cost means the amount equal to the sum of all:
(a) amounts payable by the Principal to Contractors under the Works Contracts; and
(b) costs or losses, including any legal costs and internal Principal costs, but excluding any losses of the kind referred to in clause 26(a)(i) (Limitation of liability) incurred by the Principal associated with rectifying any Defects discovered in the Works or Temporary Works prior to Completion arising out of or in connection with work provided under the Works Contracts, to the extent the Principal does not recover such costs and losses from the Contractor under the relevant Works Contract.
Interpretation
In the Contract:
(a) headings are for convenience only and do not affect interpretation;
and unless the context indicates a contrary intention:
(b) an obligation or liability assumed by, or a right conferred on, 2 or more persons binds or benefits them jointly and severally;
(c) if the PDMP is constituted by more than one person, the PDMP is deemed to become "aware" and have "knowledge" of a particular risk, event, matter or other circumstance upon any one or more of those persons becoming aware or having knowledge of such risk, event, matter or other circumstance;
(d) "person" includes an individual, the estate of an individual, a corporation, an Authority, an association or a joint venture (whether incorporated or unincorporated), a partnership and a trust;
(e) a reference to a party includes a party's executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes a substituted or additional trustee;
(f) a reference to a document (including the Contract) is to that document as varied, novated, ratified or replaced from time to time;
(g) a reference to a statute includes its delegated legislation and a reference to a statute or delegated legislation or a provision of either includes consolidations, amendments, re-enactments and replacements;
(h) a word importing the singular includes the plural (and vice versa), and a word indicating a gender includes every other gender;
(i) a reference to a party, clause, schedule, exhibit, attachment or annexure is a reference to a party, clause, schedule, exhibit, attachment or annexure to
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or of the Contract, and a reference to the Contract includes all schedules, exhibits, attachments and annexures to it;
(j) if the time for giving any notice, issuing any certificate, making any payment or doing any other act required or permitted by the Contract, falls on a day which is not a Business Day, then the time for giving the notice, issuing the certificate, making the payment or doing the other act will be taken to be on the next Business Day;
(k) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(l) "includes" in any form is not a word of limitation;
(m) a reference to "$" or "dollar" is to Australian currency;
(n) the word "Subcontractor" includes suppliers and consultants;
(o) any reference to the PDMP Services, Deliverables or any other document or thing being fit for their intended purpose (or any similar reference) will be read as referring to the purpose having regard to the Objectives and any purpose contemplated in or reasonably ascertainable from:
(i) the Contract; and
(ii) to the extent relevant for determining the purpose in connection with a Variation, any document provided by the Principal to the PDMP specifically in connection with the Variation;
(p) to the extent that:
(i) any amounts are payable to the PDMP under the Contract by reference to hourly or daily rates; and
(ii) the PDMP's Personnel is engaged in the relevant PDMP Services for an increment of time less than a full hour or day (or for one or more full hours or days plus an increment of time less than a full hour or day) (as applicable),
the PDMP will be entitled to payment in respect of such time on a pro rata basis; and
(q) a reference to any Authority, institute, association or body is:
(i) if that Authority, institute, association or body is reconstituted, renamed or replaced or if the powers or functions of that Authority, institute, association or body are transferred to another organisation, deemed to refer to the reconstituted, renamed or replaced organisation or the organisation to which the powers or functions are transferred, as the case may be; and
(ii) if that Authority, institute, association or body ceases to exist, deemed to refer to the organisation which serves substantially the same purposes or object as that Authority, institute, association or body.
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No bias against drafting party
No term or provision of the Contract will be construed against a party on the basis that the Contract or the term in question was put forward or drafted by or on behalf of that party.
Provisions limiting or excluding liability
Any provision of the Contract which seeks to limit or exclude a liability of a party, is to be construed as doing so only to the extent permitted by applicable Law.
Discretion
Subject to any express provision in the Contract to the contrary:
(a) a provision of the Contract which says that the Principal or the Principal's Representative "may" do or not do something is not to be construed as imposing an obligation on the Principal or the Principal's Representative to do or not do that thing; and
(b) there will be no procedural or substantive limitation upon the manner in which the Principal or the Principal's Representative may exercise any discretion, power or entitlement conferred by the Contract.
Without limiting the previous paragraph, neither the Principal nor the Principal's Representative will be under any obligation to exercise any such discretion, power or entitlement, for the benefit of the PDMP or as required by any other legal doctrine which in any way limits the express words used in the provision of the Contract conferring the discretion, power or entitlement.
Authorities
(a) The Contract will not in any way unlawfully restrict or otherwise unlawfully affect the unfettered discretion of the Principal to exercise its functions and powers pursuant to any legislation.
(b) Without limiting clause 1.6(a), anything the Principal does, or fails to do or purports to do, pursuant to its respective functions and powers under any legislation will be deemed not to be an act or omission by the Principal under the Contract.
(c) Without limiting the PDMP’s rights under clause 14.3 (Make decisions) the PDMP:
(i) waives any Claims that it may have against the Principal as a result of the exercise by the Principal of its respective functions and powers under any legislation; and
(ii) acknowledges and agrees that:
A. there are many Authorities with jurisdiction over aspects of the PDMP Services, and other matters affecting and affected by the PDMP Services;
B. such Authorities may from time to time exercise their statutory functions and powers in such a way as to disrupt, interfere with or otherwise affect the PDMP
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Services (including, the exercise by persons (including individuals) acting on behalf of such Authorities of powers and functions including as necessary for such Authorities to comply with their statutory functions and powers); and
C. it bears the full risk of all occurrences of the kind referred to in clause 1.6(c)(ii)B and will not be entitled to make, and the Principal will not be liable upon, any Claim arising out of or in any way in connection with such occurrences.
2. Objectives, governance and collaboration
Objectives of Contract model
(a) The parties acknowledge and agree that the key purpose of the Contract is to achieve the Objectives and the PDMP commits to meeting those Objectives.
(b) In order to meet the Objectives, the PDMP must:
(i) implement innovation in the PDMP Services to achieve value for money in the Portfolio outcomes;
(ii) comply with all of its performance obligations and reporting requirements under the Contract; and
(iii) make the best use of all resources available to it for performing the PDMP Services.
JLT functions
The Joint Leadership Team (JLT) has been established to provide strategic guidance and leadership to the parties. The functions of the JLT are more fully described in Schedule 14 (Functions of the JLT).
JLT Members
(a) At the Award Date, each party must appoint two persons to be a member of the JLT at any one time. The JLT Members appointed by each party at the Award Date are set out in the Key Details.
(b) The Principal may in its sole discretion and at any time during the Term, change the structure of the JLT including by increasing or decreasing the number of persons required to be appointed as a member of the JLT by each party.
(c) A party may only appoint persons as JLT Members who are in a position to be able to fully participate as a member of the JLT.
(d) Each party may, with the consent of the other members of the JLT (which must not be unreasonably withheld or delayed), appoint one or more Alternative JLT Members to act in place of its JLT Members during absences caused by normal planned leave, illness, injury, emergencies or anything beyond the reasonable control of each JLT Member.
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(e) A party may only appoint persons as Alternative JLT Members who fulfil the requirements set out in clause 2.3(c).
(f) Each party may replace its JLT Members or Alternative JLT Members with the consent of the other members of the JLT (which will not be unreasonably withheld).
(g) Neither the Principal's Representative nor the PDMP's Representative may act as a JLT Member or Alternative JLT Member.
JLT Chairperson
(a) On the Award Date, the JLT Chairperson is the JLT Member identified in the Key Details as the JLT Chairperson.
(b) The JLT Chairperson will convene and chair the meetings of the JLT.
Meetings of the JLT
(a) The JLT must:
(i) hold a meeting as soon as practicable after the Award Date;
(ii) hold meetings bi-monthly or otherwise when considered necessary by the Principal; and
(iii) not hold a meeting unless at least one JLT Member appointed by each party is present at that meeting.
(b) The parties acknowledge and agree that the Principal will:
(i) determine the procedures and rules applicable to meetings of the JLT; and
(ii) provide any procedures and rules to the PDMP.
(c) Without limiting clause 2.5(a), the parties acknowledge that they may procure their JLT Members to meet to discuss events or matters in respect of a COVID-19 Related Event in accordance with clause 12.5(b) (Give notice of matters impacting on PDMP Services) or to review the appropriateness of the KPIs.
3. Parties' obligations
PDMP's obligations
The PDMP must:
(a) immediately commence the performance of the PDMP Services;
(b) perform the PDMP Services during the Term; and
(c) ensure that the PDMP Services are fit for their intended purposes.
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Principal's obligations
The Principal must, in accordance with the requirements of the Contract:
(a) allow the PDMP to perform the PDMP Services; and
(b) pay the Contract Price.
No commitment as to exclusivity or volume
(a) The PDMP acknowledges and agrees that by executing this Contract:
(i) no representation has been made by the Principal or the Principal's Representative as to the number, volume or value of PDMP Services, Services Orders or Projects that the Principal may direct or require the PDMP to perform or manage under this Contract or otherwise;
(ii) the Principal is not restricted in any way from carrying out, or engaging any person to carry out, any works or other activities:
A. of any type, including work, services or other activities similar to the work, services or other activities which may be required of the PDMP; or
B. at any location where, or in respect of any Project that, the PDMP may be required to perform works, services or other activities; and
(iii) the Principal may seek proposals from other persons in relation to any work, services or other activities in respect of any or all of the Projects, any other projects being considered or carried out by the Principal or in any way in connection with the Portfolio.
(b) The Principal makes no representation as to which, if any, projects may be undertaken by the Principal in connection with the Portfolio.
4. Personnel
Principal's Representative
(a) The Principal's Representative will give Directions and carry out all its other functions under the Contract as the agent of the Principal (and not as an independent certifier, assessor or valuer).
(b) The PDMP must comply with any Direction by the Principal's Representative given or purported to be given under a provision of the Contract.
(c) Except where the Contract otherwise provides, the Principal's Representative may give a Direction orally but will as soon as practicable confirm it in writing.
Replacement of Principal's Representative
(a) The parties acknowledge and agree that the Principal may at any time replace the Principal's Representative, in which event the Principal will
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appoint another person as the Principal's Representative and notify the PDMP of that appointment.
(b) Any substitute Principal's Representative appointed under this clause 4.2 will be bound by anything done by the former Principal's Representative to the same extent as the former Principal's Representative would have been bound.
Principal's Representative's representative
(a) The Principal's Representative may:
(i) by written notice to the PDMP appoint persons to exercise any of the Principal's Representative's functions under the Contract;
(ii) not appoint more than one person to exercise a specific function under the Contract; and
(iii) revoke any appointment under paragraph (i) by notice in writing to the PDMP.
(b) All references in the Contract to the Principal's Representative include a reference to a representative appointed under this clause 4.3.
PDMP's Representative
(a) A Direction is deemed to be given to the PDMP if it is given to the PDMP's Representative.
(b) Matters within the knowledge of the PDMP's Representative are deemed to be within the knowledge of the PDMP.
(c) If the Principal’s Representative makes a reasonable objection to the appointment of a representative by the PDMP, the PDMP must terminate the appointment and appoint another representative, subject again to the reasonable objection of the Principal’s Representative.
Nominated PDMP Personnel
The PDMP must:
(a) employ:
(i) those people specified in Schedule 5 (Nominated PDMP Personnel), including the PDMP's Representative, in the positions, location, and for at least the commitment level and period specified in Schedule 5 (Nominated PDMP Personnel); and
(ii) each person who replaces a person specified in Schedule 5 (Nominated PDMP Personnel), including the PDMP's Representative, in the position, location and for at least the commitment level and period approved in writing by the Principal's Representative under paragraphs (b) or (c);
(b) subject to paragraph (c), not replace the people referred to in paragraph (a) without the Principal's Representative's prior written approval; and
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(c) if any of the people referred to in paragraph (a) die, become seriously ill, resign or are removed under clause 4.6 (Removal of persons) from the employment of the PDMP, replace them with persons approved in writing by the Principal's Representative in the same location and of at least equivalent experience, ability and expertise, unless otherwise directed in writing by the Principal's Representative.
For the purposes of paragraph (b) above, without limiting clause 28.9 (Consents), the Principal's Representative may take into account whether or not the proposed replacement person is in the same location and of at least equivalent experience, ability and expertise.
4.5A Employment offer
Without limiting clause 4.5(a) above:
(a) if a Potential Insolvency Event occurs to a person constituting the PDMP, the PDMP must, within 10 Business Days of the PDMP becoming aware of that Potential Insolvency Event, provide to the Principal's Representative a plan, which must:
(i) specifically address the steps that would be required of each person constituting the PDMP as if clause 4.5A(b) applied; and
(ii) be provided to each JLT Member, who may convene a meeting of the JLT to discuss the plan,
and must be prepared and developed in accordance with clause 8.4 (Management Plans) as if the plan is a Management Plan;
(b) if:
(i) an Insolvency Event occurs to a person constituting the PDMP; or
(ii) a person constituting the PDMP validly receives notice of termination of the PDMP JV Agreement from the other person constituting the PDMP,
(each, an Outgoing PDMP Person), then an Employment Offer Trigger Event will have occurred, and:
(iii) the person constituting the PDMP who is not the Outgoing PDMP Person (Employment Offeror) must, within 5 Business Days of an Employment Offer Trigger Event, use its best endeavours to implement the PDMP's plan under clause 4.5A(a) (if any, and including to take account of any notification given by the Principal under clause 8.4(d) (Management Plans)) and to otherwise make an offer of employment to each Nominated PDMP Personnel whose employment with the Outgoing PDMP Person has not ceased on or before the date of the Employment Offer Trigger Event (or such other date as determined by the Principal), and that offer must:
A. provide for continuity of service for the purpose of all service based entitlements and be on terms and conditions that are substantially similar to and, considered on an overall basis, no less favourable than, the terms and conditions of employment that applied to
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that Nominated PDMP Personnel immediately before the Employment Offer Trigger Event;
B. be for a position that is comparable to the existing position of that Nominated PDMP Personnel immediately before the Employment Offer Trigger Event; and
C. provide that by accepting the offer of employment that Nominated PDMP Personnel will be taken to resign from employment with the Outgoing PDMP Person with effect from the Employment Offer Trigger Event;
(iv) the Outgoing PDMP Person must use its best endeavours to implement the PDMP's plan under clause 4.5A(a) (if any, and including to take account of any notification given by the Principal under clause 8.4(d) (Management Plans)) and to otherwise, in respect of each Nominated PDMP Personnel who accepts the Employment Offeror's offer of employment:
A. accept the resignation of that Nominated PDMP Personnel;
B. immediately release that Nominated PDMP Personnel from employment or other contract with the Outgoing PDMP Person; and
C. either pay out all accrued but untaken statutory entitlements to that Nominated PDMP Personnel or pay the Employment Offeror an amount equivalent to the accrued but untaken statutory entitlements that will in effect transfer to the Employment Offeror on the change in employing entities of that Nominated PDMP Personnel;
(c) the Employment Offeror must, promptly after the expiration of any period in which an offer of employment under clause 4.5A(b)(iii) may be accepted or rejected by a relevant Nominated PDMP Personnel, provide written notice to the Principal's Representative setting out details of each Nominated PDMP Personnel's response to their offer of employment made in accordance with clause 4.5A(b)(iii);
(d) each person constituting the PDMP must promptly provide written notice to the other person constituting the PDMP and the Principal's Representative if that person considers, acting reasonably, that an Employment Offer Trigger Event may arise; and
(e) the Outgoing PDMP Person hereby waives the Employment Offeror's breach of clause 11.6 of the PDMP JV Agreement in respect of each offer of employment made by the Employment Offeror under clause 4.5A(b)(iii).
Removal of persons
(a) The parties acknowledge and agree that the Principal's Representative may by notice in writing instruct the PDMP to remove any person from the PDMP Services who in the reasonable opinion of the Principal's Representative:
(i) is guilty of misconduct, is incompetent or negligent, is not suitably qualified or who may bring the Principal into disrepute; or
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(ii) should be removed for any other reason not specified in clause 4.6(a)(i) above.
(b) The PDMP must ensure that such person is not again employed in the PDMP Services.
Nominated Principal Personnel
(a) The Principal may, at any time, nominate persons to form part of the PDMP's team and, subject to clause 4.7(b), the Principal will make them available to the PDMP and the PDMP must engage such persons in the provision of the PDMP Services.
(b) The Nominated Principal Personnel must be integrated into the PDMP's team until the end of the Term to provide:
(i) Project and Portfolio knowledge, including in respect of environmental issues;
(ii) participation in design optimisation;
(iii) interface facilitation and issues resolution;
(iv) management, technical and engineering support;
(v) community and stakeholder management support; and
(vi) other project management roles suitable to the capabilities of the person.
(c) The PDMP must treat each individual Nominated Principal Personnel no less favourable than any other member of the PDMP team and allow that person access to the premises occupied by the PDMP where the PDMP Services are being carried out.
(d) Nominated Principal Personnel will be subject to the direction, control and supervision of the PDMP on behalf of the Principal on a day to day basis including as to management, development and performance, but will remain employees of the Principal at all times and will not be employees of the PDMP. Accordingly, the PDMP agrees that:
(i) neither it nor any of its related bodies corporate or other associated entities will be entitled to make any Claim against the Principal or the Nominated Principal Personnel arising out of or in connection with any individual Nominated Principal Personnel’s advice, acts or omissions undertaken whilst the Nominated Principal Personnel are working under the direction, control and supervision of the PDMP, including where any Nominated Principal Personnel fails to act in accordance with the directions of the PDMP;
(ii) save in the circumstances of fraud or wilful misconduct of the Nominated Principal Personnel, it will indemnify the Principal and the Nominated Principal Personnel against any claim which may be made against the Principal or the Nominated Principal Personnel to the extent that such claim arises from advice, acts or omissions undertaken by the Nominated Principal Personnel whilst
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the Nominated Principal Personnel are working under the direction, control and supervision of the PDMP; and
(iii) it will indemnify the Principal against any claim which may be made against the Principal by the Nominated Principal Personnel that may arise whilst the Nominated Principal Personnel are working under the direction, control and supervision of the PDMP, to the extent that any claim arises out of or in connection with any act or omission of the PDMP or its Personnel.
(e) Whilst the Nominated Principal Personnel are under the direction, control and supervision of the PDMP, the PDMP:
(i) acknowledges that it will provide a safe and healthy working environment, including as required under relevant WHS Legislation;
(ii) agrees to provide the Nominated Principal Personnel with a workplace induction, which covers the PDMP's workplace health and safety policies and procedures including those relating to evacuation and emergency management;
(iii) agrees that it will not require or direct Nominated Principal Personnel to use any equipment or facilities that they are not adequately trained and appropriately qualified to use; and
(iv) agrees to provide the Principal with information, including that reasonably requested by the Principal, regarding any incidents affecting or involving the health or safety of the Nominated Principal Personnel that arise or occur whilst under the PDMP's direction, control and supervision.
(f) The terms and conditions of the employment of each individual Nominated Principal Personnel are set out in the relevant employment contract between that person and the Principal.
(g) The PDMP must not, and the PDMP must procure that its related bodies corporate and Personnel do not, make an offer of employment, or make an approach regarding future employment prospects, or engage in any discussion regarding the future employment prospects to or with any employee of the Principal during the Term or for the period of 12 months following the end of the Term unless agreed by the Principal.
(h) The PDMP will not take any adverse action in relation to an individual Nominated Principal Personnel other than:
(i) action required or contemplated by clause 4.7(i); or
(ii) action required by Law.
(i) The PDMP may, by issuing a written notice to the Principal's Representative, request that an individual Nominated Principal Personnel be removed from the PDMP's team if:
(i) in the reasonable opinion of the PDMP, that person is guilty of misconduct or is incompetent or negligent; or
(ii) the PDMP, acting reasonably, considers that person should be removed for any other reason,
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and the Principal must procure the Principal's Representative to not unreasonably withhold its approval to such a request.
(j) The Principal may, by issuing a written notice to the PDMP, remove any individual Nominated Principal Personnel from the PDMP team at any time at its absolute discretion.
Former public sector employees
(a) The PDMP acknowledges that pursuant to the Government Sector Employment Act 2013 (NSW):
(i) the Principal is unable to accept services provided by any former public sector employee within the period covered by their severance payment, without that public sector employee first repaying the relevant proportion of their severance pay;
(ii) the Principal is unable to accept services provided by any former public service senior executive within the period covered by any compensation payment under their former contract, without that former public service senior executive first repaying the relevant proportion of their compensation; and
(iii) this requirement applies to former employment or engagement in any capacity as staff members, contractors, consultants or employees or principals of companies engaged in contracting to a public sector agency.
(b) The PDMP warrants to the Principal that it will not allocate responsibility for performing any part of the PDMP Services to either a:
(i) former public sector employee within the period covered by their severance payment, without that public sector employee first repaying the relevant proportion of their severance pay; or
(ii) former public service senior executive within the period covered by any compensation payment under their former contract, without that former public service senior executive first repaying the relevant proportion of their compensation.
Background checks
(a) The PDMP must undertake all necessary background checks of its Personnel involved in the provision of the PDMP Services to ensure that they are fit and proper to do so.
(b) Without limiting the generality of clause 4.9(a) above, where requested by the Principal, the PDMP must promptly carry out any specific background checks of the PDMP's Personnel as reasonably required by the Principal during the Term, including a criminal history check, and provide the results of those checks to the Principal's Representative within 2 Business Days of receipt.
(c) Where the outcome of a background check reveals that any of the PDMP's Personnel are not fit and proper to be involved in connection with the PDMP Services, the PDMP must not use those Personnel and must promptly arrange for their replacement.
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(d) The PDMP acknowledges and agrees that:
(i) all background checks will be undertaken at the PDMP's sole cost, unless otherwise agreed by the Principal's Representative in writing; and
(ii) the PDMP is solely responsible for obtaining all necessary consents in accordance with the Privacy Laws, to the conduct of any background checks and the provision of the results of the background checks to the Principal and its Personnel where requested.
Engagement of Personnel
(a) The parties acknowledge and agree that:
(i) in the provision of the PDMP Services, all the PDMP's Personnel are engaged by the PDMP and there is no direct contractual relationship between any of the PDMP's Personnel and the Principal; and
(ii) all contractual and statutory entitlements of the PDMP's Personnel including those under any industrial Laws will remain the sole liability of the PDMP and not the Principal.
(b) The PDMP warrants that it has in place, will maintain and will comply with industrial arrangements with each of the PDMP's Personnel (whether individually or collectively) that are compliant with industrial Laws and will provide satisfactory evidence of those industrial arrangements to the Principal upon request.
5. Security
Form of security
(a) The PDMP must, within 10 Business Days of the Award Date, provide to the Principal:
(i) security in the form of an Unconditional Undertaking for $2,500,000 that contains an expiry date of 7 years after the Award Date; or
(ii) if the PDMP constitutes 2 or more persons, security in the form of one or more Unconditional Undertakings (the number of which must not exceed the number of persons constituting the PDMP) for $2,500,000 in aggregate, that contain an expiry date of 7 years after the Award Date.
(b) If at any time an Unconditional Undertaking is no longer capable of being presented for payment in Australia, the PDMP must immediately provide to the Principal a replacement Unconditional Undertaking which is capable of being presented for payment in Australia and which otherwise meets the requirements of being an "Unconditional Undertaking".
5.1A Recourse to security
(a) The Principal may have recourse to any security provided under clause 5.1 (Form of security) or clause 5.3 (Replacement security) at any time.
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(b) If the PDMP constitutes 2 or more persons and the Principal has been provided with more than one Unconditional Undertaking, each person constituting the PDMP which has provided an Unconditional Undertaking waives any right it may have of first requiring the Principal to enforce against any Unconditional Undertaking provided by another person constituting the PDMP.
(c) The PDMP must not take any steps to injunct or otherwise restrain:
(i) any issuer of any security provided under clause 5.1 (Form of security) or clause 5.3 (Replacement security) from paying the Principal pursuant to any security;
(ii) the Principal from taking any steps for the purposes of making a demand under any security provided under clause 5.1 (Form of security) or clause 5.3 (Replacement security) or receiving payment under any such security; or
(iii) the Principal using the money received under any security provided under clause 5.1 (Form of security) or clause 5.3 (Replacement security).
Release of Security
(a) Subject to its rights to have recourse to the security, the Principal must release security then held within 5 Business Days after the date which is 2 years after the end of the Term provided that the PDMP has complied with all of its obligations under the Contract and the Principal is satisfied that no amounts are or may become contingently owing under this Contract.
(b) If the Principal terminates the Contract pursuant to clause 20.7 (Termination for convenience) then to the extent that the Principal has not had, or does not have a right to have, recourse to it, the Principal must release all security then held by it when the PDMP has complied with its obligations under clause 20.8(b)(ii) (Costs).
Replacement security
(a) The PDMP must, on or before the date that is 12 months prior to the expiry date for a security provided under clause 5.1 (Form of security), provide the Principal with replacement security in the form of an Unconditional Undertaking, and that contains an expiry date that is satisfactory to the Principal being no less than 3 years, in exchange for the security which is being replaced.
(b) If the Principal has not received from the PDMP replacement security in the form of an Unconditional Undertaking(s) (which also satisfies the requirements of clause 5.3(a)) at least 12 months prior to the expiry date of the relevant security then, irrespective of anything contained in, and without limiting the Principal's rights under, the Contract or the security, the Principal may make a demand under the relevant security for the entire amount payable under that security and thereafter retain the proceeds.
(c) Subject to the Principal's rights under the Contract to use these proceeds, the proceeds from any demand made by the Principal pursuant to clause 5.3(b) will be paid to the PDMP at the same time as the Principal would have been required to return the security from which the proceeds were obtained.
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Interest
The Principal:
(a) is not obliged to pay the PDMP interest on any security provided under clause 5.1 (Form of security) or clause 5.3 (Replacement security) including the proceeds of any security if it is converted into cash; and
(b) does not hold the proceeds or money referred to in paragraph (a) on trust for the PDMP.
Parent Company Guarantee
(a) Subject to clause 5.5(b), the PDMP must on the Award Date, give the Principal a guarantee duly executed by the Parent Company Guarantor in favour of the Principal in the form of Schedule 13 (Parent Company Guarantee) and which is, where required, duly stamped.
(b) If the PDMP constitutes more than one person, each person constituting the PDMP must on the Award Date, give the Principal a separate guarantee duly executed by its Parent Company Guarantor in favour of the Principal in the form of Schedule 13 (Parent Company Guarantee) and which is, where required, duly stamped.
(c) Prior to a Change of Control of a person constituting the PDMP becoming effective, the PDMP must give the Principal a replacement guarantee duly executed by that person's Ultimate Holding Company in favour of the Principal substantially in the form of Schedule 13 (Parent Company Guarantee) and which is, where required, duly stamped.
PPSA
(a) To the extent the PPSA applies to any goods, materials or other items supplied by the PDMP to the Principal the PDMP warrants that:
(i) the supply of goods, materials or other items to the Principal does not breach any security agreement the PDMP has with a third party; and
(ii) the supply of goods, materials or other items to the Principal is within the ordinary course of the PDMP's business.
(b) The PDMP indemnifies the Principal against any Claims against, or costs, losses or damages suffered or incurred by the Principal directly or indirectly in connection with any infringement of, or Claim in regard to, any third party security agreement or security interest under the PPSA arising as a result of:
(i) the PDMP carrying out the PDMP Services; or
(ii) goods, materials or other items supplied to Principal by the PDMP infringing that third party’s rights under the PPSA.
6. Conflict of Interest (a) The PDMP warrants that at the date of this Contract, no conflict of interest
exists or is likely to arise in the performance of the PDMP Services in respect
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of the PDMP or any of its Personnel, except as has been disclosed in writing by the PDMP to the Principal prior to the execution of this Contract.
(b) The PDMP agrees that, without limiting clause 12.3 (Restriction on self-performance), it will not act for any third party where so acting may give rise to a conflict of interest.
(c) The PDMP must use its best endeavours to ensure no conflicts of interest arise and must notify the Principal, in writing, immediately upon becoming aware of the existence, or possibility, of a conflict of interest.
(d) On receipt of a notice under clause 6(c), the Principal may:
(i) approve the PDMP continuing to perform the PDMP Services, which approval may be subject to conditions specified by the Principal (including requirements relating to separation arrangements) to ensure appropriate management of the conflict; or
(ii) where in the Principal’s view the conflict of interest cannot be appropriately managed, notify the PDMP that the conflict of interest constitutes a substantial breach of the Contract under clause 20.2(e) (PDMP default) and exercise its rights under clause 20.2 (PDMP default).
(e) The Principal may, at its sole discretion and at any time, require the PDMP to sign and procure that each of its officers, employees, subcontractors or agents involved in the performance of the PDMP Services signs and delivers, to the Principal a Statement of Interests and Associations in the form attached in Schedule 4 (Statement of Interests and Associations) or such other form as reasonably required by the Principal.
7. Risks and insurance
PDMP's indemnity
The PDMP must indemnify the Principal from and against:
(a) any loss of or damage to property of the Principal, including the Principal's Material; and
(b) any liability to or Claims by any person against the Principal in respect of loss of or damage to any property or injury to or death of persons,
caused by, or arising out of, or in any way in connection with, the PDMP Services provided that the PDMP's responsibility to indemnify the Principal will be reduced to the extent that an act or omission of the Principal, Principal's Representative or an Other Contractor engaged by the Principal may have contributed to the loss, damage, injury or death.
Interpretation
Without limiting clause 28.11 (Joint and several liability), any reference to the "PDMP" in clauses 7.3 (PDMP insurance obligations) to 7.10 (Waiver of subrogation) is to be read as if it was a reference to "each person constituting the PDMP".
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PDMP insurance obligations
The PDMP must:
(a) from the Award Date, effect or have in place the following insurance with insurers and on terms satisfactory to the Principal's Representative:
(i) Professional Indemnity Insurance;
(ii) Workers' Compensation Insurance;
(iii) Public Liability Insurance; and
(iv) Product Liability Insurance,
for the amounts referred to and with the maximum deductibles specified in the Key Details, including cover for liability under this Contract;
(b) ensure that each Subcontractor has Workers Compensation Insurance as required by law covering the Subcontractor's employees;
(c) ensure that the Public Liability Insurance, Product Liability Insurance and Cyber insurance (if required under clause 7.3(g)(ii)) complies with the requirements set out in the Key Details;
(d) ensure that the Professional Indemnity Insurance, Public Liability Insurance, Product Liability Insurance and Cyber insurance (if required under clause 7.3(g)(ii)) do not exclude cover for liability assumed contractually under this Contract;
(e) provide the Principal's Representative with copies of certificates of currency for the insurances referred to in paragraph (a), and the Cyber insurance (if required under clause 7.3(g)(ii)), as required by the Principal's Representative from time to time;
(f) upon request by the Principal's Representative, promptly provide the Principal's Representative with a copy of the insurance policies referred to in clauses 7.3(a)(iii) and 7.3(a)(iv), and the Cyber insurance (if required under clause 7.3(g)(ii)), that is either in the joint names of the PDMP and the Principal, or extends the benefit of cover to the Principal, as an insured in respect of its vicarious liability for the acts or omissions of the PDMP and the Subcontractors; and
(g) if and when requested by the Principal's Representative, promptly:
(i) provide to the Principal's Representative a detailed quote for Cyber insurance (Proposed Cyber Insurance) that is with an insurer, is on terms, is for an amount and has a maximum deductible satisfactory to the Principal's Representative and includes cover for liability under this Contract, and any other matters required by the Principal's Representative; and
(ii) effect or have in place the Proposed Cyber Insurance, in which case the Principal must pay to the PDMP the direct cost of that Proposed Cyber Insurance (on a pass-through basis, and without any mark-up or adjustment by the PDMP for any reason, including on account of profit, loss of profit or overheads) upon receiving evidence, to the reasonable satisfaction of the Principal’s
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Representative, to support any amounts claimed by the PDMP under this clause 7.3(g)(ii).
The PDMP acknowledges and agrees that it shall have no Claim, including any Claim by way of a Variation or adjustment to the Contract Price or to any Milestone Date, in connection with any request given by the Principal's Representative under clause 7.3(g), other than a Claim to payment of the Proposed Cyber Insurance in accordance with clause 7.3(g)(ii).
Period of insurance
The insurance which the PDMP is required to have in place under clause 7 (Risks and insurance) must be maintained:
(a) in the case of Public Liability Insurance, Product Liability Insurance, Cyber insurance (if required under clause 7.3(g)(ii)) and Workers Compensation Insurance, until completion of the PDMP Services; and
(b) in the case of Professional Indemnity Insurance, until the expiry of 6 years following completion of the PDMP Services.
Insurers
Unless otherwise approved in writing by the Principal, the insurance that the PDMP is required to have in place under clause 7.3 (PDMP insurance obligations) must be maintained with insurers that:
(a) are authorised under the Insurance Act 1973 (Cth) to carry on an insurance business in Australia and are supervised by the Australian Prudential Regulation Authority; and
(b) have a credit rating of not less than A- from Standard & Poor's, A2 from Moody's Investor Services or A- from A.M. Best Company.
Insurance obligations
The PDMP must ensure that it:
(a) does not do anything which prejudices any insurance;
(b) if necessary, rectifies anything which might prejudice any insurance;
(c) reinstates an insurance policy if it lapses;
(d) does not cancel, vary or allow an insurance policy to lapse without the prior written consent of the Principal's Representative;
(e) immediately notifies the Principal's Representative of any event which may result in an insurance policy lapsing or being cancelled;
(f) gives full, true and particular information to the insurer of all matters and things the non-disclosure of which might in any way prejudice or affect any such policy or the payment of all or any benefits under the insurance; and
(g) procures all insurance policies required under clauses 7.3(a) and 7.3(g)(ii) (PDMP insurance obligations) on the basis that the insolvency of any one person constituting the PDMP does not invalidate those insurance policies.
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Failure to insure
If the PDMP fails to:
(a) provide copies of any insurance policy together with evidence satisfactory to the Principal's Representative that the policy is current; or
(b) effect insurance that is with insurers and on terms satisfactory to the Principal's Representative,
as required by clauses 7.3 (PDMP insurance obligations), 7.4 (Period of insurance) and 7.5 (Insurers), the Principal may, without prejudice to any other rights it may have, effect the insurance and the cost will be a debt due from the PDMP to the Principal.
Notice of potential claim
The PDMP must:
(a) as soon as possible inform the Principal in writing of any occurrence that may give rise to a claim under an insurance policy required by the Contract, if that claim would:
(i) have a material impact on insurance proceeds available under that policy; or
(ii) affect the PDMP's ability to comply with its obligations under the Contract, including this clause 7 (Risks and insurance);
(b) keep the Principal informed of subsequent developments concerning the claim; and
(c) ensure that the Subcontractors similarly inform the PDMP and the Principal in respect of occurrences which may give rise to a claim against or by them.
Multiple insureds
Where the Contract requires insurance to be effected in joint names or extend the benefit of cover to the Principal as an insured in respect of its vicarious liability for the acts or omissions of the PDMP and the Subcontractors, the PDMP must ensure that the insurance policy provides that:
(a) insofar as the policy may cover more than one insured, all insuring agreements and endorsements (with the exception of limits of liability) will operate in the same manner as if there were a separate policy of insurance covering each insured;
(b) any non-disclosure by one insured does not prejudice the right of any other insured to claim on the policy; and
(c) a notice to the insurer by one insured will be deemed to be notice by all insured parties.
Waiver of subrogation
The PDMP must ensure that its insurance policies for the Public Liability Insurance, the Product Liability Insurance and the Cyber insurance (if required under clause 7.3(g)(ii))
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provides that the insurer waives all rights, remedies or relief to which it might become entitled by subrogation against each person constituting the PDMP.
Liabilities unaffected
The effecting of insurance and the approval of any insurance policy, terms of insurance or insurer by the Principal's Representative does not limit any obligations or liabilities of the PDMP or each person constituting the PDMP (including the obligation to effect the insurances required by the Contract).
8. Deliverables and Software
Non-reliance
The PDMP:
(a) warrants that it did not, and will not, in any way rely upon:
(i) any information, data, representation, statement or Principal's Material made by or provided to the PDMP or any person constituting the PDMP by the Principal, the Principal's Representative or anyone else on behalf of the Principal; or
(ii) the accuracy or adequacy of any such information, data, representation, statement or Principal's Material,
for the purposes of entering into, and performing the PDMP Services under, the Contract;
(b) warrants that it enters into this Contract based on its own investigations, interpretations, deductions, information and determinations; and
(c) acknowledges that it is aware that the Principal has entered into the Contract relying upon the warranties in clauses 8.1(a) and 8.1(b).
Principal's Material and ownership of Principal's Material
(a) The Principal's Material will remain the property of the Principal.
(b) If the Principal informs the PDMP of any Principal's Material in which third parties have any Intellectual Property Rights and of any conditions attaching to the use of that material, the PDMP must use that material only in accordance with those conditions (including in accordance with any licence terms imposed by those third parties relating to that Principal's Material which have been provided or notified to the PDMP).
(c) The PDMP must protect and keep safe and secure all Principal's Material provided to it by the Principal, and may only use, copy or reproduce such Principal's Material for the purpose of performing the PDMP Services and performing the PDMP's other obligations under the Contract.
(d) Upon the completion of the PDMP Services or termination of the Contract, the PDMP must promptly return all Principal's Material to the Principal.
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Review of Principal's Material and Ambiguities
(a) The PDMP must review the Principal's Material for Discrepancies and promptly notify the Principal's Representative if it discovers any such Discrepancy.
(b) The following order of precedence will apply to any Discrepancy in the documents which make up the Contract, with those higher in the list prevailing over those lower in the list to the extent of that Discrepancy:
(i) the Formal Instrument of Agreement;
(ii) the General Conditions of Contract (including the schedules to this Contract);
(iii) any exhibits to the General Conditions of Contract other than the Services Brief; and
(iv) the Services Brief.
(c) If either party discovers any Discrepancy in the documents which make up the Contract or between the Contract and any documents provided to the PDMP by or on behalf of the Principal which the PDMP is required by the Contract to use in performing the PDMP Services:
(i) the party must promptly give notice to the other; and
(ii) the Principal must procure the Principal's Representative to instruct the PDMP as to the course it must adopt within 5 Business Days of the notice under clause 8.3(c)(i), and the PDMP must comply with any such instructions.
Management Plans
(a) The PDMP must prepare the Management Plans, identified in the Key Details, in accordance with the Services Brief.
(b) Each Management Plan must:
(i) where an Initial Portfolio Management Plan exists and is contained in the Contract, be based upon that Initial Portfolio Management Plan; and
(ii) whether or not an Initial Portfolio Management Plan exists:
A. specifically address COVID-19 Related Events and the management of the issues, challenges and risks that COVID-19 presents to the Portfolio; and
B. be prepared and further developed in accordance with this clause 8.4 and the Services Brief.
(c) Each Management Plan must be submitted to the Principal's Representative within the time period, and containing the contents, specified in the Services Brief, for the submission and then updated as required.
(d) The parties acknowledge and agree that the Principal's Representative may:
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(i) review any Management Plan submitted under this clause 8.4; and
(ii) if he or she considers, acting reasonably, that the Management Plan submitted does not comply with this Contract, notify the PDMP of that giving reasons as to why the Management Plan submitted does not comply with this Contract.
(e) If the PDMP, or any person constituting the PDMP, receives a notice under clause 8.4(d)(ii), the PDMP must promptly submit an amended Management Plan to the Principal's Representative.
(f) In respect of any Management Plan submitted by the PDMP, including whether or not the Principal's Representative reviews it for errors, omissions or compliance with this Contract and whether or not the Principal's Representative comments on it or engages in any act or omission in respect of it:
(i) the Principal and the Principal's Representative owes no duty to the PDMP; and
(ii) the PDMP's liabilities or responsibilities and the Principal's rights under this Contract or otherwise will not be changed from what they otherwise would be.
(g) The PDMP acknowledges and agrees that:
(i) an intended purpose of each Management Plan is for the PDMP to provide a detailed description of how the PDMP intends to carry out the PDMP Services in accordance with the requirements of this Contract with respect to the subject matter of each Management Plan; and
(ii) it must undertake ongoing development, amendment and updating of the Management Plans throughout the duration of the PDMP Services to take into account:
A. Variations;
B. any change in Law;
C. any Project the subject of a Services Order;
D. the commencement of new phases or stages of design and construction of each Project;
E. any other events or circumstances which may have any effect on the manner in which the PDMP carries out the PDMP Services;
F. any breach or potential breach of the warranty in clause 8.4(h); and
G. the requirements specified in the Services Brief,
and promptly submit each further Management Plan to the Principal's Representative as it is further developed, amended or updated.
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(h) The PDMP warrants that each Management Plan will be fit for its intended purpose.
(i) If the Principal's Representative believes, acting reasonably, that any Management Plan does not comply with this Contract, the parties acknowledge and agree that he or she may by written notice direct the PDMP to further develop, update or amend the Management Plan specifying the reasons and the time within which a compliant Management Plan must be re-submitted. The PDMP must comply with that direction and submit a compliant Management Plan to the Principal's Representative within the time specified.
(j) The PDMP must comply with each Management Plan, but compliance will not in any way lessen or affect its liabilities or responsibilities or the Principal's rights whether under this Contract or otherwise according to Law.
Preparation of Deliverables
(a) The PDMP must prepare the Deliverables:
(i) in accordance with the Contract;
(ii) so that they are fit for their intended purpose;
(iii) so that they are free from any Discrepancies;
(iv) to a standard consistent with Best Industry Practice; and
(v) so that to the extent that they address like or interrelated subject matter, the Deliverables are coordinated and consistent.
(b) If at any time either party or an Other Contractor identifies any Discrepancy in the Deliverables, the PDMP must at its cost revise or amend the Deliverables to remedy or resolve the Discrepancy.
(c) If remedying or resolving a Discrepancy in the Deliverables involves effecting a material change or making a determination in relation to the design intent of any Works, the PDMP must consult the Principal before effecting such a remedy or resolution.
(d) The PDMP will indemnify the Principal against any costs, losses or damages incurred by the Principal as a result of a breach by the PDMP of its obligations under this clause 8.5 (Preparation of Deliverables).
Principal's Representative may review Deliverables
(a) The parties acknowledge and agree that the Principal's Representative may:
(i) review any Deliverables, or any resubmitted Deliverables, prepared and submitted by the PDMP; and
(ii) reject the Deliverables if in his or her reasonable opinion the Deliverables do not comply with the requirements of the Contract.
(b) If any Deliverables are rejected, the PDMP must submit amended Deliverables to the Principal's Representative.
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No obligation to review
(a) The parties acknowledge and agree that the Principal's Representative does not assume or owe any duty of care to the PDMP to review, or in reviewing, the Deliverables submitted by the PDMP for Discrepancies or compliance with the Contract.
(b) No review or approval of, comments upon, rejection of, or failure to review or comment upon or reject, any Deliverables prepared by the PDMP or any other Direction by the Principal's Representative about the Deliverables will:
(i) relieve the PDMP from, or alter or affect, the PDMP's liabilities or responsibilities whether under the Contract or otherwise according to Law; or
(ii) prejudice the Principal’s rights against the PDMP whether under the Contract or otherwise according to Law.
Maintain integrity and functionality of Principal's software and systems
In carrying out the PDMP Services, the PDMP must (and must ensure that its Personnel):
(a) maintains the integrity and functionality of the Principal's software and systems; and
(b) does not (whether by act or omission) adversely affect or alter the operation, functionality or technical environment of the Principal's systems, interfaces or software without the Principal's prior written consent.
Requirements for Software
In respect of any components of the Deliverables or other PDMP Services that are Software, the PDMP must ensure that those components:
(a) are free of any Harmful Code, including any viruses or disabling code that may cause an unauthorised change, undesired effect, Security Incident or damage to the Software, the Deliverables, PDMP Services, Principal's Materials or the information technology systems of the Principal or those of any other entity with which the Principal's information technology systems may interoperate or interact;
(b) meet all applicable functional performance requirements for those components and comply with any specifications or documentation related to the Software and as specified in the Services Brief;
(c) are supplied, in the form required by the Principal, together with all relevant tools and documentation necessary to enable the Principal to use, modify, test, operate, maintain, enhance, identify faults in and adapt that Software; and
(d) are supported and maintained, and regularly updated and upgraded, as required to maintain their full functionality and the full functionality of any equipment, systems, infrastructure, hardware or other like items, and of any other Deliverables, PDMP Services, on or with which those components are supplied, for the life of the Software,
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and provide training and knowledge transfer services in relation to the support, maintenance, updating and upgrading of the Software, at the applicable rates or prices for such PDMP Services as specified in Exhibit 4 (Chargeable Rates), as adjusted in accordance with this Contract.
Changes and Updates to Software and systems
The PDMP must:
(a) prior to implementing any change, update or upgrade to any Software or system that integrates or interfaces with any of the Principal's Software or systems or forms part of any Deliverables or other PDMP Services:
(i) advise the Principal of the nature of the proposed change, update or upgrade and its functional objectives;
(ii) consult with the Principal regarding any projected impact (including on any systems or other technology or software assets of the Principal); and
(iii) assist the Principal in assessing implementation impacts and obtain the Principal's prior approval to the change, update or upgrade;
(b) where the Principal has given its approval to a change, update or upgrade under clause 8.10(a), only implement that change, update or upgrade in consultation with the Principal, in compliance with the Principal's Directions and subject to prior testing and advance notice where and as stipulated by the Principal; and
(c) promptly notify the Principal of any changes or updates proposed to be made to any Software or systems that may:
(i) alter the identification, performance, characteristics, form, fit, function or processes required for the correct or intended usage of the Software or system (or any of the Deliverables and other PDMP Services more generally); or
(ii) otherwise require notification to any regulator, authority or third party that provides an Approval in connection with that Software or system (or any of the Deliverables and other PDMP Services more generally).
Third Party Software/Services
(a) This clause 8.11 applies where:
(i) the PDMP Services require the PDMP to procure and/or use Third Party Software/Services; or
(ii) where the PDMP otherwise supplies any Third Party Software/Services to the Principal under this Contract (where the "supply" of Third Party Software/Services under this clause includes making Third Party Software/Services available to the Principal or its Personnel or deploying the Third Party Software/Services on any of the Principal's infrastructure (including third party services)).
(b) The PDMP grants the Principal and its Personnel a non-exclusive and royalty free licence to access and use the Intellectual Property Rights comprised in
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or subsisting in the Third Party Software/Services for the Term. The PDMP must also use its best endeavours to obtain and grant the Principal and its Personnel a licence which is granted on an irrevocable, worldwide and transferable basis, and which includes the further right to reproduce, make adaptations of, modify or incorporate into other work (and sub-licence any other third party to do so), the Intellectual Property Rights comprised in or subsisting in the Third Party Software/Services for the Term (and the PDMP must notify the Principal within 10 Business Days of the Award Date which of these further rights it has obtained and grants to the Principal). On request by the Principal made at any time (including as may be made, without limiting anything in clause 20 (Termination), on expiry or termination of this Contract), the PDMP must novate its agreement with the applicable licensor or supplier of the Third Party Software/Services to the Principal (and will execute, and procure the execution of, all agreements, consents and other documents required to give effect to that novation).
(c) The PDMP acknowledges and agrees that the use of Third Party Software/Services does not in any way diminish the PDMP's obligations under this Contract, and does not limit any warranty, indemnity or other obligation of the PDMP under this Contract. To the extent that the PDMP has the benefit of a warranty, indemnity or other term or condition under its agreement with the licensor or supplier of the Third Party Software/Services and without limiting any other term of this Contract, the PDMP will 'pass-through' to the Principal the benefits of such warranties, indemnities and other terms and conditions under such agreements to the extent it is able to enforce such warranties, indemnities and other terms and conditions (and, if requested by the Principal, the PDMP will take all steps necessary to enforce such warranties, indemnities, terms and conditions for the benefit of the Principal).
9. Intellectual property and confidentiality
IP warranties and representations
The PDMP warrants and represents that:
(a) it owns, or is duly licensed by the owner to use and sub-licence all Pre-existing IPR;
(b) in carrying out the PDMP Services, the PDMP will not infringe the Intellectual Property Rights or Moral Rights of any person; and
(c) the Principal's (or any of the Principal's sub-licensees') use or receipt of any Deliverables or any Third Party Software/Service for any purpose will not infringe the Intellectual Property Rights of the PDMP or any third party.
Ownership
(a) The PDMP agrees that, immediately upon the creation of any Deliverables, the Principal owns the Deliverables.
(b) The PDMP assigns to the Principal all existing and future interest, title and rights (including Intellectual Property Rights) subsisting in and to any Deliverables (including any Deliverables that have been jointly created, developed or brought into existence by the Principal and the PDMP) excluding all Pre-existing IPR.
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(c) Where the Deliverables comprise any Software, in addition to owning the Intellectual Property Rights in that Software, the Principal will own, and the PDMP assigns to the Principal all Intellectual Property Rights in:
(i) all modifications, developments, derivative works, updates or upgrades to that Software; and
(ii) any configuration files which are based on or which arise in connection with the Principal’s internal or other design work, definitions or requirements.
(d) The PDMP must promptly do all things reasonably required, including executing any documents, to further effect the assignment of the Intellectual Property Rights in the Deliverables (including as a present assignment of future copyright) from the PDMP to the Principal in this clause 9.2 (Ownership).
(e) The PDMP must procure that its Personnel ensure that the ownership of the Intellectual Property Rights in the Deliverables which would, but for the application of this clause 9.2 (Ownership), vest in such Personnel, vest in or are transferred or assigned immediately to the Principal on and from the date of creation.
(f) The Principal grants to the PDMP a limited, revocable, non-exclusive, royalty-free licence to use the Deliverables during the Term solely to the extent necessary for the PDMP to perform the PDMP Services in accordance with the Contract.
Pre-existing IPR
(a) Each party will retain its Pre-existing IPR and nothing in this Contract assigns or transfers the Pre-existing IPR of one party to another. Neither party may assert or bring any claim for ownership of any or all of the other party’s Pre-existing IPR.
(b) The PDMP grants to the Principal and its Personnel a non-exclusive, irrevocable, perpetual, worldwide, transferable, royalty-free licence to use, reproduce, make adaptations of, modify or incorporate into other work (and sub-licence any other third party to do so) all Intellectual Property Rights comprised in or subsisting in the PDMP's Pre-existing IPR to:
(i) allow the Principal the full benefit and enjoyment of the Deliverables, the Works and PDMP Services;
(ii) use the PDMP's Pre-existing IPR:
A. for any purpose in any way in connection with a Project, the Portfolio, the Principal's objectives under section 6 of the Water NSW Act 2014 (NSW) or any other project that may be delivered for, or on behalf of, the Principal;
B. to procure, undertake or perform any works, activities, goods or services in connection with any development, procurement, upgrade, refurbishment operation, maintenance or monitoring of any work, plant, equipment, infrastructure or systems;
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C. to perform activities similar to the PDMP Services itself or have them performed by the Principal's Personnel; and
D. to take over, operate and maintain any PDMP Supplied Items.
(c) The Principal grants to the PDMP a limited, revocable, non-exclusive, royalty-free licence to use the Principal's Pre-existing IPR during the Term solely for the purpose of carrying out the PDMP Services in accordance with the Contract.
(d) Where the PDMP's Pre-existing IPR includes any Software, the rights described in clause 9.3(b) also include, in addition to the rights described in that clause, the rights to (and to sub-licence any third party to) use the Intellectual Property Rights subsisting in that Software to:
(i) maintain, support, enhance and adapt that Software for all purposes associated with the use and enjoyment of the Deliverables and PDMP Services; and
(ii) access and modify the Software (including, where accessed under the escrow deed contemplated in clause 9.5 (Source Code), the Source Code of that Software), including for the purposes of any subsequent use or support of, repairs to, maintenance or servicing of, or additions, alterations or further developments to the Deliverables and PDMP Services.
(e) For the avoidance of doubt, the licence granted in this clause 9.3 does not entitle the Principal or any sub-licensee or transferee to independently commercialise any of the PDMP's Pre-existing IPR.
Indemnity and infringement
The PDMP must indemnify the Principal against any Claims against, or costs, losses or damages suffered or incurred by, the Principal, arising out of, or in any way in connection with, any actual or alleged infringement of any Intellectual Property Rights or Moral Rights in or associated with the PDMP Services, the Deliverables or any breach by the PDMP of its warranties and/or obligations under clauses 8.2(b) (Principal's Material and ownership of Principal's Material), 9.5 (Source Code) or 9.6 (Moral Rights).
Source Code
Where so specified in the Key Details, within 5 Business Days of the Award Date or otherwise at any later date notified to the PDMP by the Principal from time to time, the PDMP must enter into an escrow deed with the Principal and an escrow agent:
(a) on terms reasonably satisfactory to the Principal (and terms generally consistent with the form of escrow deed set out in Schedule 8 (Escrow Deed)); and
(b) in respect of, and under which the PDMP places into escrow, any and all Source Code relating to any Software,
and the Principal will bear all fees and charges payable to the escrow agent under any such escrow deed.
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Moral Rights
The PDMP must, at its own expense, obtain or procure all necessary consents or waivers from any person who has Moral Rights in the Deliverables to the extent necessary to ensure that the Principal may do or authorise any acts or omissions consistent with the ownership and licences granted under the Contract without infringing any Moral Rights.
Confidentiality
(a) Where so specified in the Key Details within 5 Business Days of the Award Date, or otherwise at any later date notified to the PDMP by the Principal from time to time, the PDMP must deliver to the Principal a duly executed Confidentiality Undertaking. The execution of the Confidentiality Undertaking will not limit the PDMP’s obligations under this clause 9.7 (Confidentiality).
(b) The PDMP must, and must ensure its Personnel, keep confidential and not make, or cause to be made, any public announcement, public comment, press release or other disclosure directly or indirectly in connection with the PDMP Services or the Contract to any person other than:
(i) as necessary to perform the PDMP Services;
(ii) with respect to any matter already within the public domain; or
(iii) to comply with any applicable Law or any requirement of any regulatory body (including any relevant stock exchange).
(c) The PDMP acknowledges that the Principal may disclose the Contract (and information concerning the terms of the Contract) under or in accordance with any one or more of the following:
(i) the Government Information (Public Access) Act 2009 (NSW) (GIPA Act); and
(ii) to satisfy the disclosure requirements of the New South Wales Auditor General or to satisfy the requirements of Parliamentary accountability,
and the PDMP must provide to the Principal any other information which the Principal reasonably requires to comply with its obligations under this clause 9.7(c).
(d) If the Principal is required to include a copy of the Contract in the government contracts register pursuant to the GIPA Act:
(i) the Principal will not disclose Schedule 2 (Payment Schedule), Exhibit 4 (Chargeable Rates) or any commercial information contained in Exhibit 5 (Pre-existing Draft Services Order Proposals) (except for the Contract Price) but may disclose the remainder of the Contract;
(ii) if the PDMP considers that the Principal should not disclose any other provisions of the Contract on the basis that their disclosure would fall within section 32(1) of the GIPA Act, the PDMP must within 10 Business Days of the Award Date give the Principal written notice of:
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A. any provisions of the Contract it believes should not be disclosed for the reasons set out in section 32(1) of the GIPA Act; and
B. details of:
1) the reasons why the provisions should not been disclosed;
2) whether the provisions can be disclosed at a later date and, if so, when it is likely that they can be disclosed; and
3) a general description of the types of provisions that the PDMP proposes should not be disclosed; and
(iii) in complying with its disclosure obligations under the GIPA Act, the Principal will consider, but will not be bound by, any proposal made by the PDMP under clause 9.7(d)(ii).
Media
The PDMP must not:
(a) disclose any information concerning the Contract for distribution through any communications media without the Principal's prior written approval. The PDMP must refer to the Principal any enquiries from any media concerning the Contract; or
(b) advertise or publish that it is contracted by the Principal for the performance of the PDMP Services, or use any symbols, logo or representation identifiable with the Principal or the Portfolio, without the prior written consent of the Principal, which consent may be withheld, granted or granted on any conditions as the Principal determines in its absolute discretion.
10. Principal and PDMP Supplied Items
Principal Supplied Items
(a) The Principal will provide the PDMP with reasonable access to the Principal Supplied Items to enable the PDMP to carry out the PDMP Services.
(b) All Principal Supplied Items will remain the property of the Principal. The PDMP must not part with possession of any Principal Supplied Items or allow the creation of any lien, security interest or encumbrance over any Principal Supplied Items.
(c) The PDMP must utilise all Principal Supplied Items with care and in accordance with the Directions of the Principal and the requirements of the Contract.
(d) The PDMP must immediately notify the Principal of any loss, damage or destruction to any Principal Supplied Items.
(e) The PDMP must indemnify the Principal for any loss, damage or destruction that the PDMP or its Personnel cause to any Principal Supplied Items.
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(f) Except with the written approval of the Principal, the PDMP and its Personnel must not use any Principal Supplied Items for any other purpose other than carrying out the PDMP Services in accordance with the Contract.
PDMP Supplied Items
(a) The PDMP must provide all facilities, items, equipment, systems, Software and other resources specified in the Services Brief or which are necessary for the PDMP to carry out the PDMP Services and to meet the PDMP's obligations under the Contract (PDMP Supplied Items).
(b) Before any PDMP Supplied Items integrate or interface with any of the Principal's software or systems, the PDMP must provide the Principal with an opportunity to test and verify the standard and quality of any PDMP Supplied Items.
(c) By providing any PDMP Supplied Items that will integrate or interface with the Principal's software or systems, the PDMP warrants and represents that the PDMP Supplied Items:
(i) have been checked by the PDMP and contain no Harmful Code; and
(ii) will, to the best of the PDMP's knowledge and belief, integrate and integrate with the Principal's software and systems in accordance with the Services Brief.
11. Records and Audit
Records open for inspection and audit
(a) The PDMP must carry out the PDMP Services on an "open book basis", including that the PDMP must:
(i) develop, secure and maintain all necessary records and other documentation:
A. relating to this Contract and the PDMP Services; and
B. that are reasonably necessary in the provision of the PDMP Services including:
1) Portfolio Documents;
2) supporting reports and evidence required by the Principal to verify the carrying out and completion of the PDMP Services as well as the hours spent in providing the relevant PDMP Services;
3) all accounts and records relating to the PDMP Services including all supporting materials used to generate and substantiate invoices submitted in respect of the PDMP Services; and
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4) the records required to be maintained by the State Records Act 1998 (NSW), as if the PDMP was bound by that Act, and any other Law;
(ii) ensure that all records and documents comply with, where applicable, good accounting practices, standards and procedures;
(iii) provide unfettered access for the Principal or its representatives to inspect all records and documentation referred to in clause 11.1(a)(i) at any time on reasonable notice to ensure compliance with the PDMP's obligations under this Contract;
(iv) ensure that all material relating to the PDMP Services or the Works, the quality system and records required to be kept by this Contract and the records and documentation referred to in clause 11.1(a)(i) are available to the Principal (or persons nominated by the Principal) at all times for examination, analysis, audit, inspection, transcription and copying;
(v) upon request, promptly provide the Principal's Representative with access to, or a copy of (including by electronic means) any of the records and documentation referred to in clause 11.1(a)(i);
(vi) if this Contract is terminated, give the Principal all records and documentation referred to in clause 11.1(a)(i) that are necessary for the orderly continuance of the PDMP Services or the Works by the Principal or another party or parties; and
(vii) for a period of seven years from the end of the Term, not destroy or discard records and other documents referred to in clause 11.1(a)(i) except with the Principal's Representative's prior written consent.
(b) The requirements of clause 11.1(a) do not apply to records or documentation that may be the subject of legal professional privilege or are confidential lawyer / client communications.
Auditing records
(a) The PDMP acknowledges and agrees that the Principal's Representative (or any other person nominated by the Principal's Representative) may on one Business Days' notice at any time carry out an audit of and copy the PDMP's documents, accounts and other records to the extent reasonably necessary to verify:
(i) the PDMP's performance of the PDMP Services; and
(ii) that any amounts claimed by the PDMP have been properly calculated,
except to the extent that the documents, accounts or records:
(iii) are subject to legal professional privilege; or
(iv) must not be disclosed in accordance with any Law.
(b) The PDMP must:
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(i) make available for inspection for an audit all such records and other material referred to in clause 11.1(a)(iv) (Records open for inspection and audit) as the Auditor may reasonably require, regardless of where they are located or the manner in which they are stored, and the parties acknowledge and agree that the Auditor will be entitled to take copies of all such records and other material as may reasonably be required for the purposes of the audit;
(ii) provide all appropriate resources and all reasonable assistance required by the Auditor and fully co-operate in good faith;
(iii) if required by the Principal, participate in any meeting in connection with any audit; and
(iv) provide reasonable access to any premises where the PDMP Services are being undertaken to enable the Auditor to carry out such audit.
(c) Each party will bear its own costs in respect of an audit carried out under this clause 11.2. The Principal will bear the Auditor’s costs except if the audit reveals a material non-compliance with this Contract in which case the PDMP must pay the Auditor’s costs.
(d) If the audit reveals any non-compliance with this Contract then the PDMP must remedy that non-compliance within such time as the Principal reasonably requires and must advise the Principal in writing what steps the PDMP has taken to ensure that the identified non-compliance will not re-occur.
Evidence of financial standing or financial arrangements
(a) The PDMP warrants to the Principal that the PDMP will at all times have sufficient financial capacity to meet all of its obligations under the Contract.
(b) Without limiting clauses 11.1 (Records open for inspection and audit) and 11.2 (Auditing records), the PDMP must:
(i) as and when requested by the Principal's Representative from time to time promptly, and in any event within the period stated in the Principal's Representative's request, provide the Principal's Representative with a copy of such evidence reasonably required by the Principal's Representative which demonstrates the PDMP's financial capacity to meet all of its obligations under the Contract; and
(ii) without limiting clause 11.3(b)(i), provide to the Principal's Representative:
A. a copy of each financial statement referred to in clause 10.4 of the PDMP JV Agreement at the same time each financial statement is provided to each party to the PDMP JV Agreement; and
B. a copy of each signed letter of representation referred to in clause 10.7 of the PDMP JV Agreement at the same time each signed letter of representation is provided to
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the Executive Committee (as defined in the PDMP JV Agreement).
(c) The PDMP must promptly notify the Principal of:
(i) any material change to any information provided by the PDMP under clause 11.3(b); and
(ii) any material change in the PDMP's financial standing which may affect, or is likely to affect, the PDMP's financial capacity to meet all of its obligations under the Contract.
(d) The PDMP must assist and fully co-operate with the requirements or requests of the Principal, the Principal's Representative or their nominees in relation to any review of:
(i) any information provided by the PDMP under this clause 11.3; or
(ii) the PDMP's financial capacity to meet its obligations under the Contract.
12. General PDMP obligations
Fundamental obligations
(a) The PDMP acknowledges that the Principal has entered into the Contract relying on the professional skill, care, diligence and expertise of the PDMP in the performance of the PDMP Services.
(b) The PDMP:
(i) must exercise the standard of skill, care, diligence and expertise in the performance of the PDMP Services that would be expected of a professional provider of services equivalent to the PDMP Services;
(ii) warrants that each of its Subcontractors will exercise the standard of skill, care, diligence and expertise in the performance of the part of the PDMP Services being performed by each of the Subcontractors that would be expected of a professional provider of services equivalent to each part of the PDMP Services;
(iii) must:
A. ensure that the Deliverables comply with all of the requirements of the Contract; and
B. ensure that the PDMP Services and the Deliverables will be fit for their intended purpose;
(iv) must perform the PDMP Services in a timely and efficient manner that is safe to both people and the environment;
(v) must ensure that the PDMP Services are provided economically and in accordance with any budgetary requirements of the Principal notified to the PDMP; and
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(vi) must exercise the utmost good faith in the best interests of the Principal and keep the Principal fully and regularly informed about all matters affecting or relating to the performance of the PDMP Services or the Projects or otherwise.
(c) The PDMP must:
(i) promptly perform the PDMP Services and use its best endeavours to ensure that the PDMP Services and the Works proceed at a rate of progress such that each Project is completed by the committed dates for each Project, as specified in the relevant Services Order(s) (including any Milestone Dates);
(ii) ensure that the Total S.O. Cost of each Services Order does not exceed the PDMP S.O. Budget for that Services Order (as adjusted in accordance with this Contract); and
(iii) ensure that all work and methods of working under the Project Contracts are performed in accordance with the requirements of the applicable Project Contract.
No authority to commit the Principal
(a) Other than as expressly authorised, the PDMP:
(i) has no authority to, and must not:
A. enter into any contracts, commitments or other legal documents or arrangements in the name of, or on behalf of, the Principal; or
B. take any act or step to bind or commit the Principal in any manner, whether as a disclosed agent of the Principal or otherwise; and
(ii) must act within the limits of authority set out in Schedule 6 (Limits of Authority).
(b) Without limiting clause 28.16 (No partnership, joint venture or other fiduciary relationship), the PDMP is an independent contractor and is not, and must not purport to be, a partner or joint venturer of the Principal.
Restriction on self-performance
Unless prior written approval is provided by the Principal's Representative to the PDMP (which approval may be given or withheld by the Principal's Representative in its sole discretion), neither the PDMP, its Personnel nor any related body corporate (as defined in section 50 of the Corporations Act, but also including any body corporate that is related to the PDMP by virtue of the PDMP's shareholding or other direct or indirect economic or commercial interest in that body corporate) of:
(a) the PDMP;
(b) any entity that forms a part of the PDMP; or
(c) any Subcontractor,
may:
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(d) perform any function specified in Schedule 15 (Restrictions on self-performance);
(e) have any direct or indirect involvement in a Project or a Project Contract other than for the Principal; or
(f) provide services to or advise any other person in relation to a Project or a Project Contract.
PDMP to inform itself
The PDMP must:
(a) inform itself of the Principal's requirements for the PDMP Services and for this purpose review the Principal's Material; and
(b) consult with the Principal throughout the carrying out of the PDMP Services.
Give notice of matters impacting on PDMP Services
(a) If the PDMP becomes aware of any event or matter, including a COVID-19 Related Event, that:
(i) is likely to change or that has changed the scope, timing, cost, quality or reputation of the performance of the PDMP Services, a Project or the Portfolio;
(ii) affects or may affect an Objective, the PDMP S.O. Budget, a KRA or the PDMP's ability to perform the PDMP Services in accordance with the approved PDMP's program or the Principal's ability to achieve its commitments described in paragraph A of the Background; or
(iii) involves any error, omission or defect in any continuing or completed aspects of the Works or the PDMP Services,
the PDMP must promptly give written notice of that matter to the Principal's Representative (Early Warning Notice) containing, as far as practicable in the circumstances:
(iv) particulars of the change, effect, error, omission or defect;
(v) its impact or likely impact, including on the PDMP S.O. Budget for the Project (and any Portfolio-level budget); and
(vi) its recommendation as to how to minimise the impact or likely impact of the matter upon the scope, quality, timing, cost and reputation of the PDMP Services, the Project or the Portfolio.
(b) Upon receipt of each Early Warning Notice by the Principal's Representative, the parties must procure the Principal's Representative and the PDMP's Representative (or in the case of an Early Warning Notice regarding a COVID-19 Related Event, their JLT Members) to attend a meeting to discuss the matters the subject of the Early Warning Notice.
(c) At the meeting, the parties must procure the Principal's Representative and the PDMP's Representative (or their JLT Members, if applicable) to use best endeavours to:
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(i) make and consider proposals for how the effect and impact of the risk can be avoided or reduced;
(ii) seek solutions that will eliminate or reduce any negative effect or impact of the risk on those who will be affected;
(iii) seek to agree upon the actions that will be taken and who, in accordance with this Contract, will take them; and
(iv) decide which risks have not been avoided or have passed and can be removed from the risk and issues management strategy forming part of the Management Plan.
(d) Following the meeting and where (at that meeting) the parties jointly determine the course of action (if any) to be taken to address the matters the subject of the Early Warning Notice, the PDMP must:
(i) accurately record that determination; and
(ii) provide that record to the Principal's Representative.
Co-ordination with Other Contractors
(a) The PDMP must:
(i) fully co-operate with each Other Contractor;
(ii) carefully co-ordinate and integrate the performance of the PDMP Services with Other Contractors' services, works or activities;
(iii) perform the PDMP Services so as to avoid interfering with, disrupting or delaying the Other Contractors' services, works or activities;
(iv) provide to each of the Principal and the Other Contractors whatever advice, support and co-operation is necessary to facilitate the timely completion of Other Contractors' services, works or activities; and
(v) comply with all Directions of the Principal's Representative regarding Other Contractors and their work.
(b) The PDMP acknowledges that:
(i) it is not entitled to make any Claim as a consequence of:
A. delays or disruption caused by Other Contractors; or
B. any Direction given by the Principal's Representative pursuant to clause 12.6(a)(v);
(ii) any delay or disruption caused by Other Contractors will not affect or limit the PDMP's obligations or liabilities under this Contract;
(iii) any action of the PDMP in respect of a Direction given by the Principal's Representative in respect of the matters specified in this
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clause 12.6 does not lessen or otherwise affect the PDMP's other obligations under this Contract; and
(iv) neither the Principal nor the Principal's Representative assumes any responsibility or duty of care to the PDMP in respect of its actions in respect of its actions under clause 12.6(a)(v).
Premises
(a) The PDMP must at all reasonable times:
(i) give to the Principal, or to any other third person authorised in writing by the Principal or the Principal's Representative, access to premises where the PDMP Services or part of the PDMP Services are being performed;
(ii) permit those persons referred to in clause 12.7(a)(i) to inspect the performance of the PDMP Services and the preparation of any Deliverables; and
(iii) provide the Principal, the Principal's Representative and their employees and agents with every reasonable facility necessary for the superintendence, examination and testing of the PDMP Services.
(b) The PDMP must, if directed by the Principal or where otherwise specified in the Services Brief, co-locate the performance of the PDMP Services with the Principal at the premises specified by the Principal.
Environment
(a) The PDMP must comply with, and ensure that all persons engaged in the performance of the PDMP Services or in the execution of the Works (including Subcontractors) comply with all Environmental Requirements.
(b) The PDMP:
(i) must ensure that in carrying out the PDMP Services it does not pollute, contaminate or otherwise damage the environment; and
(ii) is responsible for and must at its own cost make good any pollution, contamination or damage to the environment caused by the performance of the PDMP Services, whether or not the PDMP has complied with the requirements of the Contract for the protection of the environment.
(c) The PDMP must notify the Principal's Representative in writing immediately upon the occurrence of any environmental incident (whether caused by the PDMP, its Personnel, a Project Contractor, an Other Contractor or third party). The notice must include:
(i) details of the environmental incident (including details of any harm or potential harm to human health or the environment) and its cause;
(ii) details of all remedial or corrective actions taken, or proposed to be taken, to rectify or avoid any harm to human health or the
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environment as a result of the incident and to prevent a re-occurrence of such an incident; and
(iii) details of any notification from or to, or correspondence with, any Authority in relation to the incident.
(d) The PDMP indemnifies the Principal from and against any and all suits, actions, proceedings, claims, demands, losses, damages, liabilities, costs and expenses of whatsoever nature (including any compensation investigation costs, remediation costs, Authority charges or imposts, legal costs and Other Contractor's costs) arising in connection with any of the following:
(i) any overflow, leakage, release, discharge or escape (whatever direct or indirect) of water, fire, gas, electricity, Hazardous Materials or other harmful agent or contaminant in or from any Site or any other place where the Works or any part of the PDMP Services are being performed (including while any material, plant, equipment or other items are in transit to the Site) caused or contributed to by any breach, act or omission of the PDMP, any of its Personnel, or any of their agents or employees;
(ii) any contamination of or environmental harm or nuisance to any Site or to any other land, air, water or place (whether direct or indirect) caused or contributed to by any breach, act or omission of the PDMP, any of its Personnel, or any of their agents or employees;
(iii) any notice, direction, order or proceeding issued or taken pursuant to any Environmental Law in respect of or relating to any breach, act or omission of the PDMP, any of its Personnel, or any of their agents or employees; and
(iv) any breach of any Environmental Requirement by the PDMP, any of its Personnel, or any of their agents or employees,
provided that the PDMP's responsibility to indemnify the Principal will be reduced proportionally to the extent that an act or omission of the Principal, the Principal's Representative or an Other Contractor has contributed to the suit, action, proceeding, claim, demand, loss, damage, liability, cost or expense.
Subcontracting
The PDMP:
(a) must not subcontract:
(i) the whole of the PDMP Services; or
(ii) any PDMP Services, if doing so meant that the PDMP's subcontracting costs would equal or exceed 5%, or such other percentage amount as notified by the Principal's Representative to the PDMP from time to time (in its absolute discretion, following consideration of any such proposal received from the PDMP in respect of a proposed increase), of the:
A. then anticipated Contract Price; or
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B. part of the then anticipated Contract Price in relation to a Services Order to which those PDMP Services relate;
(b) must not subcontract any PDMP Services without the prior written approval of the Principal's Representative (and subject to such conditions as the Principal's Representative thinks fit, in its absolute discretion), other than to the Subcontractors, and the part of the PDMP Services, specified in the Key Details;
(c) will be fully responsible for the performance of the PDMP Services despite subcontracting the performance of any part of the PDMP Services;
(d) will be vicariously liable to the Principal for all acts, omissions and defaults of its Subcontractors (and those of the employees and agents of its Subcontractors) relating to, or in any way connected with the performance of the PDMP Services; and
(e) must ensure that each subcontract contains provisions which bind the Subcontractors to participate in any novation required by the Principal under clause 20.5(c) (Principal's entitlements after termination).
Compliance with Law
The PDMP must in carrying out the PDMP Services:
(a) comply with all applicable Law;
(b) comply with any applicable Funding Requirements;
(c) obtain all Approvals required for the performance of the PDMP Services and comply with, carry out and fulfil the conditions and requirements of such Approvals;
(d) as soon as practicable (and not later than 5 Business Days after receipt of the relevant documents), provide copies of all documents (including the Approvals and other notices) to the Principal's Representative that any Authority issues to the PDMP in relation to the performance of the PDMP Services;
(e) prepare and give the Principal's Representative any documents that an Authority requires in order for the Principal to obtain the Approvals it requires to use the Works; and
(f) procure that the PDMP's Representative prepare and give the Principal's Representative, on each anniversary of the Award Date, certification that the PDMP has complied with and satisfied the requirements set out in each of clauses 12.10(a) to 12.10(e) above (or otherwise specify any non-compliances with these clauses).
Change in Law
If there is a Change in Law after the Award Date and:
(a) the Change in Law could not reasonably have been anticipated at the Award Date; and
(b) compliance with the Change in Law by the PDMP:
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(i) has a direct adverse effect on the PDMP in performing the PDMP Services; and
(ii) directly results in an increase in the PDMP's costs of performing the PDMP Services,
then the additional costs necessarily and reasonably incurred by the PDMP in complying with the Change in Law, as determined by the Principal's Representative, will be added to the PMO Costs and the PDMP S.O. Budget (as applicable).
Marketing or promotion of the Portfolio
The PDMP must co-operate with the Principal in connection with the Principal's use of the PDMP's name in any marketing or promotion associated with the Portfolio or any Project to the extent the Principal may reasonably require.
Work health and safety
(a) Without limiting the PDMP's obligations under any other provision of the Contract, the PDMP must comply, and must ensure that its Subcontractors and any other person engaged by the PDMP for the purposes of the Contract comply, with the WHS Legislation including:
(i) any 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) insofar as the PDMP, in carrying out the PDMP Services, is a person conducting a business or undertaking that designs plant, substances or structures to whom section 22 of the Work Health and Safety Act 2011 (NSW) applies, the obligations under that section and any other provision of the WHS Legislation imposing obligations upon designers;
(iii) if requested by the Principal's Representative or required by WHS Legislation, demonstrate compliance with the WHS Legislation, including providing evidence of any Approvals, prescribed qualifications or experience, or any other information relevant to work health and safety matters;
(iv) consulting with the Principal for the purposes of the consultation requirements contained in regulation 294 of the Work Health and Safety Regulation 2017 (NSW); and
(v) if required by the WHS Legislation and applicable to the PDMP Services, preparing the Safety Report in accordance with the requirements of, and otherwise discharging its obligation under, the provisions of the WHS Legislation and providing the Safety Report to the Principal and for this purpose preparing and maintaining the Risk Register, ensuring the Risk Register is updated, as necessary, to reflect the design development process and providing the updated Risk Register to the Principal at regular intervals.
(b) The PDMP acknowledges and agrees that the Principal may provide a copy of the Safety Report to any person who has been provided with the design for the purposes of giving effect to it.
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(c) In performing its obligations under the Contract the PDMP must:
(i) exercise a duty of utmost good faith to the Principal in carrying out the PDMP Services to enable the Principal to discharge the Principal's duties under the WHS Legislation; and
(ii) ensure that in performing the PDMP Services, it does not do anything or fail to do anything that would cause the Principal to be in breach of the WHS Legislation.
(d) When used in this clause 12.13 (Work health and safety), the term ‘design’ has any meaning assigned to that term under the WHS Legislation.
Policies and Procedures
(a) The PDMP must ensure that the PDMP, each person constituting the PDMP and its Personnel are aware of, and comply with:
(i) the Code of Conduct; and
(ii) the Policies and Procedures.
(b) For the purposes of clause 12.14(a), any reference to, or requirement applying to, "WaterNSW employees" in the Policies and Procedures is to be read as a reference to the PDMP's Personnel.
Principal’s operations
The PDMP must:
(a) ensure that:
(i) the performance of the PDMP Services; and
(ii) any other acts or omissions of the PDMP or its Personnel,
do not adversely affect or otherwise interfere with the Principal's operations or its ability to achieve the Objectives described in paragraph B of the Background;
(b) should the PDMP become aware of such effect or interference, promptly notify the Principal of any such adverse effect or interference; and
(c) consult and co-operate with the Principal's Representative and the Principal and attend meetings as required by the Principal's Representative in relation to the interface between the Principal's operations and the performance of the PDMP Services.
Basis of Contract Price
The PDMP acknowledges that unless otherwise expressly stated in the Contract, the Contract Price:
(a) is firm and inclusive of all taxes (other than GST), duties (including customs duty) and governmental charges imposed or levied in Australia or overseas; and
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(b) includes the cost of any packaging, marking, handling, freight and delivery, insurance and any other applicable costs and charges, and costs of compliance with all other statutory, award or other legal or contractual requirements (including any costs arising out of or in connection with any COVID-19 Related Event).
Continuous improvement
The PDMP must, use Best Industry Practice methods, as updated from time to time during the Term, on an ongoing basis so as to ensure that the PDMP Services are performed in an efficient, environmentally-protective, safe and cost-effective manner.
Access
(a) Subject to paragraph 12.18(b), the PDMP must comply with all Directions, procedures and policies of the Principal or otherwise as notified by the Principal's Representative relating to work health, safety security and the environment when accessing any site or any premises owned or occupied by the Principal or its Personnel.
(b) If a Project Contractor has been appointed as "principal contractor" in respect of a Site for the purposes of the WHS Legislation, the PDMP must comply with the Directions of such Project Contractor with respect to work, health and safety, when accessing the Site.
(c) To the extent that the PDMP requires access to any part of a Site or any other land (Relevant Land) for the purpose of performing the PDMP Services and WaterNSW does not own the Relevant Land or otherwise have rights to access it for the purpose of the PDMP Services other than pursuant to section 32 of the Water NSW Act 2014 (NSW) (Water NSW Act):
(i) WaterNSW appoints the PDMP as its agent for the purposes of accessing the Relevant Land under section 32 of the Water NSW Act;
(ii) the PDMP must comply with the requirements of the Water NSW Act when accessing the Relevant Land;
(iii) the PDMP must give a notice under section 32(5)(a) of the Water NSW Act before accessing the Relevant Land; and
(iv) the PDMP must not exercise any force when accessing the Relevant Land or enter the Relevant Land under section 32(5)(b) of the Water NSW Act without WaterNSW’s prior written consent.
Shared learnings
(a) The PDMP agrees to share with the Principal any learnings it acquires in connection with the provision of the PDMP Services, that could improve the systems and operations of the Principal (Learnings).
(b) The PDMP must report its Learnings to the Principal's Representative on a quarterly basis and within 10 Business Days following the expiry or termination of the Contract in a format reasonably requested by the Principal's Representative.
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(c) If requested by the Principal, throughout the Term, the PDMP and PDMP Personnel must participate in any forums or meetings with the Principal and its Personnel to discuss and understand the Learnings.
Anti-terrorism and anti-corruption
(a) In this clause 12.20:
(i) Applicable Corruption Law means all Laws relating to bribery, corruption, money laundering, fraud or similar activities of Australia;
(ii) Corrupt Conduct has the meaning given in the Independent Commission Against Corruption Act 1988 (NSW); and
(iii) Prohibited Entity means:
A. any organisation coming within the definition of "terrorist organisation" in Part 5.3 of the Criminal Code Act 1995 (Cth);
B. any person or entity that is listed by notice published in the Commonwealth Government Gazette under Part 4 of the Charter of the United Nations Act 1945 or in the list called the "Consolidated List" available on the Australian Department of Foreign Affairs and Trade's website; or
C. any organisation, person or entity in any list available in the public domain kept in connection with terrorism:
1) by the Australian Department of Foreign Affairs and Trade; or
2) under any Law applicable in Australia.
(b) The PDMP represents and warrants to the Principal that:
(i) the PDMP and each person constituting the PDMP:
A. is not;
B. is not owned by;
C. is not controlled by; and
D. does not act on behalf of,
a Prohibited Entity;
(ii) the PDMP is in material compliance with all Laws in connection with terrorism applicable in Australia; and
(iii) the representations and warranties the PDMP makes in this clause 12.20 are true and correct at the Award Date and will remain so until the end of the Term.
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(c) The PDMP must always comply with all Applicable Corruption Law and not offer, promise or give (either directly or indirectly) any financial or other advantage, payment, gift, promise or transfer of anything of value:
(i) to any person with the intention of inducing that person to breach a position of trust or duty of good faith or impartiality; or
(ii) to any public official, including any person representing or employed by an Authority, intending to influence that official,
with the aim that either party should benefit as a result.
(d) The PDMP warrants to the Principal that:
(i) it, and each person constituting the PDMP, has not been found by the Independent Commission Against Corruption to have engaged in Corrupt Conduct; and
(ii) in performing its obligations under this Contract it, and each person constituting the PDMP, will not employ or continue to employ Personnel found by the Independent Commission Against Corruption to have engaged in Corrupt Conduct.
(e) The PDMP must ensure that:
(i) it does not employ, or continue to employ, any Personnel; and
(ii) no Subcontractor employs, or continues to employ, any person,
in relation to the performance of this Contract, who has been found to have engaged in, or in the case of a company any officer of which has been found to have engaged in, Corrupt Conduct by the Independent Commission Against Corruption.
(f) The Principal may direct the PDMP to terminate any subcontract if any officer of a Subcontractor has been found to have engaged in Corrupt Conduct by the Independent Commission Against Corruption.
(g) The PDMP must keep accurate and complete records of all transactions related to this Contract and will promptly report any breach or potential breach of this clause 12.20 to the Principal. The PDMP must cooperate fully with the Principal in relation to any investigation that the Principal wishes to conduct into any breach or potential breach of this clause 12.20, whether or not it has been reported.
Notices relating to the PDMP JV Agreement and subcontracts
The PDMP must provide to the Principal's Representative a copy of any notice provided under or in connection with:
(a) clauses 5.7, 15, 18 or 19 of the PDMP JV Agreement;
(b) clauses 14 or 20 of the letter of engagement dated on or around the Award Date between each person constituting the PDMP and Qubist Pty Ltd ACN 624 580 258 and the letter of engagement dated on or around the Award Date between each person constituting the PDMP and Tracey Brunstrom & Hammond Pty. Ltd. ACN 008 444 700; and
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(c) other subcontracts, where clauses are notified by the Principal's Representative to the PDMP in their approval of that subcontract, or any time thereafter, under clause 12.9 (Subcontracting),
within 5 Business Days of that notice being issued.
If a representation or warranty under clause 21.1 of the PDMP JV Agreement is not true or correct in respect of a party to the PDMP JV Agreement (Breach of Warranty Event), the PDMP must notify the Principal's Representative in writing of that Breach of Warranty Event within 5 Business Days of the occurrence of that Breach of Warranty Event.
Indemnity
(a) The PDMP must indemnify the Principal against any Claims against, or costs, losses or damages suffered or incurred by, the Principal, arising out of, or in any way in connection with, any breach of this Contract.
(b) The PDMP's liability to indemnify the Principal under clause 12.22(a) will be reduced proportionally to the extent that any act or omission of the Principal or the Principal's Representative caused or contributed to the Claim, cost, loss or damage.
13. Quality
Quality assurance
The PDMP:
(a) must implement a quality assurance system representing Best Industry Practice;
(b) must allow the Principal's Representative access to the quality assurance system of the PDMP and its Subcontractors so as to enable monitoring and quality auditing; and
(c) will not be relieved from compliance with any of its Contract obligations or from any of its liabilities whether under the Contract or otherwise by Law as a result of:
(i) the implementation of, and compliance with, the quality assurance requirements of the Contract;
(ii) any Direction by the Principal's Representative concerning the PDMP’s quality assurance system or its compliance or non-compliance with that system;
(iii) any audit or other monitoring by the Principal's Representative, or anyone else acting on behalf of the Principal of the PDMP’s compliance with the quality assurance system; or
(iv) any failure by the Principal's Representative, or anyone else acting on behalf of the Principal, to detect any PDMP Services which are not in accordance with the requirements of the Contract including where any such failure arises from any negligence on the part of the Principal's Representative or other person.
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Non-complying Deliverables or PDMP Services
If the Principal's Representative discovers or believes that any Deliverables have not been prepared, or any PDMP Services have not been performed, in accordance with the Contract, the Principal's Representative may give the PDMP a Direction specifying the non-complying Deliverables or PDMP Services and doing one or more of the following:
(a) requiring the PDMP to:
(i) amend the Deliverables or re-perform the non-complying PDMP Services within a specified time period; and
(ii) take all such steps as are reasonably necessary to:
A. mitigate the effect on the Principal of the failure to prepare the Deliverables or perform the PDMP Services in accordance with the Contract; and
B. put the Principal (as closely as possible) in the position in which it would have been if the PDMP had prepared the Deliverables or performed the PDMP Services in accordance with the Contract; and
(b) advising the PDMP that the Principal will accept the non-complying Deliverables or PDMP Services despite the non-compliance, in which event the Principal will be entitled to recover from the PDMP any additional costs which will be incurred by the Principal as a result of the non-compliance.
Re-performance of the non-complying PDMP Services
(a) If a Direction is given under clause 13.2(a) (Non-complying Deliverables or PDMP), the PDMP must, at its cost, amend the Deliverables or re-perform the non-complying PDMP Services:
(i) within the time specified in the Principal's Representative's instruction; and
(ii) so as to minimise the delay and disruption to the performance of the PDMP Services and the Works.
(b) The PDMP acknowledges and agrees that:
(i) should the PDMP fail to amend the Deliverables or re-perform the non-complying PDMP Services within the time specified in the Principal's Representative's instruction or so as to minimise the delay and disruption to the performance of the PDMP Services and the Works, then the Principal may elect to "step-in" and temporarily assume total or partial management of the whole or any part of the Works or the PDMP Services; and
(ii) the PDMP must pay to the Principal any costs incurred by the Principal as a result of the "step-in" under clause 13.3(b)(i) and such amounts will be debt due and payable by the PDMP to the Principal.
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14. General obligations of the Principal
Provide information
The Principal has made, or will make, available to the PDMP all information, documents, particulars and Principal's Materials relating to the Principal's requirements for each Project, which the Principal considers relevant to the PDMP's performance of the PDMP Services.
Provide additional information
If:
(a) the PDMP, in its reasonable opinion, considers that any additional information, documents or particulars are needed to enable it to perform the PDMP Services; and
(b) the additional information, documents or particulars are not provided by the Principal under the Contract or by an Other Contractor,
then:
(c) the PDMP must give notice in writing to the Principal's Representative of the details of that additional information, documents or particulars and the reasons why they are required; and
(d) the Principal must, if the Principal's Representative believes that the additional information, documents or particulars are needed by the PDMP, use its best endeavours to arrange the provision of the additional information, documents or particulars.
Make decisions
If:
(a) the PDMP requests the Principal to consider the selection of alternative courses of action; and
(b) all information required to enable a decision to be made is provided by the PDMP or is otherwise available,
the Principal must give a decision on the required course of action to the PDMP within a reasonable time period and so as not to delay or disrupt the performance of the PDMP Services.
15. Procurement, completion and commissioning
Tenders for Project Contracts
(a) The PDMP must provide all services to procure the engagement of all Project Contractors based upon the delivery and packaging strategy in the Portfolio Management Plan and otherwise in accordance with the Services Brief.
(b) Without limiting the Services Brief, in providing these procurement services the PDMP must:
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(i) specify the scope of each Project Contract and the sequence of all the Project Contracts based upon the Portfolio Management Plan, the Approved Portfolio Program and the requirements of the Services Brief;
(ii) make recommendations to the Principal regarding the tender list for each Project Contract and finalise each tender list in consultation with the Principal's Representative in accordance with the relevant procedure in the Services Brief, so that it only includes tenderers approved by the Principal's Representative;
(iii) prepare the tender documentation for each Project Contract (using the project-developed conditions of tender and contract provided by the Principal to the PDMP), subject to any amendments required or agreed by the Principal's Representative, and ensure that they comply with the Services Brief;
(iv) submit the tender documentation it prepares to the Principal's Representative for review in a manner and at a rate which will give the Principal's Representative a reasonable opportunity and in any event no fewer than 21 days (or such other longer period as required by the Principal's Representative, acting reasonably) to review that tender documentation before it is issued to tenderers;
(v) if any tender documentation is rejected by the Principal's Representative within the period stated in clause 15.1(b)(iv), submit amended tender documentation to the Principal's Representative, in which case clause 15.1(b)(iv) will reapply;
(vi) not issue any tender documentation to the tenderers for each Project Contract unless the tender documentation has been submitted to the Principal's Representative and the Principal's Representative has had the period stated in clause 15.1(b)(iv) to review the tender documentation and has not rejected the tender documentation;
(vii) prepare sufficient copies of the finalised tender documentation for each Project Contract for tendering; and
(viii) issue the tender documentation in accordance with this clause 15.1(b) to all approved tenderers.
(c) The obligations in this clause 15.1 (Tenders for Project Contracts) that apply to the preparation and issue of tender documentation extend to any addendum to be issued in respect of any proposed Project Contract.
(d) The PDMP must:
(i) keep the Principal's Representative informed of, and permit it and its nominees to attend, any pre-tender meetings;
(ii) provide to the Principal's Representative copies of all correspondence from and to tenderers for the Project Contracts; and
(iii) have at least 2 representatives in attendance at the opening of all tenders for the Project Contracts.
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(e) Neither the PDMP nor any related entity of the PDMP is entitled to tender for any of the Project Contracts, or perform any work under the Project Contracts for the successful Project Contractors, unless the PDMP has obtained the prior written approval of the Principal.
(f) The PDMP must (and, where relevant, in accordance with Schedule 6 (Limits of Authority)):
(i) analyse all tenders submitted by tenderers for the Project Contracts;
(ii) prepare a report recommending to the Principal the most suitable tenderer for each Project Contract, including details of the proposed contract price and the proposed contingency for each Project Contract;
(iii) recommend, if necessary, that negotiations be entered into with any preferred tenderer;
(iv) provide the following details to the Principal for its consideration:
A. actual tender prices and expected total outturn cost for all Project Contracts and how they compare with the PDMP Cost Plan; and
B. any adjustment to the PDMP Cost Plan as a result of the letting of the Project Contracts;
(v) prepare a letter of award for each Project Contract for the Principal to issue to the successful tenderer; and
(vi) prepare, and submit, for execution by the Principal and the relevant Project Contractor, a conformed copy of each Project Contract awarded in accordance with this clause 15.1 (Tenders for Project Contracts).
Co-ordination, supervision and contract administration of the Project Contracts
The PDMP must (and, where relevant, subject to and in accordance with Schedule 6 (Limits of Authority)):
(a) provide all superintendence, co-ordination, design management and construction management, of the Project Contracts and use its best endeavours to ensure that each Project Contractor:
(i) achieves delivery, acceptance or completion (as applicable) by the applicable dates therefor under those contracts; and
(ii) is completed within its planned total outturn cost (as stated in the PDMP Cost Plan);
(b) subject to the conditions and limitations set out in Schedule 6 (Limits of Authority), provide contract administration of the Project Contracts and perform the functions of the Principal's representative under the Project Contracts (including administering all progress claims, variations, extensions of time and all other claims and matters which the terms of the Project
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Contracts require the “Principal's Representative", as named in those contracts, to do);
(c) monitor the performance of the Project Contractors under the Project Contracts to ensure all faults, omissions or other Defects are rectified prior to delivery, acceptance or practical completion or during the defect liability periods (as the case may be) under the applicable Project Contracts;
(d) provide advice and all assistance to the Principal in negotiating and resolving any issues or disputes which may arise under the Project Contracts; and
(e) not do or fail to do anything it is obliged to do which would cause the Principal to be in breach of any Project Contract.
The PDMP's cost planning obligations
Without limiting the PDMP's obligations in the Services Brief in respect of the PDMP Cost Plan, the PDMP must:
(a) regularly review the PDMP Cost Plan;
(b) inform the Principal's Representative if it becomes aware of any likely or actual cost overruns or cost underruns for the Project Contracts;
(c) identify and advise the Principal's Representative of any potential cost savings in any of the Project Contracts; and
(d) identify and advise the Principal's Representative of the appropriate measures for ensuring that the Total S.O. Cost does not exceed the PDMP S.O. Budget.
Commissioning and handover obligations
(a) The PDMP must:
(i) within the time required by the Principal's Representative, prepare draft commissioning and handover guidelines for each Project and a draft handover and transition plan and submit the guidelines and the plan for approval to the Principal's Representative;
(ii) make such amendments required by the Principal's Representative to the draft commissioning and handover guidelines and draft handover and transition plan and resubmit the guidelines and plan for approval, within the time required by the Principal's Representative; and
(iii) without limiting its obligations under the Contract, comply with the approved commissioning and handover guidelines and approved handover and transition plan.
(b) The PDMP must ensure that all relevant Deliverables comply with the commissioning and handover guidelines and handover and transition plan prepared by the PDMP and approved by the Principal's Representative.
(c) The PDMP must:
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(i) in consultation with the Principal's Representative, provide the Principal with such personnel, resources and other specific assistance as may be required by the Principal's Representative:
A. to facilitate the timely, efficient and comprehensive commissioning of the Works and the smooth handover of the Works to the Principal; and
B. to ascertain whether the Works can attain the process performance levels required by the Principal and by the Project Contracts; and
(ii) as and when reasonably required by the Principal's Representative, meet with the Principal's Representative and Other Contractors nominated by the Principal's Representative with a view to ensuring that the Principal and the nominated Other Contractors have sufficient information to enable the nominated Other Contractors to:
A. operate the Works;
B. maintain the Works; and
C. perform such other activities as may be required by the Principal in respect of the Works.
Roles reserved to the Principal
The PDMP acknowledges and agrees that it must not, and must procure that its Personnel do not, carry out any of the roles listed below in relation to the Portfolio or any Services Order:
(a) approve or authorise an account for payment on behalf of the Principal;
(b) issue a letter of intent or letter of acceptance for any Project Contract;
(c) execute a Project Contract;
(d) settle any Claim;
(e) issue media releases, seek publicity or undertake any other external communications;
(f) appoint or replace a provider of legal services in relation to the Portfolio, or any Project in the Portfolio;
(g) appoint and replace the representative of the Principal under a Project Contract;
(h) consent to any assignment, novation or change of control by a Project Contractor;
(i) waive or compromise any right of the Principal under a Project Contract (including any entitlement to liquidated damages, set-off or security);
(j) instruct a Project Contractor to suspend work, other than in circumstances relating to a safety or environmental breach, or potential breach, which presents imminent harm; and
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(k) any other roles identified by the Principal from time to time.
16. Services Orders
Draft Services Order Proposal
The parties acknowledge and agree that the:
(a) Principal's Representative may, at any time, require the PDMP to prepare and submit a "Draft Services Order Proposal" to the Principal's Representative, which must include the details required to be included in a notice provided under clause 16.2(a) (Services Order Proposal); and
(b) PDMP must otherwise prepare and submit a "Draft Services Order Proposal" to the Principal's Representative in accordance with the requirements set out in section 2.4 of the Services Brief and which must include the details required to be included in a notice issued provided under clause 16.2(a) (Services Order Proposal).
Services Order Proposal
(a) The parties acknowledge and agree that the Principal's Representative may, at any time, issue a document titled "Services Order Proposal" (Services Order Proposal) to the PDMP which will set out details of a proposed Services Order which the Principal is considering (and which may be based on any "Draft Services Order Proposal" prepared by the PDMP), which may include:
(i) details and the proposed scope of the Project to which the Services Order relates;
(ii) the scope of the PDMP Services under the proposed Services Order (including whether the Services Order is a Pre-FBC Services Order or a Post-FBC Services Order, and if the Services Order is a Post-FBC Services Order, identify all Pre-FBC Services Orders associated with that Post-FBC Services Order);
(iii) the proposed timing of, and any proposed Milestone Dates for, the PDMP Services under the proposed Services Order;
(iv) the proposed PDMP S.O. Budget and any proposed KPIs or KRAs for the Services Order; and
(v) any other matters which the Principal considers are relevant to the preparation of the proposed Services Order (including any Funding Requirements that apply to that proposed Services Order, any matter in respect of a COVID-19 Related Event and any matter that must be included in a Draft Services Order Proposal under section 2.4 of the Services Brief).
(aa) The parties acknowledge and agree that any Services Order Proposal in respect of:
(i) Wyangala Dam Wall Raising – Development (Pre Final Business Case);
(ii) Dungowan Dam – Development (Pre Final Business Case); and
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(iii) Mole River Dam – Development (Pre Final Business Case),
will be substantially in accordance with the relevant Draft Services Order Proposal set out in Exhibit 5 (Pre-existing Draft Services Order Proposals).
(b) Within 10 Business Days of the receipt of a "Services Order Proposal", the PDMP must provide the Principal's Representative with a written notice in which the PDMP sets out:
(i) the proposed PDMP S.O. Budget, including:
A. any elements of the PDMP S.O. Budget that will be priced as lump sums or upper limiting fees; and
B. any elements of the PDMP S.O. Budget that will be priced in accordance with Exhibit 4 (Chargeable Rates), as adjusted in accordance with this Contract, or any other rates and prices;
(ii) the PDMP's proposed methodology for performing the PDMP Services the subject of the proposed Services Order; and
(iii) the effect (if any) which the proposed Services Order will have on the Management Plans.
(c) The PDMP must prepare any notice under clause 16.2(b):
(i) in a transparent, open book manner, working collaboratively with the Principal, including in relation to pricing and resources; and
(ii) in a manner that:
A. is sufficiently detailed to enable analysis of each component of cost making up the proposed PDMP S.O. Budget for the PDMP Services the subject of the proposed Services Order;
B. fully discloses all assumptions, decisions, costings, contingencies and variances in the proposed PDMP S.O. Budget for the PDMP Services the subject of the proposed Services Order; and
C. maximises value for money to the Principal in the performance of the PDMP Services.
(d) The PDMP must provide any information or documents reasonably requested by the Principal's Representative in relation to the notice under clause 16.2(b) or the proposed Services Order.
Services Order
(a) The parties acknowledge and agree that the Principal's Representative may:
(i) issue a written document to the PDMP titled "Services Order" in which the Principal's Representative will state:
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A. the PDMP Services that must be performed under the Services Order (including whether the Services Order is a Pre-FBC Services Order or a Post-FBC Services Order and if the Services Order is a Post-FBC Services Order, identify all Pre-FBC Services Orders associated with that Post-FBC Services Order) and the timeframes for their performance (including any Milestone Dates);
B. any Funding Requirements that apply to that Services Order;
C. any KRAs or KPIs applying to the Services Order and how the PDMP's remuneration will be adjusted in relation to them;
D. that the proposed PDMP S.O. Budget as set out in the PDMP's notice under clause 16.2 (Services Order Proposal) is agreed; and
E. any other adjustments required to give effect to the Services Order, including any adjustment required to the Management Plans (including any PDMP Cost Plan);
(ii) reject the PDMP's notice; or
(iii) request the PDMP to submit an amended notice under clause 16.2 (Services Order Proposal).
(b) If the Principal's Representative issues a Services Order under clause 16.3(a)(i), the PDMP must:
(i) countersign and return the Services Order within 5 Business Days of its issue; and
(ii) perform the PDMP Services as described in the Services Order.
(c) The PDMP must not proceed with the PDMP Services the subject of a Draft Services Order Proposal or proposed Services Order unless and until the Principal's Representative has issued the PDMP with a Services Order in respect of such PDMP Services under clause 16.3(a)(i).
(d) No Services Order will invalidate the Contract irrespective of the nature, extent or value of the services the subject of the Services Order.
(e) If the Principal's Representative requests an amended notice under clause 16.3(a)(iii), the PDMP must prepare a further notice, in which case clause 16.3(a) of this clause will reapply.
(f) The PDMP must negotiate with the Principal's Representative in good faith to agree any changes requested by the Principal's Representative to the proposed Services Order.
(g) Nothing in this clause 16 (Services Orders) limits any rights of the Principal or obligations of the PDMP under clause 18 (Variation).
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17. Time
Progress
The PDMP must:
(a) immediately commence performance of the PDMP Services; and
(b) regularly and diligently progress the PDMP Services with due expedition and without delay and, if a milestone date is included in the Key Details for completion of the whole or different parts of the PDMP Services, complete the applicable PDMP Services by the relevant date included in the Key Details (Milestone Date).
Suspension
(a) The parties acknowledge and agree that the Principal's Representative may instruct the PDMP to suspend and, after a suspension has been instructed, to re-commence, the carrying out of all or a part of the PDMP Services.
(b) If a suspension under this clause 17.2 (Suspension) arises as a result of:
(i) the PDMP's failure to carry out its obligations in accordance with the Contract, the PDMP will not be entitled to make any Claim against the Principal arising out of, or in any way in connection with, the suspension; or
(ii) a cause other than the PDMP's failure to carry out its obligations in accordance with the Contract:
A. an instruction to suspend under this clause 17.2 (Suspension) will entitle the PDMP to be paid by the Principal the reasonable extra costs (not including any profit, loss of profit or offsite overheads) necessarily incurred by the PDMP as a result of the suspension as determined by the Principal's Representative;
B. the PDMP must take all steps possible to mitigate the extra costs incurred by it as a result of the suspension; and
C. the PDMP will not be entitled to make any Claim against the Principal arising out of, or in any way in connection with, the suspension other than under this clause 17.2(b)(ii).
18. Variation
Variation price request
(a) The parties acknowledge and agree that the Principal's Representative may, at any time, issue a document titled "Variation Price Request" to the PDMP which will set out details of a proposed Variation which the Principal is considering.
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(b) Within 10 Business Days of the receipt of a "Variation Price Request", the PDMP must provide the Principal's Representative with a written notice in which the PDMP sets out:
(i) where the Variation involves additional PDMP Services, the estimated amount which will be payable to the PDMP for the additional PDMP Services required to be performed by the PDMP in order to carry out the proposed Variation;
(ii) the adjustment (if any) to the PMO Costs and the PDMP S.O. Budget as a result of the Variation; and
(iii) the effect (if any) which the proposed Variation will have on the then Approved Portfolio Program, including any applicable Milestone Dates.
Variation order
(a) Whether or not the Principal's Representative has issued a "Variation Price Request" under clause 18.1 (Variation price request), the parties acknowledge and agree that the Principal's Representative may at any time instruct the PDMP to carry out a Variation by issuing a written document to the PDMP titled "Variation Order" in which the Principal's Representative will state one of the following:
(i) the proposed adjustment to the PMO Costs (if any) and the PDMP S.O. Budget (if any) as set out in the PDMP's notice under clause 18.1 (Variation price request) (if any) is agreed and the PMO Costs and the PDMP S.O. Budget will be adjusted accordingly; or
(ii) any adjustment to the PMO Costs (if any) and the PDMP S.O. Budget (if any) will be determined under clauses 18.3(b) or 18.3(c) (Adjustment for Variation).
(b) No Variation will invalidate the Contract irrespective of the nature, extent or value of the services the subject of the Variation.
Adjustment for Variation
Subject to clause 23.1 (Notice of Variation), the PMO Costs and the PDMP S.O. Budget, as applicable, will be adjusted for all Variations which have been the subject of a Direction by the Principal's Representative by:
(a) where clause 18.2(a)(i) (Variation order) applies, the agreed amount;
(b) where clause 18.2(a)(i) (Variation order) does not apply, an amount determined by the Principal's Representative using any rates or prices which appear in Exhibit 4 (Chargeable Rates), as adjusted in accordance with this Contract, to the extent the Principal’s Representative determines they are applicable to, or it is reasonable to use them for valuing the Variation; and
(c) to the extent paragraphs (a) and (b) do not apply, an amount determined by the Principal's Representative acting reasonably.
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Rates and prices
Where the hourly rates or other rates or prices which appear in Exhibit 4 (Chargeable Rates), as adjusted in accordance with this Contract, are used under clause 18.3(b) (Adjustment for Variation), the rates and prices will be deemed to cover:
(a) all labour, materials, overheads and profit related to the work or services the subject of the Variation and compliance with the PDMP's obligations under the Contract; and
(b) all costs and expenses which will be incurred by the PDMP arising out of or in any way in connection with the Variation.
Changes to the Works
(a) The Principal's Representative may, at any time, direct a change to the scope of the Works by issuing a written notice to the PDMP, including:
(i) increasing or decreasing the quantities of the Works (or any part of it);
(ii) omitting any part of the Works;
(iii) changing the character, quality or performance requirements of the Works; and
(iv) changing the dimensions of the Works or any part of it.
(b) The Principal's Representative may issue a direction under this clause whether or not a "Variation Order" is issued under clause 18.2 (Variation order) with respect to the PDMP Services.
(c) If a direction is issued by the Principal's Representative under this clause 18.5 (Changes to the Works), the PDMP S.O. Budget and the PMO Costs, as applicable, will be adjusted by the amount representing the reasonable cost of the additional or reduced Works to be undertaken as a result of the direction, such amount to be:
(i) as agreed between the parties; or
(ii) failing agreement, determined by the Principal's Representative, acting reasonably.
Omissions and deletions
(a) If a Variation the subject of a Direction by the Principal's Representative omits or deletes any part of the PDMP Services (including the work under any Services Order), the Principal may thereafter either perform this work itself or employ or engage Other Contractors to perform the omitted or deleted work.
(b) No Variation will invalidate, or amount to a repudiation of, this Contract.
Variations requested by PDMP
The PDMP may, for its convenience, request the Principal's Representative to direct a Variation. Any such request must be in writing and must contain the following details:
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(a) a description of the requested Variation, including any proposed adjustment to the PDMP S.O. Budget or the PMO Costs, as applicable;
(b) the additional or reduced costs or time involved in the Variation and any proposal for sharing any savings in costs with the Principal including the amount; and
(c) any benefits which will flow to the Principal from the Variation.
Principal's Representative's determination
(a) After a request is made by the PDMP in accordance with clause 18.7 (Variations requested by PDMP), the Principal's Representative will, in its absolute discretion, give a written notice to the PDMP:
(i) rejecting the request; or
(ii) approving the request either conditionally or unconditionally.
(b) The Principal's Representative will not be obliged to exercise its discretion for the benefit of the PDMP.
Variation approved by Principal's Representative
If the Principal's Representative issues a written notice under clause 18.8 (Principal's Representative's determination) approving the PDMP's request under clause 18.7 (Variations requested by PDMP):
(a) unless otherwise agreed, the PDMP will not be entitled to make a Claim against the Principal arising out of, or in any way in connection with, the Variation;
(b) if the PDMP's request offered to share savings in cost with the Principal, the PMO Costs and the PDMP S.O. Budget, as applicable, will be reduced by the amount offered by the PDMP in its request; and
(c) the PDMP will be responsible for all parts of the PDMP Services which are in any way affected by the Variation.
19. Payment
Payment obligation
Subject to clause 19.7 (Right of set off) and to any other right to set-off which the Principal may have, the Principal must pay the PDMP:
(a) the Contract Price in relation to PDMP Services performed;
(b) the expenses and disbursements described and incurred under Exhibit 4 (Chargeable Rates);
(c) where applicable, the Gainshare Amount; and
(d) any other amounts which are payable by the Principal to the PDMP under the Contract.
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Payment claims
(a) The PDMP must give the Principal's Representative claims for payment on account of the Contract Price and any other amounts payable by the Principal to the PDMP under the Contract:
(i) subject to clause 19.4 (Conditions precedent to payment), on the 25th day of each month after the Award Date or where that day is not a Business Day, the next Business Day;
(ii) in such form which the Principal's Representative reasonably requires; and
(iii) which are based on Exhibit 4 (Chargeable Rates), as adjusted in accordance with this Contract, to the extent such prices are relevant.
(b) The PDMP cannot include in any payment claim under this clause 19.2 (Payment claims), a Claim which is barred by clause 23.5 (Time bar).
(c) The PDMP agrees with the Principal that a payment claim submitted to the Principal's Representative under this clause 19.2 (Payment claims) is received by the Principal's Representative as agent for the Principal.
Payment statements
(a) The Principal must procure the Principal's Representative to within 10 Business Days of receiving a payment claim under clause 19.2 (Payment claims) give the PDMP, on behalf of the Principal, a payment statement which states:
(i) the value of the PDMP Services completed in accordance with the Contract;
(ii) the amount already paid to the PDMP;
(iii) the amount the Principal is entitled to retain, deduct, withhold or set-off under the Contract;
(iv) the amount (if any) which the Principal's Representative believes to be then payable by the Principal to the PDMP on account of the Contract Price and otherwise under the Contract and which the Principal proposes to pay to the PDMP; and
(v) if the amount in clause 19.3(a)(iv) is less than the amount claimed in the payment claim:
A. the reason why the amount in clause 19.3(a)(iv) is less than the amount claimed in the payment claim; and
B. if the reason for the difference is that the Principal has retained, deducted, withheld or set off payment for any reason, the reason for the retention, deduction, withholding or setting off payment.
(b) The issue of a payment statement by the Principal's Representative does not constitute approval of any work nor will it be taken as an admission or evidence that the part of the PDMP Services covered by the payment
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statement has been satisfactorily carried out in accordance with the Contract.
(c) Failure by the Principal's Representative to set out in a payment statement an amount which the Principal is entitled to retain, deduct, withhold or set off from the amount which would otherwise be payable to the PDMP by the Principal will not prejudice the Principal's right to subsequently exercise its right to retain, deduct, withhold or set off any amount under the Contract.
(d) Unless the Principal has notified the PDMP under clause 19.13(g) (GST) that it will issue a recipient created tax invoice (RCTI) for a taxable supply made by the PDMP to the Principal, the PDMP must, within 2 Business Days after receipt of the payment statement issued by the Principal’s Representative, provide to the Principal a valid tax invoice that complies with the GST Legislation in respect of that taxable supply for the amount set out as payable in the payment statement. If clause 19.13(g) (GST) applies, the Principal will provide the RCTI for the amount set out as payable in the payment statement together with the payment statement.
Conditions precedent to payment
The PDMP is not entitled to give the Principal a payment claim under clause 19.2 (Payment claims), and the Principal is not obliged to make any payment under clause 19.5 (Payment of amount set out in payment statement), unless the PDMP has provided the Principal's Representative with:
(a) an Unconditional Undertaking in accordance with clause 5.1 (Form of security) or clause 5.3 (Replacement security);
(b) any parent company guarantee as required by clause 5.5 (Parent Company Guarantee);
(c) evidence of any insurance taken out by the PDMP which is required under clause 7.3 (PDMP insurance obligations);
(d) a duly executed escrow deed as required under clause 9.5 (Source Code);
(e) a duly executed Confidentiality Undertaking as required by clause 9.7(a) (Confidentiality); and
(f) documents showing compliance by the PDMP with clause 19.8 (Evidence of payment of workers and Subcontractors).
Payment of amount set out in payment statement
(a) Subject to clause 19.7 (Right of set off), the Principal must pay the PDMP the amount set out as payable in the payment statement within 15 Business Days of receipt by the Principal's Representative of the payment claim under clause 19.2 (Payment claims).
(b) If a payment statement issued under clause 19.3 (Payment statements) shows an amount owing by the PDMP to the Principal, the PDMP must pay the Principal that amount within 5 Business Days of receipt by the PDMP of the payment statement.
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Payment on account
(a) Any payment statement or payment of moneys is not:
(i) evidence of the value of work or that work has been satisfactorily carried out in accordance with the Contract;
(ii) an admission of liability; or
(iii) approval by the Principal or the Principal's Representative of the PDMP's performance or compliance with the Contract.
(b) Payment is only to be taken as payment on account.
Right of set off
(a) The Principal may deduct from any moneys otherwise due to the PDMP:
(i) any debt or other moneys due from the PDMP to the Principal (including any due debt from the PDMP to the Principal pursuant to section 26C of the SOP Act);
(ii) any amount that is less than or equal to the amount claimed to be owed under a payment withholding request served on the Principal pursuant to Division 2A of the SOP Act; or
(iii) any Claim to money which the Principal may have against the PDMP whether for damages or otherwise,
whether under or in connection with the Contract, or relating to the PDMP Services.
(b) The rights given to the Principal under this clause 19.7 (Right of set off) are in addition to and do not limit or affect any other rights of the Principal under the Contract or at Law and nothing in the clause affects the right of the Principal to recover from the PDMP the whole of the debt or Claim in question or any balance that remains owing.
(c) Failure by the Principal to deduct from an amount otherwise due to the PDMP any amount which the Principal is entitled to deduct under this clause 19.7 (Right of set off), will not prejudice the Principal’s right to subsequently exercise its right of deduction under this clause.
(d) Clause 19.7 will survive any termination of the Contract.
Evidence of payment of workers and Subcontractors
The PDMP is not entitled to give the Principal a payment claim under clause 19.2 (Payment claims) and the Principal is not obliged to make any payment under clause 19.5 (Payment of amount set out in payment statement) unless the PDMP has provided the Principal's Representative with:
(a) a declaration in the form of Schedule 9 (Form of Declaration), together with any supporting evidence which may be reasonably required by the Principal's Representative, duly signed by the PDMP or, where the PDMP is a corporation, by a representative of the PDMP who is in a position to know the facts declared; and
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(b) copies of all relevant certificates of currency in respect of Workers Compensation Insurance which the PDMP has in place in connection with the PDMP Services.
Interest
The Principal will pay simple interest at the 90 day bank bill rate on any amount which has been set out as payable by the Principal's Representative in a payment statement under clause 19.3 (Payment statements), but which is not paid by the Principal within the time required by the Contract. This will be the PDMP's sole entitlement to interest including damages for loss of use of, or the cost of borrowing money.
SOP Act
(a) This clause applies if the SOP Act applies to the Contract.
(b) For the purposes of section 17(3) of the SOP Act, the PDMP irrevocably chooses the Resolution Institute as the "authorised nominating authority" (as that term is defined in the SOP Act) for any adjudication application it may make under the SOP Act in respect of the subject matter of the Contract.
(c) When an adjudication occurs under the SOP Act, and the Principal has paid an adjudicated amount to the PDMP:
(i) the amount will be taken into account by the Principal's Representative in issuing a payment statement under clause 19.3 (Payment statements); and
(ii) if it is subsequently determined pursuant to the Contract that the PDMP was not entitled under the Contract to payment of some or all of the adjudicated amount that was paid by the Principal ("overpayment"), the overpayment will be a debt due and payable by the PDMP to the Principal which the PDMP must pay to the Principal upon demand and in respect of which the PDMP is not entitled to claim or exercise any set-off, counterclaim, deduction or similar right of defence.
(d) Without limiting clause 19.7 (Right of set off), the Principal may withhold any amount that is less than or equal to the amount claimed to be owed under a payment withholding request served on the Principal pursuant to Division 2A of the SOP Act.
(e) If the Principal withholds from money otherwise due to the PDMP any amount that is less than or equal to the amount claimed to be owed under a payment withholding request served on the Principal pursuant to Division 2A of the SOP Act, then:
(i) the Principal may lead and rely upon Division 2A of the SOP Act as a defence to any Claim for the money by the PDMP from the Principal; and
(ii) the period during which the Principal retains money due to the PDMP pursuant to an obligation under Division 2A of the SOP Act will not be taken into account for the purpose of determining:
A. any period for which money owed by the Principal to the PDMP has been unpaid; and
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B. the date by which payment of money owed by the Principal to the PDMP must be made.
(f) The PDMP agrees not to commence proceedings to recover any amount withheld by the Principal pursuant to a payment withholding request served on the Principal in accordance with Division 2A of the SOP Act.
(g) Any amount paid by the Principal pursuant to section 26C of the SOP Act will be a debt due from the PDMP to the Principal.
(h) If the Principal withholds money pursuant to a payment withholding request served on the Principal pursuant to Division 2A of the SOP Act and the PDMP:
(i) pays the amount claimed to be due under the adjudication application to which the payment withholding claim relates; or
(ii) becomes aware that the adjudication application to which the payment withholding claim relates has been withdrawn,
then the PDMP must so notify the Principal within 5 days of the occurrence of the event in sub-paragraph (i) or (ii) above (as applicable) by providing to the Principal a statement in writing in the form of a statutory declaration together with such other evidence as the Principal may require evidencing that the amount has been paid or the adjudication application has been withdrawn (as the case may be).
Subcontractor's statement
(a) The PDMP must:
(i) submit a signed subcontractor's statement, in the form set out in Schedule 10 (Subcontractor's Statement), together with any payment claims submitted under clause 19.2 (Payment claims); and
(ii) ensure that any such subcontractor's statement is not dated before the date of the relevant payment claim.
(b) The PDMP acknowledges that pursuant to the Workers Compensation Act 1987 (NSW), the Payroll Tax Act 2007 (NSW) and the Industrial Relations Act 1996 (NSW):
(i) the subcontractor's statement is required to be provided to the Principal; and
(ii) the Principal may withhold any payment due to the PDMP under this Contract until the PDMP gives a subcontractor's statement in the form of Schedule 10 (Subcontractor's Statement). Any penalty for late payment under the Contract does not apply to any payment withheld under this clause 19.11(b)(ii).
Payment of Subcontractors
The PDMP acknowledges and agrees that, without limiting clause 19.8 (Evidence of payment of workers and Subcontractors):
(a) the portion of each payment made by the Principal to the PDMP on account of the Contract Price which is payable by the PDMP to
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Subcontractors in accordance with their relevant subcontracts is held by the PDMP on trust for those Subcontractors; and
(b) the PDMP must pay all Subcontractors promptly in accordance with the relevant subcontracts.
GST
(a) The parties acknowledge that unless otherwise expressly stated all amounts of monetary consideration in the Contract are exclusive of GST.
(b) If GST is or becomes payable on a supply made by a party (Supplier) under or in connection with the Contract or the PDMP Services, the party providing consideration for the supply (Recipient) must pay an additional amount to the Supplier equal to the GST payable by the Supplier (or representative member of a GST group of which the Supplier is a member) in relation to the supply.
(c) Any amount payable under clause 19.13(b) will be paid to the Supplier at the same time as the other consideration for the supply is paid to the Supplier.
(d) If any party is required under the Contract to reimburse or pay to the other party an amount (other than any payment on account of the Contract Price) 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 (or representative member of a GST group of which that party is a member) is entitled in respect of any acquisition relating to that cost, expense or other amount.
(e) Notwithstanding any other provision of the Contract, where the Recipient is the PDMP, it will not be obliged to pay any amount on account of GST to the Principal (whether under this clause 19.13 or otherwise) in respect of a taxable supply made by the Principal unless and until the Principal issues to the PDMP, a valid tax invoice that complies with the GST Legislation in respect of that taxable supply.
(f) Where the Supplier is the PDMP, the PDMP must issue a valid tax invoice to the Principal in respect of any taxable supply made by the PDMP to the Principal (including under clause 19.3 (Payment statements)) as a condition precedent to the Principal being obliged to pay any amount on account of GST to the PDMP in respect of such taxable supply.
(g) The parties agree that, if notified in writing by the Principal, the following will apply to taxable supplies made by the PDMP to the Principal under or in connection with the Contract:
(i) where the GST Legislation permits, the Principal will issue to the PDMP an RCTI for each taxable supply (other than an Excluded Supply as defined in this clause) made by the PDMP to the Principal under the Contract and each such RCTI will be deemed to be a valid tax invoice issued by the PDMP to the Principal for the purpose of clause 19.13(f) (GST). The parties may agree in writing from time to time that the Principal will not issue an RCTI in respect of a taxable supply made by the PDMP to the Principal under the Contract (Excluded Supply);
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(ii) the Principal will issue to the PDMP a recipient created adjustment note for any adjustment event relating to a supply in respect of which it issues an RCTI; and
(iii) the PDMP will not issue a tax invoice in respect of any taxable supply it makes to the Principal (other than in respect of a taxable supply that is an Excluded Supply).
(h) Unless clause 19.13(l) applies, each party acknowledges and warrants that at the time of entering into the Contract it is registered for GST (and any entity making supplies or acquisitions under this Contract is also registered for GST) and will notify the other party if it or any relevant entity ceases to be registered for GST or ceases to comply with any of the requirements of the Goods and Services Tax: Recipient Created Tax Invoice Determination 2017 for Agricultural Products, Government Related Entities and Large Business Entities (RCTI 2017/6) or other determination or ruling issued by a taxation authority relating to the issuance of RCTIs (RCTI Requirement). The Principal will not issue a document that would otherwise be an RCTI after the Principal or the PDMP cease to be registered for GST, or after the Principal or the PDMP cease to comply with any RCTI Requirement.
(i) If the PDMP does not, at the time of entering into this Contract have a valid registration for GST purposes or an Australian Business Number (ABN):
(i) the PDMP must complete a "Statement by Supplier" or similar document in a form acceptable to the Australian Taxation Office clarifying the basis on which the PDMP is not required to be registered for GST purposes; and
(ii) the PDMP must inform the Principal if the PDMP is or becomes required to be registered for GST purposes and must notify the Principal of the date from which registration will be effective.
(j) If the PDMP does not provide its ABN in this Contract, the PDMP must complete a “Statement by Supplier” in a form acceptable to the Australian Taxation Office declaring the basis on which the PDMP is not required to have an ABN.
(k) The PDMP indemnifies the Principal for any loss suffered by the Principal because of any breach of any warranty given in clauses 19.13(h) to 19.13(i) or because of the inaccuracy of any information provided in accordance with clauses 19.13(h) to 19.13(i) or because of any failure by the PDMP to provide accurate information to the Principal in a timely fashion in accordance with clauses 19.13(h) to 19.13(i).
(l) Where the Principal issues RCTIs to the PDMP in accordance with clause 19.13(g), the PDMP will indemnify or reimburse the Principal on demand for any loss, cost, expense, penalty, fine, interest, fee or other amount incurred in relation to the Principal issuing RCTIs while:
(i) the PDMP is not registered for GST and/or otherwise fails to satisfy, or comply with, any RCTI Requirement and the Principal has not been notified by the PDMP as such; or
(ii) the details contained in any RCTI or recipient created adjustment note issued by the Principal are incorrect, inaccurate or misleading as a result of information provided by the PDMP to the Principal.
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(m) If the GST payable in relation to a supply made by the Supplier under the Contract varies from the additional amount paid by the other party under this clause 19.13 in respect of that supply, then the Supplier will provide a corresponding refund or credit to or will be entitled to receive the amount of that variation from the other party (as appropriate).
(n) In this clause 19.13:
(i) terms defined in GST Legislation have the meaning given to them in GST Legislation, unless the context suggests otherwise;
(ii) GST includes amounts defined as "GST" under the GST Legislation and "GST equivalents" payments under the Intergovernmental Agreement Implementation (GST) Act 2000 (NSW) (or similar payments under corresponding legislation of any other State or Territory); and
(iii) any part or progressive or periodic component of a supply that is treated as a separate supply for GST purposes (including attributing GST to tax periods) will be treated as a separate supply.
Rate review
(a) The rates and prices in Exhibit 4 (Chargeable Rates) will be reviewed:
(i) on 1 July 2023; and
(ii) thereafter, annually on each anniversary of the date referred to in clause 19.14(a)(i),
(each a Review Date).
(b) Each review under clause 19.14(a) will be undertaken as follows:
(i) within 60 Business Days prior to the relevant Review Date, the PDMP must give the Principal's Representative a proposal attaching:
A. its proposed new rates and prices to replace the then rates and prices in Exhibit 4 (Chargeable Rates); and
B. a detailed explanation on an open book basis of how those proposed rates and prices maximise achievement of the Objectives;
(ii) after receiving the PDMP's proposal, the parties acknowledge and agree that the Principal's Representative may by notice to the PDMP:
A. accept the proposal; or
B. notify the PDMP that it wishes to negotiate the proposal;
(iii) the new rates and prices to replace the then rates and prices in Exhibit 4 (Chargeable Rates) will be:
A. as accepted by the Principal under clause 19.14(b)(ii)A; or
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B. as agreed by the parties under clause 19.14(b)(ii)B; and
(iv) to the extent that any individual rate or price to replace the then corresponding rate or price in Exhibit 4 (Chargeable Rates) has not been:
A. accepted by the Principal's Representative under clause 19.14(b)(ii)A; or
B. agreed by the parties under clause 19.14(b)(ii)B,
by the date that is 40 Business Days before the relevant Review Date (Disputed Rate), that Disputed Rate will be determined by the Principal, acting reasonably.
(c) Notwithstanding any other provision in this clause 19.14, the parties acknowledge and agree that the annual percentage change to any rate or price must not exceed the annual percentage change set out in the Wage Price Index for the previous year.
20. Termination
Preservation of rights
Subject to clause 20.6 (PDMP’s entitlements after termination), nothing in this clause 20 (Termination) or that a party does or fails to do pursuant to this clause 20 (Termination) will prejudice the right of that party to exercise any right or remedy (including recovering damages) which it may have where the other party breaches (including repudiates) the Contract.
PDMP default
The Principal may give a written notice under clause 20.3 (Contents of notice of default) to the PDMP, if the PDMP:
(a) does not commence the PDMP Services in accordance with the requirements of the Contract;
(b) suspends the PDMP Services in breach of clause 17.2 (Suspension) or otherwise does not proceed with the PDMP Services in accordance with clause 17.1 (Progress);
(c) fails to comply with its obligations under clause 4.5 (Nominated PDMP Personnel), unless that failure has occurred because that person was identified in a notice issued by the Principal's Representative to the PDMP under clause 4.6 (Removal of persons);
(d) fails to provide security as required by clause 5.1 (Form of security), clause 5.3 (Replacement security) or a parent company guarantee as required by clause 5.5 (Parent Company Guarantee);
(e) in the opinion of the Principal has a conflict of interest in performing the PDMP Services;
(f) fails to effect, have in place or otherwise maintain or provide evidence of, insurance as required by clause 7 (Risks and insurance);
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(g) fails to exercise the standard of skill, care and diligence required by the Contract;
(h) does not comply with any Direction of the Principal's Representative made in accordance with the Contract (including any direction given under clause 13.2(a) (Non-complying Deliverables or PDMP));
(i) abandons the PDMP Services or otherwise plainly demonstrates the intention not to continue performance of its obligations under the Contract;
(j) is in breach of any applicable Law;
(k) fails to comply with a performance action plan required by the Principal under clause 27 (Performance) of this Contract;
(l) fails to comply with clauses 11.1 (Records open for inspection and audit), 19.12(b) (Payment of Subcontractors) or 28.8(b) (Assignment, Change of Control and certain matters under the PDMP JV Agreement and the subcontracts); or
(m) is otherwise in breach of the Contract.
Contents of notice of default
A notice under clause 20.3 must state:
(a) that it is a notice under clause 20.3;
(b) the breach relied upon; and
(c) that the Principal requires the PDMP to remedy the breach within 15 Business Days of receiving the notice.
Termination for insolvency, dealing or breach
If:
(a) an Insolvency Event occurs to the PDMP, or where the PDMP constitutes 2 or more persons, to any one of those persons;
(b) the PDMP, or a person constituting the PDMP, is in breach of clauses 28.8(b), 28.8(c), 28.8(d), 28.8(e), 28.8(f) or 28.8(g) (Assignment, Change of Control and certain matters under the PDMP JV Agreement and the subcontracts);
(c) the PDMP does not remedy a breach of Contract the subject of a notice under clause 20.3 (Contents of notice of default) within 15 Business Days of receiving the notice under clause 20.3 (Contents of notice of default);
(d) in the opinion of the Principal, a party to an agreement between a Subcontractor and the PDMP is entitled to terminate or rescind that agreement for any reason;
(e) in the opinion of the Principal, a person constituting the PDMP is entitled to terminate or rescind the PDMP JV Agreement for any reason; or
(f) a person constituting the PDMP has provided notice to another person constituting the PDMP that that person is in default under the PDMP JV Agreement,
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then the Principal may by written notice to the PDMP terminate the Contract.
Principal's entitlements after termination
Subject to clause 20.1 (Preservation of rights), if:
(a) the Principal terminates the Contract under clause 20.4 (Termination for insolvency, dealing or breach); or
(b) the PDMP repudiates the Contract and the Principal otherwise terminates the Contract,
then:
(c) the Principal will:
(i) be entitled to require the PDMP to novate to the Principal or the Principal's nominee, any or all subcontracts between the PDMP and its Subcontractors as required by the Principal;
(ii) not be obliged to make any further payments to the PDMP, including any money the subject of a payment claim under clause 19.2 (Payment claims) or a payment statement under clause 19.3 (Payment statements); and
(iii) be entitled to recover from the PDMP any costs, losses or damages incurred or suffered by it as a result of, or arising out of, or in any way in connection with, such termination or repudiation; and
(d) the PDMP must immediately hand over to the Principal all copies of the Portfolio Documents (whether complete or not).
PDMP’s entitlements after termination
(a) If the Principal repudiates the Contract and the PDMP otherwise terminates the Contract, the PDMP will:
(i) be entitled to claim damages; and
(ii) not be entitled to a quantum meruit.
(b) This clause 20.6 (PDMP’s entitlements after termination) will survive any termination of the Contract.
Termination for convenience
Without prejudice to any of the Principal's other rights, the Principal may:
(a) at any time for its sole convenience, and for any reason, by written notice to the PDMP terminate the Contract effective from the time stated in the Principal’s notice or if no such time is stated, at the time the notice is given to the PDMP; and
(b) thereafter, at its absolute discretion, complete the uncompleted part of the PDMP Services either itself or by engaging Other Contractors.
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Costs
If the Principal terminates the Contract under clause 20.7 (Termination for convenience), the PDMP:
(a) will be entitled to payment of the following amounts as determined by the Principal's Representative:
(i) for the PDMP Services carried out prior to the date of termination, the amount which would have been payable if the Contract had not been terminated and the PDMP submitted a payment claim for the Contract value of PDMP Services carried out prior to the date of termination; and
(ii) the reasonable direct costs incurred by the PDMP (excluding profit but including an amount for overheads) as a direct result of the termination,
but in no case will the total amount payable to the PDMP under the Contract (including under this clause 20.8 (Costs)) be more than the Contract Price; and
(b) must:
(i) take all steps possible to mitigate the costs referred to in clause 20.8(a); and
(ii) immediately hand over to the Principal all copies of the Project Documents (whether complete or not).
The amount to which the PDMP is entitled under this clause 20.8 (Costs) will be a limitation upon the Principal’s liability to the PDMP arising out of, or in any way in connection with, the termination of the Contract and the PDMP may not make any Claim against the Principal arising out of, or in any way in connection with, the termination of the Contract, other than for the amount payable under this clause 20.8 (Costs).
This clause 20.8 (Costs) will survive the termination of the Contract by the Principal under clause 20.7 (Termination for convenience).
21. Transition out
Right to appoint successor
The PDMP acknowledges that the Principal may, on or before the expiry or termination of the Term, invite any person (including the PDMP) to perform all or any part of PDMP Services for the period commencing after expiry or termination of the Term.
Assistance in securing continuity
(a) Without limiting any other provisions of this Contract, the PDMP must, to the extent permitted by Law, provide the Principal with reasonable access to its premises, Personnel and the information, books and records kept by or on behalf of the PDMP in connection with the PDMP Services, for the purpose of the Principal:
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(i) taking over the performance of all or part of the PDMP Services at the end of the Term; or
(ii) preparing reports and documents in connection with any invitation to a person for the performance of all or part of the PDMP Services.
(b) The PDMP must provide all reasonable assistance to the Principal in the preparation for, and the conduct of, a fair and competitive expression of interest or tendering process (if applicable).
(c) The PDMP must do everything, both before and after the expiry or termination of the Term, as the Principal may reasonably require to assist and advise the Principal or its nominee in the performance of the PDMP Services, including:
(i) the provision of information and records related to the performance of the PDMP Services;
(ii) to the extent required by the Principal, the novation of any contracts or licences relating to the provision of the PDMP Services to the Principal or its nominee at no additional charge to the Principal, unless otherwise agreed in writing by the Principal;
(iii) to the extent required by the Principal, procuring licences for any Software used in the PDMP Services on commercially reasonable terms;
(iv) making any Personnel available for discussions with the Principal or its nominee as may be reasonably required to ensure the orderly transition and continuity of provision of the PDMP Services; and
(v) the provision of training sessions to any person nominated by the Principal in relation to the performance of the PDMP Services.
Continuity of the PDMP Services
The PDMP must manage, perform and maintain the PDMP Services in a way that the Principal or its nominee is able at any time to immediately take over the performance of the PDMP Services without interruption.
Non frustration of transfer
The PDMP must not do anything that directly or indirectly avoids or materially prejudices or frustrates the transfer of the performance of the PDMP Services at termination or expiry of the Term to the Principal or its nominee.
22. Disputes
Notice of Dispute
(a) If a dispute or difference arises between the PDMP and the Principal or between the PDMP and the Principal's Representative in respect of any fact, matter or thing arising out of, or in any way in connection with, the PDMP Services, the Works or the Contract, or either party's conduct before the Contract, the dispute or difference must be determined in accordance with the procedure in this clause 22 (Disputes).
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(b) Where such a dispute or difference arises, either party may give a notice in writing (Notice of Dispute) to the Principal's Representative and the other party specifying:
(i) the dispute or difference;
(ii) particulars of the party's reasons for being dissatisfied; and
(iii) the position which the party believes is correct.
Negotiation
The Principal's Representative and the PDMP's Representative (or their nominees) must, within 10 Business Days of a Notice of Dispute being given under clause 22.1 (Notice of Dispute), meet and discuss the dispute or difference.
Executive negotiation
Whether or not discussions have taken place under clause 22.2 (Negotiation), if dispute or difference is not resolved within 20 Business Days after a Notice of Dispute is given under clause 22.1 (Notice of Dispute), it must be referred to senior executives of each party (as nominated by each party) who must:
(a) meet and discuss the dispute or difference; and
(b) if they cannot resolve the dispute or difference, endeavour to agree upon a procedure to resolve the dispute or difference.
Expert determination
Whether or not discussions have taken place under clause 22.3 (Executive negotiation), if the senior executives of each party have not resolved, or agreed upon a procedure to resolve the dispute or difference within 25 Business Days after a Notice of Dispute is given under clause 22.1 (Notice of Dispute), either party may submit the dispute or difference to an expert determination.
The expert
The expert determination under clause 22.4 (Expert determination) is to be conducted by an independent industry expert appointed by the Chair for the time being of the Australian Centre for International Commercial Arbitration (unless the parties agree otherwise).
Not arbitration
An expert determination conducted under this clause 22 (Disputes) is not an arbitration and the expert is not an arbitrator. The expert may reach a decision from his or her own knowledge and expertise.
Procedure for determination
The expert will:
(a) act as an expert and not as an arbitrator;
(b) proceed in any manner he or she thinks fit;
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(c) conduct any investigation which he or she considers necessary to resolve the dispute or difference;
(d) examine such documents, and interview such persons, as he or she may require; and
(e) make such directions for the conduct of the determination as he or she considers necessary.
Disclosure of interest
The expert must:
(a) disclose to the parties any interest he or she has in the outcome of the determination; and
(b) not communicate with one party to the determination without the knowledge of the other.
Costs
Each party will:
(a) bear its own costs in respect of any expert determination; and
(b) pay one half of the expert’s costs.
Conclusion of expert determination
Unless otherwise agreed between the parties, the expert must notify the parties of his or her decision upon an expert determination conducted under this clause 22 (Disputes) within 20 Business Days from the acceptance by the expert of his or her appointment.
Agreement with expert
The expert will not be liable to the parties arising out of, or in any way in connection with, the expert determination process, except in the case of fraud.
The parties must enter into an agreement with the appointed expert on the terms set out in Schedule 11 (Terms of Expert Appointment) or such other terms as the parties and the expert may agree.
Determination of expert
The determination of the expert:
(a) must be in writing;
(b) will be:
(i) substituted for the relevant Direction of the Principal's Representative (if applicable); and
(ii) final and binding,
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unless a party gives notice of appeal to the other party within 15 Business Days of the determination; and
(c) is to be given effect to by the parties unless and until it is reversed, overturned or otherwise changed under the procedure in the following clauses.
Arbitration
(a) If:
(i) the expert fails to notify the parties of his or her decision within the time required by clause 22.10 (Conclusion of expert determination); or
(ii) a notice of appeal is given under clause 22.12 (Determination of expert),
the dispute or difference will be referred to arbitration.
(b) The arbitration will be conducted before a person to be:
(i) agreed between the parties; or
(ii) failing agreement within 20 Business Days of the referral to arbitration, appointed by the Chair for the time being of the Australian Centre for International Commercial Arbitration (unless the parties agree otherwise).
(c) To the extent that they are not inconsistent with the Contract, the arbitration rules of the Australian Centre for International Commercial Arbitration (known as the ACICA Arbitration Rules) will apply to the arbitration.
(d) The seat of the arbitration will be Sydney, Australia.
(e) The arbitrator will have power to grant all legal, equitable and statutory remedies and to open up, review and substitute any determination of an expert under clause 22.12 (Determination of expert).
(f) Notwithstanding anything else, to the extent permissible by Law, the arbitrator will have no power to apply or to have regard to the provisions of Part 4 of the Civil Liability Act 2002 (NSW).
Urgent relief
Neither the Principal nor the PDMP is prevented or restrained by operation of any clause of this Contract from applying to the courts and appellate courts of New South Wales to seek urgent relief (including injunctive or conservatory measures). The application by a party for such urgent relief must not be deemed to be an infringement or waiver of the dispute resolution process in this clause 22 and does not affect the relevant powers of any expert or arbitral tribunal.
Survive termination
This clause 22 will survive any termination of the Contract.
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Continuation of PDMP Services
Despite the existence of a dispute or difference between the parties, the PDMP must:
(a) continue to carry out the PDMP Services; and
(b) otherwise comply with its obligations under the Contract.
23. Notices
Notice of Variation
If the PDMP considers that a Direction by the Principal's Representative, which is not expressed to be a "Variation Order" under clause 18.2 (Variation order) or a Services Order, constitutes or involves a Variation, the PDMP must, if it wishes to make a Claim against the Principal arising out of, or in any way in connection with, the Direction:
(a) within 5 Business Days of receiving the Direction and before commencing work on the subject matter of the Direction, give notice to the Principal's Representative that it considers the Direction constitutes or involves a Variation;
(b) within 15 Business Days of giving the notice under clause 23.1(a), submit a written claim to the Principal's Representative which includes the details required by clause 23.3(b) (Prescribed notices); and
(c) continue to carry out the PDMP Services in accordance with the Contract and all Directions of the Principal's Representative, including any Direction in respect of which notice has been given under this clause 23.1.
Notice of other Claims
Except for Claims for:
(a) a Variation instructed in a "Variation Order" under clause 18.2 (Variation order) or to which clause 23.1 (Notice of Variation) applies; or
(b) payment under clause 19.2 (Payment claims) of the original Contract Price specified in the Key Details,
the PDMP must give the Principal's Representative the notices required by clause 23.3 (Prescribed notices) if it wishes to make a Claim against the Principal in respect of any Direction by the Principal's Representative or any other fact, matter or thing (including a breach of the Contract by the Principal) under, arising out of, or in any way in connection with, the Contract or the PDMP Services, the PDMP Services, including anything in respect of which:
(c) it is otherwise given an express entitlement under the Contract; or
(d) the Contract expressly provides that:
(i) specified costs are to be added to the Contract Price; or
(ii) the Contract Price will be otherwise increased or adjusted,
as determined by the Principal's Representative.
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Prescribed notices
The notices referred to in clause 23.2 (Notice of other Claims) are:
(a) a written notice within 5 Business Days of the first occurrence of the Direction or other fact, matter or thing upon which the Claim is based, expressly specifying:
(i) that the PDMP proposes to make a Claim; and
(ii) the Direction or other fact, matter or thing upon which the Claim will be based; and
(b) a written claim within 15 Business Days of giving the written notice under paragraph (a), which must include:
(i) detailed particulars concerning the Direction or other fact, matter or thing upon which the Claim is based;
(ii) the legal basis for the Claim, whether based on a term of the Contract or otherwise, and if based on a term of the Contract, clearly identifying the specific term;
(iii) the facts relied upon in support of the Claim in sufficient detail to permit verification;
(iv) details of the amount claimed and how it has been calculated; and
(v) any proposed adjustment to the PMO Costs and the PDMP S.O. Budget associated with the Claim.
Continuing events
If the Direction or fact, matter or thing upon which the Claim under clause 23.1(b) (Notice of Variation) or clause 23.2 (Notice of other Claims) is based or the consequences of the Direction or fact, matter or thing are continuing, the PDMP must continue to give the information required by clause 23.3(b) (Prescribed notices) every 20 Business Days after the written claim under clause 23.1(b) (Notice of Variation) or 23.3(b) (Prescribed notices) (as the case may be) was submitted or given to the Principal's Representative, until after the Direction or fact, matter or thing upon which the Claim is based has, or the consequences thereof have, ceased.
Time bar
If the PDMP fails to comply with clauses 23.1 (Notice of Variation), 23.2 (Notice of other Claims), 23.3 (Prescribed notices) or 23.4 (Continuing events):
(a) the Principal will not be liable (insofar as it is possible to exclude such liability) upon any Claim by the PDMP; and
(b) the PDMP will be absolutely barred from making any Claim against the Principal,
arising out of, or in any way in connection with, the relevant Direction or fact, matter or thing (as the case may be) to which clause 23.1 (Notice of Variation) or 23.2 (Notice of other Claims) applies.
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Other provisions unaffected
Nothing in clauses 23.1 (Notice of Variation), 23.2 (Notice of other Claims), 23.3 (Prescribed notices), 23.4 (Continuing events) or 23.5 (Time bar) will limit the operation or effect of any other provision of the Contract which requires the PDMP to give notice to the Principal's Representative in order to preserve an entitlement to make a Claim against the Principal.
24. Privacy and the protection of Principal Data
Definitions
In this clause 24:
(a) Data Protection Plan means the plan prepared by the PDMP and approved by the Principal in accordance with clause 24.7 (Data Protection Plan);
(b) Information Security Requirements means the following principles, policies, codes, standards, Laws and directions relating to the storage, management, control and handling of information that is security classified and/or subject to a sensitive information label or other protective marking (such as dissemination limiting markers) or a restriction on use:
(i) the most recent version of:
A. the WaterNSW policy, "IT Information Security Policy";
B. the NSW Government Information Classification and Labelling Handling Guidelines to the extent applicable;
C. the NSW Government Digital Information Security Policy;
D. the Australian Government Information Security Manual; and
E. the "Australian Government Information Security Management Guidelines", including:
1) Australian Government Security Classification System; and
2) Protectively Marking and Handling Sensitive and Security Classified Information and Material;
(ii) Premiers Memorandum M2006-08, Maintaining Confidentiality of Cabinet Documents and Other Cabinet Conventions;
(iii) legislation, including the State Records Act 1998 (NSW) and the Privacy Law; and
(iv) any other principles, policies, codes, standards, Laws and directions that are notified to the PDMP by the Principal from time to time, with respect to the same subject matter as the foregoing,
as replaced, amended or updated from time to time;
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(c) Personal Information means information or an opinion recorded in any form about an individual whose identify is apparent or can reasonably be ascertained from the information or opinion;
(d) Principal Data means all data and information relating to the Principal or its systems, operations, facilities, declared catchment areas, water management works, clients, customers, Personnel, assets, programs, Projects and the Portfolio (including Personal Information) in whatever form that information may exist, and whether entered into, stored in, generated by or processed through software or equipment, or produced as part of the performance of the PDMP Services;
(e) Privacy Laws means all applicable laws relating to privacy and Personal Information, including the Privacy Act 1988 (Cth) and any applicable principles, codes or directions issued under those Laws; and
(f) Security Incident means any incident, event or issue that causes or has the intent or potential to cause a privacy or security breach or any loss of, unauthorised access to, or use, modification, disclosure or other misuse of, Principal Data, Personal Information or the Principal’s confidential information.
General
Where the PDMP, any person constituting the PDMP or its Personnel is provided with, or has access to, any Personal Information in connection with the PDMP Services or this Contract, the PDMP must:
(a) not do any act or engage in any practice that would breach the Privacy Laws, or which if done or engaged in by the Principal, would be a breach of the Privacy Laws;
(b) not access, use or disclose any Personal Information other than for the sole purpose of carrying out its obligations under this Contract, except with the prior written approval of the Principal;
(c) ensure that Personal Information is protected against loss and unauthorised access, use, modification or disclosure and other misuse;
(d) immediately notify the Principal upon becoming aware of any Security Incident or actual or suspected breach of an obligation under this clause 24 and comply with the Principal's reasonable directions with respect to addressing and resolving such Security Incidents and breaches; and
(e) comply with such other privacy obligations or policies as the Principal reasonably notifies the PDMP of in writing from time to time.
No restrictions on privacy obligations
Nothing in this clause is intended to limit any obligations that the PDMP has at Law with respect to privacy and the protection of Personal Information.
Principal Data and security
(a) The PDMP acknowledges and agrees that:
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(i) as part of carrying out the PDMP Services it may be provided with, or obtain access to Principal Data; and
(ii) Software, systems and other PDMP Supplied Items that it provides as part of carrying out the PDMP Services may collect, process, generate or hold Principal Data.
(b) The PDMP agrees that it does not obtain any right, title or interest with respect to any Principal Data, other than a right to use Principal Data for the sole purpose of carrying out the PDMP's obligations under this Contract.
(c) The PDMP must not (and must ensure that its Personnel do not):
(i) use any Principal Data other than for the purpose of carrying out its obligations under this Contract;
(ii) attempt to sell, assign, encumber or commercially exploit any Principal Data; or
(iii) transfer or disclose any Principal Data outside NSW, Australia without obtaining the Principal's prior written consent, which may be given or withheld in the Principal's sole discretion and subject to such conditions that the Principal reasonably determines.
(d) The PDMP must:
(i) maintain the integrity of all Principal Data held within its systems;
(ii) perform any data extraction, cleansing or migration services set out in the Services Brief in accordance with the Contract and the Management Plans;
(iii) regularly and securely back-up Principal Data held or hosted by it on at least a daily basis or at such other intervals as reasonably requested by the Principal in writing;
(iv) regularly test all back-ups referred to in paragraph (iii) to ensure that the Principal Data can be correctly and completely restored;
(v) securely store all back-ups of Principal Data until the Principal's Representative directs the PDMP to return or delete Principal Data pursuant to clause 24.5 (Return of Principal Data);
(vi) do all things that a reasonable and prudent entity would do to safeguard and protect Principal Data in the PDMP's or its Personnel's possession or control and to prevent a Security Incident; and
(vii) comply with all Information Security Requirements and any other security policies, requirements and standards with respect to the PDMP Services, Principal Data and confidential information as specified in this Contract or as may be reasonably notified by the Principal to the PDMP from time to time.
(e) The PDMP must ensure that its Personnel are made aware of, and comply with, the obligations under clause 24 (Privacy and the protection of Principal Data).
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Return of Principal Data
(a) Within 5 Business Days following the expiry or termination of the Contract, the PDMP must liaise and cooperate with the Principal with respect to the secure migration or return to the Principal (or its nominee) of all Principal Data in the PDMP's or its Personnel's possession or control. The Principal Data will be securely migrated or returned to the Principal in the manner and in the format specified in the Transition Out Plan or (where applicable) in the alternative manner and format specified by the Principal.
(b) The PDMP and its Personnel must not delete any Principal Data without the express authorisation of the Principal's Representative. If the Principal's Representative instructs the PDMP to delete any Principal Data, such data must be securely deleted in accordance with the Principal's Information Security Requirements and the reasonable instructions of the Principal's Representative.
Harmful Code and preventing Security Incidents
(a) The PDMP must take all necessary steps to detect and prevent potential Security Incidents, including preventing Harmful Code from being introduced by the PDMP into (or sent from) any PDMP Supplied Items or other Software or services into the Principal's systems and Information and communications technology environment.
(b) The PDMP must:
(i) regularly and pro-actively monitor for Harmful Code and other Security Incidents;
(ii) complete annual penetration testing of PDMP Supplied Items and other Software and systems used to carry out the PDMP Services; and
(iii) use appropriate and up-to-date virus detection software for preventing and detecting any Harmful Code and other potential Security Incidents.
(c) If the PDMP becomes aware of any Security Incident (including any Harmful Code), the Contactor must immediately notify the Principal.
(d) If a Security Incident occurs, the PDMP must take all necessary remedial action to promptly respond to and mitigate the impact of the Security Incident, including (where applicable) eliminating any Harmful Code.
Data Protection Plan
(a) The PDMP must prepare a Data Protection Plan which must:
(i) set out measures for how the PDMP will:
A. comply with the Privacy Laws and the PDMP's obligations of privacy, security and confidentiality under this Contract;
B. protect Principal Data, Personal Information and the Principal's confidential information;
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C. prevent, respond to and mitigate against, any Security Incidents; and
(ii) be consistent with the Privacy Laws, Information Security Requirements and the privacy and security requirements, standards and policies required by this Contract; and
(iii) cover such other matters as reasonably required by the Principal.
(b) The PDMP must review and update the Data Protection Plan annually or at such other times as reasonably required by the Principal.
(c) The PDMP must:
(i) comply with its latest Data Protection Plan; and
(ii) provide its latest Data Protection Plan to the Principal on request.
Evidence of compliance
(a) On each anniversary of the Award Date or at such other times as reasonably required by the Principal, the PDMP must submit to the Principal's Representative a written statement (in a form approved by the Principal's Representative in writing) that the PDMP has complied with:
(i) all of its privacy, security and confidentiality obligations under this Contract; and
(ii) any Data Protection Plan prepared in accordance with clause 24.7 (Data Protection Plan),
(Compliance Statement).
(b) The Compliance Statement must be signed and certified as true by the PDMP's duly authorised representative.
(c) Without limiting clauses 24.8(a) and 24.8(b), at the reasonable request of the Principal, the PDMP must, within the timeframe stated in the Principal's request, provide the Principal with evidence that demonstrates to the satisfaction of the Principal that the PDMP and its Subcontractors have:
(i) complied with the privacy, security and confidentiality obligations under this Contract and any Data Protection Plan; and
(ii) all necessary procedures, processes and systems (including training) in place to comply with such obligations.
Indemnity and infringement
The PDMP must indemnify the Principal against any Claims against, or costs, losses or damages suffered or incurred by, the Principal, arising out of, or in any way in connection with, any actual or alleged infringement of any Privacy Laws arising out of or in connection with the PDMP Services or any breach by the PDMP of clause 24 (Privacy and the protection of Principal Data).
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25. Modern slavery (a) In this clause 25:
(i) "Modern Slavery" has the meaning given to it in the Modern Slavery Act 2018 (Cth) and includes any form of slavery, servitude, debt bondage, deceptive recruitment practices, or forced labour to exploit children or other persons; and
(ii) "Modern Slavery Laws" means the Modern Slavery Act 2018 (Cth) and any other applicable legislation addressing similar subject matter.
(b) The PDMP warrants that:
(i) it complies with and will continue to comply with all applicable Modern Slavery Laws;
(ii) without limiting clause 25(b)(i):
A. it is thoroughly investigating, and will complete its investigation of, its labour practices, and those of its Subcontractors in respect of any Modern Slavery used anywhere in its operations or supply chain or in the operations or supply chain of any of its Subcontractors (to the extent reasonably possible);
B. it is putting in place, and will put in place, all necessary processes, procedures, investigations and compliance systems to ensure that it can provide the warranties under this clause at all relevant times; and
(c) it is taking, and will take in the future, all necessary actions and investigations to validate the warranties provided under this clause. Should the PDMP become aware of any:
(i) Modern Slavery risks in its supply chain or operations, it must notify the Principal of those risks and advise the Principal of the steps it is taking to eliminate or minimise those risks;
(ii) Modern Slavery practices being carried out within its operations or supply chain, it must:
A. in writing, immediately notify the Principal of those practices and of the remediation action it proposes to take; and
B. at its cost, take any such additional remediation action required by the Principal (acting reasonably and after due consultation with the PDMP); or
(iii) Modern Slavery risks or practices in the supply chain operations of a Project Contractor it must immediately notify the Principal in writing.
(d) If the PDMP or a person constituting the PDMP is a ‘reporting entity’ for the purposes of any state or federal Modern Slavery Laws, including the Modern Slavery Act 2018 (Cth), the PDMP must provide the Principal with a copy of
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any report it is required to prepare under that legislation at the Principal's request.
26. Limitation of liability (a) Subject to clause 26(b), but notwithstanding any other provision of the
Contract:
(i) neither party will be liable to the other for any Consequential Loss howsoever arising; and
(ii) the PDMP's aggregate liability to the Principal in contract, tort (including negligence) or otherwise under the Contract (excluding any Painshare Amount) is limited to the amount stated in the Key Details.
(b) Clause 26(a) does not limit the PDMP's liability in respect of:
(i) liability which cannot be limited at Law;
(ii) liability under clauses 7.1 (PDMP's indemnity), 8.2(b) (Principal's Material and ownership of Principal's Material), 9.4 (Indemnity and infringement), 24 (Privacy and the protection of Principal Data), Schedule 3 (KPIs and Performance regime) or clause 1(c) of Schedule 6 (Limits of Authority);
(iii) fraud, wilful misconduct or criminal conduct by the PDMP or any of its Personnel;
(iv) liability to the extent to which any person constituting the PDMP is (or will be) entitled to be paid or indemnified pursuant to an insurance policy required under the Contract in respect of that liability;
(v) liability for which, but for a failure by the PDMP to comply with its obligations under the Contract or any person constituting the PDMP under an insurance policy required under the Contract, the PDMP, any person constituting the PDMP, would have received payment or been indemnified under an insurance policy effected in accordance with the Contract; or
(vi) the PDMP's abandonment of its obligations under the Contract.
(c) In clause 26(b)(iv), the reference to a liability for which the PDMP "is (or will be) entitled to be paid or indemnified by an insurer" means a liability for which the PDMP is or would be entitled to be paid or indemnified under the relevant insurance policy if:
(i) clause 26(a) had not existed;
(ii) the PDMP had complied with the terms of the policy;
(iii) the PDMP had submitted a claim where there was a legitimate entitlement to claim under the policy;
(iv) the PDMP had taken reasonable steps to pursue such a claim once it had been submitted; and
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(v) the insurer had remained solvent.
(d) In clause 26(b)(v), the reference to a liability for which the PDMP "would have received payment or been indemnified under an insurance policy" means a liability for which the PDMP would have been entitled to be paid or indemnified under the relevant insurance policy if:
(i) the PDMP had effected and maintained the insurance policy as required by this Contract; and
(ii) the circumstances contemplated by clauses 26(c)(i) to 26(c)(v) had applied with respect to that policy.
(e) Subject to clause 26(f), the Principal's aggregate liability to the PDMP in contract, tort (including negligence) or otherwise under the Contract is limited to the amount stated in the Key Details.
(f) Clause 26(e) does not limit the Principal's liability in respect of:
(i) liability which cannot be limited at Law; or
(ii) fraud, wilful misconduct or criminal conduct by the Principal or any of its Personnel.
(g) This clause 26 will survive any termination of the Contract.
27. Performance
Purpose of the KRAs and KPIs
(a) The PDMP acknowledges and agrees that the purpose of the KRAs and KPIs set out in Schedule 3 (KPIs and Performance regime) is to specify quantitative and qualitative assessment mechanisms to enable the parties to measure the performance of the PDMP under the Contract against specified targets for the purpose of calculating the extent to which any Gainshare Amount is payable to the PDMP or any Painshare Amount is payable by the PDMP.
(b) In addition to the KRAs and KPIs in Schedule 3 (KPIs and Performance regime), there are other KRAs and KPIs set out in the Contract with which the PDMP's performance will be measured. These other KRAs and KPIs are not taken into account for determining whether any Gainshare Amount or Painshare Amount is payable pursuant to Schedule 3 (KPIs and Performance regime).
(c) The Principal will assess the PDMP's performance against the KRAs and KPIs on a monthly basis in accordance with Schedule 3 (KPIs and Performance regime).
Recording performance against KRAs and KPIs
The PDMP:
(a) must keep, and make available to the Principal within 3 Business Days of a request from the Principal, sufficient records of its performance as against the KRAs and KPIs to enable the Principal's Representative to evaluate the performance of the PDMP under the Contract against the KRAs and KPIs,
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including for the purpose of determining the PDMP's entitlement to payment of any Gainshare Amount or obligation to pay to the Principal any Painshare Amount (as the case may be) under clause 27.3; and
(b) acknowledges and agrees that the records required to be kept under clause 27.2(a) will not limit the Principal's Representative's evaluation of the performance of the PDMP under the Contract and the Principal's Representative may consider all such other matters as it considers (in its absolute discretion) to be relevant to the evaluation of the performance of the PDMP under the Contract.
Gainshare or Painshare Amount
(a) In respect of the KRAs and KPIs set out in Schedule 3 (KPIs and Performance regime), the parties acknowledge and agree that the assessment of the PDMP's performance against those KRAs and KPIs under Schedule 3 (KPIs and Performance regime) will lead to:
(i) in the case of Pre-FBC Services Order KRAs and Pre-FBC Services Order KPIs:
A. the PDMP being entitled to be paid the Pre-FBC S.O. Performance Amount; or
B. the PDMP being liable to pay the Principal the Pre-FBC S.O. Performance Amount.
(ii) in the case of Post-FBC S.O. KRAs and Post-FBC S.O. KPIs:
A. the PDMP being entitled to be paid the Post-FBC S.O. Performance Amount; or
B. the PDMP being liable to pay the Principal the Post-FBC S.O. Performance Amount;
(iii) in the case of PMO KRAs and PMO KPIs:
A. the PDMP being entitled to be paid the PMO Performance Amount; or
B. the PDMP being liable to pay the Principal the PMO Performance Amount,
in accordance with Schedule 3 (KPIs and Performance regime).
(b) Subject to:
(i) the Principal's rights to retain, deduct, withhold or set-off payment under any clause of the Contract, including set-off of any amount against the PDMP PMO Profit or the Services Order Profit as contemplated by paragraph 1.4 of Schedule 2 (Payment Schedule) and paragraph 2.6 of Schedule 3 (KPIs and Performance regime); and
(ii) the PDMP or the Principal (as the case may be) providing the other party with a tax invoice that complies with the GST Legislation,
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the Principal must pay to the PDMP or the PDMP must pay to the Principal (as the case may be) the Gainshare Amount or the Painshare Amount (as the case may be) in accordance with Schedule 3 (KPIs and Performance regime).
Rights and obligations not affected
The parties acknowledge and agree that:
(a) the purpose of the KRAs and KPIs is as set out in clause 27.1;
(b) subject to clause 27.4(c), the parties' rights and obligations, whether under the Contract or otherwise at law or in equity, in relation to the PDMP Services, the Works or this Contract, will not be affected or limited by the provisions of this clause 27, anything done or omitted to be done under or purported to be done under this clause, the KRAs, the KPIs or the PDMP's performance as against the KRAs and the KPIs; and
(c) the PDMP’s liability to the Principal for any Painshare Amount will be the Principal’s exclusive monetary remedy for any act, default or omission of the PDMP resulting in a failure to achieve a KRA or KPI, provided that this does not limit the Principal’s right to terminate this Contract under clause 20.4 (Termination for insolvency, dealing or breach) or the Principal's rights under the Contract to the extent the act, default or omission is in respect of a liability the subject of a category of liability described in clauses 26(b)(i) to (vi).
If the PDMP's obligation to pay to the Principal any Painshare Amount under this Contract is found for any reason to be void, invalid or otherwise unenforceable or inoperative so as to disentitle the Principal from recovering the Painshare Amount, the PDMP must indemnify the Principal against the Painshare Amount that the Principal would have been entitled to recover had the Painshare Amount not be found to be void, invalid or otherwise unenforceable or inoperative.
KPIs
(a) In carrying out the PDMP Services, the PDMP must comply with the KPIs (as may be amended in accordance with this Contract).
(b) The PDMP must report to the Principal at the frequency specified in the Key Details in the form of a report (KPI Performance Report) in a form satisfactory to the Principal which:
(i) provides an analysis of the performance of the PDMP in meeting the KPIs;
(ii) identifies any non-compliances;
(iii) proposes an action plan to remedy non-compliances and implement continuous improvements; and
(iv) reports on whether the PDMP has implemented any previous action plan and, if not, the extent of non-compliance.
(c) The PDMP acknowledges and agrees that:
(i) the Principal will review each KPI Performance Report to assess the level of compliance by the PDMP with the KPIs;
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(ii) it must provide any action plan required by the Principal and must implement and comply with any action plan required by the Principal; and
(iii) the Principal, acting reasonably, may amend the KPIs provided that the PDMP has been consulted by the Principal in respect of the amended KPIs, including being advised of the reasons for the amendment.
(d) The Principal and the PDMP must meet at the times specified in the Key Details, to monitor and review the PDMP's performance under this Contract and the KPIs and, if required by the Principal, the PDMP's compliance with any action plan.
Performance review
(a) If requested by the Principal, the PDMP must participate in six monthly performance reviews conducted by the Principal, during which the Principal and the PDMP will meet to discuss the PDMP's performance of any or all of the PDMP Services undertaken during that six month period, including the PDMP's satisfaction of the KPIs in respect of each of those PDMP's Services (if applicable), and the Principal will provide the PDMP with feedback in relation to its performance (Performance Review).
(b) As part of each Performance Review, the PDMP may be required by the Principal to:
(i) complete reviews provided by the Principal as part of the review process and any questionnaires;
(ii) discuss with the Principal:
A. any reports produced by the Principal as part of each Performance Review;
B. the PDMP's strengths and weaknesses based on the PDMP's performance in undertaking those PDMP Services;
C. the Principal's assessment of the PDMP's satisfaction of the KPIs (if applicable) in relation to the PDMP Services; and
D. any other matters; and
(iii) perform such other tasks as the Principal reasonably requires in connection with the Principal's review of the PDMP's performance in undertaking any PDMP Services.
28. Miscellaneous
Address for service
(a) All communications (including notices, consents, approvals, requests and demands) under or in connection with the Contract:
(i) must be in writing;
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(ii) must be signed by the party making the communication or (on its behalf) by:
A. in the case of the Principal, any director, secretary, attorney or authorised agent of, the Principal; and
B. in the case of the PDMP, any authorised agent of the PDMP (as authorised in accordance with the terms and conditions of the PDMP JV Agreement, or in a manner otherwise agreed in writing with the Principal);
(iii) subject to clause 28.1(b), must be delivered or posted by prepaid express post to the address or sent by email to the email address, of the Principal's Representative or the PDMP's Representative (as applicable) set out in this Contract or such other address or email address as my be notified in writing by a party to the other party; and
(iv) are taken to be received by the addressee:
A. (in the case of prepaid express post sent to an address in the same country) on the second Business Day after the date of posting;
B. (in the case of prepaid express post sent to an address in another country) on the fourth Business Day after the date of posting;
C. (in the case of delivery by hand) on delivery at the address of the addressee as provided in clause 28.1(a)(iii); and
D. (in the case of email), at the local time (in the place of receipt of that email) that would be determined if section 13A of the Electronic Transactions Act 2000 (NSW) were to apply in respect of the email,
provided that if the communication would be taken to be received on a day which is not a Business Day or after 5.00pm on a Business Day, it is taken to be received at 9.00am on the next Business Day.
(b) If:
(i) the PDMP sends a notice under clause 17 (Time), 18 (Variation), 19 (Payment), 21 (Transition out) or 23 (Notices) or concerning a claim for payment (including any communication in respect of the SOP Act); or
(ii) the Principal sends a notice under clause 18.2 (Variation order), 20.2 (PDMP default), 20.3 (Contents of notice of default), 20.4 (Termination for insolvency, dealing or breach), 20.7 (Termination for convenience) or 22.1 (Notice of Dispute),
by email, the PDMP or the Principal (as applicable) must also deliver or post such notice to the relevant address provided in clause 28.1(a)(iii).
(c) For the avoidance of doubt:
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(i) no notice referred to in clause 28.1(b) will be effective until it has been delivered or posted in accordance with clause 28.1(b); and
(ii) if a notice referred to in clause 28.1(b) is issued by both email and is also either delivered by hand or posted, both notices must be identical, and in the event that they are not identical, neither notice will constitute a valid notice.
(d) Where clause 28.1(b) applies, the relevant notice will be taken to have been received on the date determined in accordance with clause 28.1(a)(iv)A, 28.1(a)(iv)B, 28.1(a)(iv)C or 28.1(a)(iv)D (as the case may be).
(e) The PDMP must ensure that any documents it provides, including by electronic means, are in the file structure and format for such documents as may be specified by the Principal from time to time. As at the Award Date, the Principal requires such documents which are submitted by email to be submitted as an attachment to an email, where the attachment is in .pdf, or where appropriate Excel, Primavera (.xer or .xml) or Microsoft Project (.mpp) format.
(f) The Principal will not be liable to the PDMP or to any other person for any loss or damage suffered in relation to any document transmitted electronically, including any loss or damage related to or arising out of:
(i) the transmission of any Harmful Code (such as viruses) to the PDMP by electronic mail (including any document attached to electronic mail); or
(ii) any failure by the Principal to notify the PDMP that the Principal may have received any Harmful Code (such as viruses) from the PDMP in any electronic mail (including in any document attached to electronic mail).
Governing Law
The Contract is governed by and must be construed according to the Laws of the State of New South Wales.
Jurisdiction
Subject to clause 22.13 (Arbitration), each party irrevocably:
(a) submits to the exclusive jurisdiction of the courts and appellate courts of the State of New South Wales, and the courts competent to determine appeals from those courts, with respect to any proceedings which may be brought at any time relating to the Contract; and
(b) waives any objection it may now or in the future have to the venue of any proceedings, and any Claim it may now or in the future have that any proceedings have been brought in an inconvenient forum, if that venue falls within clause 28.3(a).
Counterparts
(a) This Contract may be executed in any number of counterparts by a party and by the parties on separate counterparts. Each counterpart constitutes an original of this Contract, and all together constitute one agreement.
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(b) A party who has executed a counterpart of this Contract may exchange that counterpart with another party by emailing the counterpart executed by it to that other party and, upon request by that other party, will thereafter promptly deliver by hand or post to that party the executed counterpart so exchanged by email, but delay or failure by that party to so deliver a counterpart of this Contract executed by it will not affect the validity of this Contract.
Entire agreement
This Contract constitutes the entire agreement and understanding between the parties and will take effect according to its tenor despite, and supersedes:
(a) any prior agreement (whether in writing or not), negotiations and discussions between the parties in relation to the subject matter of this Contract; or
(b) any correspondence or other documents relating to the subject matter of this Contract that may have passed between the parties prior to the Award Date and that are not expressly included in this Contract.
Amendments
This Contract may only be amended by a document signed by or on behalf of both the Principal and the PDMP.
Waiver
(a) Failure to exercise or enforce, or a delay in exercising or enforcing, or the partial exercise or enforcement of, a right, power or remedy provided by Law or under the Contract by a party does not preclude, or operate as a waiver of, the exercise or enforcement, or further exercise or enforcement, of that or any other right, power or remedy provided by Law or under the Contract.
(b) A waiver or consent given by a party under the Contract is only effective and binding on that party if it is given or confirmed in writing by that party.
(c) No waiver of a breach of a term of the Contract operates as a waiver of any other breach of that term or of a breach of any other term of the Contract.
Assignment, Change of Control and certain matters under the PDMP JV Agreement and the subcontracts
(a) The Principal may at any time, and without having to obtain the PDMP's approval, assign any right or interest of the Principal under the Contract or create or allow to exist, a security interest over or in respect of the Contract or any right or interest of the Principal under the Contract.
(b) The PDMP must not, and must not agree to, assign, novate, transfer, mortgage, charge, encumber, dispose, sell, alienate, declare a trust, create any economic interest or synthetic arrangement of its rights or obligations under this Contract or the PDMP JV Agreement without the prior written consent of the Principal.
(c) The PDMP must not assign, novate, transfer, mortgage, charge or encumber any agreement, deed, arrangement or understanding between the PDMP,
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or a person constituting the PDMP, and a Subcontractor without the prior written consent of the Principal.
(d) The PDMP must not permit or suffer a Change of Control, or a Change of Participation Interest of any of the persons constituting the PDMP, without the prior written consent of the Principal.
(e) Each person constituting the PDMP must notify the Principal in writing as soon as reasonably practicable where the following occur in relation to that person:
(i) a restructure of that person that does not change the Ultimate Holding Company of that person; or
(ii) a restructure of any "Related Entity" (as defined in the Corporations Act) of that person that does not change the Ultimate Holding Company of that person, provided that such restructure results, or will result, in the net tangible assets of the Parent Company Guarantor or the Ultimate Holding Company of that person, as determined in accordance with the Benchmark Accounting Standards, to be less than or equal to 95% of the net tangible assets of the Parent Company Guarantor or the Ultimate Holding Company of that person (as applicable), as set out in, or derived from, the Previous Audited Financial Statements of the Parent Company Guarantor or the Ultimate Holding Company of that person (as applicable); or
(iii) a transfer or issue of any securities listed on any recognised stock or securities exchange.
(f) The PDMP must not, and must ensure that each person constituting the PDMP does not:
(i) amend or waive:
A. any right, obligation or entitlement under the PDMP JV Agreement; or
B. any material right, obligation or entitlement, as determined by the Principal's Representative (acting reasonably), under any agreement, deed, arrangement or understanding between the PDMP, or a person constituting the PDMP, and a Subcontractor;
(ii) permit a Subcontractor to assign, novate, transfer, mortgage, charge, encumber or otherwise deal with any of its rights or obligations under its agreement, deed, arrangement or understanding with the PDMP, or a person constituting the PDMP;
(iii) suspend all or part of the services under any agreement, deed, arrangement or understanding between the PDMP, or a person constituting the PDMP, and a Subcontractor,
without the prior written consent of the Principal, which in respect of clause 28.8(f)(iii) must not be unreasonably withheld or delayed.
(g) The PDMP and each person constituting the PDMP represents and warrants that, with respect to the Project, the PDMP Services and any other matter
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the subject of this Contract, it has not entered into, and will not without the Principal's prior written consent enter into, a deed, agreement, arrangement or understanding with:
(i) the other person constituting the PDMP other than the PDMP JV Agreement; and
(ii) any Subcontractor other than:
A. the letter of engagement dated on or around the Award Date between each person constituting the PDMP and Qubist Pty Ltd ACN 624 580 258;
B. the letter of engagement dated on or around the Award Date between each person constituting the PDMP and Tracey Brunstrom & Hammond Pty. Ltd. ACN 008 444 700; and
C. any other subcontract approved in writing by the Principal.
Consents
A consent required under the Contract from a party may be given or withheld, or may be given subject to any conditions, as that party (in its absolute discretion) thinks fit, unless the Contract expressly provides otherwise.
Expense
Except as otherwise provided in the Contract, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing the Contract.
Joint and several liability
(a) The obligations of the PDMP, if constituted by more than one person, under this Contract, are joint and several.
(b) Each person constituting the PDMP acknowledges and agrees that:
(i) it will be causally responsible for the acts and omissions (including breaches of this Contract) of the other as if those acts or omissions were its own and the Principal may proceed against any or all of them;
(ii) it will be bound under this Contract even if another person who was intended to constitute a part of the PDMP does not constitute a part of the PDMP or is not bound by this Contract for any reason; and
(iii) the Principal may, in its absolute discretion, exercise any of its rights against any one or all of the persons constituting the PDMP at any time including, but not limited to its rights, under any or all of this Contract, any parent company guarantee provided pursuant to clause 5.5 (Parent Company Guarantee), and any Unconditional Undertaking.
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Severance
If at any time a provision of the Contract is or becomes illegal, invalid or unenforceable in any respect under the Law of any jurisdiction, that will not affect or impair:
(a) the legality, validity or enforceability in that jurisdiction of any other provision of the Contract; or
(b) the legality, validity or enforceability under the Law of any other jurisdiction of that or any other provision of the Contract.
Indemnities
(a) Each indemnity in the Contract is a continuing obligation, separate and independent from the other obligations of the parties, and survives termination, completion or expiry of the Contract.
(b) It is not necessary for a party to incur expense or to make any payment before enforcing a right of indemnity conferred by the Contract.
(c) A party must pay on demand any amount it must pay under an indemnity in the Contract.
English language
All communications between the parties and all documentation provided in connection with the PDMP Services (including the Deliverables) must be in the English language.
Taxes
(a) Without limiting clause 12.10 (Compliance with Law), the PDMP must pay all taxes which may be payable in respect of the PDMP Services, including any customs duty and primage applicable to imported plant, equipment and materials required for the PDMP Services.
(b) If the Principal is required in its opinion to withhold any amount in respect of tax from a payment to be made to the PDMP under the Contract, it is entitled to do so and such withholding and payment to the relevant taxing authority will be a good discharge of its obligation to pay the relevant amount to the PDMP.
(c) If the Principal pays an amount to the PDMP without withholding an amount in respect of tax, the PDMP must indemnify the Principal for any loss suffered by the Principal as a result of the Principal failing to withhold the amount in respect of tax.
No partnership, joint venture or other fiduciary relationship
Nothing in the Contract will be construed or interpreted as constituting the relationship between the Principal on one hand and the PDMP on the other hand as that of partners, joint venturers or any other fiduciary relationship.
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Proportionate liability
(a) To the extent permitted by Law, Part 4 of the Civil Liability Act 2002 (NSW) (and any equivalent statutory provision in any other state or territory) is excluded in relation to all and any rights, obligations or liabilities of either party under or in any way in connection with the Contract whether such rights, obligations or liabilities are sought to be enforced in contract, tort or otherwise.
(b) Without limiting paragraph (a), the rights, obligations and liabilities of the Principal and the PDMP under the Contract with respect to proportionate liability are as specified in the Contract and not otherwise, whether such rights, obligations or liabilities are sought to be enforced by a Claim in contract, in tort or otherwise.
(c) To the extent permitted by Law:
(i) the PDMP must not seek to apply the provisions of Part 4 of the Civil Liability Act 2002 (NSW) in relation to any Claim by the Principal against the PDMP (whether in contract, tort or otherwise); and
(ii) if any of the provisions of Part 4 of the Civil Liability Act 2002 (NSW) are applied to any Claim by the Principal against the PDMP (whether in contract, tort or otherwise), the PDMP will indemnify the Principal against any loss, damage, cost or expense that forms part of a Claim by the Principal against the PDMP which the Principal is not able to recover from the PDMP because of the operation of Part 4 of the Civil Liability Act 2002 (NSW).
Prior work
(a) The terms of the Contract apply to all of the PDMP Services performed by the PDMP in connection with the Portfolio even if they were performed prior to the Award Date.
(b) Any payment made to the PDMP by the Principal in connection with the Contract or the PDMP Services prior to the Award Date will be treated as a payment under the Contract and will be in part discharge of the Principal's obligation to pay the Contract Price.
If the PDMP is a trustee
If the PDMP enters into the Contract as trustee for a trust (PDMP Trust), without limiting any other provision of the Contract, the PDMP represents and warrants that:
(a) the PDMP is the only trustee of the PDMP Trust;
(b) the PDMP has unqualified power under the constitution of the PDMP Trust to perform its obligations under this Contract;
(c) no action is currently taking place or pending to remove the PDMP as trustee of the PDMP Trust or to appoint additional trustees of the PDMP Trust;
(d) the PDMP has entered into this Contract in its capacity as trustee of the PDMP Trust and for the benefit of the beneficiaries of the PDMP Trust;
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(e) the PDMP has the right to be fully indemnified out of the assets of the PDMP Trust in respect of the obligations incurred by it in relation to this Contract;
(f) there is no subsisting breach of the constitution of the PDMP Trust; and
(g) the PDMP Trust has not been terminated and there is no action pending to terminate the PDMP Trust.
Legal Opinion
If:
(a) the PDMP is incorporated outside Australia the PDMP must, on the Award Date, provide a Legal Opinion supporting, and in respect of, the execution of this Contract; and
(b) the Parent Company Guarantor is incorporated outside Australia the PDMP must, on the Award Date, provide a Legal Opinion supporting, and in respect of, the execution of the parent company guarantee required by clause 5.5 (Parent Company Guarantee).
COVID-19 acknowledgements
The PDMP acknowledges, represents and undertakes that:
(a) COVID-19 is a known circumstance as at the Award Date and that it has in place Best Industry Practice measures to manage and ensure performance of its obligations under this Contract in accordance with its terms, notwithstanding the occurrence of any COVID-19 Related Events; and
(b) notwithstanding any other provision of this Contract, it is not entitled to and must not request the Principal's Representative to direct a Variation, or seek to claim any postponement, delay or additional cost, including any adjustment to any Milestone Date, in connection with any COVID-19 Related Event (unless determined otherwise by the Principal's Representative, following a meeting referred to in clause 12.5(c) (Give notice of matters impacting on PDMP Services), in its absolute discretion).
Claims involving insurers
(a) If the Principal makes a Claim against a person constituting the PDMP and that person has made or intends to make a claim under an insurance policy required under this Contract, then that person must not, and must also use its best endeavours to procure that its insurer does not, make a claim or cross-claim against any other person, including any other person constituting the PDMP, in connection with the Principal's Claim until such time as the Principal's Claim is finally resolved or determined (as notified by the Principal's Representative to the PDMP).
(b) The Principal may plead this clause 28.22 as a full and complete defence to any claim, action, suit, or proceedings commenced, continued or taken by any person constituting the PDMP or on its behalf (including by that person's insurer) against the Principal in relation to any of the matters arising out of, or in connection with, the Principal's Claim referred to in clause 28.22(a).
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Supply of essential and critical services and works
The parties acknowledge and agree that, for the purposes of the Corporations Act, this Contract is a contract for the supply of essential and critical services to, and the carrying out of essential and critical works for, the Principal.
Survive termination
Clauses 1 (Definitions and interpretation), 5 (Security), 7 (Risks and insurance), 9 (Intellectual property and confidentiality) and the licences granted to the Principal under them, 12.22 (Indemnity), 19.7 (Right of set off), 20 (Termination), 21 (Transition out), 22 (Disputes) 23 (Notices), 24 (Privacy and the protection of Principal Data), 26 (Limitation of liability), 28 (Miscellaneous) and any other clauses which are expressed to survive termination will survive recession, termination or expiration of this Contract.
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Schedule 1 Key Details
Clause 1 - Definitions and interpretation
1. Contract Price:(Clause 1.1)
Calculated in accordance with Schedule 2 (Payment Schedule).
2. PDMP's Representative:(Clause 1.1)
Name: Chris Bulloch
Address: Level 13, 201 Kent Street, Sydney NSW 2000
Email: [email protected]
3. Parent Company Guarantor(Clause 1.1)
KBR, Inc. a Delaware incorporated company of 601 Jefferson Street, Suite 3400 Houston Texas 77002, United States of America
Aurecon Group Pty Ltd ABN 12 133 838 187
4. Principal's Representative:(Clause 1.1)
Name: Ashley Jagoe
Address: Level 14, 169 Macquarie Street, Parramatta NSW 2150
Email: [email protected]
5. Term:(Clause 1.1)
7 years from the Award Date.
Clause 2 - Objectives, governance and collaboration
6. JLT Members(Clauses 2.3(a) (JLTMembers) and 2.4(a) (JLTChairperson))
Principal:
• Ronan Magaharan; and• Greg Taylor.
PDMP
• Carey Gent; and• Kevin Werksman.
Chairperson:
• Ronan Magaharan
Clause 7 - Risks and insurance
7. Insurance policies requiredto be effected by the PDMP:(Clause 7.3 (PDMP insuranceobligations)
Public Liability Insurance
Amount of cover is in respect of any one occurrence.
Maximum deductible:
(If nothing is stated, the maximum deductible is $0.)
Product Liability Insurance
Amount of cover: in respect of any one occurrence and in the aggregate for all occurrences in any 12 month period.
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Maximum deductible:
Cyber insurance
Amount of cover: As determined in accordance with clause 7.3(g).
Maximum deductible: As determined in accordance with clause 7.3(g).
(If nothing is stated, the maximum deductible is $0.)
Workers Compensation Insurance
Amount of cover: The maximum amount required by Law
Maximum deductible: Not applicable
Professional Indemnity Insurance
Amount of cover is per claim and in the aggregate for all claims in any 12 month period, plus a provision for at least one automatic reinstatement of the limit of indemnity
Maximum deductible: (If nothing is stated, the maximum deductible is $0.)
8. Additional requirements forPublic Liability Insurance,Product Liability Insuranceand Cyber insurance(Clause 7.3(c) (PDMPinsurance obligations)
Public Liability Insurance, Product Liability Insurance and Cyber insurance (if required under clause 7.3(g)(ii)) must extend the benefit of cover to the Principal as an insured in respect of its vicarious liability for the acts or omissions of the PDMP and its Subcontractors.
(If nothing stated, the Public Liability Insurance, Product Liability Insurance and Cyber insurance (if required under clause 7.3(g)(ii)) must be in the joint names of the PDMP and the Principal.)
Clause 8 - Deliverables and Software
9. Management Plans(clause 8.4 (ManagementPlans))
The Management Plans set out in section 2.9 of the Services Brief.
Clause 9 - Intellectual property and confidentiality
10. Escrow deed required(Clause 9.5 (Source Code))
At any date notified to the PDMP by the Principal from time to time
11. Confidentiality Undertaking(Clause 9.7 (Confidentiality))
Yes
Clause 12 - General PDMP obligations
12. Pre-ApprovedSubcontractors:(Clause 12.9(b)(Subcontracting))
Subcontractor Part of the PDMP Services
Qubist Pty Ltd ABN 88 624 580 258
Project management, commercial, procurement, contract and construction management
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Tracey Brunstrom & Hammond Pty Ltd ABN 73 008 444 700
Project controls, program scheduling and cost control
Clause 17 - Time
13. Milestone Date of whole orparts of the PDMP Services:(Clause 17.1 (Progress))
As set out in the Services Brief, a Services Order, or as otherwise specified in a Variation Order.
Clause 26 - Limitation of liability
14. Limitation of liability (PDMP):(Clause 26(a)(ii) (Limitationof liability))
on the Award Date and increased from time to time to the amount of the Contract Price paid to the PDMP if such amount exceeds (excluding GST) (including any amounts paid pursuant to a Services Order).
15. Limitation of liability(Principal):(Clause 26(e) (Limitation ofliability))
An amount equal to:
a) the Contract Price as adjusted from time to time,including on account of any Variations; plus
b) any other amounts paid or payable by the Principal tothe PDMP under or in connection with the Contract.
Clause 27 - Performance
16. Frequency of KPI reportingand times at which Principaland PDMP to meet:(Clause 27.5 (KPIs))
The PDMP must provide a KPI Performance Report at the end of each month and the Principal and the PDMP will meet every 3 months, unless otherwise agreed in writing by the Principal.)
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Schedule 3 KPIs and Performance regime
1. Gainshare and Painshare Regimes
1.1 Definitions
In this Schedule:
Certificate of Completion means a certificate in the form of certificate which appearsin Schedule 16 (Certificate of Completion).
Completion occurs in respect of a Post-FBC Services Order, unless specified otherwisein that Services Order, when the Principal's Representative determines that:
(a) all the Works associated with that Services Order are complete includingrectification of all Defects and completion of all Omissions;
(b) all Deliverables for that Services Order have been provided to the Principal'sRepresentative;
(c) the PDMP Services or Works for that Services Order comply with allapplicable Law; and
(d) everything which this Contract or the Services Order requires to be done asa condition precedent to Completion of the Services Order has been done,including the provision to the PDMP of a Certificate of Completion.
Date of Completion means, in respect of a Post-FBC Services Order, the date set out in the Certificate of Completion for that Services Order as the date upon which Completion of that Services Order was achieved.
Omission means an element of the Works which is not complete.
PDMP PMO Profit has the meaning given in clause 1.1 (Definitions) of the General Conditions of Contract.
PMO Performance Amount means the amount (if any) payable by the Principal to the PDMP or payable by the PDMP to the Principal under the PMO Performance Regime, calculated in accordance with Exhibit 3 Key Performance Indicators.
PMO Performance Regime means the regime described in paragraph 1.5.
Pre-FBC S.O. Performance Amount means the amount (if any) payable by the Principal to the PDMP or payable by the PDMP to the Principal under the Pre-FBC S.O. Performance Regime, calculated in accordance with Exhibit 3 Key Performance Indicators .
Pre-FBC S.O. Performance Regime means the regime described in paragraph 1.3.
Pre-FBC Services Order means a Services Order issued to the PDMP in relation to PDMP Services to be performed prior to FBC approval regarding a Project in the Portfolio.
Post-FBC S.O. Cost Gainshare/Painshare Amount means, in respect of a Post-FBC Services Order, the amount that is calculated in accordance with the following formula :
𝑷𝑷𝑷𝑷𝑷𝑷𝑷𝑷 − 𝑭𝑭𝑭𝑭𝑭𝑭 𝑺𝑺.𝑶𝑶.𝑭𝑭𝑷𝑷𝑷𝑷𝑷𝑷𝑮𝑮𝑮𝑮𝑮𝑮𝑮𝑮𝑷𝑷𝑮𝑮𝑮𝑮𝑮𝑮𝑮𝑮𝑷𝑷𝑮𝑮𝑮𝑮𝑮𝑮𝑷𝑷𝑮𝑮𝑮𝑮𝑮𝑮𝑮𝑮
𝑨𝑨𝑨𝑨𝑷𝑷𝑨𝑨𝑮𝑮𝑷𝑷 = [𝐴𝐴
((1.1 × 𝐵𝐵) − 𝐵𝐵) ] × (𝐵𝐵 − 𝐶𝐶)
where:
(a) A is the Services Order Profit for that Services Order;
(b) B is the PDMP S.O. Budget for that Services Order (as adjusted inaccordance with this Contract); and
(c) C is the Total S.O. Cost for that Services Order.
Noting that the Post-FBC Services Order Cost Gainshare / Painshare Amount will apply such that the maximum painshare and gainshare will apply linearly to the point where the Total S.O Cost overrun or underrun exceeds +/-10% of the PDMP S.O. Budget. Where a 10% overrun of the PDMP S.O. Budget will result in abatement of the Services Order Profit, and a 10% underrun of the PDMP S.O. Budget will result in a gainshare payment equal to 100% of the Services Order Profit.
Post-FBC S.O. Cost Gainshare and Painshare Regime means the regime relating to the performance of the PDMP in the performance of the PDMP Services in respect of a Post-FBC Services Order against the PDMP S.O. Budget, as described in paragraph 1.2.
Post-FBC S.O. Performance Amount means the amount (if any) payable by the Principal to the PDMP or payable by the PDMP to the Principal under the Post-FBC S.O. Performance Regime, calculated in accordance with Exhibit 3 Key Performance Indicators.
Post-FBC S.O. Performance Regime means the regime described in paragraph 1.4.
Post-FBC S.O. Services Order means a Services Order issued to the PDMP in relation to PDMP Services to be performed after FBC approval regarding a Project in the Portfolio.
1.2 Post-FBC S.O. Cost Gainshare and Painshare Regime
(a) Subject to paragraph 1.2(b), if the Post-FBC S.O. Gainshare/PainshareAmount is:
(i) less than nil, the PDMP must pay to the Principal the amount bywhich the Post-FBC S.O. Cost Gainshare/Painshare Amount is lessthan nil in accordance with paragraph 2; or
(ii) greater than nil, the Principal must pay to the PDMP the amountby which the Post-FBC S.O. Cost Gainshare/Painshare Amount isgreater than nil in accordance with paragraph 2.
(b) The maximum amount that the PDMP or the Principal is required to payunder paragraphs 1.2(a)(i) and 1.2(a)(ii), respectively, is the amountincluded in the anticipated cost estimate for the relevant Post-FBC ServicesOrder that constitutes the "Services Order Profit", as set out in the FinalBusiness Case for that Services Order.
1.3 Pre-FBC S.O. Performance Regime
The parties acknowledge and agree that:
2. Entitlement and liability
2.1 Calculation of Post-FBC S.O. Performance Amount and Post-FBC S.O.Cost Gainshare/Painshare Amount
(a) Prior to the Date of Completion of a Post-FBC Services Order the PDMP willhave no entitlement to a Post-FBC S.O. Performance Amount or Post-FBCS.O. Cost Gainshare/Painshare Amount.
(b) Within 60 Business Days after the issue of the Certificate of Completion inrespect of a Post-FBC Services Order, and subject to the receipt of, ifrequested, all records kept by the PDMP for the Portfolio under clause 27.2,the Principal must, in respect of that Services Order, calculate anddetermine any:
(i) Post-FBC S.O. Cost Gainshare/Painshare Amount (if any) payableto the PDMP or payable by the PDMP; and
(ii) Post-FBC S.O. Performance Amount (if any), payable to the PDMPor payable by the PDMP,
as at the Date of Completion.
(c) If the Principal calculates and determines that, at the Date of Completion,the Post-FBC S.O. Cost Gainshare/Painshare Amount is:
(i) greater than nil, the Principal must pay to the PDMP the amountby which the Post-FBC S.O. Cost Gainshare/Painshare Amount isgreater than nil; or
(ii) less than nil, the PDMP must pay to the Principal the amount bywhich the Post-FBC S.O. Cost Gainshare/Painshare Amount is lessthan nil.
(d) If the Principal calculates and determines that, at the Date of Completion,the Post-FBC S.O. Performance Amount is:
(i) greater than nil, the Principal must pay to the PDMP the amountby which the Post-FBC S.O. Performance Amount is greater thannil; or
(ii) less than nil, the PDMP must pay to the Principal the amount bywhich the Post-FBC S.O. Performance Amount is less than nil.
(e) The parties agree that any Post-FBC S.O. Cost Gainshare/Painshare Amountor Post-FBC S.O. Performance Amount payable by the PDMP in accordancewith paragraphs 2.1(c)(ii) or 2.1(d)(ii) will be recoverable from the PDMP as adebt due and payable to the Principal, which must be paid within 20Business Days of any Principal's determination under paragraphs 2.1(c)(ii) or2.1(d)(ii).
(f) For the avoidance of doubt, where the Principal calculates and determinesthe Post-FBC S.O. Cost Gainshare/Painshare Amount as nil for any Post-FBCServices Order, no Post-FBC S.O. Cost Gainshare/Painshare Amount ispayable under this paragraph 2.1 for that Services Order.
(g) Any determination by the Principal under paragraph 2.1(b) and subsequentpayment (if any):
(i) are payments on account only and are not evidence that thewhole or any part of the Works and PDMP Services have beenperformed in accordance with this Contract;
(ii) are subject to audit in accordance with the procedure set out inthis Contract; and
(iii) are at risk against the PDMP's performance until the end of theTerm and will be subject to recalculation and adjustment.
(h) If, as a result of any determination by the Principal under paragraph 2.6(b)or paragraph 2.6(c) or any audit in accordance with this Contract, anamount paid or payable by the Principal is to be returned or repaid to thePrincipal, that amount will, in those circumstances, be deemed to be heldon trust by the PDMP for the Principal.
2.2 Re-calculation of Post-FBC S.O. Cost Gainshare/Painshare Amount
(a) Within 60 Business Days of the date which is 12 months after the issue of the Certificate of Completion in respect of a Post-FBC Services Order, or such later date as determined by the Principal, acting reasonably, and subject to the receipt of, if requested, all records kept by the PDMP for the Portfolio under clause 27.2, the Principal must re-determine the Total S.O. Cost and re-calculate and re-determine, in respect of that Post-FBC Services Order, any Post-FBC S.O. Cost Gainshare/Painshare Amount payable, if any, and the PDMP's obligation to pay, or entitlement to, the Post-FBC S.O. Cost Gainshare/Painshare Amount, if any (Recalculated Post-FBC S.O. Cost Gainshare/Painshare Amount).
(b) Where the Principal has:
(i) paid Post-FBC S.O. Cost Gainshare/Painshare Amount payable to the PDMP pursuant to paragraph 2.1(c)(i) of this Schedule 3 and the amount paid differs from the Recalculated Post-FBC S.O. Cost Gainshare; or
(ii) not paid any Post-FBC S.O. Cost Gainshare/Painshare Amount to the PDMP pursuant to paragraph 2.1(c)(i) of this Schedule 3, but must pay the PDMP an amount of Post-FBC S.O. CostGainshare/Painshare Amount based on the Recalculated Post-FBC S.O. Cost Gainshare/Painshare Amount, then:
the Principal will issue a written notice to the PDMP stating, where paragraph (b)(i) applies, the amount of the difference or, where paragraph (b)(ii) applies, the amount of Post-FBC S.O. Cost Gainshare/Painshare Amount and:
(iii) where paragraph (b)(i) applies and the amount of Post-FBC S.O.Cost Gainshare/Painshare Amount paid to the PDMP pursuant toparagraph 2.1(c)(i) of this Schedule 3 (KPIs and Performanceregime) is:
A. greater than the Recalculated Post-FBC S.O. CostGainshare/Painshare Amount, the PDMP must, within 20
Business Days of receipt of the notice, reimburse the Principal for the amount of the difference; or
B. less than the Recalculated Post-FBC S.O. CostGainshare/Painshare Amount, the Principal must, within20 Business Days of issuing the notice, pay the PDMP theamount of the difference; or
(iv) where paragraph (b)(ii) applies, the Principal must, within 20Business Days of issuing the notice, pay the PDMP the amount ofPost-FBC S.O. Cost Gainshare/Painshare Amount payable plus anyPost-FBC S.O. Cost Gainshare/Painshare Amount to the Principalpursuant to paragraph 2.1(c)(ii) of this Schedule 3 (KPIs andPerformance regime).
(c) Where the PDMP has:
(i) paid Post-FBC S.O. Cost Gainshare/Painshare Amount to thePrincipal pursuant to paragraph 2.1(c)(ii) of this Schedule 3 (KPIsand Performance regime) and the amount paid differs from theRecalculated Post-FBC S.O. Cost Gainshare/Painshare Amount; or
(ii) not paid any Post-FBC S.O. Cost Gainshare/Painshare Amount tothe Principal pursuant to paragraph 2.1(c)(ii) of this Schedule 3(KPIs and Performance regime), but must pay the Principal anamount of Post-FBC S.O. Cost Gainshare/Painshare Amount basedon the Recalculated Post-FBC S.O. Cost Gainshare/PainshareAmount, then:
the Principal will issue a written notice to the PDMP stating where paragraph (c)(i) applies, the amount of the difference or, where paragraph (c)(ii) applies, the amount of Post-FBC S.O. Cost Gainshare/Painshare Amount payable and:
(iii) where paragraph (c)(i) applies and the amount of Post-FBC S.O.Cost Gainshare/Painshare Amount paid to the Principal pursuantto paragraph 2.1(c)(ii) of this Schedule 3 (KPIs and Performanceregime) is:
A. more than the Recalculated Post-FBC S.O. CostGainshare/Painshare Amount, the Principal must, within20 Business Days of receipt of the notice, reimburse thePDMP for the amount of the difference; or
B. less than the Recalculated Post-FBC S.O. CostGainshare/Painshare Amount, the PDMP must, within 20Business Days of receipt of the notice, pay the Principalthe amount of the difference; or
(iv) where paragraph (c)(ii) applies, the PDMP must, within 20 BusinessDays of issuing the notice, pay the Principal the amount of Post-FBC S.O. Cost Gainshare/Painshare Amount payable plus anyPost-FBC S.O. Cost Gainshare/Painshare Amount paid to the PDMPpursuant to paragraph 2.1(c)(i) of this Schedule 3 (KPIs andPerformance regime).
2.3 Cap on Post-FBC incentive payments
Notwithstanding any other provision in this Schedule, the maximum aggregate amount that the:
(a) PDMP is required to pay to the Principal on account of any Post-FBC S.O.Cost Gainshare/Painshare Amount and any Post-FBC S.O. PerformanceAmount in respect of any one Post-FBC Services Order is an amount equal to100% of the Services Order Profit for that Services Order.
(b) Principal is required to pay to the PDMP on account of the Post-FBC S.O.Cost Gainshare/Painshare Amount and the Post-FBC S.O. PerformanceAmount in respect of any one Post-FBC Services Order is an amount equal tothe sum of 100% of the Services Order Profit for that Services Order and 100%of the "Services Order Profit" budgeted for that Services Order, as set out inthe Final Business Case for that Services Order.
2.4 Calculation of Pre-FBC S.O. Performance Amount
(a) Prior to the date the Principal receives approval of the Final Business Casedeveloped under a Pre-FBC Services Order the PDMP will have noentitlement to a Pre-FBC S.O. Performance Amount.
(b) Within 60 Business Days after the Principal receives approval of the FinalBusiness Case developed under a Pre-FBC Services Order, and subject to thereceipt of, if requested, all records kept by the PDMP for the Portfolio underclause 27.2, the Principal must calculate and determine the Pre-FBC S.O.Performance Amount, and:
(i) if the Pre-FBC S.O. Performance Amount is greater than nil, thePrincipal must pay to the PDMP the amount by which the Pre-FBCS.O. Performance Amount is greater than nil; and
(ii) if the Pre-FBC S.O. Performance Amount is less than nil, the PDMPmust pay to the Principal the amount by which the Pre-FBC S.O.Performance Amount is less than nil.
(c) The parties agree that any Pre-FBC S.O. Performance Amount payable inaccordance with paragraph 2.4(b)(ii) will be recoverable from the PDMP asa debt due and payable to the Principal, which must be paid within 20Business Days of the Principal's determination under paragraph 2.4(b).
(d) For the avoidance of doubt, where the Principal calculates and determinesthe Pre-FBC S.O. Performance Amount as nil for any Pre-FBC Services Order,no Pre-FBC S.O. Performance Amount is payable under this paragraph 2.4for that Services Order.
2.5 Calculation of PMO Performance Amount
(a) The PMO Performance Amount will be assessed at the 30th June 2021 and onthe same date each year thereafter for the 12 month period immediatelypreceding that date.
(b) Prior to the anniversary of the Award Date, the PDMP will have noentitlement to a PMO Performance Amount in respect of the year ending onthat anniversary of the Award Date.
(c) Within 60 Business Days after each anniversary of the Award Date, and subject to receipt of, if requested, all records kept by the PDMP for the"Portfolio Management Office" under clause 27.2, the Principal must calculate and determine the PMO Performance Amount as at the relevant anniversary date, and:
(i) if the PMO Performance Amount is greater than nil, the Principal must pay to the PDMP the amount by which the PMO Performance Amount for the year preceding that anniversary date is greater than nil; and
(ii) if the PMO Performance Amount is less than nil, the PDMP must pay to the Principal the amount by which the PMO Performance Amount for the year preceding that anniversary date is less than nil.
(ci) The parties agree that any PMO Performance Amount payable in accordance with paragraph 2.5(c)(ii) will be recoverable from the PDMP as a debt due and payable to the Principal, which must be paid within 20 Business Days of the Principal's determination under paragraph 2.5(c).
(cii) For the avoidance of doubt, where the Principal calculates and determines the PMO Performance amount as nil for any year of the Term, no PMO Performance Amount is payable under this paragraph 2.5 for that year.
2.6 Trend Analysis and Suspension of Services Order Profit and PDMP PMO Profit
(a) The PDMP must implement and carry out appropriate procedures to allowappropriate trending analysis of performance against each element of thePost-FBC Cost Gainshare and Painshare Regime (for all Post-FBC ServicesOrders), the Pre-FBC S.O. Performance Regime (for all Pre-FBC ServicesOrders), the Post-FBC S.O. Performance Regime (for all Post-FBC ServicesOrders) and the PMO Performance Regime set out in this Schedule 3 to becompleted and reported to the Principal.
(b) If, at any time during the performance of the PDMP Services, the Principaldetermines that the PDMP's performance in any element of the Post-FBCCost Gainshare and Painshare Regime (for all Post-FBC Services Orders), thePre-FBC S.O. Performance Regime (for all Pre-FBC Services Orders), the Post-FBC S.O. Performance Regime (for all Post-FBC Services Orders) and thePMO Performance Regime is expected to result in a payment beingpayable by the PDMP:
(i) the PDMP must, if possible, take whatever reasonable steps areavailable to remedy the situation and improve the PDMP'sperformance; and
(ii) the Principal may suspend the payment of (but not theentitlement to) the PDMP PMO Profit and the Services Order Profitto the PDMP to the extent necessary to cover the PDMP's liabilityto pay a Painshare Amount to the Principal, which suspension ofpayment will be effective for the period commencing and endingon dates determined by the Principal.
(c) If, following receipt of a report from the PDMP or otherwise, the Principalforms a view, at any time during the Term, that:
(i) the Total S.O. Cost for a Post-FBC Services Order will or is likely to beequal to or greater than the PDMP S.O. Budget for that ServicesOrder (as adjusted in accordance with this Contract);
(ii) the Pre-FBC S.O. Performance Amount for a Pre-FBC ServicesOrder will or is likely to be equal to or less than nil;
(iii) the Post-FBC S.O. Performance Amount for a Post-FBC ServicesOrder will or is likely to be equal to or less than nil; or
(iv) the PMO Performance Amount for any year of the Term will or islikely to be equal to or less than nil,
the Principal may immediately suspend the payment of (but not the entitlement to) the Services Order Profit and the PDMP PMO Profit to the extent necessary to cover the PDMP's liability to pay a Painshare Amount, which suspension of payment will be effective for the period commencing and ending on dates determined by the Principal.
2.7 Payment adjustments
(a) The Principal may review all payments of the Contract Price, the Total S.O.Cost for any Services Order and any payment under this Schedule 3 for anyadjustment at the:
(i) time of any audit, inspection or investigation carried out inaccordance with this Contract;
(ii) time of Completion of any Post-FBC Services Order;
(iii) date that is 12 months after the issue of the Certificate ofCompletion, or such later date as determined by the Principal,acting reasonably, in respect of any Post-FBC Services Order; and
(iv) time at which all Claims (if any) in connection with the "ProjectManagement Office" activities set out in the Services Brief(including in section 2.3 of the Services Brief) any Services Order orany Project in the Portfolio are finally resolved or determined.
(b) The PDMP acknowledges and agrees that all entitlements and liabilitiesunder this Schedule 3 (KPIs and Performance regime) and under Schedule 2are subject to audit, inspection, investigation and adjustment inaccordance with this Contract.
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Schedule 4 Statement of Interests and Associations
Statement of Associations and Interests
To: Water NSW (“the Principal”)
I, ………………………………………………………………….(insert name), acknowledge and agree that:
1. I declare below any associations and / or interests.
2. I am not aware of any existing or potential conflicts of interest between my personalinterests and the impartial performance of my duties as a permanent or temporaryemployee, consultant, advisor, agent or contractor of the Principal, other than thosedeclared below.
3. If I become aware of any actual or potential conflict of interest, I will disclose it to thePrincipal's Chief Executive and / or the Probity Advisor at the first reasonableopportunity.
List any associations and / or interests below:
……………………………………………………………………….
Signed
………………………………………………………………………..
Name and Organisation
Date: ………………………………
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Schedule 6 Limits of Authority
The PDMP is authorised to represent the Principal for the purposes of providing the PDMP Services, but subject at all times to the Contract (including this Schedule) and the limitations of the Government Sector Finance Act 2018 (NSW) and the Government Sector Audit Act 1983 (NSW).
The PDMP acknowledges and agrees that the PDMP and its Personnel are each not a "government officer" as defined under the Government Sector Finance Act 2018 (NSW).
The PDMP must, and must procure its Personnel to:
(a) not act, make any representation (whether express or implied), or holdthemselves out as a "government officer" as defined under the GovernmentSector Finance Act 2018 (NSW); and
(b) otherwise do anything or fail to do anything that would cause the Principalto be in breach of the Government Sector Finance Act 2018 (NSW).
1. Overriding principles
(a) Without limiting any provision of the Contract, the PDMP must procure thatthe PDMP's Personnel comply with the following overriding principles whenproviding the PDMP Services as an agents or representative of the Principal:
(i) the PDMP's Personnel act as an agent and not as a delegate ofthe Principal;
(ii) the PDMP's Personnel must act within the limits of authority set outin this Schedule (including clause 2 below);
(iii) the PDMP's Personnel can only exercise their authority for thepurpose of carrying out the PDMP Services, and not for any otherpurpose;
(iv) the PDMP's Personnel must exercise their authority responsibly,lawfully, honestly and ethically to the standards required by theContract and in the best interests of the Principal;
(v) the PDMP's Personnel must not exercise an authority incircumstances where there is an actual or potential conflict ofinterest between their own interests (or those of family members orother affiliates) and their duties to the Principal; and
(vi) the PDMP's Personnel must comply with all of the following whencarrying out functions on behalf of the Principal:
A. relevant Laws and standards;
B. relevant policies, including the Code of Conduct andthe Policies and Procedures;
C. the applicable terms of the Contract; and
D. the terms of any relevant Project Contract.
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(b) Regardless of the scope of any authority, the PDMP must procure that thePDMP's Personnel work collaboratively, consult with senior and specialistcolleagues, and ensure that their managers are kept informed of alldecisions and activities that may be significant or have materialconsequences.
(c) The PDMP indemnifies and keeps indemnified the Principal against all losses,liabilities, damages, claims, costs and demands of any nature against thePrincipal arising out of or in connection with:
(i) any negligence of the PDMP or the PDMP's Personnel in complyingwith the overriding principles set out in clause 1(a) above; or
(ii) any breach or default (including any fraud or wilful act oromission) of the PDMP or the PDMP's Personnel in complying withthe overriding principles set out in clause 1(a) above.
(d) Clause (c) will survive any termination of the Contract.
2. Limits of authority
This clause sets out the limits that apply to the PDMP’s scope of authority (and thescope of authority of any of the PDMP's Personnel appointed as an agent orrepresentative of the Principal). These limits are in addition to any other requirementsof the Contract.
Due to the provisions of the Government Sector Finance Act 2018 (NSW) and theGovernment Sector Audit Act 1983 (NSW), the PDMP's authority is limited.
For the PDMP Services, including those PDMP Services relating to the "ProjectManagement Office" activities set out in the Services Brief (including in section 2.3 ofthe Services Brief) and any Services Order, the Principal's Representative will issue aspecific delegation to the PDMP. The Principal may amend (including to add orremove authority from the PDMP) or withdraw the delegation from the PDMP at anytime and for any reason (in the Principal's absolute discretion).
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Schedule 7 Confidentiality Deed
Given by: [insert full legal name of Recipient (insert ABN)] of [insert registered address of Recipient] (Recipient) for and on behalf of itself and the Recipient Representatives (as defined in this Deed)
In favour of: Water NSW ABN 21 147 934 787 of Level 14, 169 Macquarie Street, Parramatta NSW 2150 (WaterNSW), the WaterNSW Representatives and WaterNSW’ Related Entities (as defined in this Deed)
Made: at Sydney on the date the Recipient executes this Deed (date of this Deed).
Background
A WaterNSW and the Recipient have entered into a contract entitled [insert] (Contract) dated on or about the date of this Deed pursuant to which the Recipient will carry out certain activities (PDMP Services).
B It is a condition of the Contract that the Recipient enter into this Deed.
C WaterNSW has agreed to disclose certain Confidential Information to the Recipient for the Permitted Use on the terms and conditions of this Deed for the purposes of the Recipient providing services to WaterNSW under the Contract between the parties.
1. Definitions and Interpretation
1.1 Definitions
In this Deed (including the Background), unless the context otherwise requires:
Claim means any action, suit, claim, demand, cause of action or notice, of any naturewhatsoever, at Law or in equity, including:
(a) in contract, whether for breach or for an entitlement under a contract;
(b) in tort for negligence or otherwise, including without limitation negligentmisrepresentation;
(c) for contribution or indemnity at common law, equity or statute;
(d) for restitution, unjust enrichment or quantum meruit;
(e) under or for breach of statute; or
(f) in any other way,
whether for a Loss or a Remedy.
Confidential Information means:
(a) information disclosed by or on behalf of WaterNSW or the WaterNSWRepresentatives to the Recipient or the Recipient Representatives (or ofwhich the Recipient or the Recipient Representatives become aware)arising out of or in connection with the Permitted Use;
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(b) information acquired by the Recipient or the Recipient Representatives in the course of discussions prior to the date of this Deed in relation to the Permitted Use;
(c) any Document or other correspondence provided by WaterNSW to the Recipient or the Recipient Representatives, that:
(i) is by its nature confidential; or
(ii) is designated as confidential by WaterNSW or the WaterNSW Representatives from time to time; or
(d) any other information which by its nature should reasonably be considered to be the confidential information of WaterNSW or the WaterNSW Representatives, or which the Recipient or the Recipient Representatives knows is confidential,
whether or not marked as "Commercial in Confidence", "Proprietary" or "Confidential", and which may be provided in writing, electronically, verbally or otherwise, but does not include any information which:
(e) the Recipient can demonstrate to be in the public domain or was known to the Recipient at the time of disclosure other than through a breach of this Deed;
(f) is in the lawful possession of the Recipient without restriction in relation to disclosure before the date of receipt of the information from WaterNSW or the WaterNSW Representatives;
(g) was independently developed by the Recipient or the Recipient Representatives;
(h) is required by Law to be disclosed; or
(i) comprises Intellectual Property Rights within the meaning of the Contract.
Deed means this Deed Poll.
Information Documents means any information, opinion, data or document in whatever form (including, electronic, verbal, written or visual):
(a) issued or made available by, or on behalf of, WaterNSW or the WaterNSW Representatives to the Recipient or the Recipient Representatives in connection with this Deed or the Permitted Use; and
(b) includes any information, opinion, data or document referred to, or incorporated by reference, in any such Information Documents,
whether or not such Information Documents were issued or made available to the Recipient before or after the date of this Deed.
Information Security Requirements means the following principles, policies, codes, standards, Laws and directions relating to the storage, management, control and handling of information that is security classified and/or subject to a sensitive information label or other protective marking (such as dissemination limiting markers) or a restriction on use:
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(a) the most recent version of:
(i) the WaterNSW policy, "IT Information Security Policy";
(ii) the NSW Government Information Classification and LabellingHandling Guidelines to the extent applicable;
(iii) the NSW Government Digital Information Security Policy;
(iv) the Australian Government Information Security Manual; and
(v) the "Australian Government Information Security ManagementGuidelines", including:
A. Australian Government Security Classification System;and
B. Protectively Marking and Handling Sensitive and SecurityClassified Information and Material;
(b) Premiers Memorandum M2006-08, Maintaining Confidentiality of CabinetDocuments and Other Cabinet Conventions;
(c) legislation, including the State Records Act 1998 (NSW) and the Privacy Law;and
(d) any other principles, policies, codes, standards, Laws and directions that arenotified to the Recipient by WaterNSW from time to time, with respect to thesame subject matter as the foregoing,
as replaced, amended or updated from time to time.
Loss means any money, cost (including reasonable legal costs and expenses), expense, damage, interest, penalty, fine, delay, disruption, costs and losses associated with a Remedy or detriment of any kind whatsoever.
Law means the common law and any legislation of the Parliament of the Commonwealth of Australia, of any State or Territory of the Commonwealth of Australia or of any other jurisdiction in force at any time and any rule, regulation, ordinance, by-law, statutory instrument, order or notice at any time made under that legislation and, in each case, any consolidations, amendments, re-enactments and replacement.
Permitted Use means use for the purposes of the Recipient carrying out the PDMP Services under the Contract, and for no other purpose.
Personal Information has the same meaning as in the Privacy and Personal Information Protection Act 1998 (NSW).
Principal Data means all data and information relating to the Principal or its operations, facilities, clients, customers, Personnel, assets and programs (including Personal Information) in whatever form that information may exist, and whether entered into, stored in, generated by or processed through software or equipment, or produced as part of the performance of the PDMP Services under the Contract.
Privacy Laws means the Privacy and Personal Information Protection Act 1998 (NSW), the Privacy Act 1988 (Cth), any applicable principles, codes of conduct or directions
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issued under those Acts and all other applicable Laws relating to privacy or personal information.
Related Entity in relation to:
(a) the Recipient, has the meaning given to 'related body corporate' in section 9 of the Corporations Act 2001 (Cth); and
(b) WaterNSW, means any "water supply authority" (as defined in the Water NSW Act 2014 (NSW)), the State of New South Wales, and any entity controlled by any of them.
Remedy means any entitlement, damages, interest, compensation, contribution, indemnity, injunction, specific performance, extension of time or other legal or equitable or statutory remedy of any kind whatsoever.
Representatives means:
(a) in respect of the Recipient, any Related Entity of the Recipient and any directors, officers, employees, consultants, agents and contractors of Recipient and any Related Entity of the Recipient (the "Recipient Representatives"); and
(b) in respect of WaterNSW, any Related Entity of WaterNSW and any directors, officers, employees, consultants, agents and contractors of WaterNSW and any Related Entity of WaterNSW (other than the Recipient) (the "WaterNSW Representatives").
1.2 Interpretation
In this Deed:
(a) headings are for convenience only and do not affect interpretation;
(b) an obligation or liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally;
(c) a reference to a "person" includes an individual, the estate of an individual, a corporation, an authority, an association or a joint venture (whether incorporated or unincorporated), a partnership and a trust;
(d) a reference to a party includes that party's executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes a substituted or an additional trustee;
(e) a reference to a document (including this Deed) is to that document as varied, novated, ratified or replaced from time to time;
(f) a reference to a statute or statutory provision includes a statutory modification or re-enactment of it or a statutory provision substituted for it, and each ordinance, by-law, regulation, rule and statutory instrument (however described) issued under it;
(g) a word importing the singular includes the plural (and vice versa), and a word indicating a gender includes every other gender;
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(h) a reference to a party or clause is a reference to a party or clause to or of this Deed;
(i) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning; and
(j) "includes" in any form is not a word of limitation.
2. Representations and warranties regarding Information Documents
The Recipient acknowledges and agrees, for itself and the Recipient Representatives, that:
(a) the Information Documents are provided by WaterNSW for the information only of the Recipient or as otherwise required for the Permitted Use;
(b) neither WaterNSW nor the WaterNSW Representatives are responsible or liable for, or make any representation or warranty (express or implied) in respect of, the contents of the Information Documents including the accuracy, adequacy, suitability or completeness of any reports, data, test results, samples, reports or investigations, opinions, recommendations, findings or other information contained in the Information Documents for any purpose, including the Permitted Use; and
(c) WaterNSW has provided, or will provide, the Information Documents to the Recipient in reliance upon the acknowledgements and agreements contained in this clause 2.
3. Recipient's obligations
3.1 Confidentiality
The Recipient acknowledges and agrees, for itself and the Recipient's Representatives, that it will:
(a) keep the Confidential Information confidential, safe, secure and protected against unauthorised use and access and, subject to clause 3.5 (When Recipient may disclose), not disclose the Confidential Information to any person;
(b) not use or permit the use of the Confidential Information for any purpose other than for the Permitted Use;
(c) ensure Confidential Information is not copied or reproduced without the WaterNSW' express written consent;
(d) not introduce any Confidential Information into any computer system or other device operated, controlled or which may be accessed to any extent by a person other than the Recipient or the Recipient's Representatives to whom the Confidential Information has been disclosed in accordance with this Deed;
(e) ensure that any Representative of the Recipient to whom the Recipient discloses Confidential Information:
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(i) is aware of the confidentiality requirements of this Deed; and
(ii) is advised that he or she is strictly forbidden to disclose theConfidential Information to any other person or use theConfidential Information for any purpose other than as providedfor in this Deed;
(f) not issue any information, publication, document or article or make anystatement to or advertise in any media about any matters relating to thePermitted Use or this Deed, unless otherwise approved in writing byWaterNSW to do so; and
(g) not attempt to access any Confidential Information other than theConfidential Information that they need to know and access for thepurposes of the Permitted Use.
3.2 Comply with Privacy Laws
In relation to any Personal Information provided by WaterNSW to the Recipient under or in connection with this Deed or its subject-matter, the Recipient warrants that it will comply with all applicable Privacy Laws including, if applicable, obtaining the consent of each individual to whom the Personal Information relates for the collection use and disclosure of that Personal Information.
3.3 Not cause breach by WaterNSW
Where the Recipient is required to access, collect or disclose Personal Information on behalf of WaterNSW, then the Recipient must comply with the Privacy and Personal Information Protection Act 1998 (NSW) as if it were WaterNSW accessing, collecting or disclosing the Personal Information.
3.4 Security measures
The Recipient must ensure that any Confidential Information in its or the Recipient's Representatives' possession, custody or control is kept secure at all times, including by:
(a) where the Recipient has access to Confidential Information by password orother secure means, the Recipient must not disclose that password or meansof access to any other person unless it has been authorised in writing to doso by WaterNSW; and
(b) where applicable, complying with the Information Security Requirements.
3.5 When Recipient may disclose
The Recipient may disclose Confidential Information:
(a) with the prior written consent of WaterNSW;
(b) to the Recipient's Representatives, but only to the extent that eachRecipient's Representative has a "need to know" the ConfidentialInformation for the purposes of the Permitted Use; and
(c) subject to clause 3.6 (Disclosure required by Law), to the extent required byLaw to do so.
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3.6 Disclosure required by Law
If the Recipient is required by Law to disclose any Confidential Information, the Recipient must before doing so immediately notify WaterNSW and comply with any reasonable directions given by, or requirements of, WaterNSW.
3.7 Inspections and audit
The Recipient consents, and must procure the necessary consents from any Representative to which the Confidential Information is disclosed by the Recipient, to such inspections and audits as may be reasonably required by WaterNSW for the purpose of auditing compliance by the Recipient and any relevant Representatives with the terms of this Deed after WaterNSW has given the Recipient reasonable notice, to the extent practicable in the circumstances.
3.8 Breach of confidentiality obligations
If the Recipient becomes aware of any actual, threatened or suspected breach of this Deed, including by the Recipient or any Representative of the Recipient, the Recipient must:
(a) immediately notify WaterNSW in writing and take all steps necessary toremedy, prevent or stop the actual, threatened or suspected breach of thisDeed and comply with any reasonable directions issued by WaterNSWregarding any unauthorised use or disclosure of the Confidential Information;and
(b) provide such other assistance as may be reasonably required by WaterNSW,including in relation to any Claim or proceedings that WaterNSW may bringagainst any third party for unauthorised use or disclosure of the ConfidentialInformation.
3.9 Return of Confidential Information
(a) Subject to clause 3.9(b), if requested by WaterNSW, the Recipient must:
(i) promptly return to WaterNSW all documents and other physicalrecords of Confidential Information in its or the RecipientRepresentatives possession, custody or control;
(ii) delete the Confidential Information from any computer system orother device operated or controlled by, or which may beaccessed by, the Recipient or the Recipient Representatives towhich the Confidential Information has been disclosed by theRecipient;
(iii) where applicable, comply with the requirements of theInformation Security Requirements in respect of the destruction orreturn of any Confidential Information; and
(iv) comply with any reasonable directions issued by WaterNSW inrespect of the Confidential Information.
(b) If the Recipient is required by Law to retain any Confidential Information,and provided the Recipient has not breached any of its obligations underthis Deed, the Recipient may retain one copy of part or all of theConfidential Information, to the extent that the Recipient is obliged to retain
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a copy of part of or all of the Confidential Information by Law. Any Confidential Information retained pursuant to any such obligation at Law shall continue to be subject to the obligations of this Deed.
3.10 Compliance with Information Security Requirements
The Recipient acknowledges and agrees that:
(a) some, or all, of the Confidential Information, Personal Information and other Principal Data is security classified, and/or subject to a sensitive information label or other protective marking (such as dissemination limiting markers) or restriction on use and must therefore be stored, managed, controlled and handled strictly in accordance with the Information Security Requirements;
(b) prior to the date of this Deed it is familiar with and has read, and it will ensure that all relevant Recipient's Representatives are familiar with and have read, the Information Security Requirements;
(c) it will, and it will ensure that all relevant Recipient's Representatives:
(i) at all times comply with and adhere to all relevant and applicable Information Security Requirements; and
(ii) cooperate with and assist WaterNSW and the WaterNSW' Representatives in the performance of any obligations or requirements of WaterNSW and the WaterNSW' Representatives under or in connection with the Information Security Requirements,
in respect of any Confidential Information and other Principal Data; and
(d) it will not, and it will ensure that the Recipient Representatives do not, do anything which would:
(i) constitute a contravention of the Information Security Requirements by WaterNSW; or
(ii) put WaterNSW in breach of any Information Security Requirements.
4. WaterNSW may enforce Deed
4.1 Recipient acknowledgements
The Recipient:
(a) agrees that:
(i) the obligations in this Deed are for the benefit of WaterNSW and the WaterNSW Representatives, and that WaterNSW or the WaterNSW Representatives may enforce the obligations herein; and
(ii) the Confidential Information is the exclusive property of WaterNSW or WaterNSW' Representatives and this Deed does not convey any proprietary or other interest in the Confidential Information to the Recipient or the Recipient Representatives; and
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(b) acknowledges that:
(i) the Confidential Information is valuable to WaterNSW andWaterNSW' Representatives that damages may not be anadequate remedy for WaterNSW or the WaterNSWRepresentatives for any breach of this Deed by the Recipient; and
(ii) WaterNSW is, and any WaterNSW's Representatives are, entitled toseek injunctive relief as a remedy for any breach or threatenedbreach of this Deed by the Recipient, in addition to any otherremedies available at Law or in equity under or independently ofthis Deed.
4.2 Breach by Representative
Where the Recipient discloses the Confidential Information or any Personal Information to a Representative, a breach of a provision of this Deed by the relevant Representative will be deemed to be a breach of this Deed by the Recipient.
5. Release and Indemnity
5.1 Release
To the extent permitted by Law, the Recipient releases and forever discharges, andagrees to hold harmless and acquit WaterNSW and each of WaterNSW'Representatives from and against any and all Claims arising out of, relating to or in anyway in connection with or incidental to:
(a) the provision of, or purported reliance on, or use of, the InformationDocuments or any Confidential Information by the Recipient, the Recipient'sRepresentatives or any other person associated with the Recipient to whomthe Information Documents or any Confidential Information are disclosed bythe Recipient;
(b) any failure by WaterNSW or the WaterNSW Representative to provide anyinformation to the Recipient; and
(c) any fact, matter, circumstance, conduct, act, omission or thing inconnection with any of those matters or things,
whether or not the parties were aware of the fact, matter, circumstance, conduct, act, omission or thing as at the date of this deed and including any Claims in respect of a Loss or a Remedy which the Recipient may suffer or incur in respect of the fact, matter, circumstance, omission or thing after the date of this Deed.
5.2 Indemnity
(a) To the extent permitted by Law, the Recipient indemnifies and will keepindemnified each of WaterNSW and the WaterNSW Representatives (ThoseIndemnified) against:
(i) any Loss incurred or suffered by Those Indemnified where such Lossis incurred by reason of or in connection with any breach of thisDeed by the Recipient or the Recipient Representatives; and
(ii) any and all Claims by or on behalf of the Recipient, the Recipient'sRepresentatives or any person claiming through, under, for, on
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behalf of or by virtue of the Recipient or the Recipient's Representatives, which have arisen or may arise in relation to the matters the subject of the release in clause 5.3.
(b) The Recipient's liability to indemnify Those Indemnified will be reducedproportionally to the extent that any negligent act or omission of ThoseIndemnified caused or contributed to the liability or loss.
6. General
6.1 No exclusion of Law or equity
This Deed must not be construed to exclude the operation of any principle of Law orequity intended to protect and preserve the confidentiality of the ConfidentialInformation.
6.2 Waiver
The Recipient acknowledges and agrees that:
(a) no waiver by WaterNSW of one breach of any obligation or provision hereincontained or implied shall operate as a waiver of another breach of thesame or of any other obligation or provision herein contained or implied;and
(b) none of the provisions hereof shall be taken either at Law or in equity tohave been varied, waived, discharged or released by WaterNSW unless byits express consent in writing.
6.3 Governing Law
This Deed will be governed by and construed in accordance with the Law in force in the State of New South Wales. Each party submits to the exclusive jurisdiction of the Supreme Court of New South Wales and the courts competent to determine appeals from that court.
6.4 Continuing obligations
The obligations of the Recipient under this Deed continue after the completion or termination of any employment, engagement or assignment in respect of the Permitted Use.
6.5 Revocation or amendment
This Deed may not be revoked or otherwise modified or amended without the prior written consent of WaterNSW.
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Executed as a deed poll
[Note: Delete the execution block that is not applicable.]
[If the Recipient is an individual]
Signed, sealed and delivered by [insert full legal name of Recipient] in the presence of:
Signature of witness Signature of Recipient
Full name and position of witness Full name and position of Recipient
Address of witness
Address of Recipient
Date
[If the Recipient is a company]
Executed by [insert] ABN [insert] in accordance with section 127 of the Corporations Act 2001 (Cth):
Signature of director Signature of director/company secretary
Full name of director Full name of director/company secretary
Date Date
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Schedule 8 Escrow Deed
(Clause 9.5)
Between [Name] of [Address] (ABN [*]) (Escrow Holder).
and Aurecon Australasia Pty Ltd (ABN 54 005 139 873) of Level 8 850 Collins Street Docklands VIC 3008 and Kellogg Brown & Root Pty Ltd (ABN 91 007 660 317) of 186 Greenhill Road Parkside SA 5063 (together, PDMP); and
and Water NSW (ABN 21 147 934 787), of Level 14, 169 Macquarie Street Parramatta NSW 2150 (WaterNSW).
Background
A. The PDMP has agreed to deposit with the Escrow Holder a copy of the Source Code Material and to allow WaterNSW to access and use the Source Code Material under certain circumstances.
B. The Escrow Holder agrees to deal with the Source Code Material on the terms and conditions of this deed.
1. Interpretation
1.1 Definitions
Unless otherwise specified, words and phrases used in this deed have the same meaning as that which is given to them under the Contract. In this deed:
Annual Fee means the annual fees set out in section 1 of the Information Schedule.
Corporations Act means the Corporations Act 2001 (Cth).
Contract means the Contract entitled Portfolio Delivery Management Partner Contract between WaterNSW and PDMP, dated [insert].
CPI means the Consumer Price Index (all groups – weighted average of eight capital cities) published by the Australian Bureau of Statistics.
Escrow Deposit Specification Form means the form set out in Schedule 2.
Establishment Fee means the establishment fee set out in section 1 of the Information Schedule.
Government Agency means any governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity.
Information Schedule means Schedule 1 to this deed.
Insolvency Event means in relation to a party to the Contract, any of the following:
(a) the party informs the other party in writing, or its creditors generally, that the party is insolvent or is unable to proceed with the Contract for financial reasons;
(b) a trustee, receiver, receiver and manager, interim receiver, controller, administrator, custodian, sequestrator, provisional liquidator, liquidator or
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any foreign law equivalent or other person with similar power is appointed to the party;
(c) the party:
(i) becomes bankrupt or insolvent within the meaning of section 95A of the Corporations Act 2001 (Cth) or under any bankruptcy, insolvency or analogous Law;
(ii) would be presumed by a court to be insolvent under section 459C(2) of the Corporations Act 2001 (Cth);
(iii) fails to comply with a statutory demand (within the meaning of section 459F(1) of the Corporations Act 2001 (Cth)) and fails to remedy that failure within 7 days after being required in writing to do so by the party issuing the statutory demand;
(iv) makes any assignment in bankruptcy or makes any other assignment for the benefit of creditors;
(v) seeks relief from its obligations to creditors under any bankruptcy, insolvency or analogous Law;
(vi) commences any proceeding, files a petition or proposal to take advantage of any act of bankruptcy or insolvency;
(vii) resolves to, consents to or acquiesces in the appointment of a trustee, receiver, receiver and manager, interim receiver, controller, administrator, custodian, sequestrator, provisional liquidator, liquidator or other person with similar power of itself or of all or a portion of its assets; or
(viii) files a petition or otherwise commences any proceeding seeking to enter into any compromise, reorganisation, arrangement, composition or readjustment under any applicable bankruptcy, insolvency or analogous Law affecting creditors’ rights or consents to, or acquiesces in, the filing of such a petition, or commencement of such proceedings; or
(d) any act is done or event occurs which, under applicable Law, has a similar effect to anything mentioned in paragraphs (b) or (c).
Software Application means the software application(s) specified in section 2 of the Escrow Deposit Specification Form.
Source Code means, in respect of any software, firmware, computer code or configuration files (Computer Programs), the human readable code of such Computer Programs, and includes associated software including scripts and applets (collectively comprised in a complete copy of all of the foregoing in executable code) and all compliers, tools, language, documentation necessary to operate, maintain and modify the executable code copy of that Computer Program including all technical documentation and specifications in respect of that Computer Program, including any other information necessary for a reasonably skilled computer programmer to understand the program logic of the software, firmware, computer code or configuration files and to perform any of those acts in relation to it.
Source Code Material means all Source Code for the then currently implemented version of the Software Application, reasonably detailed associated developer
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commentary regarding that Source Code and all other software, information, documentation and other material described in section 2 of the Information Schedule.
Tax Invoice has the same meaning as in the GST Legislation.
Taxable Supply has the same meaning as in the GST Legislation.
Update means any material update, new release, modification or new version of the computer programs or computer interfaces provided by the PDMP.
1.2 References to certain general terms
In the deed:
(a) headings are for convenience only and do not affect interpretation;
and unless the context indicates a contrary intention:
(b) an obligation or liability assumed by, or a right conferred on, 2 or more persons binds or benefits them jointly and severally;
(c) "person" includes an individual, the estate of an individual, a corporation, an Authority, an association or a joint venture (whether incorporated or unincorporated), a partnership and a trust;
(d) a reference to a party includes a party's executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes a substituted or additional trustee;
(e) a reference to a document (including the deed) is to that document as varied, novated, ratified or replaced from time to time;
(f) a reference to a statute includes its delegated legislation and a reference to a statute or delegated legislation or a provision of either includes consolidations, amendments, re-enactments and replacements;
(g) a word importing the singular includes the plural (and vice versa), and a word indicating a gender includes every other gender;
(h) a reference to a party, clause, schedule, exhibit, attachment or annexure is a reference to a party, clause schedule, exhibit, attachment or annexure to or of the deed, and a reference to the deed includes all schedules, exhibits, attachments and annexures to it;
(i) if the time for giving any notice, issuing any certificate, making any payment or doing any other act required or permitted by the deed, falls on a day which is not a Business Day, then the time for giving the notice, issuing the certificate, making the payment or doing the other act will be taken to be on the next Business Day;
(j) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(k) "includes" in any form is not a word of limitation;
(l) a reference to "$" or "dollar" is to Australian currency;
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(m) a reference to any Authority, institute, association or body is:
(i) if that Authority, institute, association or body is reconstituted, renamed or replaced or if the powers or functions of that Authority, institute, association or body are transferred to another organisation, deemed to refer to the reconstituted, renamed or replaced organisation or the organisation to which the powers or functions are transferred, as the case may be; and
(ii) if that Authority, institute, association or body ceases to exist, deemed to refer to the organisation which serves substantially the same purposes or object as that Authority, institute, association or body.
2. PDMP's deposit obligations
2.1 PDMP to make deposits
The PDMP must deposit the then currently implemented version of the Source Code Material, accompanied by a completed Escrow Deposit Specification Form, with the Escrow Holder:
(a) within 14 days of the date of this deed;
(b) where the Contract is a "Construction Works Contract", as a condition precedent to Completion of the Works;
(c) where the Contract is a "Supply of Goods and/or Services Contract", as a condition precedent to Acceptance or completion of any Services;
(d) where the Contract is a "Maintenance Services Contract" or a "Professional Services Contract", as a condition precedent to completion of the PDMP Services; and
(e) within 14 days after any update or material change is made to the implemented version of any Source Code then held by the Escrow Holder.
2.2 WaterNSW may test deposits
WaterNSW may, after providing the PDMP with at least seven days' notice, conduct tests on the Source Code Material to determine whether the PDMP has met its obligations under clause 2.1.
2.3 Escrow Holder to provide access
The Escrow Holder will provide WaterNSW with access to the Source Code Material to enable testing under clause 2.2 to be carried out and will, in the presence and with the oversight of the PDMP, allow WaterNSW to:
(a) remove the Source Code Material from the custody of the Escrow Holder;
(b) install, download or copy the Source Code Material onto such computer system or hardware as WaterNSW may reasonably specify; and
(c) analyse and conduct reasonable tests in relation to the Source Code Material as provided for under clause 2.2.
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Following the testing, WaterNSW will (in the presence of and with the oversight of the PDMP) ensure that all copies of the Source Code Material are deleted from the computer system or hardware referred to in clause 2.3(b), and the material referred to in clause 2.3(a) is promptly returned to the Escrow Holder.
2.4 Support to provide assistance with testing
The PDMP must, at WaterNSW' request and at no charge, give WaterNSW all reasonable assistance to enable WaterNSW to carry out the tests referred to in clause 2.2.
2.5 Failure to deposit correct version in escrow
If testing by WaterNSW reveals that the Source Code Material does not contain the correct version of the computer programs or computer interfaces, the PDMP must, at no charge, deliver a copy of the correct version of the Source Code Material to the Escrow Holder within 2 Business Days of the completion of testing.
3. Escrow Holder's obligations
3.1 Obligations
The Escrow Holder must:
(a) accept each deposit of the Source Code Material and, subject to the terms and conditions of this deed, hold it on behalf of the PDMP and WaterNSW;
(b) take all reasonably necessary steps to ensure the preservation, care, safe custody and security of the Source Code Material whilst it is in the possession, custody or control of the Escrow Holder;
(c) only use, access, copy and release the Source Code Material to the extent necessary to enable the Escrow Holder to comply with its obligations under this deed;
(d) establish and maintain a register of deposits of the Source Code Material (Register) showing deposit and release dates and to whom each deposit was released;
(e) allow the PDMP or WaterNSW to examine the Register at any time during regular business hours; and
(f) provide the PDMP or WaterNSW with a copy of the Register within seven days of receiving a request to do so.
3.2 Limit on obligations
The Escrow Holder has no obligation to and is not responsible for:
(a) verifying the nature, completeness or accuracy of Source Code Material; or
(b) any transaction between the parties, other than the performance of the Escrow Holder's obligations under this deed.
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4. Confidentiality
The Escrow Holder must not disclose to any person:
(a) any part of the Source Code Material;
(b) any information about the Source Code Material; or
(c) any information about this deed,
other than as permitted by this deed or as required by Law.
5. Release to WaterNSW
5.1 WaterNSW may request release
If one of the following circumstances occurs:
(a) an Insolvency Event occurs to the PDMP;
(b) the PDMP ceases to carry on business;
(c) the PDMP has ceased for any reason to maintain or support a Software Application;
(d) the PDMP breaches the terms of this deed;
(e) the Contract is terminated for the PDMP's breach; or
(f) the PDMP assigns copyright in a Software Application to a third party,
then WaterNSW may notify the Escrow Holder and the PDMP of this event and request that the Escrow Holder release the Source Code Material to WaterNSW (WaterNSW Notice).
5.2 PDMP may dispute release
If the PDMP disputes the WaterNSW Notice, then it may notify the Escrow Holder and WaterNSW that it objects to release of the Source Code Material on the basis that the event relied on by WaterNSW does not exist and the PDMP has provided substantial evidence to support its objection (PDMP Objection).
5.3 Release of Source Code Material to WaterNSW
Unless otherwise ordered by a court the Escrow Holder must release the Source Code Material to WaterNSW:
(a) if no PDMP Objection is received, within 2 Business Days after the Escrow Holder receives a WaterNSW Notice; or
(b) if a PDMP Objection is received, within 7 days after the PDMP Objection is received.
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5.4 Grant of licence
If the Source Code Material is released to WaterNSW under this clause 5, then the PDMP grants WaterNSW an irrevocable, perpetual, royalty-fee, worldwide, non-exclusive licence in relation to that Source Code Material to use it for all purposes in connection with the PDMP Services and the purposes described in clause 9.3 (Pre-existing IPR) of the Contract.
6. Release to PDMP
6.1 Release of Source Code Material to PDMP
If WaterNSW has given the Escrow Holder written notice of its consent to the release of the Source Code Material to the PDMP, then the PDMP may request that the Escrow Holder release the Source Code Material to the PDMP, and the Escrow Holder must immediately release the Source Code Material to the PDMP.
6.2 No other release to PDMP is permitted
Other than as provided for in clause 6.1 (Release of Source Code Material to ) and clause 7 (Release by agreement or by court order), the Escrow Holder must not release any Source Code Material to the PDMP.
7. Release by agreement or by court order
7.1 Release by agreement
Within five days after receipt of a joint notice from the PDMP and WaterNSW requesting release of the Source Code Material, the Escrow Holder must release the Source Code Material in accordance with that notice.
7.2 Release by court order
Each party acknowledges that the Escrow Holder must release the Source Code Material in accordance with any court order requiring the Escrow Holder to do so.
7.3 Notice to WaterNSW
The Escrow Holder must immediately notify WaterNSW if it receives a court order (or any document that refers to a court order being sought) in relation to the Source Code Material.
8. Fees and charges
8.1 Payment of fees
WaterNSW must pay the Establishment Fee and Annual Fee to the Escrow Holder within 30 days of WaterNSW' receipt of the invoices referred to in clause 8.3 (Invoices).
8.2 Annual Fee subject to change
The Escrow Holder may increase the Annual Fee for any year by giving 30 days' notice to WaterNSW. An increase must not exceed the increase in the CPI for the previous year.
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8.3 Invoices
The Escrow Holder may issue invoices as follows:
(a) for the Establishment Fee, on or after the date of this deed, to WaterNSW;
(b) for the Annual Fee, on or after each anniversary of the date of this deed, to WaterNSW; and
(c) for reasonable delivery costs incurred by the Escrow Holder in releasing the Source Code Material, to the party that requested the release.
All invoices issued by the Escrow Holder must state the basis on which fees are charged and, in respect of amounts invoiced pursuant to sub-clause (c) above, must attach evidence justifying the amounts claimed.
8.4 GST inclusive prices
Unless otherwise stated, the fees include GST.
9. GST
9.1 GST gross up
Subject to clauses 9.2 (Tax invoice), 9.3 (Adjustment) and 9.4 (Reimbursements), if GST is imposed on any Taxable Supply made by a party under this deed (Supplying Party), then the party receiving the Taxable Supply (Receiving Party) must pay, in addition to any consideration payable or to be provided under this deed for the supply, an additional amount calculated by multiplying the prevailing GST rate by the consideration for the relevant Taxable Supply payable, or to be provided, by the Receiving Party under any other clause in this deed.
9.2 Tax invoice
Payment for Taxable Supplies is conditional upon the issue of a Tax Invoice. Each Tax Invoice must provide full details of the Taxable Supply, the subject of the Tax Invoice, including any details the payer of the fee may specifically require and such other details required to ensure that it is a Tax Invoice.
9.3 Adjustment
If the amount of GST recovered by the Supplying Party from the Receiving Party differs from the amount of GST payable at Law by the Supplying Party (or an entity grouped with the Supplying Party for GST purposes) in respect of the supply, the amount payable by the Receiving Party to the Supplying Party will be adjusted accordingly.
9.4 Reimbursements
Where one party (Payer) is liable to reimburse another party (Payee) for any expenditure incurred by the Payer (Expenditure), the amount reimbursed by the Payer shall be the GST exclusive Expenditure plus any GST payable to the Payee by the Payer pursuant to clause 9.1 (GST gross up).
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10. Ownership and risk
10.1 Acknowledgements
Each party acknowledges that:
(a) nothing in this deed assigns any Intellectual Property Rights in the Source Code Material;
(b) title in the physical media on which the Source Code Material is stored passes from the PDMP to WaterNSW on release of the Source Code Material to WaterNSW under clause 5 (Release to WaterNSW) or clause 7 (Release by agreement or by court order); and
(c) risk of loss of, or damage to, the Source Code Material and associated media remains with the PDMP.
10.2 Loss or damage to Source Code Material
Without limiting any rights or remedies that any of the parties may have, if any of the Source Code Material or associated media is lost, damaged or destroyed while in the Escrow Holder's control:
(a) the Escrow Holder must promptly notify each other party; and
(b) the PDMP must provide the Escrow Holder with replacement Source Code Material within 2 Business Days or receiving such notice from the Escrow Holder.
10.3 Warranty
The PDMP warrants and represents that it has the necessary authority to comply with its obligations under this deed (including the right to grant the licence in clause 5.4 (Grant of licence)).
10.4 Act or omission of Escrow Holder
Notwithstanding any other provision of this deed, if any of the Source Code Material or associated media is lost, damaged or destroyed while in the Escrow Holder's control, and that loss, damage or destruction is caused by:
(a) the Escrow Holder's breach of this deed; or
(b) the negligent, wilful or unlawful act or omission of the Escrow Holder,
then the Escrow Holder must, at its own expense, reimburse the PDMP for the reasonable cost of replacing the relevant part or parts of the Source Code Material.
11. Termination
11.1 Upon insolvency
This deed terminates immediately if an Insolvency Event occurs to the Escrow Holder.
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11.2 Upon release of Source Code Material
This deed terminates immediately if the Source Code Material is released to WaterNSW or the PDMP under this deed, except such termination will not affect those parts of this deed referenced in clause 14.14 (Survival).
11.3 Upon provision of notice
This deed may be terminated by:
(a) the Escrow Holder giving 90 days written notice to the PDMP and WaterNSW, subject to a pro-rata refund by the Escrow Holder to WaterNSW of any advance payment of the Annual Fee; or
(b) WaterNSW giving 90 days written notice to the PDMP and the Escrow Holder.
11.4 By WaterNSW or the PDMP
Either the PDMP or WaterNSW may, by giving notice to the Escrow Holder (with a copy to WaterNSW or the PDMP, as applicable), terminate this deed with immediate effect if:
(a) the Escrow Holder commits a material breach of this deed; and
(b) the breach is not remedied within 14 days of the Escrow Holder receiving a notice detailing the breach and requiring that it be rectified.
11.5 Consequences of an Escrow Holder termination event
Within 14 days after the termination of this deed under clause 11 (Termination), 11.3 (Upon provision of notice) or 11.4 (By WaterNSW or the ), the PDMP must, at the direction of WaterNSW (and WaterNSW must, if the PDMP so requests), enter into another agreement between the PDMP, WaterNSW and a new escrow service provider in a form substantially similar to this deed.
11.6 Return of Source Code Material on termination
(a) If this deed terminates for any reason other than under clause 11.2 (Upon release of Source Code Material) and 11.3(b) (Upon provision of notice), then, unless a new escrow deed is entered into within 14 days in accordance with clause 11.5 (Consequences of an Escrow Holder termination event), the Escrow Holder must, within a further 20 days, deliver the Source Code Material to WaterNSW.
(b) If this deed terminates under clause 11.3(b) (Upon provision of notice), then the Escrow Holder must within 7 days deliver the Source Code Material to the PDMP.
12. Notices
(a) Any notices contemplated by this deed must be in writing and delivered to the relevant address as set out below (or to any new address that a party notifies to the others):
(i) to WaterNSW Level 14, 169 Macquarie Street, Parramatta NSW 2150
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(ii) to the Escrow Holder: [to be completed]
(iii) to the PDMP: Aurecon Australasia Pty Ltd ABN 54 005 139 873, Level 8 850 Collins Street Docklands VIC 3008 and Kellogg Brown & Root Pty Ltd ABN 91 007 660 317, 186 Greenhill Road Parkside SA 5063
(b) A notice sent by post will be taken to have been received at the time when, in due course of the post, it would have been delivered at the address to which it is sent.
13. No assignment
The PDMP and the Escrow Holder must not assign or otherwise deal with all or any of its rights or obligations under this deed without the written consent of the other parties.
14. General
14.1 Discretion in exercising rights
A party may exercise a right or remedy or give or refuse its consent in any way it considers appropriate (including by imposing conditions), unless this deed expressly states otherwise.
14.2 Partial exercise of rights
If a party does not exercise a right or remedy at a given time, the party may still exercise it later.
14.3 Approvals and consents
By giving its approval or consent a party does not make or give any warranty or representation as to any circumstance relating to the subject matter of the consent or approval.
14.4 Remedies cumulative
The rights and remedies provided in this deed are in addition to other rights and remedies given by Law independently of this deed.
14.5 Operation of Law
Rights given to the parties under this deed and the parties' liabilities under it are not affected by anything which might otherwise affect them by Law.
14.6 Indemnities
Each indemnity in this deed is a continuing obligation, separate and independent from the other obligations of the parties, and survives termination, completion or expiration of this deed.
Nothing in this clause 14.6 prevents any other provision of this deed, as a matter of interpretation also surviving the termination of this deed.
It is not necessary for a party to incur expense or make any payment before enforcing a right of indemnity conferred by this deed.
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14.7 No partnership, joint venture or other fiduciary relationship
Nothing in this deed will be construed or interpreted as constituting the relationship between WaterNSW, the PDMP and the Escrow Holder as that of partners, joint venturers or any other fiduciary relationship.
14.8 Entire agreement
This deed constitutes the entire agreement and understanding between the parties and will take effect according to its tenor despite, and supersedes:
(a) any prior agreement (whether in writing or not), negotiations and discussions between the parties in relation to the subject matter of this deed; or
(b) any correspondence or other documents relating to the subject matter of this deed that may have passed between the parties prior to the date of this deed and that are not expressly included in this deed.
14.9 Joint and several liability
(a) The obligations of the Escrow Holder, if more than one person, under this deed, are joint and several. Each person constituting the Escrow Holder acknowledges and agrees that it will be causally responsible for the acts and omissions (including breaches of this deed) of the other as if those acts or omissions were its own and WaterNSW may proceed against any or all of them.
(b) The obligations of the PDMP, if more than one person, under this deed, are joint and several. Each person constituting the PDMP acknowledges and agrees that it will be causally responsible for the acts and omissions (including breaches of this deed) of the other as if those acts or omissions were its own and WaterNSW may proceed against any or all of them.
14.10 Severance
If at any time any provision of this deed is or becomes illegal, invalid or unenforceable in any respect under the Law of any jurisdiction, that will not affect or impair:
(a) the legality, validity or enforceability in that jurisdiction of any other provision of this deed; or
(b) the legality, validity or enforceability under the Law of any other jurisdiction of that or any other provision of this deed.
14.11 Provisions limiting or excluding liability
Any provision of this deed which seeks to limit or exclude a liability of WaterNSW, the PDMP or the Escrow Holder is to be construed as doing so only to the extent permitted by Law.
14.12 Variations
This deed may only be varied by a document signed by or on behalf of WaterNSW, the PDMP and the Escrow Holder.
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14.13 Waiver
(a) Failure to exercise or enforce or a delay in exercising or enforcing or the partial exercise or enforcement of any right, power or remedy provided by Law or under this deed by WaterNSW will not in any way preclude, or operate as a waiver of, any exercise or enforcement, or further exercise or enforcement of that or any other right, power or remedy provided by Law or under this deed.
(b) Any waiver or consent given by WaterNSW under this deed will only be effective and binding on WaterNSW if it is given or confirmed in writing by WaterNSW.
(c) No waiver by WaterNSW of:
(i) a breach of any term of this deed; or
(ii) any other failure by the Escrow Holder to comply with a requirement of this deed,
will operate as a waiver of another breach of that term or failure to comply with that requirement or of a breach of any other term of this deed or failure to comply with any other requirement of this deed.
14.14 Survival
Clauses 3.1(e) and 3.1(f) (Obligations), 4 (Confidentiality), 5.4 (Grant of licence), 8.4 (GST inclusive prices), 9 (GST), 10.3 (Warranty), 11.5 (Consequences of an Escrow Holder termination event), 11.6 (Return of Source Code Material on termination), 14 (General), 14.15 (Governing Law and jurisdiction)and 1 (Interpretation) survive the termination (for any reason) of this deed.
14.15 Governing Law and jurisdiction
(a) This deed shall be governed by and construed in accordance with the Laws of the State of New South Wales.
(b) Each party hereby submits to the non-exclusive jurisdiction of the courts of New South Wales and any courts that may hear appeals from any of those courts, for any proceedings in connection with this deed, and waives any right it might have to claim that those courts are an inconvenient forum.
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Schedule 1 to Escrow Deed - Information Schedule
1. Fees and charges
Establishment Fee: (first year) $[ ] plus GST
Annual Fee: (first year and subsequent years) (subject to increases under clause 8.2 (Annual Fee subject to change))
$[ ] plus GST
2. Source code material
(a) The Source Code which incorporates computer programs or computer interfaces;
(b) all documentation relating to the material referred to in (a) which a reasonably qualified programmer would require for understanding, maintaining, modifying such material; and
(c) media on which that Source Code is stored or deposited:
[insert description of media, e.g. DVD ROM]
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Schedule 2 to Escrow Deed - Escrow Deposit Specification Form
1. Depositor information
Company Name:
Technical Contact:
Email:
Telephone:
2. Software Application information
Product Names(s)/Version(a)
Modules:
Product Names(s)/Version(a)
Modules:
Product Names(s)/Version(a)
Modules:
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3. Media information
Medium Quantity Label
4. Escrow deposit details
4.1 Compilation
(a) What hardware is required to compile the Software Application?
(b) What operating system and version is used in the compilation process?
(c) What operating system and version is used in the compilation process?
(d) What development environment (compilers/linkers/other tools) is necessary to compile the Software Application?
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(e) List all third party libraries/components that are required to compile the software (brand name, version & PDMP) and indicate which (if any) are not included in the deposit?
(f) List all non third party libraries/components that are required to compile the software.
(g) Detail the steps to follow to compile the source code and produce a version of the Software Application that runs.
(h) List all of the files that are created by the compilation process and are needed to successfully run the Software Application.
4.2 Running the application
(a) What hardware is required to successfully run the Software Application (if identical to item 3.4.1.1 please leave blank)?
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(b) What software (in addition to the operating system) is required to successfully run the Software Application?
4.3 Documentation
(a) Please provide an overview of the technical documentation.
(b) Please provide an overview of the user documentation.
(c) Please include a short description on the layout of the deposit.
(d) Please include a full directory listing of the contents of the deposit media.
4.4 General information
(a) What are the main functions performed by the Software Application?
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(b) List the additional material (reports, databases, etc.) included with the deposit.
(c) Is a copy of the development environment (compilers & third party software) included with the deposit?
(d) Does your company use a formal coding convention (please provide a brief description of the convention used).
5. Remarks
6. Signature
Date: __________________________
Signature: __________________________
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Name (please print): __________________________ For and on behalf of the PDMP
The PDMP warrants that the details set out above are correct and complete.
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Executed and delivered as a Deed in Sydney
Signed for and on behalf of Water NSW
(ABN 21 147 934 787):
Signature of Authorised Delegate
Signature of Witness Print Name
(block letters)
Print Name
(block letters)
Position held
Position held
Executed as a deed in accordance with section 127 of the Corporations Act 2001 by Aurecon Australasia Pty Ltd (ABN 54 005 139 873):
Director Signature Director/Secretary Signature
Print Name Print Name
Executed as a deed in accordance with section 127 of the Corporations Act 2001 by Kellogg Brown & Root Pty Ltd (ABN 91 007 660 317):
Director Signature Director/Secretary Signature
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Print Name Print Name
Executed as a deed in accordance with section 127 of the Corporations Act 2001 by [* Limited]:
Director Signature Director/Secretary Signature
Print Name Print Name
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Schedule 9 Form of Declaration
Declaration
I,
.................................................................................................................................……………………………….
of ...........................................................................................................................................………………………….
do solemnly and sincerely declare that: 1. I am the representative of:
............................................................................................................................................……………… ("the Contractor")
in the Office Bearer capacity of:
............................................................................................................................................…………….…
2. The Contractor has a contract with the [ ]:
............................................................................................................................................……………… ("the Contract")
3. I personally know the facts which I have set out in this declaration.
4. All employees who have at any time been engaged by the Contractor for work done under the Contract: a) have been paid all remuneration and benefits to the date of this declaration
payable to them by the Contractor in respect of their employment on work under the Contract, and
b) have otherwise had accrued to their account all benefits to which they are entitled from the Contractor as at the date of this declaration in respect of their employment on work under the Contract pursuant to any award, enterprise agreement, act or regulation,
with the exception of the employees and respective amounts unpaid or not accrued for each employee listed below: Employee: Amount unpaid or not accrued:
.......................................................................................................................................................
.......................................................................................................................................................
......................................................................................................................................……………………………………………
5. Attached to and forming part of this declaration, as Annexure A, is a supporting statement for the purposes of section 13(7) of the Building and Construction Industry Security of Payment Act 1999 (NSW).
Where the Contractor holds any retention money from a Subcontractor, the Contractor has complied with all requirements under the Building and Construction Industry Security of Payment Amendment (Retention Money Trust Account) Regulation 2015 (NSW), with the exception of the items listed below: ......................................................................................................................................…………
......................................................................................................................................…………
......................................................................................................................................…………
6. In all cases where a subcontractor or supplier to the Contractor has provided services and/or materials in respect of the Contract and has submitted a claim to the Contractor
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for these services or materials which as at the date of this statutory declaration would have been due and payable but which the Contractor disputes, the reasons for such dispute have been notified in writing to the subcontractor or supplier by the Contractor prior to the date of this statutory declaration. Where such dispute relates to part only of the subcontractor or supplier’s claim, that part of the claim not in dispute has been paid by the Contractor to the subcontractor or supplier as at the date of this statutory declaration except for the amounts listed in 5 above.
7. The provisions of the Contract relating to the payment of employees, subcontractors and suppliers of the Contractor have been complied with by the Contractor.
8. The Contractor has been informed by each subcontractor to the Contractor (except for subcontracts not exceeding $25,000 at their commencement) by statutory declaration in equivalent terms to this declaration (made no earlier than the date 14 days before the date of this declaration): (a) that their subcontracts with their subcontractors and suppliers comply with the
requirements of the Contract relating to payment of employees and subcontractors, and
(b) that all their employees and subcontractors, as at the date of the making of such a declaration: i) have been paid all remuneration and benefits due and payable to them by;
or ii) had accrued to their account all benefits to which they are entitled from; the subcontractor of the Contractor or from any other subcontractor (except for subcontracts not exceeding $25,000 at their commencement) in respect of any work under the Contract, and
(c) of details of any amounts due and payable or benefits due to be received or accrued described in 8(b) above which have not been paid, received or accrued,
except for the following subcontractors to the Contractor who have failed to provide such a declaration: Subcontractor: Due amount unpaid:
........................................................................................................................................................
........................................................................................................................................................
...........................................................................................................................……………………………………………………
………………………………………………………………………………………………………………
9. Where a subcontractor to the Contractor has provided a declaration as in 8 above, and it includes unpaid amounts or benefits either not received or not accrued, details of the subcontractor, details of the affected employees, suppliers and subcontractors of the subcontractor, and the respective amounts or benefits either unpaid or not accrued are as follows:
Employee, subcontractor or supplier: Amount unpaid or not accrued:
.......................................................................................................................................................
.......................................................................................................................................................
......………………………………….…………………………………………………………………………………………………………………….…………………………………………………………………………………
10. In relation to the declaration provided by each subcontractor to the Contractor, I am not aware of anything to the contrary of what is contained therein, and on the basis of the contents of those statutory declarations, I believe that information to be true.
11. I personally know the truth of the matters which are contained in this declaration.
12. I am not aware of anything which would contradict the statements made in the statutory declarations or written statements provided to the Contractor by its subcontractors, as referred to in this declaration.
insert names and addresses of the Contractor’s subcontractors who have not submitted a declaration, and unpaid amounts due or otherwise due to each of them by the Contractor in respect of this claim
insert names of the subcontractors, the name and addresses of the unpaid employees, subcontractors and suppliers and amounts listed as unpaid or not accrued to them.
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I, [full name], being the Contractor, a director of the Contractor or a person authorised by the Contractor on whose behalf this declaration is made, hereby declare that I am in a position to know the truth of the matters that are contained in this declaration.
Signature: ……………………………………… Date: ……………………………………
Full name: ……………………………………… Position/Title: …………………………
Annexure A
Supporting statement by head contractor regarding payment to subcontractors
This statement must accompany any payment claim served on a principal to a construction contract by a head contractor.
For the purposes of this statement, the terms “principal”, “head contractor”, “subcontractor”, and “construction contract” have the meanings given in section 4 of the Building and Construction Industry Security of Payment Act 1999.
Head contractor: [business name of head contractor]
ABN: [ABN]
* 1. has entered into a contract with: [business name of subcontractor]
ABN: [ABN]
Contract number/identifier: [contract number/identifier]
OR
* 2. has entered into a contract with the subcontractors listed in the attachment to thisstatement.
* [Delete whichever of the above does not apply]
This statement applies for work between [start date] and [end date] inclusive (the construction work concerned), subject of the payment claim dated [date].
I, [full name], being the head contractor, a director of the head contractor or a person authorised by the head contractor on whose behalf this declaration is made, hereby declare that I am in a position to know the truth of the matters that are contained in this supporting statement and declare that, to the best of my knowledge and belief, all amounts due and payable to subcontractors have been paid (not including any amount identified in the attachment as an amount in dispute).
Signature: ……………………………………… Date: ……………………………………
Full name: ……………………………………… Position/Title: …………………………
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Penalties
The Building and Construction Security of Payment Act 1999 provides that:
• Section 13(7) A head contractor must not serve a payment claim on the principal unless the claim is accompanied by a supporting statement that indicates that it relates to that payment claim.
• Maximum penalty: 1,000 penalty units in the case of a corporation or 200 penalty units in the case of an individual.
And:
• Section 13(8) A head contractor must not serve a payment claim on the principal accompanied by a supporting statement knowing that the statement is false or misleading in a material particular in the particular circumstances.
• Maximum penalty: 1,000 penalty units in the case of a corporation or 200 penalty units or 3 months imprisonment (or both) in the case of an individual.
Attachment
Schedule of subcontractors paid all amounts due and payable
Subcontractor ABN Contract number/identifier
Date of works (period)
Date of payment claim (head contractor claim)
Schedule of subcontractors for which an amount is in dispute and has not been paid
Subcontractor ABN Contract number/ identifier
Date of works (period)
Date of payment claim (head contractor claim)
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Schedule of subcontractors for which an amount is in dispute and has not been paid
Subcontractor ABN Contract number/ identifier
Date of works (period)
Date of payment claim (head contractor claim)
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Schedule 10 Subcontractor's Statement
SUBCONTRACTOR'S STATEMENT
REGARDING WORKERS COMPENSATION, PAYROLL TAX AND
REMUNERATION (Note 1 - see back of form)
For the purposes of this Statement a "subcontractor" is a person (or other legal entity) that has entered into a contract with a "principal contractor" to carry out work.
This Statement must be signed by a "subcontractor" (or by a person who is authorised, or held out as being authorised, to sign the statement by the subcontractor) referred to in any of s175B Workers Compensation Act 1987 (NSW), Schedule 2 Part 5 Payroll Tax Act 2007 (NSW), and s127 Industrial Relations Act 1996 (NSW) where the "subcontractor" has employed or engaged workers or subcontractors during the period of the contract to which the form applies under the relevant Act(s). The signed Statement is to be submitted to the relevant principal contractor.
SUBCONTRACTOR'S STATEMENT (Refer to the back of this form for Notes, period of Statement retention, and Offences under various Acts.
Subcontractor: ………….…………………............................... ABN: ……………………….…....…....
(Business name)
of …………………………………………….....……………………………………………………………………
(Address of Subcontractor)
has entered into a contract with ……..………………………………… ABN:.………………………………...
(Business name of principal contractor) (Note 2)
Contract number/identifier ………………………………………………………………………………………….
(Note 3)
This Statement applies for work between: ……./……./……. and ……./……./……. inclusive, (Note 4)
subject of the payment claim dated: ……./……./……. (Note 5)
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I, …………………………………………………………………………. a Director or a person authorised by the Subcontractor on whose behalf this declaration is made, hereby declare that I am in a position to know the truth of the matters which are contained in this Subcontractor's Statement and declare the following to the best of my knowledge and belief:
(a) The abovementioned Subcontractor has either employed or engaged workers or subcontractors during the above period of this contract. Tick [ ] if true and comply with (b) to (g) below, as applicable. If it is not the case that workers or subcontractors are involved or you are an exempt employer for workers compensation purposes tick [ ] and only complete (f) and (g) below. You must tick one box. (Note 6)
(b) All workers compensation insurance premiums payable by the Subcontractor in respect of the work done under the contract have been paid. The Certificate of Currency for that insurance is attached and is dated ……/……/…… (Note 7)
(c) All remuneration payable to relevant employees for work under the contract for the above period has been paid. (Note 8)
(d) Where the Subcontractor is required to be registered as an employer under the Payroll Tax Act 2007 (NSW), the Subcontractor has paid all payroll tax due in respect of employees who performed work under the contract, as required at the date of this Subcontractor's Statement. (Note 9)
(e) Where the Subcontractor is also a principal contractor in connection with the work, the Subcontractor has in its capacity of principal contractor been given a written Subcontractor's Statement by its subcontractor(s) in connection with that work for the period stated above. (Note 10)
(f) Signature ……………………………… Full name………………………………………………………
(g) Position/Title …………………………………………………………………… Date ……./……./…….
NOTE: Where required above, this Statement must be accompanied by the relevant Certificate of Currency to comply with section 175B of the Workers Compensation Act 1987 (NSW).
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Notes
1. This form is prepared for the purpose of section 175B of the Workers Compensation Act1987 (NSW), Schedule 2 Part 5 Payroll Tax Act 2007 (NSW) and section 127 of the IndustrialRelation Act 1996 (NSW). If this form is completed in accordance with these provisions, aprincipal contractor is relieved of liability for workers compensation premiums, payroll taxand remuneration payable by the subcontractor.
A principal contractor can be generally defined to include any person who has enteredinto a contract for the carrying out of work by another person (or other legal entity calledthe subcontractor) and where employees of the subcontractor are engaged in carryingout the work which is in connection with the principal contractor's business.
2. For the purpose of this Subcontractor's Statement, a principal contractor is a person (orother legal entity), who has entered into a contract with another person (or other legalentity) referred to as the subcontractor, and employees / workers of that subcontractor willperform the work under contract. The work must be connected to the businessundertaking of the principal contractor.
3. Provide the unique contract number, title, or other information that identifies the contract.
4. In order to meet the requirements of section 127 of the Industrial Relations Act 1996 (NSW),a statement in relation to remuneration must state the period to which the statementrelates. For sequential Statements ensure that the dates provide continuous coverage.
Section 127(6) of the Industrial Relations Act 1996 (NSW) defines remuneration 'asremuneration or other amounts payable to relevant employees by legislation, or under anindustrial instrument, in connection with work done by the employees.'
Section 127(11) of the Industrial Relations Act 1996 (NSW) states 'to avoid doubt, thissection extends to a principal contractor who is the owner or occupier of a building for thecarrying out of work in connection with the building so long as the building is owned oroccupied by the principal contractor in connection with a business undertaking of theprincipal contractor.'
5. Provide the date of the most recent payment claim.
6. For Workers Compensation purposes an exempt employer is an employer who pays lessthan $7500 annually, who does not employ an apprentice or trainee and is not a memberof a group.
7. In completing the Subcontractor's Statement, a subcontractor declares that workerscompensation insurance premiums payable up to and including the date(s) on theStatement have been paid, and all premiums owing during the term of the contract willbe paid.
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8. In completing the Subcontractor's Statement, a subcontractor declares that allremuneration payable to relevant employees for work under the contract has been paid.
9. In completing the Subcontractor's Statement, a subcontractor declares that all payroll taxpayable relating to the work undertaken has been paid.
10. It is important to note that a business could be both a subcontractor and a principalcontractor, if a business 'in turn' engages subcontractors to carry out the work. If yourbusiness engages a subcontractor you are to also obtain Subcontractor's Statements fromyour subcontractors.
Statement Retention
The principal contractor receiving a Subcontractor's Statement must keep a copy of the Statement for the periods stated in the respective legislation. This is currently up to seven years.
Offences in respect of a false Statement
In terms of s127(8) of the Industrial Relations Act 1996, a person who gives the principal contractor a written statement knowing it to be false is guilty of an offence if:
(a) the person is the subcontractor;
(b) the person is authorised by the subcontractor to give the statement on behalf of thesubcontractor; or
(c) the person holds out or represents that the person is authorised by the subcontractorto give the statement on behalf of the subcontractor.
In terms of s175B of the Workers Compensation Act and clause 18 of Schedule 2 of the Payroll Tax Act 2007 a person who gives the principal contractor a written statement knowing it to be false is guilty of an offence.
Further Information
For more information, visit the WorkCover website www.workcover.nsw.gov.au, Office of State Revenue website www.osr.nsw.gov.au, or Office of Industrial Relations, Department of Commerce website www.commerce.nsw.gov.au. Copies of the Workers Compensation Act 1987, the Payroll Tax Act 2007 and the Industrial Relations Act 1996 can be found at www.legislation.nsw.gov.au.
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Schedule 11 Terms of Expert Appointment
THIS AGREEMENT is made on the date the last party to execute this agreement executes this agreement
BETWEEN Water NSW (ABN 21 147 934 787) of Level 14, 169 Macquarie Street, Parramatta NSW 2150 (“Principal”)
AND Aurecon Australasia Pty Ltd (ABN 54 005 139 873) of Level 8 850 Collins Street Docklands VIC 3008 and Kellogg Brown & Root Pty Ltd (ABN 91 007 660 317) of 186 Greenhill Road Parkside SA 5063 (together the “PDMP”)
AND [insert name and address] (“Expert”)
Background
A. The Principal and the PDMP (together the Parties and each a Party) are parties to a contract (the Contract) for the provision of certain goods, services or works for the [ ] in [ ].
B. By written notice dated [to be inserted], the [insert Principal or PDMP as applicable] has required that the matter described in Schedule 1, being a matter that the Contract requires or permits to be referred to an Expert for determination, be determined by an Expert appointed under clause 22 of the Contract (the Matter).
C. Pursuant to clause 22 of the Contract, the Expert has been appointed to determine the Matter in accordance with the process set out in this Agreement.
Operative part
1. Appointment of Expert
(a) The Parties appoint the Expert to determine the Matter in the manner and within the times set out in this Agreement and the Expert accepts the appointment on the basis set out in this Agreement.
(b) The Parties agree that:
(i) the Expert will act as an expert and not as an arbitrator;
(ii) neither the determination of the Matter, nor the process required by this Agreement is an arbitration and any conference conducted during the determination is not a hearing conducted under any legislation or rules relating to any form of arbitration;
(iii) the rules of evidence do not apply to the determination;
(iv) the Expert must conduct the determination of the Matter in accordance with the Rules for Expert Determination Process set out in Schedule 2;
(v) in making the determination, the Expert may determine that a Party pay the other Party's costs of the expert determination.
(c) If, at any time during the determination, the Expert becomes aware of circumstances that might reasonably be considered to adversely affect the Expert's capacity to act independently or impartially, the Expert must inform
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the Parties immediately and, unless the Parties agree otherwise, terminate this Agreement.
2. Confidentiality
All proceedings and submissions relating to the determination (including the fact that any step in the determination is occurring), and all documents prepared for the purposes of the determination (including the Expert's determination), must be kept confidential between the Parties and the Expert. No such proceedings, submissions or documents, nor any other information relating to or arising out of the determination, may be divulged to any other person, except with the prior written consent of all Parties or as may be required by law or to the extent necessary to give effect to or enforce the Expert's determination.
3. Costs and fees
(a) As between the Parties and the Expert, the Parties are jointly and severally liable for the payment of the Expert's fees and disbursements, calculated in accordance with the Schedule of Fees and Disbursements set out in Schedule 3. The Parties agree to comply with any direction from the Expert as to the provision of security deposits in respect of his or her fees and disbursements.
(b) Subject to any direction as to costs given by the Expert in the Expert's determination, the Parties agree as between themselves that:
(i) they will each pay one half of the Expert’s fees and disbursements, calculated in accordance with the Schedule of Fees and Disbursements set out in Schedule 3; and
(ii) they will each bear their own costs of and incidental to the preparation of this Agreement and their participation in the determination.
4. Exclusion of liability and indemnity
Except in the case of fraud, the Expert will not be liable to either Party for any act or omission by the Expert in the performance or purported performance of this Agreement. The Parties jointly and severally indemnify the Expert against all claims arising out of or in any way referable to any act or omission by the Expert (except fraud) in the performance or purported performance by the Expert of the terms of this Agreement.
5. Co-operation of the Parties
Each Party agrees to take part in the determination in good faith and to comply with the reasonable requests and directions of the Expert in relation to the conduct of the determination.
6. Governing law
This Agreement is governed by and is to be construed in accordance with the laws in force in the place stated in Schedule 1.
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7. Jurisdiction
(a) The Parties and the Expert irrevocably submit to the non-exclusive jurisdictionof the courts of the in the place stated in Schedule 1.
(b) The Parties and the Expert irrevocably waive any objection they may now orin the future have to the venue of any proceedings, and any claim theymay now or in the future have that any proceeding has been brought in aninconvenient forum, where that venue falls within clause 7(a) (Jurisdiction).
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SCHEDULE 1
1. The Matter
[to be inserted when it comes time for Expert determination]
2. Governing law - the place
[insert place - it should be the same as that nominated for the purposes of clause 28.2 of the Contract.]
3. Jurisdiction - the place
[insert place - it should be the same as that nominated for the purposes of clause 28.3 of the Contract.]
4. Place for conferences with Expert (clause 3.1 of Schedule 2)
[insert place - it should be the same place as that nominated for meetings and hearings the purposes of clause 22.13 of the Contract.]
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SCHEDULE 2
Rules for Expert Determination Process
1. Commencement
Except as provided in clause 4.3 of these Rules, the Expert determination process begins when the Expert accepts an appointment to determine the Matter in accordance with these Rules and the Code of Conduct appended to these Rules.
2. Written submissions
2.1 No later than 7 days after the date this process begins, Party A (i.e. the Party who gave notice under clause 22.1 of the Contract) must, in addition to any particulars provided by Party A under clause 22.1 of the Contract, give the other Party and the Expert a written statement of the Matter referred for Expert determination, any agreed statement of facts and a written submission on the Matter in support of Party A's contentions.
2.2 Within 7 days after the statement in clause 2.1 is served, the other Party must give Party A and the Expert a written response to Party A's submissions.
2.3 If the Expert considers it appropriate, Party A may reply in writing to the other Party's response in clause 2.2 within the time allowed by the Expert.
2.4 If the Expert decides further information or documentation is required for the determination of the Matter, the Expert may direct one or more Parties to provide such further submissions, information or documents as the Expert may require.
3. Conference
3.1 The Expert may, if he or she thinks appropriate, call a conference of the Parties. Unless the Parties agree otherwise, the conference will be held in the place nominated in Schedule 1.
3.2 At least 14 days before the conference, the Expert must inform the Parties of the date, venue and agenda for the conference.
3.3 The Parties must appear at the conference and may make submissions on the subject matter of the conference. If a Party fails to appear at a conference of which that Party had been notified under clause 3.2, the Expert and the other Party may nevertheless proceed with the conference and the absence of that Party will not terminate or discontinue the Expert determination process.
3.4 The Parties:
(a) may be accompanied at a conference by legal or other advisers; and
(b) will be bound by any procedural directions as may be given by the Expert in relation to the conference both before and during the course of the conference.
3.5 The conference must be held in private.
3.6 If required by any Party, transcripts of the conference proceedings must be taken and made available to the Expert and the Parties.
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4. General
4.1 In making a determination or calling or holding a conference, the Expert must proceed in accordance with the Contract.
4.2 All proceedings and submissions relating to the Expert determination process must be kept confidential except:
(a) with the prior consent of the Parties;
(b) as may be required by law; or
(c) as may be required in order to enforce the determination of the Expert.
4.3 The Expert must:
(a) inform the Parties of:
(i) any relationship or interest with the Parties or their respective officers, employees, contractors, consultants or agents;
(ii) any interest the Expert has in the matters in dispute; and
(iii) any circumstance which might reasonably be considered to adversely affect the Expert's capacity to act independently or impartially,
immediately upon becoming aware of any such circumstances; and
(b) upon making any disclosure under this clause 4.3, unless and until the Parties agree otherwise or it is otherwise determined under clause 22 of the Contract, terminate the proceedings.
5. The determination
5.1 As soon as possible after receipt of the submissions or after any conference and, in any event not later than 20 Business Days after the Expert's acceptance of appointment, the Expert must:
(a) determine the Matter between the Parties; and
(b) notify the Parties of that determination.
5.2 The determination of the Expert must meet the requirements of the Contract.
5.3 To the extent permitted by law, the Expert’s determination will be final and binding on the Parties unless a party gives a notice of appeal to the other party in accordance with clause 22.12(b) of the Contract.
6. Costs
Security for costs must be deposited by all Parties at the commencement of the Expert determination process in accordance with any direction of the Expert.
7. Modification
These rules may be modified only by agreement of the Parties and, if the Expert has been appointed, the Expert.
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APPENDIX 1 TO RULES FOR EXPERT DETERMINATION PROCESS
Code of Conduct for an Expert
1. The function of the Expert is to make a determination of the Matter in accordancewith the Contract and the Expert Determination Agreement, including the Rules andthis Code of Conduct.
2. The Expert must receive the written submissions and responses of the Parties inaccordance with the procedures specified in the Rules and may require furtherinformation or documentation from the Parties which is reasonably necessary todetermine the Matter.
3. The Expert must decide whether a conference is necessary to receive furtherinformation. The Expert must inform the Parties of the subject matter of anyconference and may hear representations only on those matters during any suchconference.
4. The Expert must disclose to all Parties all information and documents received.
5. If a Party fails to make a written submission, the Expert may continue with the process.
6. Subject to clause 3.3 of the Rules in relation to conferences, meetings and discussionswith the Expert must only take place in the presence of all Parties.
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SCHEDULE 3
The Expert's Fees and Disbursements
[to be inserted when it comes time for expert determination]
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Schedule 12 Approved form of Unconditional Undertaking
This deed poll (Undertaking) made on the date of execution of this deed poll
In favour of: Water NSW ABN 21 147 934 787 of Level 14, 169 Macquarie Street, Parramatta NSW 2150 (Principal)
Given by: [ ] (Institution)
Background
A. By a deed dated [*] (Deed) between Aurecon Australasia Pty Ltd ABN 54 005 139 873 and Kellogg Brown & Root Pty Ltd ABN 91 007 660 317 (together, PDMP) and the Principal the PDMP agreed to carry out the PDMP Services (as defined in the Deed).
B. Under the provisions of the Deed, the PDMP is required to provide this Undertaking to the Principal.
Operative
1. The Institution unconditionally undertakes and covenants to pay to the Principal on demand without reference to the PDMP and notwithstanding any notice given by the PDMP to the Institution not to do so, any sum or sums which may from time to time be demanded in writing by the Principal to a maximum aggregate sum of # ($ ).
2. The Institution's liability under this Undertaking will be a continuing liability and will continue until payment is made under this Undertaking of the maximum aggregate sum or until the Principal notifies the Institution that this Undertaking is no longer required.
3. The liability of the Institution under this Undertaking must not be discharged or impaired by reason of any variation or variations (with or without the knowledge or consent of the Institution) in any of the stipulations or provisions of the Deed or the PDMP Services or acts or things to be executed, performed and done under the Deed or by reason of any breach or breaches of the Deed by the PDMP or the Principal.
4. The Institution may at any time without being required so to do pay to the Principal the maximum aggregate sum less any amount or amounts it may previously have paid under this Undertaking and thereupon the liability of the Institution hereunder will immediately cease.
5. This Undertaking will be governed by and construed in accordance with the laws for the time being of the State of New South Wales.
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Schedule 13 Parent Company Guarantee
Deed of Guarantee and Indemnity made on the date on which the last party to execute this deed has executed this deed
Water NSW (ABN 21 147 934 787), of Level 14, 169 Macquarie Street Parramatta NSW 2150 (Principal)
[ ] ABN [ ] of [ ] (Guarantor)
Background
A. The Principal has agreed to enter into the Contract with the PDMP on the condition that the Guarantor provide this Guarantee.
B. The Guarantor has agreed on the following terms and conditions to guarantee to the Principal all of the Obligations and to indemnify the Principal against any loss arising from any failure by the PDMP to perform the Obligations.
C. The Guarantor considers that by providing this guarantee there will be a commercial benefit flowing to it and that it is necessary or convenient to the conduct, promotion or attainment of its business.
THIS DEED PROVIDES
1. Definitions
1.1 Definitions and Interpretation
In this Deed:
Contract means the Contract (Contract Number: [ ]) dated on or about the date of this Deed between the Principal and the PDMP.
Event of Default means any event which constitutes a breach of, or is duly and properly declared to be an event of default (howsoever described) by, the Contract.
Guaranteed Money means all money the payment or repayment of which from time to time forms part of the Obligations.
Insolvency Provision means any law relating to insolvency, sequestration, liquidation or bankruptcy (including any law relating to the avoidance of conveyances in fraud of creditors or of preferences, and any law under which a liquidator or trustee in bankruptcy may set aside or avoid transactions), and any provision of any agreement, arrangement or scheme, formal or informal, relating to the administration of any of the assets of any person.
Legal Opinion means a legal opinion:
(a) from lawyers to the Guarantor, authorised to practice in the place of incorporation of that Guarantor, stating that this deed is binding and enforceable against that Guarantor;
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(b) which states that it may be relied upon by the Principal; and
(c) in a form reasonably satisfactory to the Principal.
Obligations means all the aggregate liabilities and obligations of the PDMP (whether or not one or more persons constitutes the PDMP) to the Principal under or arising out of or in any way in connection with the Contract or the work to be carried out or performed by the PDMP under the Contract, and includes any liabilities or obligations which:
(a) are liquidated or unliquidated;
(b) are present;
(c) are in existence before or come into existence on or after the date of this Deed;
(d) relate to the payment of money or the performance or omission of any act;
(e) sound in damages only; or
(f) accrue as a result of any Event of Default,
and irrespective of:
(g) whether the PDMP is liable or obligated solely, or jointly, or jointly and severally with another person;
(h) the circumstances in which the Principal comes to be owed each liability or obligation and in which each liability or obligation comes to be secured by this Deed, including any assignment of any liability or obligation or of this Deed; or
(i) the capacity in which the PDMP and the Principal comes to owe or be owed such liability or obligation,
and Obligation means any liability or obligation forming part of the Obligations.
PDMP means Aurecon Australasia Pty Ltd ABN 54 005 139 873 and Kellogg Brown & Root Pty Ltd ABN 91 007 660 317 and each of them separately.
Power means any right, power, authority, discretion, remedy or privilege conferred on the Principal by the Contract, by statute, by law or by equity.
Security means a mortgage, charge, pledge, lien, hypothecation, guarantee (including this Deed), indemnity, letter of credit, letter of comfort, performance bond, contractual right of set-off or combination or other assurance against loss which secures the Guaranteed Money or the performance of any other Obligation, and whether existing at the date of this Deed or at any time in the future.
Specified Rate means the rate which is 2% above the rate expressed as a percentage per annum:
(a) which is the average of the bid rates shown at or about 10.15 am on reference rate page "BBSY" on the Reuters Monitor System on the day the relevant amount was due and payable for bank accepted bills having a tenor of 30 days; or
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(b) if for any reason the rate referred to in paragraph (a) is no longer availableor if there is no rate displayed for that period at that time, then the averageof the buying rates quoted by 3 banks selected by the Principal at or about10.15 am on the relevant date referred to in paragraph (a) for billsaccepted by such banks having a tenor of 30 days.
1.2 Defined terms
Terms used in this Deed which are not otherwise defined will have the meaning given to them in the Contract.
1.3 Interpretation
In this Deed unless the context otherwise requires:
(a) references to a person include an individual, a body politic, the estate of anindividual, a firm, a corporation, an authority, an association or joint venture(whether incorporated or unincorporated), or a partnership;
(b) the words "including", "includes" and "include" will be read as if followed bythe words "without limitation";
(c) a reference to any party to this Deed includes that party's executors,administrators, successors, and permitted substitutes and assigns, includingany person taking part by way of novation;
(d) a reference to any Authority, institute, association or body is:
(i) if that Authority, institute, association or body is reconstituted,renamed or replaced or if the powers or functions of thatAuthority, institute, association or body are transferred to anotherorganisation, deemed to refer to the reconstituted, renamed orreplaced organisation or the organisation to which the powers orfunctions are transferred, as the case may be; and
(ii) if that Authority, institute, association or body ceases to exist,deemed to refer to the organisation which serves substantially thesame purposes or objects as that Authority, institute, association orbody;
(e) a reference to this Deed or to any other deed, agreement, document orinstrument is deemed to include a reference to this Deed or such otherdeed, agreement, document or instrument as amended, novated,supplemented, varied or replaced from time to time;
(f) a reference to any legislation or to any section or provision of it includes:
(i) any statutory modification or re-enactment of, or any statutoryprovision substituted for, that legislation, section or provision; and
(ii) ordinances, by-laws, regulations of and other statutory instrumentsissued under that legislation, section or provision;
(g) words in the singular include the plural (and vice versa) and words denotingany gender include all genders;
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(h) headings are for convenience only and do not affect the interpretation of this Deed;
(i) a reference to:
(i) a party or clause is a reference to a party or clause of or to this Deed; and
(ii) a paragraph or a sub-paragraph is a reference to a paragraph or sub-paragraph in the clause in which the reference appears;
(j) where any word or phrase is given a defined meaning, any other part of speech or other grammatical form of that word or phrase has a corresponding meaning;
(k) for all purposes (other than where designated as a Business Day), "day" means calendar day;
(l) a reference to "$" is to Australian currency;
(m) no rule of construction applies to the disadvantage of a party on the basis that the party put forward or drafted this Deed or any part; and
(n) any reference to "information" will be read as including information, representations, statements, data, samples, calculations, assumptions, deductions, determinations, drawings, design, specifications, models, plans and other documents in all forms including the electronic form in which it was generated.
1.4 Limitation
(a) Notwithstanding any other clause in this Deed but subject to paragraphs (b) and (c) below:
(i) the aggregate liability of the Guarantor under this Deed will not exceed the aggregate liability of the PDMP under the Contract;
(ii) the liability of the Guarantor under this Deed in connection with a breach of the Contract by the PDMP shall not be greater than the liability of the PDMP under the Contract in respect of the breach;
(iii) nothing in this Deed is intended to render the PDMP and the Guarantor liable for the same loss twice for the one breach of the Contract by the PDMP;
(iv) the Guarantor is entitled to rely on all defences, limitations and exclusions (including set off and counterclaim) available to the PDMP under the Contract;
(v) where the Guarantor is performing any Obligation, the Guarantor will not be required to perform any such Obligation in a manner any different than that required by the Contract; and
(vi) payment by one of the PDMP or the Guarantor to or in favour of the Principal shall be deemed to be good discharge against the Principal in respect of that payment.
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(b) The limitation of liability under this clause 1.4 does not apply to liability to pay any interest in accordance with clause 7.3 (Interest) of this Deed or otherwise.
(c) Nothing in this clause shall limit the Guarantor's liability for Obligations which arise from or would have arisen from any voided, voidable, unenforceable or irrecoverable Obligations referred to in clause 3(b) of this Deed (if those Obligations had not been voided, avoided, unenforceable or irrecoverable), subject to such liability not exceeding the liability that the PDMP would have had if the Obligations had not been voided, voidable, unenforceable or irrecoverable.
2. Guarantee
2.1 Guarantee
The Guarantor irrevocably and unconditionally guarantees to the Principal the due and punctual performance by the PDMP of all the Obligations.
2.2 Payment by Guarantor
If the PDMP does not pay the Guaranteed Money when due, the Guarantor must on demand pay to the Principal the Guaranteed Money which is then due and unpaid or which later becomes due, owing or payable, as if it was the principal obligor.
2.3 Perform Obligations
If the PDMP defaults in the performance or observance of any of the Obligations, the Guarantor must, in addition to its obligations under clause 2.2 (Payment by Guarantor) of this Guarantee, on demand from time to time by the Principal, immediately perform any of the Obligations then required to be performed by the PDMP in the same manner as the PDMP is required to perform the Obligations, as if it was the principal obligor.
3. Indemnity
As a covenant separate and distinct from that contained in clause 2.1 (Guarantee), the Guarantor irrevocably and unconditionally agrees to indemnify the Principal and at all times to keep the Principal indemnified against any loss or damage suffered by the Principal arising out of or in connection with:
(a) any failure by the PDMP to perform the Obligations; or
(b) any obligation or liability that would otherwise form part of the Obligations being void, voidable or unenforceable against or irrecoverable from the PDMP for any reason, and whether or not the Principal knew or ought to have known of that reason.
4. Liability as guarantor and indemnifier
A reference in this Deed to the obligations or liabilities of the Guarantor is a reference to the Guarantor's obligations or liabilities as either guarantor or indemnifier (or both) under this Deed. The use of the expression "Guarantor" in this Deed in relation to a party must not be construed as diminishing that party's obligations as an indemnifier under this Deed.
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5. Nature and preservation of liability
5.1 Absolute liability
(a) The liability of the Guarantor under this Deed is absolute and is not subject tothe performance of any condition precedent or subsequent by the PDMP orthe Guarantor.
(b) This Deed binds each person who has executed it, notwithstanding that:
(i) any person, whether named as a party or not, does not executethis Deed;
(ii) the execution of this Deed by any person is invalid, forged orirregular in any way; or
(iii) this Deed is or becomes unenforceable, void or voidable againstany other person.
5.2 Unconditional liability
The liability of the Guarantor under this Deed will not be affected by any act, omission, matter or thing which, but for this clause 5.2, might operate in law or in equity to release the Guarantor from that liability or to reduce the Guarantor's liability under this Deed, including any of the following:
(a) the occurrence before, on or at any time after the date of this Deed, of anyInsolvency Event in relation to the PDMP or the Guarantor;
(b) the receipt by the Principal of any payment, dividend or distribution underany Insolvency Provision in relation to the PDMP or the Guarantor;
(c) the occurrence of any Event of Default;
(d) the Contract or any payment or other act, the making or doing of whichwould otherwise form part of the Obligations being or becoming or beingconceded to be frustrated, illegal, invalid, void, voidable, unenforceable orirrecoverable in whole or in part for any reason whether past, present orfuture;
(e) the Principal accepting or declining to accept any Security from any personat any time;
(f) the Principal granting time, waiver or other indulgence or concession to, ormaking any composition or compromise with, the PDMP or the Guarantor;
(g) the Principal not exercising or delaying (whether deliberately, negligently,unreasonably or otherwise) in the exercise of any remedy or right it has forthe enforcement of the Contract or any Obligation;
(h) any laches, acquiescence or other act, neglect, default, omission or mistakeby the Principal;
(i) the determination, rescission, repudiation or termination, or the acceptanceof any of the foregoing, by the Principal or the PDMP or the Guarantor of theContract or any Obligation;
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(j) any variation to the Contract or any Obligation, whether or not that variation is substantial or material, or imposes any additional liability on or disadvantages the PDMP or the Guarantor;
(k) the full, partial or conditional release or discharge by the Principal or by operation of law, of the PDMP or the Guarantor from the Contract or any Obligation;
(l) any change in membership (whether by death or retirement of an existing member, admission of a new member, or otherwise) or in the name of any partnership, firm or association in which the PDMP or the Guarantor is a member;
(m) the transfer, assignment or novation by the Principal or the PDMP or the Guarantor of all or any of its rights or obligations under the Contract or under any other Obligation;
(n) any failure by the Principal to disclose to the Guarantor any material or unusual fact, circumstance, event or thing known to, or which ought to have been known by, the Principal relating to or affecting the PDMP or the Guarantor at any time before or during the currency of this Deed, whether prejudicial or not to the rights and liabilities of the Guarantor and whether or not the Principal was under a duty to disclose that fact, circumstance, event or thing to the Guarantor or to the PDMP;
(o) the Principal agreeing with the PDMP or the Guarantor not to sue, issue process, sign or execute judgment, commence proceedings for bankruptcy or liquidation, participate in any administration, scheme or deed of arrangement or reconstruction, prove in any bankruptcy or liquidation, or do anything else in respect of the liability of the PDMP or the Guarantor; or
(p) the provisions of section 440J of the Corporations Act 2001 (Cth) operating to prevent or delay:
(i) the enforcement of this Deed against any Guarantor; or
(ii) any claim for contribution against any Guarantor.
5.3 No merger
(a) This Deed is in addition to and does not merge with, postpone, lessen or otherwise prejudicially affect the Contract or any other Power of the Principal.
(b) The Principal will hold any judgment or order obtained by it against any person in respect of the Guaranteed Money or the Obligations collaterally with this Deed, and this Deed will not merge in that judgment or order.
5.4 No obligation to gain consent
No consent is required from any Guarantor nor is it necessary for the Guarantor to or be made aware of any event referred to in clause 5.2 (Unconditional liability), any transaction between the Principal and the PDMP, or any particulars concerning any Obligation.
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5.5 Appropriation
(a) The Principal is under no obligation to marshal or appropriate in favour of any Guarantor, or to exercise, apply, transfer or recover in favour of any Guarantor, any Security or any funds or assets that the Principal holds, has a claim on, or has received or is entitled to receive, but may do so in the manner and order as the Principal determines in its absolute discretion. The Principal may refrain from applying or enforcing any other moneys, security or rights held or received or recovered (by set off or otherwise) by the Principal in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and the Guarantor shall not be entitled to the benefit of the same.
(b) The Principal may hold in a suspense account (without liability to pay interest) any money which it receives from the Guarantor, or which it receives on account of the Guarantor's liability under this Deed, and which the Principal may, at its discretion, appropriate in reduction of the Guarantor's liability under this Deed.
5.6 Void or voidable transactions
If:
(a) the Principal has at any time released or discharged:
(i) the Guarantor from its obligations under this Deed; or
(ii) any assets of the Guarantor from a Security,
in either case in reliance on a payment, receipt or other transaction to or in favour of the Principal; or
(b) any payment or other transaction to or in favour of the Principal has the effect of releasing or discharging:
(i) the Guarantor from its obligations under this Deed; or
(ii) any assets of the Guarantor from a Security;
and:
(c) that payment, receipt or other transaction is subsequently claimed by any person to be void, voidable or capable of being set aside for any reason, including under an Insolvency Provision or under the general law; and
(d) that claim is upheld or is conceded or compromised by the Principal,
then:
(e) the Principal will immediately become entitled against the Guarantor to all rights (including under any Security) as it had immediately before that release or discharge;
(f) the Guarantor must immediately do all things and execute all documents as the Principal may reasonably require to restore to the Principal all those rights; and
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(g) the Guarantor must indemnify the Principal against costs, losses and expenses suffered or incurred by the Principal in or in connection with any negotiations or proceedings relating to the claim or as a result of the upholding, concession or compromise of the claim.
5.7 No set-off, counterclaim
Subject to clause 1.4(a)(iv) (Limitation), the liability of the Guarantor under this Deed will not be reduced or avoided by any defence, set-off or counterclaim available to the Guarantor or the PDMP against the Principal.
5.8 Claim on the Guarantor
(a) The Principal is not required to make any claim or demand on the PDMP or any other person, or to enforce the Contract, or any other right, power or remedy against the PDMP or any other person, before making any demand or claim on the Guarantor.
(b) The Guarantor waives any right it may have of first requiring the Principal to proceed against or enforce any other rights or security or claim payment from any person before claiming from the Guarantor under this Guarantee. This waiver applies irrespective of any law or any provision of the Contract to the contrary.
5.9 Deferral of Guarantor’s rights
Until all amounts which may be or become payable by the PDMP under or in connection with the Contract have been irrevocably paid in full and unless the Principal otherwise directs, the Guarantor will not exercise any rights which it may have by reason of performance by it of its obligations under this Guarantee or by reason of any amount being payable, or liability arising, under this Guarantee:
(a) to be indemnified by the PDMP;
(b) to claim any contribution from any other guarantor of or provider of security for the PDMP’s obligations under the Contract;
(c) to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Principal under the Contract or of any other guarantee or security taken pursuant to, or in connection with, the Contract by the Principal;
(d) to bring legal or other proceedings for an order requiring the PDMP to make any payment, or perform any obligation, in respect of which the Guarantor has given a guarantee under this Guarantee;
(e) to exercise any right of set-off against the PDMP;
(f) to claim or prove as a creditor of the PDMP in competition with the Principal; and/or
(g) in any form of administration of a person constituting the PDMP (including liquidation, winding up, bankruptcy, voluntary administration, dissolution or receivership or any analogous process) prove for or claim, or exercise any vote or other rights in respect of, any indebtedness of any nature owed to it by the person constituting the PDMP.
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If the Guarantor receives any benefit, payment or distribution in relation to such rights it shall hold that benefit, payment or distribution to the extent necessary to enable all amounts which may be or become payable to the Principal by the PDMP under or in connection with the Contract to be paid in full on trust for the Principal and shall promptly pay or transfer the same to the Principal or as the Principal may direct.
5.10 No representation by Principal etc.
The Guarantor acknowledges that it has not entered into this Deed as a result of any representation, promise, statement or inducement to the Guarantor by or on behalf of the Principal, the PDMP or any other person.
6. Representations and Warranties
6.1 General representations and warranties
The Guarantor or if there is more than one Guarantor, each Guarantor, represents and warrants to the Principal that:
(a) this Deed constitutes a valid and legally binding obligation of the Guarantor in accordance with its terms;
(b) the execution, delivery and performance of this Deed by the Guarantor does not breach any law binding on it, or any document or agreement to which the Guarantor is a party or which is binding on it or any of its assets;
(c) no litigation, arbitration, mediation, conciliation, criminal or administrative proceedings are current, pending or, to the knowledge of the Guarantor, threatened, which, if adversely determined, may have a material adverse effect on the ability of the Guarantor to perform its obligations under this Deed;
(d) all information relating to the Guarantor provided to the Principal in connection with this Deed is true in all material respects and is not, by omission or otherwise, misleading in any material respect; and
(e) the Guarantor has not entered into this Deed as the trustee of any trust.
6.2 Corporate representations and warranties
The Guarantor, or if there is more than one Guarantor, each Guarantor, that is or purports to be a body corporate, further represents and warrants to the Principal that:
(a) it is duly incorporated and has the corporate power to own its property and to carry on its business as is now being conducted;
(b) the execution, delivery and performance of this Deed does not breach the constitution, certificate of incorporation or bylaws (as applicable) of the Guarantor and, if the Guarantor or any of its subsidiaries is listed on the Australian Stock Exchange Limited or on any other stock exchange, those listing requirements or business rules;
(c) it has the power, and has taken all corporate and other action required, to enter into this Deed and to authorise the execution and delivery of this Deed and the performance of its obligations under this Deed; and
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(d) the Guarantor has filed all corporate notices and effected all registrationswith the Australian Securities and Investments Commission and all of thosefilings and registrations are current, complete and accurate to the extentthey are material to the performance of the obligations of the Guarantorunder this Deed.
7. Payments
7.1 On demand
All money payable by the Guarantor under this Deed must be paid by the Guarantoron demand by the Principal in immediately available funds to the account and in themanner notified by the Principal to the Guarantor.
7.2 Payment in gross
All money received or recovered by the Principal on account of the GuaranteedMoney will be treated as payments in gross without any right on the part of theGuarantor to claim the benefit of any money received or recovered by the Principalor any Security, until the Principal has been paid 100 cents in the dollar in respect ofthe Guaranteed Money.
7.3 Interest
As a liability separate and distinct from the Guarantor's liability under clauses 2(Guarantee) and 3 (Indemnity), the Guarantor must on demand by the Principal payinterest on all amounts due and payable by it and unpaid under or in respect of thisDeed. Interest will accrue on those amounts from day to day from the due date up tothe date of actual payment, before and (as a separate and independent obligation)after judgment, at the Specified Rate for successive 90 day interest periodscommencing on the date of default and, if not paid when due, will itself bear interestin accordance with this clause 7.3, provided that interest will not be payable underthis clause to the extent that interest for late payment to the Principal is incorporatedinto the calculation of the amount payable under the Contract.
7.4 Merger
If the liability of the Guarantor to pay to the Principal any money under this Deedbecomes merged in any judgment or order, then, as an independent obligation, theGuarantor will pay interest on the amount of that money at the rate which is thehigher of that payable under clause 7.3 (Interest) and that fixed by or payable underthe judgment or order.
7.5 No set-off or deduction
All payments by the Guarantor to the Principal under this Deed must be:
(a) subject to clause 1.4(a)(iv) (Limitation), free of any set-off or counterclaim;and
(b) without deduction or withholding for or on account of any present or futuretaxes, unless the Guarantor is compelled by law to make any deduction orwithholding.
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If the Guarantor is compelled by law to make any deduction or withholding for or on account of any present or future taxes (not being taxes on the overall net income of the Principal), then the Guarantor must:
(c) pay to the Principal any additional amounts necessary to enable thePrincipal to receive (after all deductions and withholdings for those taxes) anet amount equal to the full amount which would otherwise be payable tothe Principal if no deduction or withholding was required to be made;
(d) promptly (and within the time prescribed by law) pay to the relevant taxingauthority the amount of those taxes which it is compelled by law to deductor withhold, and indemnify the Principal for any taxes and interest orpenalties to which the Principal may become liable consequent on thefailure of the Guarantor to pay those taxes; and
(e) deliver to the Principal, promptly on request from the Principal, a copy ofany receipt issued by the relevant taxing authority on payment of thosetaxes.
7.6 Currency indemnity
(a) The Australian Dollar is the currency of payment by the Guarantor under orin connection with this Deed, except that payment by the Guarantor of or inrelation to any Obligation which is denominated in a foreign currency mustbe made in that foreign currency.
(b) If for any reason any amount payable by the Guarantor under or inconnection with this Deed is received by the Principal in a currency(Payment Currency) other than the currency (Agreed Currency) in whichthat amount is required to be paid under this Deed (whether as a result ofany judgment or order, the liquidation of the Guarantor or otherwise), andthe amount obtained (net of charges) by the Principal on its conversion ofthe amount of the Payment Currency received into the Agreed Currency isless than the amount payable under this Deed in the Agreed Currency, thenthe Guarantor will, as an independent and additional obligation, indemnifythe Principal for that deficiency and for any loss sustained as a result of thatdeficiency.
8. Expenses and stamp duties
8.1 Expenses
The Guarantor must on demand reimburse the Principal for and keep the Principalindemnified against all expenses, including legal fees, costs and disbursements on asolicitor/own client basis (or on a full indemnity basis, whichever is the higher) assessedwithout the necessity of taxation, incurred by the Principal in connection with:
(a) any consent, agreement, approval, waiver, amendment to or discharge ofthis Deed; and
(b) any exercise, enforcement or preservation, or attempted exercise,enforcement or preservation, of any rights under this Deed.
8.2 Stamp duties
(a) The Guarantor must pay all stamp duties, transaction, registration and similartaxes, including fines and penalties, financial institutions duty and debits tax,
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which may be payable to or required to be paid by any appropriate authority, or determined to be payable in connection with the execution, delivery, performance or enforcement of this Deed or any payment, receipt or other transaction contemplated by this Deed; and
(b) the Guarantor must indemnify the Principal against any loss or liability incurred or suffered by it as a result of the delay or failure by the Guarantor to pay taxes.
8.3 Goods and Services Tax
If the Principal is or becomes liable to pay any GST (including any penalty) in respect of any supply it makes under, or in connection with, this Deed (GST Liability) then:
(a) to the extent that an amount is payable by the Guarantor to the Principal under this Deed for that supply - the amount will be increased by the full amount of the GST Liability; and
(b) otherwise - the Guarantor will indemnify and keep the Principal indemnified for the full amount of the GST Liability.
9. Assignment
The Principal may assign, novate or otherwise transfer all or any part of its rights under this Deed and may disclose to a proposed assignee or transferee any information in the possession of the Principal relating to the Guarantor.
10. Governing law, jurisdiction and arbitration
10.1 Governing law
This Deed, and where applicable the arbitration reference contained in clause 10.3 (Reference to arbitration), is governed by and will be construed in accordance with the laws of New South Wales.
10.2 Jurisdiction
(a) This clause 10.2 only applies where clauses 10.3 (Reference to arbitration) to 10.8 (Award final and binding) do not apply.
(b) The Guarantor irrevocably submits to the exclusive jurisdiction of the courts and appellate courts of New South Wales, and the courts competent to determine appeals from those courts, with respect to any proceedings which may be brought relating in any way to this Deed.
(c) The Guarantor irrevocably waives any objection it may now or in the future have to the venue of any proceedings, and any claim it may now or in the future have that any proceeding has been brought in an inconvenient forum, where that venue falls within paragraph (b) of this clause.
10.3 Reference to arbitration
(a) Clauses 10.3 to 10.8 (Award final and binding) will only apply where the Guarantor is a foreign company (as defined in section 9 of the Corporations Act 2001 (Cth)).
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(b) Any controversy, claim or dispute directly or indirectly based upon, arisingout of, relating to or in connection with this Deed (including but not limitedto any question relating to the existence, validity or termination of this Deed)shall be referred to and finally resolved by arbitration in accordance withthe arbitration rules of the Australian Centre for International CommercialArbitration (known as the ACICA Arbitration Rules).
(c) The seat of the arbitration will be Sydney.
(d) The number of arbitrators will be one.
(e) The language of the arbitration will be English.
10.4 Urgent relief
Neither party is prevented or restrained by operation of any clause in this Deed from applying to the courts and appellate courts of New South Wales to seek urgent relief (including injunctive or conservatory measures). The application by a party for such urgent relief must not be deemed to be an infringement or waiver of the arbitration process in clause 10.3 and does not affect the relevant powers of the arbitral tribunal.
10.5 Powers of the arbitrator
The arbitral tribunal has the power to grant all legal, equitable and statutory remedies, except punitive damages.
10.6 Consolidation
The parties agree that section 24 of the International Arbitration Act 1974 (Cth) will apply in respect of consolidations.
10.7 Joinder
In addition to the arbitral tribunal's power under article 15 of the ACICA Arbitration Rules, the arbitral tribunal has the power, on the application of any party to the arbitration, to allow a third party who the arbitrator considers has a sufficient interest in the outcome of the arbitration to be joined in the arbitration as a party. Each party to this Deed hereby consents to such joinder. In the event of such joinder of parties in the arbitration, the arbitrator has the power to make a single final award, or separate awards, in respect of all parties so joined in the arbitration.
10.8 Award final and binding
Any award will be final and binding upon the parties.
10.9 Service of process
If the Guarantor is a foreign company (as defined in section 9 of the Corporations Act 2001 (Cth)), without prejudice to any other mode of service allowed under any relevant laws, the Guarantor:
(a) irrevocably appoints [insert name] as its agent for service of process inrelation to any proceedings in relation to this Deed; and
(b) agrees that failure by the agent to notify the Guarantor of the process willnot invalidate any proceedings.
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10.10 Guarantor incorporated outside Australia
If the Guarantor is incorporated outside of Australia, a Legal Opinion must be provided by the Guarantor to the Principal, on the date of execution of this Deed.
11. Miscellaneous
11.1 Notices
(a) Any notices contemplated by this Deed must be in writing and delivered or posted by prepaid express post to the relevant address or sent to the facsimile number as set out below (or to any new address or facsimile number that a party notifies to the others):
(i) to the Principal: [ ]
(ii) to the Guarantor: [ ]
(b) A notice sent by prepaid express post will be taken to have been received by the addressee:
(i) (in the case of prepaid express post sent to an address in the same country) on the second Business Day after the date of posting; and
(ii) (in the case of prepaid express post sent to an address in another country) on the fourth Business Day after the date of posting.
(c) A notice sent by facsimile will be taken to have been received on the next day after the day shown on the transmission record showing the number of the person to whom it is addressed in accordance with paragraph (a), which is a Business Day.
11.2 Continuing obligation
This Deed is a continuing obligation notwithstanding any termination by the Guarantor, settlement of account, intervening payment, express or implied revocation or any other matter or thing, and the Principal will continue to be entitled to the benefit of this Deed as regards the due and punctual performance of all the Obligations until a final discharge has been given to the Guarantor.
11.3 Further assurance
The Guarantor must immediately on the request of the Principal, and at the cost of the Guarantor, do and perform all further acts and things and execute and deliver all further documents as the Principal reasonably requires, or as are required by law, to perfect or to give effect to the rights and powers of the Principal created, or intended to be created, by this Deed.
11.4 Form of demand
A demand on the Guarantor for payment under this Deed may be in the form and contain any information as the Principal determines, provided it includes particulars of the relevant default in the due and punctual performance of the Obligations.
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11.5 Entire agreement
This Deed constitutes the entire agreement and understanding between the parties and will take effect according to its tenor despite, and supersede:
(a) any prior agreement (whether in writing or not), negotiations and discussionsbetween the parties in relation to the subject matter of this Deed; or
(b) any correspondence or other documents relating to the subject matter ofthis Deed that may have passed between the parties prior to the date of thisDeed and that are not expressly included in this Deed.
11.6 Joint and several liability
The obligations of the Guarantor, if more than one person, under this Deed, are joint and several. Each person constituting the Guarantor acknowledges and agrees that it will be causally responsible for the acts and omissions (including breaches of this Deed) of the other as if those acts or omissions were its own and the Principal may proceed, in its absolute discretion, against any or all of them. This Deed binds each person who signs as a "Guarantor" even if another person who was intended to become a "Guarantor" does not become a "Guarantor" or is not bound by this Deed.
11.7 Severance
If at any time any provision of this Deed is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, that will not affect or impair:
(a) the legality, validity or enforceability in that jurisdiction of any other provisionof this Deed; or
(b) the legality, validity or enforceability under the law of any other jurisdictionof that or any other provision of this Deed.
11.8 Remedies cumulative
Each Power is cumulative and in addition to each other Power available to the Principal.
11.9 Waiver
(a) Failure to exercise or enforce or a delay in exercising or enforcing or thepartial exercise or enforcement of any right, power or remedy provided bylaw or under this Deed by the Principal will not in any way preclude, oroperate as a waiver of, any exercise or enforcement, or further exercise orenforcement of that or any other right, power or remedy provided by law orunder this Deed.
(b) Any waiver or consent given by the Principal under this Deed will only beeffective and binding on the Principal if it is given or confirmed in writing bythe Principal.
(c) No waiver by the Principal of:
(i) a breach of any term of this Deed; or
(ii) any other failure by the Guarantor to comply with a requirementof this Deed,
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will operate as a waiver of another breach of that term or failure to comply with that requirement or of a breach of any other term of this Deed or failure to comply with any other requirement of this Deed.
11.10 Consents
Any consent of the Principal referred to in, or required under, this Deed may be given or withheld, or may be given subject to any conditions, as the Principal (in its absolute discretion) thinks fit, unless this Deed expressly provides otherwise.
11.11 Vienna Convention
The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Deed.
11.12 Moratorium legislation
To the fullest extent permitted by law, the provisions of all laws operating directly or indirectly to lessen or affect in favour of the Guarantor any obligation under this Deed, or to delay or otherwise prevent or prejudicially affect the exercise of any Power, are expressly waived.
11.13 Variations
This Deed may only be varied by a document signed by or on behalf of both the Principal and the Guarantor.
11.14 Provisions limiting or excluding liability
Any provision of this Deed which seeks to limit or exclude a liability of the Principal or the Guarantor is to be construed as doing so only to the extent permitted by law.
11.15 Counterparts
(a) This Deed need not be executed by the Principal.
(b) If the Guarantor is more than one person, a Guarantor may execute this Deed in one or more separate counterparts, each of which constitutes the deed of that Guarantor.
11.16 Confidentiality
(a) Subject to paragraph (b), each party must keep the terms of this Deed confidential.
(b) A party may make any disclosure in relation to this Deed:
(i) to a professional adviser, financial adviser, insurer, rating agency, financier or auditor if that person is obliged to keep the information disclosed confidential;
(ii) to the extent required to comply with any law, a requirement of a regulatory body (including any relevant stock exchange) or pursuant to administrative request or Parliamentary requirement;
(iii) to any of its employees or officers to whom it is necessary to disclose the information;
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(iv) in connection with any legal or arbitral proceeding under or in relation to this Deed;
(v) to obtain the consent of a third party to a term of, or to an act under, this Deed;
(vi) to a "related body corporate", as defined in section 9 of the Corporations Act 2001 (Cth), as long as it advises that related body corporate of the confidential nature of the terms of this Deed;
(vii) (in the case of the Principal) to a potential assignee provided they agree to keep the terms of this Deed confidential;
(viii) (in the case of the Principal) to a related agency or to its responsible Minister;
(ix) with the prior consent of the other party to this Deed; or
(x) if the information disclosed has come into the public domain through no fault of the party (or its Personnel or related bodies corporate) making the disclosure.
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Executed as a deed.
Signed for and on behalf of Water NSW ABN 21 147 934 787 by its authorised delegate in the presence of:
Signature of witness Signature of authorised delegate
Full name of witness Full name of authorised delegate
Date
Executed by [Insert name of Guarantor] ABN [insert] in accordance with section 127 of the Corporations Act 2001 (Cth):
Signature of director Signature of company secretary/director
Full name of director Full name of company secretary/director
Date Date
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Schedule 14 Functions of the JLT
(Clause 2.2)
1. Functions
The JLT will act as a forum for the:
(a) continued review and refinement of Portfolio requirements;
(b) discussion and refinement of the methodology and procedures developedand utilised as part of the PDMP Services; and
(c) PDMP and the Principal working to best ensure the PDMP discharges itsobligations under the Contract.
2. Competencies
The JLT Members are expected to have complementary skills and experience thatcover the following competencies:
(a) understanding of and ability to lead outstanding performance;
(b) relevant experience and technical expertise;
(c) detailed understanding of the Portfolio;
(d) understanding of good governance and relevant experience;
(e) understanding of and experience in managing contracts; and
(f) understanding and acknowledgment of the confidentiality of information.
3. Responsibilities
The responsibilities of the JLT include the following:
(a) provide strategic guidance and leadership to the parties to enhancedelivery and performance;
(b) support outstanding performance;
(c) provide direction and governance to the Contract:
(d) co-ordinate and monitor the performance of the parties to ensure that:
(i) the terms and conditions of this Contract are complied with; and
(ii) the PDMP Services are carried out in accordance with thisContract;
(e) ensure that appropriate controls, delegations, systems and procedures areembodied within the Management Plans and that the requirements of eachManagement Plan are adhered to; and
(f) deal with any differences or disagreements, misalignments between partiesthat are raised at meetings of the JLT.
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4. Governance
Responsibility for governance includes:
(a) understanding the Contract;
(b) holding regular scheduled meetings as required by the Contract; and
(c) requiring and providing minimum monthly reporting.
5. Independent Adviser
(a) From time to time, the JLT may appoint an independent adviser to the JLT toprovide impartial advice and objective assessment of performance, trendsand improvements to the Portfolio (whether on a one off basis or non-goingbasis) (Independent Advisor).
(b) The Independent Advisor must assess the validity of differing perspectivesbetween the parties and make appropriate recommendations for thePortfolio, having regard to their relevant experience.
(c) The Independent Advisor must have extensive experience on majorinfrastructure projects and have the skills, experience and expertise over andabove those of the JLT as set out in clause 2.
(d) The Independent Advisor must act with the degree of professional care,knowledge, experience, skill and diligence which would be expected of anexpert professional providing independent advice within the constructionindustry generally.
L\335132745.19 217
Schedule 15 Restrictions on self-performance
1. All business case development, writing & analysis
2. All design (e.g. concept & detailed)
3. Preparation of environmental assessments
4. Construction
5. Technical and site investigations
6. Independent certification of Works
GIPA Act Section 14 4(b) – Commercial in Confidence
GIPA Act Section 14 4(b) – Commercial in Confidence
GIPA Act Section 14 4(b) – Commercial in Confidence
GIPA Act Section 14 4(b) – Commercial in Confidence
GIPA Act Section 14 4(b) – Commercial in Confidence
GIPA Act Section 14 4(b) – Commercial in Confidence
GIPA Act Section 14 4(b) – Commercial in Confidence
GIPA Act Section 14 4(b) – Commercial in Confidence
GIPA Act Section 14 4(b) – Commercial in Confidence
GIPA Act Section 14 4(b) – Commercial in Confidence
GIPA Act Section 14 4(b) – Commercial in Confidence
GIPA Act Section 14 4(b) – Commercial in Confidence
GIPA Act Section 14 4(b) – Commercial in Confidence
GIPA Act Section 14 4(b) – Commercial in Confidence
GIPA Act Section 14 4(b) – Commercial in Confidence
GIPA Act Section 14 4(b) – Commercial in Confidence
GIPA Act Section 14 4(b) – Commercial in Confidence
GIPA Act Section 14 4(b) – Commercial in Confidence
GIPA Act Section 14 4(b) – Commercial in Confidence
GIPA Act Section 14 4(b) – Commercial in Confidence
GIPA Act Section 14 4(b) – Commercial in Confidence
GIPA Act Section 14 4(b) – Commercial in Confidence
GIPA Act Section 14 4(b) – Commercial in Confidence
GIPA Act Section 14 4(b) – Commercial in Confidence
GIPA Act Section 14 4(b) – Commercial in Confidence
GIPA Act Section 14 4(b) – Commercial in Confidence
GIPA Act Section 14 4(b) – Commercial in Confidence
GIPA Act Section 14 4(b) – Commercial in Confidence
GIPA Act Section 14 4(b) – Commercial in Confidence
GIPA Act Section 14 4(b) – Commercial in Confidence
GIPA Act Section 14 4(b) – Commercial in Confidence
GIPA Act Section 14 4(b) – Commercial in Confidence
GIPA Act Section 14 4(b) – Commercial in Confidence
GIPA Act Section 14 4(b) – Commercial in Confidence
GIPA Act Section 14 4(b) – Commercial in Confidence
GIPA Act Section 14 4(b) – Commercial in Confidence
GIPA Act Section 14 4(b) – Commercial in Confidence
GIPA Act Section 14 4(b) – Commercial in Confidence
GIPA Act Section 14 4(b) – Commercial in Confidence
GIPA Act Section 14 4(b) – Commercial in Confidence
GIPA Act Section 14 4(b) – Commercial in Confidence
GIPA Act Section 14 4(b) – Commercial in Confidence
GIPA Act Section 14 4(b) – Commercial in Confidence
GIPA Act Section 14 4(b) – Commercial in Confidence
L\335132745.19 220
Exhibit 2 Services Brief
Exhibit 2 Services Brief
Exhibit 2 (Services Brief)- Contract Version Contract No.W0062849 2
Contents 1. Preamble ................................................................................................................................................. 3 1.1 Interpretation of this Services Brief ........................................................................................................... 3
2. Services Overview .................................................................................................................................. 5 2.1 Definitions ...................................................................................................................................................... 5 2.2 General Requirements ............................................................................................................................... 6 2.3 PMO and Management ............................................................................................................................ 7 2.4 Delivery Management ............................................................................................................................... 8 2.5 Governance and Strategy ...................................................................................................................... 10 2.6 Public Value ............................................................................................................................................... 12 2.7 Nominated PDMP Personnel ................................................................................................................... 13 2.8 Transition Arrangements........................................................................................................................... 14 2.9 Portfolio Management ............................................................................................................................. 15 2.10 Time Management ............................................................................................................. 18 2.11 Cost Management ............................................................................................................. 19 2.12 Risk, Opportunity and Value Management ................................................................... 23 2.13 Audits and Surveillance...................................................................................................... 23 2.14 Workforce Planning and Development .......................................................................... 24 2.15 Environmental and Sustainability Management, Approvals and Compliance ..... 25 2.16 Stakeholder Management and Community Engagement ........................................ 26 2.17 Procurement ........................................................................................................................ 27 2.18 Probity and Procurement Principles ................................................................................ 28 2.19 Design Management ......................................................................................................... 29 2.20 Construction ......................................................................................................................... 30 2.21 Safety Management .......................................................................................................... 30 2.22 Reporting .............................................................................................................................. 32 2.23 Principal Supplied Items ..................................................................................................... 35 2.24 Modern Slavery .................................................................................................................... 35
Appendix A – The Portfolio ............................................................................................................................ 37
Appendix B – Principal retained activities................................................................................................... 38
Appendix C – Draft Services Order Proposal Process ................................................................................ 39
Appendix D – Principal Supplied Items ........................................................................................................ 40
Exhibit 2 (Services Brief)- Contract Version Contract No.W0062849 3
1. Preamble1.1 Interpretation of this Services Brief
(a) The purpose of this Services Brief is to provide the minimum requirements for the Services that
the PDMP must provide to fulfil its obligations under the Contract.
(b) If more than one requirement applies in respect of any part of the Services Brief, then all
requirements must be satisfied. If there are requirements that are mutually exclusive, then the
requirement that delivers the greatest level of service, or is of the highest standard, must apply.
(c) In this Services Brief, reference to any work includes any additional activities necessary for the
satisfactory completion and performance of the Services and full compliance with these
requirements.
(d) The PDMP bears the risk that compliance with this Services Brief will not fulfil the PDMP’s
obligations under the Contract. In particular, the PDMP will be required to carry out any tasks,
activities and services additional to that contemplated by this Services Brief to ensure that the
PDMP satisfies its obligations under the Contract.
(e) The PDMP must not depart from any aspect of the Services Brief other than with the prior written
approval of the Principal.
(f) The PDMP must not depart from the Principal’s functions under a number of Acts and legislative
instruments, including but not limited to the:
(i) Water NSW Act 2014;
(ii) State Owned Corporations Act 1989;
(iii) Water Management Act 2000 and Water Act 1912;
(iv) Dam Safety Act 1978;
(v) Environmental Planning and Assessment Act 1979 (NSW);
(vi) Protection of the Environment Operations Act 1997; and
(vii) Environment Protection and Biodiversity Conservation Act 1999 (Cth).
(g) Pursuant to the WaterNSW Act 2014 (NSW), on and from 01 January 2015;
A. references to State Water Corporation or Sydney Catchment Authority is taken to read
WaterNSW, and
B. the assets, interests, rights, obligations and liabilities of State Water Corporation and
Sydney Catchment Authority were transferred to WaterNSW.
Accordingly, references to State Water Corporation and / or Sydney Catchment Authority are
a reference to WaterNSW, except where the terms are incorporated into the title of a
Exhibit 2 (Services Brief)- Contract Version Contract No.W0062849 4
document, Reference Documents including specifications, publications, reports and other
similar documents where those titles have not yet been updated.
(h) References to "this document" or Services Brief are to this Services Brief, including its
Appendices.
(i) References to the “Portfolio” are to the Portfolio, which appears as Appendix A to this Services
Brief.
(j) Unless stated otherwise, references to "Appendix" or "Appendices" in this Services Brief are a
reference to an Appendix or Appendices attached to this Services Brief.
Exhibit 2 (Services Brief)- Contract Version Contract No.W0062849 5
2. Services Overview
2.1 Definitions
The following definitions provide in this Services Brief are in addition to those defined in the Formal
Instrument of Agreement and the General Conditions of Contract [Clause 1 of the Contract].
Early Works means any early construction activity that is undertaken ahead of the approval of
the Final Business Case (FBC) for a Project (for example, but not limited to, a road to a dam site,
a pipeline connection) to ensure critical Milestone Dates are met and / or political imperatives
are achieved – thus ensuring alignment with the Objectives.
Gateway means a gate / review of the NSW Infrastructure Investor Assurance along a Project
lifecycle where Gateway Reviews can be conducted.
Gateway Review means the review set out by the NSW Gateway Policy (TPP17-01).
Initial Portfolio Program means the Portfolio program included in Appendix A of this Services
Brief.
INSW Infrastructure Investor Assurance Framework means the Gateway Coordination Agency
Framework for Capital Projects under the NSW Gateway Policy December 2016.
PDMP Cost Plan means the sub-section of the Portfolio Management Plan that addresses the
cost of planning (inclusive of forecasting and trending) requirements of this Services Brief, the
initial version of which appears in the Initial Portfolio Management Plan as Exhibit 1 of the
General Conditions of Contract.
PDMP Services Program means the program of that name, the initial version of which appears in
the Initial Portfolio Management Plan as Exhibit 1 of the General Conditions of Contract.
Portfolio Management Office (PMO) means the office that provides the decision support for
portfolio management. It advises senior management on the composition of the Portfolio,
monitors progress at high level, resolves conflicting Portfolio priorities and manages Portfolio risk
and issues.
Risk Register means the register as part of the Portfolio Management Plan and its subplan.
Supply Chain means the system of organisations (suppliers, contractors, people, activities,
information and resources) involved in providing and creating inputs and outputs pertaining to
the Projects in the Portfolio.
Exhibit 2 (Services Brief)- Contract Version Contract No.W0062849 6
2.2 General Requirements
(a) The PDMP is responsible for, and accountable for, the management and delivery of the
Portfolio to the Principal’s Objectives, requirements and satisfaction pursuant to the Contract.
(b) The PDMP must provide professional management services for the multiple elements of the
services in a collaborative environment with a blended team of the Principal’s and the PDMP’s
resources. The two streams of the services are collectively the PDMP Services – these are:
(i) Portfolio Management Office (PMO) and management; and
(ii) delivery management services for the Projects in the Portfolio, made up of;
A. Project development management (Pre-FBC) for each Project, and
B. Project delivery management (Post-FBC);
It is to be noted that the delivery management services in section 2.2(b)(ii) will be subject to
the Services Order process defined in Clause 16 of the General Conditions of Contract and
section 2.4 of this Services Brief.
(c) The Principal will retain responsibility for the activities listed in Appendix B. The PDMP will support
the Principal for all items where the Principal is nominated as ‘lead’.
(d) At the highest level, the PDMP must:
(i) manage the Portfolio on the Principal’s behalf by selection, prioritisation and control of the
Principal’s Projects and programs in line with its strategic objectives and capacity to deliver,
and balance change initiatives and business as usual, while meeting Portfolio performance;
(ii) manage and drive the Services Orders (Pre-FBC) to meet Milestone Dates and Gateways as
part of the INSW Infrastructure Investor Assurance Framework (as applicable);
(iii) manage and drive the Services Orders (Post-FBC) to meet the Milestone Dates and Project
delivery performance targets based on the agreed KRAs and KPIs; and
(iv) meet the following requirements;
A. the Objectives noted in the Formal Instrument of Agreement – Background part B,
B. any constraints or special needs,
C. performance requirements,
D. requirements for approvals,
E. the levels of service, and
F. the Portfolio program and the Portfolio budget;
(v) take all necessary action to maintain overall progress;
Exhibit 2 (Services Brief)- Contract Version Contract No.W0062849 7
(vi) prepare and present to the Principal (and when required by the Principal, and to
stakeholders), reports seeking progressive endorsement of proposed Portfolio outcomes;
(vii) have all services and requirements, including services by Professional Services Providers,
Supply Contractors and Contractors, carried out under a management system certified as
meeting the requirements of AS/NZS ISO 9001:2000 for quality management;
(viii) have all services and requirements, including services by Professional Services
Providers, Supply Contractors and Contractors, carried out under a management system
certified as meeting the requirements of AS/NZS ISO 31000:2009 for risk management;
(ix) have all services and requirements, including services by Professional Services Providers,
Supply Contractors and Contractors, carried out under a management system certified as
meeting the requirements of IAP2 for stakeholder management;
(x) have all services and requirements, including services by Professional Services Providers,
Supply Contractors and Contractors, carried out under a management system certified as
meeting the requirements of AS/NZS ISO 19011:2014 for auditing management;
(xi) have all services and requirements, including services by Professional Services Providers,
Supply Contractors and Contractors, carried out under a management system certified as
meeting the requirements of AS/NZS ISO 14001:2015 for environmental management; and
(xii) have all services and requirements, including services by Professional Services Providers,
Supply Contractors and Contractors, carried out under a management system certified as
meeting the requirements of AS/NZS ISO 45001:2018 for occupational health and safety
management.
2.3 PMO and Management
(a) The PDMP must continuously develop, implement and maintain a best practice PMO,
commensurate with best practice portfolio management of a similar size and complexity to the
Portfolio, in respect of all people, processes and systems.
(b) The PDMP must provide a Portfolio Director and team who will manage the services nominated
in section 2.2(b)(i) and 2.2(b)(ii) of this Services Brief.
(c) The PDMP must provide as part of the PMP a skills and competency matrix for the PMO team,
the Portfolio Director and all Nominated PDMP Personnel who will manage the services
nominated in section 2.2(b)(i), and all Nominated PDMP Personnel who will manage the
services nominated in section 2.2(b)(ii), and which must be updated during the Term of the
Contract.
(d) The PDMP must use Exhibit 4 Chargeable Rates for the Nominated PDMP Personnel who will
provide the services described in section 2.2(b)(i) and 2.2(b)(ii). The Chargeable Rates will only
Exhibit 2 (Services Brief)- Contract Version Contract No.W0062849 8
be adjusted in accordance with the conditions set out in Clause 19.14 of the General
Conditions of Contract.
(e) The PDMP must provide:
(i) a PMO framework that;
A. focuses on adopting a whole-of-Portfolio approach, with clear ownership via dedicated
resources to effectively and efficiently design, develop, implement, test, refine and
assure the PMO and management of the Portfolio, including the work associated with
the Services Orders, and
B. is managed by skilled resources with skilled and experienced leaders and team
expertise to support and manage the governance and assurance requirements, and to
support the PMO to drive the delivery management services.
(ii) architecture and software that enables Portfolio, program and project management
services, including controls, and must in collaboration with the Principal, lead the
development and implementation of policies, procedures, templates, manuals and systems
for the delivery of the Portfolio.
(f) The PDMP must ensure that the PMO works as a strategic enabler and facilitates the realisation
of compounding benefits across the Portfolio.
(g) The PDMP must agree with the Principal on standard Portfolio approaches, based on best
practice methodologies; and these must reflect tailored end-to-end processes that align with
the Principal’s governance requirements in section 2.5 below.
2.4 Delivery Management
(a) The PDMP must provide delivery management services and Nominated PDMP Personnel via
Services Orders. The delivery management services include work associated with the delivery
of Projects in the Portfolio.
(b) The PDMP must provide a skills and competency matrix for all Nominated PDMP Personnel who
will manage the services set out in section 2.2(b)(ii). The Portfolio Director must ensure the skills
and competency matrix is maintained and updated during the Term of the Contract.
(c) The PDMP must determine the status of the Projects in the Portfolio, noting that other entities
may be working on or will have worked on parts of a Project’s lifecycle.
(d) The Portfolio Director (or delegate), via the PMO, must forecast and initiate Draft Services Order
Proposals or Services Order Proposals, as required, pursuant to Clause 16 of the General
Conditions of Contract, following completion of 2.4(b) above which must include, as a
minimum:
Exhibit 2 (Services Brief)- Contract Version Contract No.W0062849 9
(i) for a Pre-FBC Services Order, details of the PDMP Services (which includes the managementand delivery of the Project scope and deliverables for the Project development) including,and as necessary:
A. a methodology for performing the Project, including all proposed Professional ServiceProviders and supply chain inputs required to develop the Project through to FBC,
B. the Nominated PDMP Personnel costs and applicable Chargeable Rates,
C. the Nominated Principal Personnel costs and internal rates (if applicable),
D. a planning strategy and methodology for developing the environmental approvals,
E. the delivery strategy for the services,
F. the costs of all works associated with the delivery of Early Works included in the PDMPS.O. Budget,
G. methodology for performing the Early Works, including all Professional Service Providers,Supply Contractors and Contractors required during Early Works delivery,
H. the procurement packaging based on the delivery strategy for the Early Works (asapplicable),
I. the associated risks, opportunities and constraints of the Project at that stage of theServices Order proposal,
J. the logistical issues,
K. an outline of changes required to the Portfolio Management Plan as a consequence ofproviding the services, and
L. any other reasonable requirements from the Principal (as applicable);
OR
(ii) for a Post-FBC Services Order, details of the PDMP Services (which includes themanagement and delivery of the Project scope and deliverables for the Project delivery)including, and as necessary:
A. all costs incurred to date on the Project prior to the approval of the FBC, including EarlyWorks that were undertaken,
B. the Nominated PDMP Personnel costs and applicable Chargeable Rates,
C. the Nominated Principal Personnel costs and internal rates (if applicable),
D. the costs of all works associated with the delivery of Project and all other elementsincluded in the PDMP S.O. Budget,
E. a methodology for performing the Project, including all Professional Service Providers,Supply Contractors and Contractors required during Project delivery,
F. the procurement packaging based on the delivery strategy (as applicable),
Exhibit 2 (Services Brief)- Contract Version Contract No.W0062849 10
G. the logistical issues,
H. an outline of changes required to the Portfolio Management Plan as a consequence ofproviding all services;
AND
(iii) a program including;
A. workflow, and
B. any applicable start dates, Completion dates, Milestone Dates, including critical /political dates;
(iv) all proposed resources and a resource histogram;
(v) costing and pricing for the provision of the requested services that;
A. is calculated on the principles for the Contract Price in Schedule 2 of the GeneralConditions of Contract including the Chargeable Rates, breakdown of rates andcalculation of any new / revised rates for Nominated PDMP Personnel; and
B. addresses its relationship and allocation from the PDMP S.O. Budget.
(e) The workflow for approval of a Draft Services Order Proposal to a Service Order Proposal is
shown in Appendix C of this Services Brief.
(f) The PDMP was given access to a Draft Services Order Proposal template developed by the
Principal; the PDMP must promptly develop this template and excel data to prepare improved
templates for the Services Orders process subject of Clause 16 of the General Conditions of
Contract. Such improvements must be approved by the Principal’s Representative prior to use.
(g) The PDMP must support the Principal through the Infrastructure NSW (INSW) Infrastructure
Investor Assurance Framework process and Gateway Reviews and any other Government
Agency (as applicable)
2.5 Governance and Strategy
2.5.1 General
The PDMP must:
(a) develop and implement, as agreed with the Principal, a governance and approval structure
that meets the Objectives of the Principal defined in the Formal Instrument of Agreement. The
structure must be sufficiently agile to facilitate the delivery of the Portfolio and provide strong
governance and reporting;
(b) investigate and account for the development of transparent financial and resource
management processes and controls;
Exhibit 2 (Services Brief)- Contract Version Contract No.W0062849 11
(c) implement effective and comprehensive policies that demonstrate compliance, transparency
and certain processes to the Principal in relation to all aspects of the PDMP Services;
(d) provide sound and effective management and oversight for the PDMP Services; and
(e) clearly identify and delineate the respective roles, responsibilities and accountabilities of its
organisation and personnel and regularly review its performance.
2.5.2 Strategic requirements
The PDMP must:
(a) structure itself to be effective and add value to the PDMP Services;
(b) attract, retain and motivate high quality and high performing personnel and align their interests
with the creation of value for the Principal and other stakeholders, and their values and risk
appetite;
(c) be of an appropriate size, and collectively, its personnel must have the skills, commitment and
knowledge of its, the Principal’s, and related industries’ operation, to enable it to discharge its
duties, to provide the PDMP Services effectively and to add value to the delivery of the Portfolio
thus ensuring a lasting legacy;
(d) instil and reinforce a culture of acting lawfully, ethically and responsibly;
(e) safeguard, develop and implement processes to ensure and verify the integrity of its reports,
including those of a corporate nature;
(f) make timely, balanced and effective disclosure of all matters concerning the Principal, that are
expected to have a material effect or impact on the PDMP Services;
(g) respect the rights of the Principal and other stakeholders and provide them with appropriate
information and facilities to allow them to exercise their rights effectively as stakeholders; and
(h) establish, operate and continuously review and update a sound risk management framework
based on the Principal’s performance standards.
2.5.3 Obligations
(a) The PDMP must develop compatible and appropriate working methods, packaging strategies,
lines of communication and reporting and supplementary procedures within the teams to
optimise performance, including the performance of the Nominated Principal’s Personnel,
having regards to the General Conditions of Contract and the Principal’s governance structure.
(b) The PDMP must bring proven, transparent, sophisticated, robust management systems and
processes for all aspects of a Project lifecycle, including but not limited to optimal planning,
management and control of design, environmental planning approval, procurement, logistics,
construction management, contractor and supplier procurement and performance,
Exhibit 2 (Services Brief)- Contract Version Contract No.W0062849 12
stakeholder and community involvement, environmental compliance, cost and time
management, quality assurance and safety assurance.
(c) The PDMP must provide the capacity and capability to effectively contribute to the
management and resolution of the range of external issues affecting the PDMP Services,
including community, social and stakeholder challenges, and thereby providing a 'safe pair of
hands' for the initial and ongoing response to those issues.
(d) The PDMP must provide the capacity and capability to manage and control the PDMP Services
and to recognise and resolve all related issues, including, risks, opportunities, crisis, incident,
dispute, employee relations, team performance, coordination, training and improvement
needs.
(e) In addition to the obligations set out in the other sections of this Services Brief, the PDMP must
provide PMO services:
(i) that provide support for the Portfolio management and advises the Principal on the status
and composition of the Portfolio, monitors progress at a high level and resolves conflicting
Portfolio priorities;
(ii) to effectively receive, respond to, manage and resolve external issues affecting the
Portfolio; and
(iii) that manage and control all Portfolio related activities, including early identification and
resolution of related issues, together with risks, opportunities, crises, incidents, disputes,
employee relations, team performance.
(f) The PDMP must meet the requirements of an approved Services Order and is responsible for
driving optimal success of the Project, including the overarching Portfolio budget and the
Portfolio program.
(g) The PDMP must have available flexible resources that will be required to perform the
management services subject of a Services Order (noting that the resources could be a
blended team of the PDMP’s resources and the Principal’s resources), collectively the PDMP
must:
(i) provide skilled resources optimising outcomes in terms of cost, efficiency, timeliness,
constructability, flexibility, risk, safety, compliance, operability and fitness for purpose; and
(ii) develop and implement robust processes and systems to ensure timely delivery of the PDMP
Services.
2.6 Public Value
The PDMP must:
Exhibit 2 (Services Brief)- Contract Version Contract No.W0062849 13
(a) develop and implement appropriate policies and procedures to meet all relevant value for
money requirements through the application of procedures and policies that optimise a
combination of whole-of-life costing and quality; and
(b) drive efficient and value for money delivery of the Portfolio to meet the Principal’s cost
management and assurance, including any requirements that are related to IPART, State and
Federal funding, and grants.
2.7 Nominated PDMP Personnel
(a) The PDMP must provide and retain as a minimum (for the Term of the PDMP Services) the
Nominated PDMP Personnel, listed in Schedule 5 of the General Conditions of Contract.
(b) At all levels of the PDMP Services, the PDMP must provide and retain appropriately experienced
expert support personnel to account for and to ensure proper performance, collaboration and
a legacy of knowledge learning and transfer.
(c) Nominated PDMP Personnel must attend site and other locations, as required, to cover the:
(i) geographically dispersed Project locations;
(ii) diverse type, character and scale of Projects; and
(iii) different stages development.
(d) The PDMP must optimise the participation, engagement, inclusion and responsibilities of the
Principal’s personnel provided for inclusion in the PDMP Services.
(e) The PDMP must deploy and maintain team personnel who at all times must:
(i) act as a genuine partner to the Principal in the PDMP Services;
(ii) have the skills, capabilities and aptitude in all aspects of the PDMP Services to efficiently
and effectively delivery the services;
(iii) have the leadership, experience and drive to optimise Portfolio Objectives;
(iv) optimise the participation of the Principal’s employees;
(v) behave and operate in a cohesive and collaborative manner;
(vi) recognise and respond to the critical nature of the PDMP’s performance on the Portfolio
Objectives;
(vii) respond appropriately to Portfolio risks and optimise Portfolio Objectives;
(viii) operate under robust and efficient systems and maintain appropriate controls;
(ix) appropriately train, inform and manage all other integrated team members;
Exhibit 2 (Services Brief)- Contract Version Contract No.W0062849 14
(x) be open and transparent in dealings with the Principal;
(xi) act in an ethical manner and adopt the Principal’s Code of Conduct and Ethics;
(xii) acknowledge the Portfolio requirements and actively support the roles of the Principal, the
Principal’s Representatives and the Joint Leadership Team (JLT); and
(xiii) take responsibility for Portfolio outcomes including those affecting local
communities, customers, Authorities, Local and State government, the Principal,
Commonwealth government (as applicable) and other stakeholders.
(f) The PDMP must act in good faith and with trust and mutual respect towards the Principal in
providing the PDMP Services and this commitment includes, but is not limited to:
(i) being fair, reasonable and honest;
(ii) doing all things reasonably expected of the PDMP to give effect to the intent of the
Contract; and
(iii) retaining the Nominated PDMP Personnel that possess the necessary qualifications,
knowledge and skills to competently execute the PDMP Services, including providing
leadership, discipline, expertise and advice.
2.8 Transition Arrangements
2.8.1 Transition in
(a) The PDMP must prepare, update and submit a transition-in plan as part of the Initial Portfolio
Management Plan (IPMP) which will cover the set up and functions of the PDMP Services for the
Portfolio, including a resource histogram.
(b) The IPMP must cover the first 100-days of PDMP Services to prioritise efforts towards the required
PDMP Services, including baselining the Portfolio status in terms of time and cost.
(c) The IPMP must detail how the PDMP will mobilise resources to manage the development and
delivery of the dam Projects within 10 days of the Award Date.
(d) The PDMP must include a section in the Initial Portfolio Management Plan covering business
continuity (with specific measures to address COVID-19, and in keeping with all health warnings,
government directions or laws), and an indicative projection of resources covering the first 100
days and for the first three years.
(e) The PDMP must further develop and refine the Initial Portfolio Management Plan to become the
Portfolio Management Plan (PMP) for the Term of the Contract, with the relevant sub-plans of
the PMP as described in section 2.9.1 of this Services Brief.
Exhibit 2 (Services Brief)- Contract Version Contract No.W0062849 15
(f) The PDMP must seamlessly and efficiently transition-in the PDMP Services, such that the
Principal’s Nominated Personnel and roles are effectively introduced into the PDMP Services
and management in a way that minimises disruption and ensures the introduction of full
collaborative working arrangements in the shortest time possible.
(g) The PDMP must establish an operating governance structure, including alignment of culture,
values and safety.
(h) The PDMP must provide mobilisation measures for the transition of the Principal’s personnel and
the Principal’s advisors to the PDMP (as required).
2.8.2 Legacy and transition out
(a) The PDMP must prepare a transition-out plan as part of the PMP which will cover the integration
and transition of PDMP Services for the Portfolio over to the Principal in accordance with Clause
20 of the General Conditions of Contract.
(b) The Principal attaches a great deal of importance to portfolio, program and project
management skills and expertise. Capability is at the forefront of delivering the outcomes and
benefits. Accordingly, the PDMP must develop and implement best practice organisational
legacy capabilities across the Portfolio.
(c) The PDMP must develop and implement a comprehensive learning and development program
for the PDMP integrated team and more broadly across WaterNSW’s organisation, based on
the PDMP Services. The initial program must be developed within the first 100 days. Revisions to
the program and cost implications must be agreed by the Principal pursuant to clause 18 of the
General Conditions of Contract (Variation).
(d) The transition out plan must include a learning and development program informed by a gap
analysis in line with a competency-based framework for Portfolio management.
(e) As the Principal’s employees are identified, trained, and developed, at the request of the
Principal, they are to be retained within the PDMP as dedicated resources for the PMO. This will
serve to assist embedding the capability within the Principal’s organisation and reduce reliance
on the PDMP for these competencies.
2.9 Portfolio Management
(a) The PDMP must provide Portfolio management deliverables and must in collaboration with the
Principal lead the development of the policies, procedures, templates and manuals for the
Principal as part of its overarching Portfolio Management Framework (PMF).
(b) The PDMP must ensure that the PMF includes tools and systems (including architecture and
software) that enable the processes to be conducted in an interrelated continuous sequence.
Exhibit 2 (Services Brief)- Contract Version Contract No.W0062849 16
(c) The PDMP must ensure that the PMF facilitates decision making through evaluation, selection,
prioritisation, balancing, execution of the work, and harvesting the Principal’s strategic
direction.
(d) The PDMP must ensure that the PMF selects those Projects that meet certain criteria noted in
2.9(c) and to “hold” or “stop” certain Projects subject to the gateway approvals process
carried out by the Principal or the Gateway Review.
(e) The PDMP must use adaptive Portfolio management as a systematic approach for deliberately
learning from past actions, with the intent to continually improve future planning and actions.
(f) The PDMP must prepare a PMP which sets out, among other things, the Principal’s strategic
requirements and Objectives, including how the PDMP will support the Principal as an
experienced and informed partner from planning though to decision making and delivery.
(g) The PDMP must prepare a PMP that includes at a minimum, the following elements. These
elements form the basis of sub-management plans:
(i) governance;
(ii) WHS;
(iii) risk, opportunity and value management;
(iv) quality management;
(v) scope management;
(vi) change management;
(vii) cost management (inclusive of forecasting and trending analysis for both WaterNSW
and the PDMP Services – refer to section 2.11 below);
(viii) time management;
(ix) stakeholder management;
(x) transition in;
(xi) resource management (with projected resource histograms), including measures for
ramping up and down, including skills and competency);
(xii) continuous improvement;
(xiii) legacy and transition out;
(xiv) community engagement;
(xv) communications management;
(xvi) design and technical management;
(xvii) digital engineering;
Exhibit 2 (Services Brief)- Contract Version Contract No.W0062849 17
(xviii) procurement management;
(xix) construction management;
(xx) interface management;
(xxi) completion management;
(xxii) planning, environmental and sustainability management;
(xxiii) business case management;
(xxiv) commercial management and contract administration;
(xxv) contract close out management;
(xxvi) staff training;
(xxvii) incident management;
(xxviii) dam safety;
(xxix) shadow operations;
(xxx) security;
(xxxi) business continuity (inclusive of measures to address all possible COVID-19
ramifications);
(xxxii) disaster and recovery management (as required);
(xxxiii) document control and records management;
(xxxiv) asset management;
(xxxv) modern slavery;
(xxxvi) code of conduct and ethics; and
(xxxvii) probity.
(h) Specific to the cost management plan noted in (g)(vii) above, the PDMP must provide two
separate sections covering the processes to be adopted for:
(i) cost management for the Portfolio; and
(ii) cost management for the PDMP Services.
(i) In addition to the requirements set out in 2.9(h)(i) and (ii) above, the PDMP must fully address in
its cost management plan the PDMP’s obligations, processes and procedures and
management systems for cost planning and the delivery of the Portfolio, including providing
everything that is to be done as a requirement to meet Completion of a Project. (Noting that
the definition of Completion for each Project will be subject to agreement of the Post-FBC
Services Order).
(j) Specific to the resourcing management plan noted in (g)(xi) above, the PDMP must:
Exhibit 2 (Services Brief)- Contract Version Contract No.W0062849 18
(i) provide quarterly resourcing plans to the Principal which sets out the resources requiredand the reasons and utilisation of such resources.
(k) Specific to the business continuity management plan noted in (g)(xxxi) above, the PDMP must:
(i) prepare annual business continuity plans that address disaster recovery and how the
PDMP would minimise disruption. The PDMP must comply with the business contingency
plan (as approved by Principal) and carry out any business contingency and disaster
recovery services required by the Principal.
(l) Specific to the document control and records management plan noted in (g)(xxxiii) above, the
PDMP must:
(i) provide a proprietary document management system (e.g. InEight) which is fit for the
purposes of managing the document control and storage of all information generated
for the Portfolio and the Services Orders; and
(ii) for approved Project business cases, ensure that the approval documentation and
information is also stored in the approved WaterNSW repository.
(m) The PDMP must note that as part of a Services Order there will be a separate requirement/
need for the PDMP to produce, refine and / or update the Project Management Plan
applicable to any given Project.
(n) The Portfolio Management Plan, including sub-plans, and the Project Management Plans for the
individual Projects, are collectively known as “Management Plans”.
2.10 Time Management
2.10.1 General
(a) The PDMP must provide time management services, to:
(i) efficiently and effectively coordinate and manage the entire Portfolio;
(ii) comply with the Principal’s Objectives; and
(iii) comply with Clause 17.1 of the General Condition of Contract to meet key Milestone Dates.
2.10.2 Portfolio Program and Approved Portfolio Program
(a) The PDMP must prepare an initial portfolio program (schedule) to comply with the requirements
of the Initial Portfolio Management Plan set out in section 2.8.1 of this Services Brief. Specifically,
the Initial Portfolio Management Plan must describe how the PDMP proposes to address the
above requirements, and to deliver the PDMP Services taking into account of the existence of
COVID-19, and in keeping with all health warnings and government directions.
(b) The PDMP must then baseline the initial portfolio program, within 30 days following the Award
Date. The baselined initial portfolio program will then become known as the Portfolio Program
Exhibit 2 (Services Brief)- Contract Version Contract No.W0062849 19
which must be prepared using Primavera P6, or equivalent, and it must have compatibility with
Excel or Microsoft Projects so that separate program information is easily transferrable or
converged.
(c) Once the Portfolio Program is approved by the Principal, the Portfolio Program is from here
referred to as the Approved Portfolio Program.
(d) The PDMP must refine and control the Approved Portfolio Program on a monthly basis. This will
be achieved by:
(i) examining and critically evaluating the programs submitted by the Principal, the
Professional Services Providers, the Supply Contractors and the Contractors;
(ii) reviewing the key activities, durations, links, predecessors, critical paths, service of the
Professional Services Providers and reporting on these and identify any deficiencies, risks
and opportunities that need to be captured; and
(iii) monitoring and assessing the works as they progress to record the progress of the Portfolio
and report on the accuracy of any given Project.
2.11 Cost Management
2.11.1 General
(a) The PDMP must provide cost management services, to:
(i) efficiently and effectively coordinate and manage the entire Portfolio;
(ii) efficiently and effectively manage the individual Projects in the Portfolio through the Project
lifecycle phases and reconcile the cost management from the Pre-FBC and Post-FBC
Services Orders to the Portfolio cost management hierarchy;
(iii) provide cash flow forecasting and management, as required, to support Portfolio and the
following stakeholders, as well as other funding source agencies;
A. Infrastructure NSW,
B. NSW Treasury,
C. IPART,
D. others (as notified by the Principal); and
(iv) comply with the Principal’s Objectives.
(b) The PDMP must also provide cost management services, to:
(i) efficiently and effectively coordinate and manage the entire PDMP Services;
Exhibit 2 (Services Brief)- Contract Version Contract No.W0062849 20
(ii) provide monthly cash flow forecasting and management, to support the PMO Services cost
management, including trending analysis for the first three (3) years;
(iii) provide monthly cash flow forecasting and management, to support the PDMP Services
Orders Fees cost management, including trending analysis for the first three (3) years;
(iv) provide cash flow forecasting, management and trending analysis of the PMO Services to
support each subsequent year (during years four to seven (4-7) inclusive) to the PMO
Services – such information must be provided at the start of quarter four (Q4) of year three
and at the start of Q4 for any subsequent year to the end of the Term;
(v) provide monthly cash flow forecasting and management, to support the PMO Services cost
management, including trending analysis for years four to seven (4-7), inclusive; and
(vi) provide monthly cash flow forecasting and management, to support the PDMP S.O. Budget,
and final / realised PDMP S.O. Budget (Total S.O. Cost), including trending analysis for years
four to seven (4-7) inclusive.
2.11.2 Cost Management – PMO Services Years 4 to 7
(a) The PDMP must prepare, in accordance with Schedule 2 of the Contract, a fixed price for the
PMO Services for each year, four to seven (4-7) inclusive, based on the historical data and
trending analysis from previous years, one to three (1-3) inclusive. The fixed price submission
(including monthly PMO costs payable must be substantiated by the build-up of the cost
through the use of trending analysis of PMO Services, performance and costs in the previous
year and years. The trending analysis must consider and use the following data:
(i) historical data on PMO Services performance against Milestone Dates and how this data
has been considered in each subsequent years’ fixed price submission;
(ii) historical data on PMO Services cost against forecast cashflow and how this data has been
considered in each subsequent years’ fixed price submission;
(iii) Key Performance Indicators (KPI) results for previous years and actual PMO Performance
Regime (Clause 1.5 of Schedule 3 of the General Conditions of Contract) has been realised,
and how this data has been considered in the fixed price submission; and
(iv) the actual cost incurred as a result of the PMO flexing as the Projects via the Services Orders
are progressed through the Project lifecycle and with the addition or subtraction of Projects,
and how this data has been considered in the fixed price submission for the years four to
seven (4-7) inclusive.
Exhibit 2 (Services Brief)- Contract Version Contract No.W0062849 21
2.11.3 Cost planning – purpose and requirement
(a) The purpose of the PDMP cost planning is to manage, present and review the cost
performance of the Portfolio delivery and individual Project delivery management during the
performance of the PDMP’s Services, including:
(i) providing a frame of reference from which to develop the PDMP Services, Principal
personnel (as required), the Professional Services Providers, Supply Contractors and the
Contractors;
(ii) demonstrating the costs associated with the scope of the Portfolio and the individual
Projects in the Portfolio and the implications associated with changes in scope;
(iii) integrating costs with time and performance (quality);
(iv) identifying Services Order budgets and trends in relation to the specified outputs;
(v) identifying cost deviations and increases and options and strategies to manage these to
achieve the overall Portfolio Objectives, in particular those relating to time, cost and
budget requirements and outcomes; and
(vi) identifying cost performance requirements and outcomes, measured against clear and
demonstrable performance parameters and indicators.
(b) The PDMP must:
(i) ascertain predicted costs before the Principal is committed to expenditure through the
Services Order process;
(ii) identify issues that will have an impact on the Portfolio budget and actions to enhance
positive cost impacts and reduce negative cost impacts;
(iii) identify the necessity for specific items, whether they provide value for money and better
ways of delivering the Portfolio;
(iv) clearly define how the costs associated with the delivery of the Portfolio will be managed
throughout the PDMP Services; and
(v) sets the format and standards by which the costs associated with Portfolio delivery are
identified, measured, reported and controlled.
(c) The PDMP must ensure that the cost planning is:
(i) an iterative process; and
(ii) undertaken progressively and continuously as Projects are developed and better
understood and informed (e.g. design, program, delivery packaging and strategies, etc),
Exhibit 2 (Services Brief)- Contract Version Contract No.W0062849 22
including identifying cost and time impacts for the delivery of each Project and the overall
Portfolio.
(d) The PDMP must ensure that initial cost planning:
(i) is baselined for future cost planning and comparisons;
(ii) provides a breakdown and a distribution of the Portfolio into cost targets for each element
of the Portfolio (i.e. Project development, Project delivery, etc), which must include a work
break down structure and cost break down structure that, through an incorporated system
(e.g. cost codification), can be used to redistribute the cost of works in elements to works
packages; and
(iii) reconcile with the previous version of the PDMP cost planning, together with explanations
relating to changes that have been made – e.g. transfers to or from risk allowances,
adjustments made to cost targets, etc.
(e) In addition to the above requirements, the PDMP must ensure that its cost planning:
(i) has the capacity to transition from elements and associated cost projections into a structure
that incorporates a work breakdown structure for the Portfolio, programs and Projects;
(ii) identifies the financial status of Projects in the Pre-FBC and Post-FBC stages, and related
contingency allocations;
(iii) separates and identifies Project costs, including:
A. all Professional Service Providers, Supply Contractors, and Contractors contractpayments, including all cost and performance incentives, abatements and modifiers,separation of fixed, time based, lump sum, schedule of rates and reimbursable costsand identification and separation of preliminaries costs,
B. identification and separation of risk provisions and contingencies,
C. separation of the PDMP Services costs,
D. separation of the Principal’s costs, and
E. identification and separation of supplied items and materials (by the Principal); and
(iv) has the capacity to capture costs to support any subsequent IPART submissions, and for the
WaterNSW finance system to incorporate the completed asset costs into the Regulated
Assets Base (RAB).
Exhibit 2 (Services Brief)- Contract Version Contract No.W0062849 23
2.11.4 PDMP S.O. Budget
(a) Once a Final Business Case (FBC) for a Project is endorsed by INSW (or applicable alternative1),
and (if necessary) the NSW Treasury ERC, the FBC estimate for the Project less any Principal
retained items and contingency will form the basis of the PDMP S.O. Budget.
(b) The PDMP S.O. Budget will form the basis of the financial envelope that the PDMP must deliver
the Project within. This includes any costs incurred in providing the PDMP Services for the
delivery of that Project.
(c) The PDMP S.O. Budget will include all works to the Completion – noting that Completion must
be clearly described depending on the delivery / procurement strategy of any given Project.
These can vary; for example, from alliances, design and construct (D&C), construct only, etc.
(d) The PDMP must refine and control the PDMP S.O. Budget. This will be achieved by:
(i) examining and critically evaluating the budgets submitted and costs incurred by
Professional Services Providers, Supply Contractors and Contractors, and any other party
involved in delivering the Project;
(ii) reviewing cost and contingencies; and
(iii) monitoring and assessing the Works as they progress to report on the accuracy of each
Project.
2.12 Risk, Opportunity and Value Management
The PDMP must:
(a) manage any adverse impacts on the PDMP Services or the delivery of the Portfolio;
(b) identify and advise on all significant risk issues and regularly review and update the Portfolio Risk
Register as the issues and required responses change; and
(c) ensure that the JLT management process includes a continuous and comprehensive review of
identified risks as early as possible in the design and construction activities for the Portfolio to
ensure effective mitigation and / or informed decision making.
2.13 Audits and Surveillance
(a) The PDMP must:
(i) undertake audits and inspection of its systems and those of the Professional Services
Providers, Supply Contractors and Contractors in accordance with this section 2.13 to verify
1 Note that there are a number of different funding sources
Exhibit 2 (Services Brief)- Contract Version Contract No.W0062849 24
that the contractual requirements are being met. The frequency of the audits and
monitoring must be appropriate to the nature of the work being performed; and
(ii) ensure that audits and inspection are carried out by Nominated PDMP Personnel who have
demonstrated competence and suitable experience in audit and surveillance in a relevant
sector to the work being performed. The PDMP must provide written notice to the Principal
of the proposed audit and surveillance personnel, including full details of their relevant
experience and qualifications, prior to those personnel undertaking any audit or
surveillance work.
(b) The Principal retains the right to review the performance of the PDMP in undertaking the above
function and to also conduct its own independent audits and inspection of the Professional
Services Providers’ systems and the Contractors' systems. The PDMP must, upon being given
reasonable notice by the Principal, make or arrange to have available all facilities,
documentation, records, systems, personnel, materials and equipment supplied by the PDMP,
including those of any of the Nominated PDMP Personnel, that are reasonably required for the
audits or surveillance to be undertaken.
2.14 Workforce Planning and Development
2.14.1 Human resource management
The PDMP must:
(a) provide structured training programs for the Nominated Principal Personnel to sufficiently
address the requirements of the Contract;
(b) provide structured training programs for the Nominated PDMP Personnel to sufficiently address
the requirements of the Contract;
(c) conduct employee performance reviews and development planning for the Nominated PDMP
Personnel to assess engagement, in accordance with the WaterNSW employee engagement
survey tool (e.g. Kincentic);
(d) conduct employee performance reviews and development planning for the Nominated
Principal Personnel working in the integrated and blended PDMP team to assess engagement,
in accordance with the WaterNSW employee engagement survey tool (e.g. Kincentic);
(e) on request by the Principal, provide the Principal with access to all training material and all
training management records in relation to training of the Nominated PDMP Personnel,
including allowing the Principal to use such training materials for training of the Nominated
Principal Personnel, advisors or Contractors in relation to the Portfolio;
Exhibit 2 (Services Brief)- Contract Version Contract No.W0062849 25
(f) provide training and induction for all of the Nominated PDMP Personnel and any persons
nominated by the Principal; and
(g) effectively manage the recruitment and retention of staff to perform the PDMP Services in
accordance with the Contract.
2.15 Environmental and Sustainability Management, Approvals and Compliance
2.15.1 General
(a) In addition to ensuring the Principal meets its legislative and corporate environmental and
sustainability obligations, the PDMP must contribute to a positive culture that reflects the
Principal’s commitment to the environment and helps to maintain the Principal’s reputation.
(b) Subject to Schedule 15 of the General Conditions of Contract, the PDMP must in conjunction
with, and if requested by the Principal, and on behalf of the Principal, carry out sustainability
initiatives such as obtaining (or requiring Contractors to obtain) Infrastructure Sustainability
Council of Australia (ISCA) ratings, engage in positive social procurement (using applicable
State or Commonwealth Government guidelines as a minimum requirement), promote
aboriginal engagement and inclusion in environmental assessment and management promote
climate resilience in Project design, construction, operation and maintenance and consider
and, if appropriate, promote other environmental and social innovations.
(c) The PDMP must ensure that the Principal, Professional Services Providers, Supply Contractors and
the Contactors carry out each Project:
(i) in an environmentally responsible manner so as to protect the environment; and
(ii) in accordance with the conditions contained in the respective environmental approvals
and all other applicable Law.
2.15.2 Environmental planning and other Approvals
(a) The PDMP must:
(i) support the Principal in managing environmental planning and assessment, and obtaining
and complying with approvals in relation to the Portfolio;
(ii) ensure that the Principal, the Professional Services Providers, Supply Contractors and
Contractors utilise the existing WaterNSW Environmental Management System (EMS)
procedures and templates, or where necessary develop new procedures and templates;
(iii) ensure that the Principal, the Professional Services Providers, Supply Contractors and
Contractors adopt the “WaterNSW’s Planning and Environment Impact Assessment Guide”,
Exhibit 2 (Services Brief)- Contract Version Contract No.W0062849 26
which sets out the planning pathways for the temporary legislation requirements for Critical
State Significant Infrastructure;
(iv) ensure that the Principal, the Professional Services Providers, Supply Contractors and
Contractors identify environmental constraints and opportunities to ‘avoid, minimise or
offset’ environmental impacts and to help support planning processes and reduce program
risks;
(v) support the Principal in identifying the need for, then obtaining, implementing and
complying with all relevant Approvals, permits and licences under State and
Commonwealth legislation in a timely fashion and in a way (including, where possible, on
terms) that align to overarching Portfolio and Project procurement and delivery timeframes;
(vi) oversee environmental management and compliance;
(vii) develop a sustainability approach/framework for the Portfolio including setting objectives
and goals; and
(viii) support the Principal through the Infrastructure NSW (INSW) Infrastructure Investor
Assurance Framework process addressing environmental requirements and Gateway
process checks for environmental planning and Approvals, as relevant.
2.15.3 Compliance
(a) The PDMP must immediately notify the Principal in writing of any breach, potential breach, non-
compliance or potential non-compliance with the conditions or requirements of all other
applicable Law in the carrying out of the PDMP Services or in the execution of the Works or if
there is an actual or threatened legal challenge in relation to an assessment or determination in
respect of any of the Works under the:
(i) Environmental Planning and Assessment Act 1979 (NSW);
(ii) Environment Protection and Biodiversity Conservation Act 1999 (Cth); or
(iii) any other Law.
2.16 Stakeholder Management and Community Engagement
2.16.1 General
(a) Stakeholders have an important role and provide critical information that informs each stage of
the process for managing the Portfolio, the PDMP must therefore support the Principal in
managing stakeholder and community engagement as directed by the Principal.
(b) The PDMP must:
Exhibit 2 (Services Brief)- Contract Version Contract No.W0062849 27
(i) comply with the Principal’s direction regarding the type and level of publicity required for
the Portfolio and any given Project; and
(ii) work with Professional Services Providers, Supply Contractors and the Contractors for
communications and stakeholder relations to facilitate communication between, and
identification of communications and Stakeholder-related issues by, the Principal and the
PDMP.
(c) The PDMP must:
(i) have regard to the fact that the Projects may to be conducted in areas of great
importance to various people and groups, including local residents, community groups and
businesses;
(ii) have regard to the interests of Local, State and Federal governments and the political need
for ‘Minister Briefings’, media responses and such like, the PDMP must therefore not respond
to any stakeholder or community without the express permission of the Principal – noting
that all communications must be prepared and presented in WaterNSW branding or co-
branding if a Project has been given that approval; and
(iii) ensure that the reputation of the Principal is maintained at all times.
2.17 Procurement
2.17.1 General
(a) The PDMP must undertake the procurement of the Portfolio works (excluding any elements
of the Projects procured by the Principal prior to the Award Date or under separate
agreement with Professional Services Providers or Supply Contractors) and any other
procurement that becomes known during the Term of the Contract.
(b) The PDMP must drive improvements in the procurement processes including driving value
for money across the Portfolio lifecycle – ensuring prudent cost savings and efficiencies
across the supply chain.
(c) The PDMP must assist the Principal in reviewing its existing procurement panel arrangements
and to introduce new and efficient ways of interacting and procuring goods and services
that drive efficiencies and effective procurement.
(d) In carrying out its procurement obligations, the PDMP must comply with all of the Principal’s
procurement policies.
Exhibit 2 (Services Brief)- Contract Version Contract No.W0062849 28
2.18 Probity and Procurement Principles
2.18.1 Probity principles
(a) The probity principles applicable to the Portfolio procurement activities are:
(i) fairness and impartiality - tenders and potential tenderers are to be treated equally and
have the same opportunity to access information and advice;
(ii) effective competition - a competitive process is to be used to achieve Value for Money
outcomes for the Portfolio and the individual Projects;
(iii) consistency and transparency - procurement activities are to be undertaken and
evaluated in a systematic manner in accordance with both the procurement
documentation and the evaluation plan;
(iv) security and confidentiality - the adoption of processes for receiving and managing bidder
information which will ensure the security and confidentiality of intellectual property rights,
intellectual property assets and proprietary information;
(v) identification and resolution of conflicts of interest - any person involved in the Portfolio and
procurement process (including tenderers) are to declare any actual, potential or
perceived conflicts of interest and address those declared conflicts prior to undertaking any
competitive evaluation process;
(vi) compliance - the procurement activities are required to comply with all applicable Law
and the policies of the Principal as applicable to the Portfolio; and
(vii) fair and honest persons will be involved in the Portfolio and procurement process (including
tenderers) and will not engage in fraud and/or corruption. Should any person become
aware of any alleged fraud and/or corruption the matter will be reported immediately to
the Principal.
2.18.2 Probity oversight
(a) The Principal may require that the procurement activities are subject to probity oversight
(including audit) by an independent representative of the Principal at any time during the
procurement process.
(b) The PDMP must fully co-operate and ensure that each Professional Services Providers, Supply
Contractors and Contractor fully co-operates, with any probity advisor appointed by the
Principal and must do all things reasonably necessary to enable any appointed probity advisor
to effectively and expeditiously carry out its duties.
Exhibit 2 (Services Brief)- Contract Version Contract No.W0062849 29
2.19 Design Management
(a) The PDMP must manage the design components of the Portfolio with the objective of optimising
the design outcomes for each Project in terms of cost, efficiency, timeliness, constructability,
flexibility, risk, whole-of-life, safety, compliance and fitness for purpose.
(b) The PDMP must review the Principal’s current design management processes and improve or
build a design management system for the Portfolio that effectively and efficiently manages
the production / review of performance requirements and / or technical criteria, including the
management of dam safety.
2.19.1 Design review requirements
(a) The PDMP must manage a series of formal collaborative design reviews with the Principal and
any relevant Authority at key decision points for each of the designs or when requested by the
Principal.
2.19.2 Design verification
(a) The PDMP must:
(i) identify the level and type of verification required for design pertaining to each Project in
the Portfolio;
(ii) ensure that the design verification addresses all aspects of the design before submission for
certification;
(iii) ensure that the design verification is carried out by suitably qualified and competent
persons who are independent of those having direct responsibility for the design
development works;
(iv) as part of the design verification process, ensure that, as a minimum, the following
requirements are satisfied;
A. compliance with this Services Brief,
B. compliance with all Law, Approvals, any other relevant documents, and
C. compliance with safety and sustainability obligations; and
(v) ensure that the complete records of the scope and outcomes of the design verification are
retained and signed off by the nominated verifier.
2.19.3 Design certification
(a) The PDMP must manage and coordinate submission of all design certificates to the Principal
and all other required Authorities.
Exhibit 2 (Services Brief)- Contract Version Contract No.W0062849 30
2.20 Construction
(a) The PDMP must provide construction management services and manage, control and
coordinate construction of the Projects in the Portfolio in conjunction with the Principal and
Contractors.
(b) The PDMP must act as the Principal’s representative in managing and providing oversight
during construction on any given Project or site.
(c) The PDMP must manage, control, co-ordinate and complete construction of all Project
elements in conjunction with consultants, Project Contractors, including the Works and
Temporary Works, property Works and utility Works.
(d) The PDMP must comply with the Construction Environmental Management Plan (CEMP)
prepared for any given Project and ensure that the Project Contractor understands its
obligations under the CEMP.
(e) The PDMP must provide contract management / administration services.
(f) The PDMP must ensure that all aspects of the Principal’s Safety Systems are adopted, as
applicable, including compliance with WHS Legislation.
(g) The PDMP must ensure that all investigation, design, construction, operations and maintenance
activities are entirely integrated and compatible and that together they mutually satisfy all the
requirements of each construction contract.
(h) The PDMP must manage tender processes for each Professional Services Agreement and
the Project Contractors as well as the PDMP’s administration of the same, including specific
obligations to review the cost plan and inform the Principal when cost issues or potential
cost issues arise.
2.21 Safety Management
2.21.1 General WHS
(a) The PDMP must comply with Clause 12.13 of the General Conditions of Contract.
(b) The PDMP must share the Principal’s commitment to protecting the health, safety and welfare
of all personnel involved in the PDMP Services and the Works, including others arising from the
performance of the PDMP Services and Works.
(c) The PDMP must provide visible leadership across the Portfolio, including identifying and
implementing meaningful safety culture improvements.
(d) The PDMP must:
Exhibit 2 (Services Brief)- Contract Version Contract No.W0062849 31
(i) ensure, as far as is reasonably practicable, the health and safety of workers, visitors and
others, including members of the public;
(ii) co-ordinate the performance of all PDMP Services and Works including how interfaces
between Contractors and their Works will be managed in accordance with the contracts;
(iii) consult, co-operate and co-ordinate its activities with others who have a work health and
safety duty, including with the Principal, the Professional Services Providers, Supply
Contractors and the Contractors;
(iv) consult and communicate with the Principal, the Professional Services Providers, Supply
Contractors and the Contractors to achieve positive outcomes for the resolution of health
and safety matters;
(v) ensure that workers are adequately trained, including by Contractors, to proactively identify
and control work health and safety risks so that such risks may be eliminated, and where this
is not reasonably practicable, minimised;
(vi) establish systems and procedures that adequately manage work health and safety risks in
accordance with the WHS Legislation, the Heavy Vehicle National Law and applicable
codes of practice and Australian Standards;
(vii) demonstrate visible safety leadership and create a strong safety culture that focuses on
exceptional health and safety performance;
(viii) promote safety innovation and wellbeing;
(ix) monitor, review and achieve continual improvement in health and safety performance;
and
(x) ensure that all Contractors demonstrate compliance with the matters set out in this section
2.21.1 (i) to (x), inclusive.
2.21.2 WaterNSW WHS Management System
(a) The PDMP must review and ensure that the Principal’s WHS Management System complies with
all Law concerning work health and safety, including WHS Legislation, and to make
recommendations as to the efficacy and support the existing system has in relation to the
Portfolio.
(b) The PDMP must make recommendations to the Principal for effective changes or
improvements.
Exhibit 2 (Services Brief)- Contract Version Contract No.W0062849 32
2.21.3 Principal Contractor WHS Management System
(a) The PDMP must ensure that all Contractors who are engaged by the Principal whether as a
Principal Contractor or otherwise:
(i) have and maintain a WHS management system which addresses, at a minimum the matters
set out in 2.21.1(i) to (x) inclusive;
(ii) develop, document and maintain a contract specific health and safety management plan
in accordance with any applicable guidelines published by WHS Legislation; and
(iii) regularly review and revise the health and safety management plan in accordance with
the WHS Legislation and any other Law concerning work health and safety, including the
Heavy Vehicle National Law, applicable codes of practice and Australian Standards
concerning work health and safety and rehabilitation management.
2.21.4 WHS Assurance
(a) The PDMP must regularly audit and monitor the WHS management system, as well as all
Contractors' WHS Management Systems and health and safety management plans, to ensure:
(i) that the WHS Management System and health and safety management plans comply with
the WHS Legislation and any other Law concerning work health and safety, including the
Heavy Vehicle National Law, applicable codes of practice and Australian Standards
concerning work health and safety and rehabilitation management; and
(ii) that all relevant parties comply with their respective obligations under the WHS
Management System and health and safety management plans.
(b) The PDMP must provide evidence of such auditing and monitoring to the Principal on request
by the Principal.
2.21.5 Emergency Response and Incident Management
(a) The PDMP must comply with the Principal’s Emergency Response and Incident Management
Plans.
2.22 Reporting
2.22.1 General
(a) This section details the requirements for monthly reporting, however, in addition to the following
sections 2.22.2 and 2.22.3, the PDMP must produce a summary monthly report in a dashboard /
pivot table format, or as otherwise directed by the Principal. Such summary Monthly Report will
be tabled at the JLT meetings.
Exhibit 2 (Services Brief)- Contract Version Contract No.W0062849 33
(b) Performance reporting may also be required at any time to inform a number of Stakeholders,
therefore, when requested, the PDMP must provide performance reporting to the Principal’s
Representative in the form requested, which may be used to inform, for example, but not
limited to:
(i) WaterNSW Executive and board;
(ii) INSW;
(iii) government ministers; and
(iv) Federal and State government agencies.
2.22.2 Monthly Report
The PDMP must:
(a) give a written monthly report to the Principal's Representative detailing progress. The written
report must contain such information and supporting evidence in relation to;
(i) the status and progress of the PDMP Services, the Portfolio and each Project,
(ii) the performance of the Works and the status of each Project Contract, including all reports,
claims and certificates submitted by a Contractor under a Project Contract,
(iii) the performance of the Works, and each Other Contractor, which has an impact on the
PDMP S.O. Budget,
(iv) a detailed reconciliation of costs incurred against the Approved Portfolio Budget and each
approved Services Order and / or PDMP S.O. Budget,
(v) a detailed reconciliation of any changes to the approved Portfolio program, and
(vi) any other matter or thing as is required by the Services Brief or the Principal's Representative;
(b) give the Principal's Representative;
(i) any report on any specific issue in connection with the performance of the PDMP Services,
the Works and the Project Contracts, and
(ii) any other periodic report that the Principal's Representative reasonably requires;
(c) promptly report all incidents, accidents, infringements and fines arising out of or in connection
with the Portfolio, a Project or the PDMP Services to the Principal's Representative;
(d) advise the Principal's Representative (in writing if the Principal's Representative directs) of
suitable courses of action in relation to any matters required by the Principal; and
(e) establish and maintain any records that the Principal's Representative reasonably requires.
Exhibit 2 (Services Brief)- Contract Version Contract No.W0062849 34
2.22.3 Specific requirements
(a) The PDMP must produce and submit the monthly report to the Principal in written and
electronic format no later than two (2) Business Days after the end of each Month, with effect
from the Commencement Date until end of the Contract.
(b) In respect of the first monthly report, if the Award Date is less than 20 Business Days prior to the
submission deadline required under section 2.22.1(a),the PDMP will not be required to produce
a monthly report in respect of that month and must submit the first monthly report no later than
two (2) Business Days after the end of the following month.
(c) Without prejudice to any other requirements in the Contract, each monthly report must set out
the progress of the PDMP Services, be in a format acceptable to the Principal and, as a
minimum, include:
(i) a management overview which addresses the overall progress of the Portfolio, key issues,
accomplishments, risks, opportunities and actions arising from the PDMP Services (including
those pertaining to safety, the environment, quality, Portfolio organisational structure and
staffing, workplace relations, Contractors, Professional Service Providers, procurement,
resourcing, contractual and financial issues and delays to progress), and the PDMP’s
response to these issues, including;
A. a detailed summary of safety issues including any workplace health and safety
incidents, accident statistics and man hours for each Professional Service Provider,
Contractor and the PDMP employees and the PDMP’s subsequent corrective action
taken to mitigate any issues,
B. a summary of all safety audits for the Portfolio (including the stage of Works pertaining to
any given Project – these may also include safety audits for environmental field studies,
geotechnical core drilling, surveying, etc),
C. a summary of interactions with any Authority including local government, authorities
and other major stakeholders, and
D. the commissioning and completion of the Works, including in relation to procurement
and performance;
(ii) stakeholder issues pertaining to property, authorities and utilities, including any complaints
received and actions arising;
(iii) details in relation to modern slavery obligations, including the necessary due diligence
undertaken along the Portfolio supply chain;
Exhibit 2 (Services Brief)- Contract Version Contract No.W0062849 35
(iv) a schedule of Approvals and the details of any key decisions or input required from The
Principal, including the timeframes for such decisions or input, for the upcoming reporting
period;
(v) the details of any incidents, the outcomes of all investigations into the incidents and the
PDMP’s subsequent corrective action taken to mitigate the relevant issues in relation to the
occurrence of the incidents;
(vi) any issues associated with the safety and maintenance during the PDMP Services;
(vii) any photographs of the progress of the PDMP Services taken during the reporting period;
(viii) the progress of gaining Approvals and other third-party approvals; and
(ix) all information required for the Principal to assess performance against the payment
schedule pertaining to Schedule 3 of the Contract (KPIs and Performance regime), for
example;
A. Pre-FBC S.O Performance Regime;
B. Post FBC S. O. Performance Regime; and
C. PMO Performance Regime.
(It is to be noted that any Early Works carried out during the Pre-FBC stage of a Project
would be addressed on a case by case basis and measured using the Post FBC S. O.
Performance Regime KRAs/KPIs and the Post FBC S.O. Cost Gainshare and Painshare
Regime).
2.23 Principal Supplied Items
The PDMP must note that the Principal will provide the items listed in Appendix D.
2.24 Modern Slavery
(a) The PDMP must assist the Principal to develop its ethical and sourcing policy as part of the work
associated with the Portfolio. Typically, modern slavery has many facets, these can be:
(i) unfree recruitment;
A. deceptive recruitment, when a person is recruited with false promises about work and
employment conditions, content or legality of employment contract, and
B. forced recruitment, when someone is forced to work for the employer against their will;
(ii) work and life under duress;
A. an excessive volume of work,
Exhibit 2 (Services Brief)- Contract Version Contract No.W0062849 36
B. tasks that are beyond what can reasonably be expected within the framework of
national labour law,
C. situations of coercion, degrading living conditions; limitations on freedom, and
D. forced overtime;
(iii) impossibility of leaving an employer;
A. being excessively dependent on one employer,
B. use of threat or financial penalty that make it impossible to leave, and
C. confiscation of identity papers/passport and travel documents.
(b) The PDMP must prepare a Portfolio statement, which documents how the PDMP will address
and monitor modern slavery.
(c) The PDMP must ensure that the supply chain is transparent and complies with the Principal’s
policy to increase awareness, reporting and target supplier engagement.
(d) The PDMP must ensure that suppliers are tracked based on “trade” and “non-trade” using due
diligence, for example, at the on boarding stage of a new supplier and updating existing
suppliers on ethical sourcing.
Exhibit 2 (Services Brief)- Contract Version Contract No.W0062849 39
Appendix C – Draft Services Order Proposal Process
This Appendix describes the Draft Services Order Proposal Process to become an accepted Services Order for a Project.
Figure 1 - Draft Services Order Proposal Process
Figure 1 - Determination of PMO Performance Amount
With a:
(a) PMO Performance Amount being payable by the Principal to the PDMP inthe event that the KRA performance score is in the range of ≥ 0.00 to ≤ 1.00;
(i) up to a maximum value of the PDMP PMO Profit; and
(ii) calculated on the relationship between the KRA performancescore and the PDMP PMO Profit, as shown in Figure 1 above.
(b) PMO Performance Amount being payable by the PDMP to the Principal inthe event that the KRA performance score is in the range of < 0.00 to ≥ -1.00;
(i) up to a maximum value of the PDMP PMO Profit; and
(ii) calculated on the relationship between the KRA performancescore and the PDMP PMO Profit, as shown in Figure 1 above.
3. Services Order Performance Regimes
3.1 Pre-FBC Services Order Regime
The Pre-FBC Performance KRAs and KPIs are set out in Schedule 3 (KPIs andPerformance regime).
Each KPI will be assessed and scored from -10 to +10 to reflect actual performanceagainst the performance characteristics in Schedule 3 (KPIs and Performance regime)Table 1. These scores will be multiplied by the respective weighting for each KPI toprovide an overall weighted score out of -10 to +10. The overall weighted score willthen be divided by 10 to provide a converted overall points score between -1.00 foran unsuccessful characteristic, 0.00 for a normal characteristic and +1.00 for anexcellent characteristic, and aggregated to a weighted overall score for
performance in the range between -1.00 for an unsuccessful characteristic, 0.00 for a normal characteristic and +1.00 for an excellent characteristic.
Pre-FBC S.O. Performance Amount is calculated as the value of the Services Order Profit multiplied by the overall performance score, as shown in Figure 2 below.
Figure 2 - Determination of Pre-FBC S.O. Performance Amount
With;
(a) Pre-FBC S.O. Performance Amount being payable by the Principal to thePDMP in the event that the KRA performance score is in the range of ≥ 0.00to ≤ 1.00:
(i) up to a maximum value of the Services Order Profit; and
(ii) calculated on the relationship between the KRA performancescore and the Services Order Profit, as shown in the above graph.
(b) Pre-FBC S.O. Performance Amount being payable by the PDMP to thePrincipal in the event that the KRA performance score is in the range of <0.00 to ≥ -1.00:
(i) up to a maximum value of 50% of the Services Order Profit; and
(ii) calculated on the relationship between the KRA performancescore and the Services Order Profit, as shown in Figure 2 above.
3.2 Post-FBC Services Order Performance Regime
The Post-FBC Performance KRAs and KPIs are set out in Schedule 3 (KPIs and Performance regime).
Each KPI will be assessed and scored from -10 to +10 to reflect actual performance against the performance characteristics in Schedule 3 (KPIs and Performance regime) Table 2. These scores will be multiplied by the respective weighting for each KPI to provide an overall weighted score out of -10 to +10. The overall weighted score will then be divided by 10 to provide a converted overall points score between -1.00 for an unsuccessful characteristic, 0.00 for a normal characteristic and +1.00 for an excellent characteristic, and aggregated to a weighted overall score for performance in the range between -1.00 for an unsuccessful characteristic, 0.00 for a normal characteristic and +1.00 for an excellent characteristic.
Post-FBC S.O. Performance Amount is calculated as the value of the Services Order Profit multiplied by the overall performance score, as shown in Figure 3 below.
Figure 3 - Determination of Post-FBC S.O. Performance Amount
With;
(a) Post-FBC S.O. Performance Amount being payable by the Principal to thePDMP in the event that the KRA performance score is in the range of ≥0.00 to ≤ 1.00;
(i) up to a maximum value of the Services Order Profit; and
(ii) calculated on the relationship between the KRA performancescore and the Services Order Profit, as shown in Figure 3 above.
(b) Post-FBC S.O. Performance Amount being payable by the PDMP to thePrincipal in the event that the KRA performance score is in the range of <0.00 to ≥ -1.00 the PDMP:
(i) up to a maximum value of the Services Order Profit; and
(ii) calculated on the relationship between the KRA performancescore and the Services Order Profit, as shown in Figure 3 above.
4. Worked examples
The parties acknowledge and agree that the following worked examples of the above Painshare / Gainshare Regimes, using hypothetical inputs, are included overleaf for guidance purposes only and do not constitute part of the Contract:
(a) PMO Performance Regime (gainshare);(b) Pre-FBC Performance Regime (painshare);(c) Post-FBC Performance Regime; and(d) Post-FBC Cost Painshare / Gainshare Regime.
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L\335132745.19 222
Exhibit 4 Chargeable Rates
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L\335132745.19 223
Exhibit 5 Pre-existing Draft Services Order Proposals
WaterNSW PDMP RFT Appendix C Dungowan Dam DSO| Page 3
Table of Contents 1 THIS SERVICE ORDER PROPOSAL ..................................................................................................................................... 4 2 BASIS OF REQUIREMENTS FOR THE SERVICES ............................................................................................................ 5
2.1 Background ............................................................................................................................ 5 2.2 Status of the project .............................................................................................................. 5 2.3 Requirements of the services ................................................................................................ 6
3 PROJECT UNDERSTANDING ................................................................................................................................................. 7 3.1 Approaches to meeting milestones ....................................................................................... 7 3.2 Project schedule and critical path ......................................................................................... 7 3.3 Other project interfaces ......................................................................................................... 8 3.4 Critical success factors for pre-FBC services ...................................................................... 8 3.5 Risk and opportunity management ........................................................................................ 9 3.6 Stakeholders and service providers .................................................................................... 10
4 DELIVERY TEAM ...................................................................................................................................................................... 10 5 THE SERVICES ......................................................................................................................................................................... 16
5.1 Fast start: the 100-day plan ................................................................................................. 18 5.2 Project management, monitoring and reporting ................................................................. 22 5.3 Business case development management .......................................................................... 23 5.4 Engineering management .................................................................................................... 30 5.5 Environmental approvals management ............................................................................... 38 5.6 Land acquisition management............................................................................................. 45 5.7 Procurement services .......................................................................................................... 51 5.8 Construction management services .................................................................................... 55 5.9 Stakeholder and community engagement support .............................................................. 57
6 COMMERCIAL ARRANGEMENTS ........................................................................................................................................ 59 6.1 Resource commitments ....................................................................................................... 59 6.2 Services fee ......................................................................................................................... 59 6.3 Key Performance Indicators ................................................................................................ 59
7 IMPACTS TO THE PORTFOLIO MANAGEMENT PLAN .................................................................................................. 61 ATTACHMENT A – PROJECT SCHEDULE AND RATIONALE ............................................................................................... 62 ATTACHMENT B – RISK AND OPPORTUNITY ASSESSMENT ............................................................................................. 70
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