Project Alliance Agreement
(Swan River Pedestrian Bridge)
Contract No. 26/13
Commissioner of Main Roads
York Civil Pty Ltd and Rizzani de Eccher Australia Pty Ltd together forming the Rizzani York Joint Venture
Rizzani de Eccher SpA
Ian Stanley Tarbotton
Domenico Marc Vieceli
813400R8
Project Alliance Agreement
Table of Contents
1. Definitions and Interpretation 2 1.1 Definitions 2 1.2 Interpretation 12 1.3 References to Main Roads and the Owner Participant 14 1.4 Business Day 14 1.5 Ambiguity, discrepancy and inconsistency 14 1.6 Provision of information and documentation by the Participants 14 1.7 Order of precedence 14 2. Alliance Principles, Purpose, and Objectives and Non-Owner Participant Obligations 15 2.1 Alliance Principles and Purpose 15 2.2 Project Objectives 15 2.3 Non-Owner Participant Obligations 15 3. Commitments 15 3.1 Good Faith 15 3.2 Privilege 16 3.3 Results orientated 16 3.4 Best For Alliance 16 3.5 Open book commitment 16 3.6 Commitment to “no-blame” culture 16 4. Avoidance of issues between the Participants 17 4.1 No litigation or arbitration 17 4.2 Immediate notification of possible issue 17 4.3 Saving of certain legal and equitable rights 17 5. Alliance Board 18 5.1 Establishment and composition 18 5.2 Chairperson 18 5.3 Functions and responsibilities 18 5.4 Representatives authorised to bind Participant 18 5.5 Meetings 18 5.6 Decisions 19 5.7 Compliance with decisions 19 5.8 Disclosure of conflict of interest 19 5.9 Main Roads’ Reserved Powers 20 6. Alliance Director, Alliance Management Team and Alliance Project Team 20 6.1 Alliance Director – appointment and functions 20 6.2 Alliance Management Team – selection and endorsement 20 6.3 Change in membership of Alliance Management Team 21 6.4 Alliance Project Team 21
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page (i)
Project Alliance Agreement
6.5 Change in membership of Alliance Project Team 21 6.6 Project office 21 7. Non-Owner Participant's Warranties 22 7.1 General warranties 22 7.2 Site and information warranties 23 7.3 Reliance by Main Roads 24 7.4 Continuing warranties 24 8. Project Plans and Design 24 8.1 Project Management Plan for the Works 24 8.2 Non-Owner Participant's design obligations 25 8.3 Design development 25 8.4 Preparation of Design Documentation 26 8.5 Design warranties 28 8.6 Minimum Requirements under SWTC 28 8.7 Design Verifier 28 8.8 Delivery up of Project Documentation 29 8.9 Site responsibilities 29 9. Direct Cost Target 29 9.1 Direct Cost Target 29 9.2 New Site development of the Direct Cost Target component 30 10. Timing 30 10.1 Completion 30 10.2 Extension of time 31 11. Practical Completion 31 11.1 Definition of Practical Completion 31 11.2 Issue of Certificate of Practical Completion 32 11.3 Disagreement whether Practical Completion reached 32 11.4 Certificate does not constitute approval 32 12. Final reconciliation and Final Certificate 32 12.1 Issue of Final Certificate 32 12.2 Content of Final Certificate 32 12.3 Payment under Final Certificate 33 12.4 Disagreement over contents of Final Certificate 33 12.5 Certificates evidence of completion 33 13. Construction of the Works 33 13.1 Standard of work 33 13.2 Authorisations for construction 34 13.3 Responsibility for Separable Portions 34 13.4 Maintenance 34 13.5 Not used 34 13.6 Defects 34 14. Directions, Scope Changes and changes to funding 35 14.1 Directions 35
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page (ii)
Project Alliance Agreement
14.2 Scope Change 36 14.3 Endorsement by Main Roads 36 14.4 Change in funding 37 15. Site 37 15.1 Site 37 15.2 New Site 37 15.3 Demobilisation from the Stadium Site 37 16. Policies, procedures and Project Management System 38 16.1 Subcontracts 38 16.2 Subcontracts with associated person needs Alliance Board approval 38 16.3 Compliance with Statutory Requirements 38 16.4 Not used 39 16.5 Protection of people and property 39 16.6 Purchase of Materials 39 16.7 Project Management System 40 16.8 Native Title Claim, Aboriginal heritage and employment 40 16.9 Project Industry Participation Plan 41 16.10 Industrial Relations Management Plan 41 17. Payments 42 17.1 General 42 17.2 Acknowledgement 42 17.3 Project Bank Account 42 17.4 Procedure for payment 42 17.5 Payment not evidence 43 17.6 Overpayments and underpayments 43 17.7 Payment of Subcontractors 43 17.8 Construction Contracts Act 2004 43 17.9 Unfixed Materials 44 17.10 Goods and Services Tax (GST Exclusive Prices) 44 18. Reports, records, access and audit 45 18.1 Reports 45 18.2 Alliance records 45 18.3 State records 46 18.4 Access 46 18.5 Audit 46 19. Insurance 47 20. Not used 47 21. Review of insurances and Insurance Risk Management Plan 47 21.1 Review of Insurances 47 21.2 Decision to be made by Alliance Board 47 21.3 Implementation of recommendations 47 21.4 Insurance Risk Management Plan 48
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page (iii)
Project Alliance Agreement
22. Indemnities 48 22.1 Non-compliance with insurance requirements 48 22.2 Wilful Default 48 22.3 Proportionate liability 49 22.4 Insurance obligations are primary 49 22.5 References to the Non-Owner Participant 49 22.6 General indemnity 49 22.7 Intellectual property indemnity 50 22.8 Apportionment of liability 50 22.9 Enforcement of indemnity 50 22.10 Conduct of litigation 50 22.11 Release of State Entities in respect of access roads 50 22.12 Interests of the State Entities 51 22.13 Indemnity re Demobilisation from the Stadium Site 51 23. Limits of liability 51 23.1 Total liability of Non-Owner Participants to Main Roads 51 23.2 Total Liability of Covenators 51 23.3 Total liability of Main Roads to Non-Owner Participants 52 23.4 No liability for Consequential Loss 52 23.5 Exclusion of Civil Liability Act 52 24. When limits of liability do not apply 52 24.1 Wilful default 52 24.2 Failure to comply with insurance obligations 52 24.3 Non-payment of Excluded Amounts 53 24.4 Limits of liability are separate from limits under the risk/reward regime 53 25. Suspension 53 25.1 Suspension by the Participants 53 25.2 Suspension by Main Roads 53 25.3 Suspension costs 54 25.4 Recommencement 54 26. No fault termination 54 26.1 No fault termination 54 26.2 Termination payment 54 27. Termination for default and repudiation 55 27.1 Events of Default 55 27.2 Defaulting Participant 55 27.3 Failure to remedy 55 27.4 Exclusion from further participation in this Agreement 56 27.5 Loss and damage 57 28. Consequences of termination 57 28.1 Termination 57 28.2 Work to cease 57 28.3 Consequences of notice of termination 57 28.4 Works continuation 58 Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page (iv)
Project Alliance Agreement
29. Security 58 29.1 Performance bonds 58 29.2 Costs of establishing security 60 29.3 Covenantor's Obligations 60 30. Force Majeure 63 30.1 Definition of Force Majeure Event 63 30.2 Effect of Force Majeure Event 64 31. Intellectual Property 65 31.1 Ownership of and licences to use Intellectual Property 65 31.2 IP warranties 65 31.3 Obligations 66 31.4 Saving 67 32. Notices 67 32.1 All Notices 67 32.2 Notices by email 68 32.3 Receipt of Notices sent by email 68 33. General 68 33.1 Governing law and jurisdiction 68 33.2 Invalidity and enforceability 68 33.3 Waiver 69 33.4 Amendments 69 33.5 Entire agreement 69 33.6 Counterparts 69 33.7 No Assignment 69 33.8 Confidentiality 69 33.9 Relationship of the Participants 70 33.10 Corporate power and authority 70 33.11 Financial difficulties 70 33.12 Change in Control 71 33.13 Main Roads’ statutory functions 71 33.14 Survival 71 33.15 Costs 71 33.16 Media, advertising and public statements 71 34. Personal Property Securities Act 72 34.1 Meanings of terms 72 34.2 PPSA further steps 72 34.3 Provision of information 72 34.4 PPSA requirements 72 34.5 PPSA exclusions 73
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page (v)
Project Alliance Agreement
Schedule 1 – Alliance Framework 74 Schedule 2 – Termination payment 78 Schedule 3 – Direct Costs 82 Schedule 4 – Performance Payment 90 Schedule 5 – Not Used 92 Schedule 6 – Participants’ contact details 93 Schedule 7 – Not Used 95 Schedule 8 – Main Roads’ Representative 96 Schedule 9 – Scope Changes 98 Schedule 10 – Not Used 100 Schedule 11 – Payment Procedures 101 Schedule 12 – Form of Statutory Declaration 105 Schedule 13 – Not Used 106 Schedule 14 – Issues Resolution Procedures 107 Annexure A – Stadium Site and Demobilisation Scope 108 Annexure B – Insurances 114
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page (vi)
Project Alliance Agreement
Date
Parties
6. Commissioner of Main Roads of Waterloo Crescent, East Perth, Western Australia (Main Roads)
7. York Civil Pty Ltd, ABN 65 050 019 960, of 27 Tikalara Street, Regency Park, South Australia (York) and Rizzani de Eccher Australia Pty Ltd, ABN 80 147 862 897 of Level 2, 139 Frome Street, Adelaide, South Australia (Rizzani) together forming the "Rizzani York Joint Venture" (Contractor)
8. Rizzani de Eccher SpA, Via Buttrio, 36 Frazione Cargnacco, 33050 Pozzuolo del Friuli (UD) Italy (Covenantor)
9. Ian Stanley Tarbotton, c/o 27 Tikalara Street, Regency Park, South Australia (Covenantor)
10. Domenico Marc Vieceli, c/o 27 Tikalara Street, Regency Park, South Australia (Covenantor)
Recitals
F Prior to the Effective Date, the Contractor completed the Completed Works under the Original Project Deed and engaged with Main Roads to agree an amendment to the contractual arrangement for the remaining Project Works.
G On 23 June 2017, Main Roads and the Contractor entered into a Memorandum of Understanding setting out the proposed key terms in relation to settlement of certain Claims, the terms to govern the Completed Works, for demobilisation from the Stadium Site and the Works to be completed under a hybrid project alliance.
H In August 2017, the parties entered into a Deed of Settlement, Amendment and Restatement under which: (1) the Original Project Deed was amended and restated on the terms of this Agreement; (2) certain Claims were settled; and (3) the terms of the Original Project Deed were preserved to continue to apply to the Completed Works.
I In consideration of, among other things, the mutual promises contained in this Agreement, the Participants agree as set out in the operative part of this Agreement.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 1
Project Alliance Agreement
It is agreed as follows.
1. Definitions and Interpretation
1.1 Definitions
The meanings of the terms used in this Agreement are set out below. Aboriginal Engagement Strategy means the Aboriginal engagement strategy relating to the new Perth Stadium Project, the draft of which is set out in Appendix 31 of the SWTC.
Aboriginal Heritage Management Plan means the plan of that name, the draft of which is set out in Appendix 31 to the SWTC.
Aboriginal Site means any place, site or thing to which the Aboriginal Heritage Act 1972 (WA) applies or might reasonably be expected to apply.
Aboriginal Heritage means a place, object, remain or any other thing that is of significance to Aboriginal persons in accordance with their practices, observances, customs, traditions, beliefs or history and includes any Aboriginal Site and any place or object or thing that is subject to protection under the Environment Protection and Biodiversity Conservation Act 1999 (Cth), the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) or the Aboriginal Heritage Act 1972 (WA).
Action is defined in clause 5.8(a).
Act of Parliament means all Acts of the Parliament of the Commonwealth, and of the State of Western Australia and includes any ordinance, rule, regulation, by-law, local law, order, code of practice, guideline, instruction and proclamation made or issued under any such Act now in existence or which comes into existence during the Alliance Term.
Actual Direct Cost means the total verified sum of all Direct Costs reasonably and actually incurred by the Participants on or before the Completion Date, except for amounts specifically excluded under this Agreement. Adjudicator means the independent person appointed under clause 2 of Schedule 2.
Advance Payment Amounts is defined in clause 3(c) of Schedule 11. Agreement means this Project Alliance Agreement (Swan River Pedestrian Bridge), including all schedules and annexures, being the Original Project Deed as amended and restated with effect on and from the Effective Date by the Deed of Settlement, Amendment, and Restatement – Swan River Pedestrian Bridge Design & Construct Project Deed.
Alliance Board means the alliance board established under clause 5.1. Alliance Director means the person specified in clause 6.1 or any other person appointed by the Alliance Board as the alliance director for the purposes of this Agreement from time to time.
Alliance Management Team means the alliance management team to be established under clause 6.2.
Alliance Principles are set out in Schedule 1.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 2
Project Alliance Agreement
Alliance Project Team means the group of people to be selected by the Alliance Director under clause 6.4 as the alliance project team for the alliance.
Alliance Purpose is set out in Schedule 1. Alliance Term means the period from the Effective Date until (subject to clause 33.14):
(a) payment is made in accordance with clause 12.3 by Main Roads or the Non-Owner Participant, as the case may be, on the Final Certificate; or (b) termination of this Agreement under clause 26, 27 or 30.2(b)(iii) or otherwise under this Agreement. Alliance Vision is set out in Schedule 1.
Amendment and Restatement Date means the date that the parties entered into the Deed of Settlement, Amendment, and Restatement – Swan River Pedestrian Bridge Design & Construct Project Deed.
Authorisation means any consent, registration, filing, agreement, notarisation, certificate, licence, approval, permit, authority or exemption from, by or with a Government Agency or a Third Party, and any renewal of, or variation to, any of them. Authority means any: (a) government or government department;
(b) local government authority;
(c) government or statutory authority; or (d) other person (whether autonomous or not) who is charged with the administration of a Law, (excluding Main Roads).
Best For Alliance means an action, approach, decision, determination, method, process, answer, solution, interpretation, outcome, resolution or the like that is consistent with and serves the Alliance Principles, Alliance Purpose, Alliance Vision and Project Objectives.
Best Practice means work practices and methodologies that reflect the highest practicable standards recognised by the applicable industry from time to time, together with that degree of skill, diligence, prudence and foresight which would from time to time be expected of skilled and competent contractors engaged in undertakings of a similar type as the Project Works in connection with projects of a similar character, size and complexity to the Project.
Business Day means a day that is not a Saturday, Sunday or public holiday in Perth, Western Australia and does not include 27, 28, 29, 30, and 31 December (unless a clause expressly refers to a Business Day in another location).
CCA means the Construction Contracts Act 2004 (WA). Certificate of Practical Completion is defined in clause 11.2(b). Change in Control means in respect of an entity, a change in the persons who, directly or indirectly, control that entity. For the purposes of this definition, the term control (including the terms controlled by and under common control with) has the same meaning as in the Corporations Act.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 3
Project Alliance Agreement
Claim means a demand, action or proceeding of any nature (including by way of contribution or indemnity) whether actual or threatened and includes any claim for payment of money (including damages):
(a) under, arising out of, or in any way in connection with, this Agreement, including any Direction of Main Roads' Representative; (b) arising out of, or in any way in connection with, the Project, the Project Works or a party’s conduct before this Agreement; or (c) arising otherwise under Law including: (i) by statute;
(ii) in tort for negligence or otherwise, including negligent misrepresentations; or (iii) for restitution. Completed Works means that portion of the Project Works that has been completed and delivered by the Effective Date, pursuant to the Original Project Deed as evidenced by Main Roads' records.
Completed Works Payment means the Completed Works Payment under the Deed of Settlement, Amendment, and Restatement – Swan River Pedestrian Bridge Design & Construct Project Deed.
Completion Date means the completion date of the Works specified in the Final Certificate. Completion Payment has the meaning given in clause 3.1 of Schedule 4. Consequential Loss means loss of production, loss of revenue, loss of profit or anticipated profit, loss of business reputation, loss of use, business interruptions of any nature or wasted overheads. Construction Plant means apparatus, facilities, plant, equipment and machinery used in carrying out the Works but not forming part of the completed Works.
Corporations Act means the Corporations Act 2001 (Cth). Cost Performance Amount is the payment, if any, to the Non-Owner Participant by Main Roads or to Main Roads by the Non-Owner Participant (as the case may be) for performance by the Participants in the area of Direct Costs underrun or overrun which will be calculated in accordance with the cost performance payment methodology set out in clause 2 of Schedule 4. D&C Program is defined in clause 8.1(a)(i). Date for Practical Completion means:
(a) in respect of Separable Portion 1, on or before 11 May 2018; and (b) in respect of Separable Portion 2, on or before 16 March 2018, as may be revised in accordance with this Agreement. Date of Practical Completion means the date of Practical Completion specified in the Certificate of Practical Completion. Defaulting Participant is defined in clause 27.1. Defect means any error, omission, defect, non-conforming item, deficiency or discrepancy in any part of the Works as compared against the requirements of this Agreement, including any part of the Works that does not comply with the SWTC, identified on or after the Date of Practical Completion.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 4
Project Alliance Agreement
Defects Correction Period means: (a) in respect of:
(i) Separable Portion 1, subject to paragraph (a)(iii) below, the period commencing from the Date of Practical Completion of Separable Portion 1 and ending on the third anniversary of that date; (ii) the Works (other than Separable Portion 1, the Service Works and the Local Road Works), subject to paragraph (a)(iii) below, the period commencing from the Date of Practical Completion of Separable Portion 2 and ending on the seventh anniversary of that date; and
(iii) a further defects correction period for any Defect notified or rectified during the last year of any period referred to in paragraph (a)(i) or (a)(ii) above or within any further period(s) under this paragraph (a)(iii), that begins on the date of completion of that rectification work as notified by Main Roads and ends 12 months from that date;
(b) in respect of each discrete part of the Service Works, 12 months commencing from the date the relevant owner of the Utility Service gives written notice to the Non-Owner Participant that the work is complete;
(c) in respect of Local Road Works, 12 months commencing from when the relevant works are complete.
Delivery Objectives are set out in Schedule 1.
Design means such design, conceptual design, design development and Design Documentation provided in accordance with this Agreement, including as provided prior to the Effective Date.
Design Documentation means all design documentation (including specifications, models, calculations, material test results, drawings and Design Verifier's models, calculations and reports at 15%, 85% and final stages), that the Non-Owner Participant or any other person creates in respect of the Project (including the design of Temporary Works), whether in computer readable, written or any other form. Design Verifier is each design verifier specified below or as otherwise engaged by the Non-Owner Participant with the prior approval of Main Roads: (a) structural design: Mott McDonald;
(b) geotechnical design: Coffey; and
(c) waterways and drainage design: Mott McDonald. Difference Amount is defined in clause 5(a) in Schedule 11. Diligence means the exercise of the degree of skill, expertise, diligence and foresight which would from time to time be expected of skilled and experienced professional persons engaged in undertakings of a similar type as the Works.
Direction is restricted to a direction, certificate, decision, demand, determination, instruction, notice, order, rejection or requirement of Main Roads’ Representative and Direct has a corresponding meaning.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 5
Project Alliance Agreement
Direct Cost Target is $42.4 million plus the New Site Costs, and as may be adjusted in accordance with clause 9.
Direct Costs is defined in Schedule 3. Effective Date means 23 June 2017.
Entitlement Amount is defined in clause 5(a) in Schedule 11. Environment has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999 (Cth).
Excluded Amounts means any:
(a) Direct Costs reimbursable under clause 17.1; (b) Cost Performance Amount or Completion Payment payable under clause 17.1 and Schedule 4; and
(c) amount required to be paid by Main Roads to the Non-Owner Participant, or the Non- Owner Participant to Main Roads (as the case may be) under clauses 17.6 and 26.2 and Schedule 2. Excluded Representative is defined in clause 5.8(c).
Expert means a person appointed by the Alliance Board and who: (a) has reasonable qualifications and commercial and practicable experience in the area of the dispute;
(b) has no interest or duty which conflicts or may conflict with his or her functions as an Expert (unless all Participants waive this requirement); and (c) is not a present (or within the previous five years a past) employee, contractor or consultant to any of the Participants or their respective Related Body Corporate (unless all Participants waive this requirement).
Final Certificate is defined in clause 12.1. Fit for Purpose means satisfaction of each of the purposes, objectives, functions, uses and requirements for which the Project Works are required by Main Roads, as contained in this Agreement or reasonably inferred from this Agreement. Force Majeure Event is defined in clause 30.1.
Good Faith is defined in clause 3.1(a). Government Agency means any government or governmental, semi-governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, government minister, agency or entity. GST Exclusive Consideration is defined in clause 17.10. Indemnified Party means the State Entities and the State's Personnel.
Insolvency Event means if a Participant or, in the case of the Non-Owner Participant, the Non- Owner Participant, York or Rizzani:
(a) informs another Participant or creditors generally that it is insolvent;
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 6
Project Alliance Agreement
(b) has a meeting of its creditors called with a view to: (i) entering a scheme of arrangement or composition with creditors; or
(ii) placing the Participant under official management; (c) enters a scheme of arrangement or composition with creditors; (d) is subject to a resolution passed at a meeting of its creditors to place it under official management;
(e) is placed under official management; (f) has a controller (as that term is defined in the Corporations Act) of its property or part of its property appointed;
(g) is the subject of an application to a court for its winding up, which application is not stayed within 10 Business Days;
(h) has a winding up order made in respect of it; (i) has an administrator appointed under section 436A, 436B or 436C of the Corporations Act; (j) enters into voluntary liquidation;
(k) fails to comply with a statutory demand issued under section 459E of the Corporations Act, unless the demand is set aside by a court within 10 Business Days; or (l) has execution levied against it by creditors, debenture holders or trustees or under a floating charge.
Insurance Risk Management Plan is defined in clause 21.4. Intellectual Property means all Intellectual Property Rights in or in relation to the Project, including in or in relation to the Project Works, the Site and the Service Works. Intellectual Property Rights means any industrial and intellectual property rights, subsisting anywhere in the world, which are capable of protection by statute, at common law or in equity, including all registered and unregistered copyright and similar rights that may subsist, or may after the date of this Agreement subsist, in works or other subject matter, rights in relation to inventions (including all patents, patent applications and utility models), rights in relation to confidential information, trade secrets, Technical Information and Know How, rights in relation to designs (whether or not registrable), rights in relation to registered and unregistered trademarks, rights in relation to circuit layout designs, and any applications and the right to apply for registration of any of the above any renewals and extensions of those rights, but exclude Moral Rights, and similar personal rights of authors, that by law are non assignable.
Know How means information, know how and techniques (whether or not confidential and in whatever form held) including formulae, discoveries, design specifications, drawings, data, manuals and instructions, customer lists, sales marketing and promotional information, business plans and forecasts, and technical or other expertise.
KRA means Key Result Area in respect of health and safety, quality, timeliness, cost and social. Latent Conditions means the physical conditions on and off the Site including the weather, soil and rock conditions, surface water, groundwater, geotechnical conditions, contamination, Pollution and artificial things. Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 7
Project Alliance Agreement
Law means any of the following: (a) Commonwealth, Western Australian or local government legislation including regulations, by-laws and other subordinate legislation; (b) Authorisations from, by or with a Government Agency; and
(c) common law. Licence means a licence, approval or consent granted to a Participant under a Statutory Requirement which is necessary to enable the Project to be delivered.
Local Road Works are the construction, modification, reinstatement and improvement of Nelson Avenue, Nile Street and Victoria Park Drive.
Loss means:
(a) any cost, expense, loss, personal injury (including illness), death or damage or liability of any kind; and (b) in relation to a Claim, includes amounts payable on the Claim and (whether or not the Claim is successful) legal costs and disbursements on a full indemnity basis. Main Roads' Personnel means Main Roads' employees, agents, consultants and contractors, including Main Roads' Representative, but excluding the Non-Owner Participant and the Non- Owner Participant's Personnel.
Main Roads' Representative is defined in clause 1.3(b).
Main Roads’ Reserved Powers means the reserved powers set out in clause 5.9(a). Materials means materials, plant, machinery, equipment, products, processes and other things used by the Participants in carrying out, or for incorporation in, the Works.
Month means calendar month. Moral Rights means the same as it means in the Copyright Act 1968 (Cth). Native Title means:
(a) the communal, group or individual rights and interests of Aboriginal people in relation to land; and (b) the rights and interests covered by the expression “native title” or “native title rights and interests” in the Native Title Act 1993 (Cth).
Native Title Claim means an application for determination of Native Title, in respect of all or any portion of the Site, made pursuant to: (a) the Native Title Act 1993 (Cth); (b) any Western Australian statute governing Native Title; or
(c) the common law of Australia in respect of Native Title, whether that application is made in the National Native Title Tribunal or other tribunal or court of competent jurisdiction (or any court with jurisdiction to hear appeals from that tribunal or court).
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 8
Project Alliance Agreement
new Perth Stadium Project means the State of Western Australia’s project to procure the design and construction of a new sports stadium on the Burswood Peninsula, including all associated and ancillary works.
New Site means the new site outside of the current Site to be established by the Participants to facilitate assembly of the steel components and erection of the bridge superstructure. New Site Costs means the Direct Cost Target component for the New Site Works derived pursuant to clause 9.2. Non-Owner Participant means the Contractor. Non-Owner Participant's Obligations means all of the obligations of the Non-Owner Participant under this Agreement. Non-Owner Participant's Personnel means the Non-Owner Participant's, and each of York and Rizzani's, directors, officers, employees, agents, consultants and contractors, and all employees, agents, consultants and contractors of the Non-Owner Participant's contractors.
Notice is defined in clause 32.1. Owner Participant means Main Roads, in its capacity as a Participant to the project alliance for the delivery of the Works.
Original Project Deed means the Swan River Pedestrian Bridge Design & Construct Project Deed including the Scope of Works and Technical Criteria entered into by the parties on 25 May 2015 (as varied by the parties pursuant to its terms) in force on the day prior to the Effective Date.
Participants means the Owner Participant and the Non-Owner Participant. Participant means either the Owner Participant or the Non-Owner Participant, as the context requires. Performance Payment means a payment to the Non-Owner Participant by Main Roads or to Main Roads by the Non-Owner Participant (as the case may be) for performance by the Participants in the areas of:
(a) Direct Costs underrun or overrun; and (b) timely Practical Completion. PMP means the Project Management Plan for the Works. PPSA means the Personal Property Securities Act 2009 (Cth).
Pollution means any unauthorised discharge or deposit of waste into the Environment. Practical Completion is defined in clause 11.1. Project means: (a) the design and construction of the Project Works; (b) the maintenance of the Project Works as contemplated in this Agreement; and
(c) any other activities to be carried out under this Agreement. Project Bank Account means the bank account referred to in clause 17.3(a).
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 9
Project Alliance Agreement
Project Documentation means all documentation (including the Design Documentation and any documentation containing Provided Information), whether in computer readable, written or any other form, created by the Non-Owner Participant or any other person in connection with the Project, which contains Technical Information relating to the Project, the Site or the Project Works. Project Management System is defined in clause 16.7. Project Objectives are set out in Schedule 1.
Project Works means the Completed Works and the Works. Provided Information means any Technical Information, or any other information of any kind about the Project, provided or made available by Main Roads or anyone on its behalf to the Non-Owner Participant before, on or after the date of this Agreement, including the reference information listed in, or otherwise provided as part of, the Invitation for Expressions of Interest to Become a Proponent and the Request for Proposals (as defined in the Original Project Deed). Record Keeping Code is defined in clause 18.3(b).
Related Body Corporate has the meaning given to that term in the Corporations Act. Relevant Period means the period commencing on the Effective Date and ending on: (a) a date agreed by the Alliance Board; or (b) failing agreement, the date necessary to ensure that all Participants comply with any Statutory Requirement relating to record keeping. Risk and Contingency Provisions or RCP means the provision for all possible Direct Costs associated with the likelihood of risks and opportunities that may arise in carrying out the Works including items such as Latent Conditions, rise and fall events, directions by Main Roads in accordance with clause 14.1 (excluding Scope Changes), foreign exchange fluctuations, cost of living increases, uncertainty of costs of Utility Services relocation, costs of coordinating the Works with other works and services undertaken by Main Roads or its contractors (other than the Non- Owner Participant) and the cost of rectifying any Defects.
Scope Change is defined in clause 14.2(a). Separable Portion means Separable Portion 1 or Separable Portion 2. Separable Portion 1 means Separable Portion 1, more particularly described in the SWTC.
Separable Portion 2 means Separable Portion 2, more particularly described in the SWTC.
Service Works are the modification or relocation of Utility Services. Shared Site Access Protocol means the Protocol as defined in the Original Project Deed. Site means the Site as defined in the Original Project Deed and includes the New Site.
Stadium Site means the area to the east of the 'Alliance Western Fenceline' on the eastern wharf layout plan in Annexure A to this Agreement. State Entities means the State of Western Australia and any entity, department, agency or instrumentality of the State of Western Australia (including Main Roads and the Public Transport Authority), and any Minister (including the Minister for Transport and Minister for Works), whether
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 10
Project Alliance Agreement
body corporate or otherwise and their respective employees, agents, contractors and consultants, and the term State Entity means any one of them.
State's Personnel means the officers, employees, agents, consultants and contractors (other than the Non-Owner Participant), engaged by any of the State Entities in respect of the Project or the new Perth Stadium Project. Statutory Requirements includes:
(a) Acts of Parliament; (b) Authorisations; (c) directions given under a statutory power which affect the performance of the Works; and
(d) all other laws, regulations, conventions, orders, directions, guidelines and policies given by or on behalf of any Government Agency which may apply to the Works. Stipulation is defined in clause 27.2(a). Subcontract means any contract or purchase order, or arrangement made in respect of the Works between a Participant and a Subcontractor. Subcontractor means any person engaged by a Participant to perform any part of the Works and includes, where it is not inconsistent with the context, that person’s employees, agents, consultants and invitees.
Supplier is defined in clause 17.10(d).
SWTC means the Scope of Works and Technical Criteria in force under the Original Project Deed on 22 June 2017, being the written summary of requirements for:
(a) all of the Works to the carried out by the Participants under this Agreement; and (b) all of the Completed Works carried out by the Contractor under the Original Project Deed prior to the Effective Date,
and may be amended from time to time in accordance with clause 14.1(h). Technical Information means any technical, geotechnical and scientific information, including representations, statements, data, samples, material test results, research materials, technical reports, analyses, calculations, assumptions, deductions, determinations, formulae, computer data bases, network and topology diagrams, drawings, design specifications, models, plans, processes, operating procedures and methods of working.
Temporary Works means works used in the execution or undertaking of the Works, but which do not form part of the completed Works. Term means the period commencing on the commencement of the Original Project Deed and ending at the end of the Alliance Term. Third Party means a person who is not a Participant or a Covenantor or a director, officer or employee of a Participant or a Covenantor.
Utility Services means the permanent or temporary installations of utility providers, including energy (for example, electricity and gas), water, sewerage, drainage and telecommunications infrastructure.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 11
Project Alliance Agreement
Wilful Default means any of the following: (a) a deliberate and purposeful act or omission carried out, or real and substantial evidence of a deliberate and purposeful act or omission carried out, with a reckless disregard or calculated disregard for the consequences of the act or omission by a Participant which is a breach of a duty, obligation or Stipulation arising out of this Agreement, or which is a breach of a duty or obligation owed to another Participant however arising;
(b) an act or omission by a Participant which gives rise to a contravention or cancellation of a Licence where:
(i) it was reasonably foreseeable that the consequences of the act or omission would give rise to a contravention or cancellation of the Licence; and
(ii) in the case of a contravention of a Licence only, the Participant fails to immediately take all steps necessary to remedy the contravention of the Licence; (c) a deliberate and wilful act or omission by a Participant which is a substantial or continuous breach of the Project Management System; (d) the refusal by a Participant to grant to the Owner Participant access to the Site or Works as required in accordance with clause 15; and (e) failure to pay moneys due under this Agreement within 20 Business Days of being directed to do so in writing by the Alliance Board,
but does not include any error of judgment, mistake, act or omission, whether negligent or not, which is made in Good Faith by that Participant or by any director, officer, employee, agent or Subcontractor of that Participant. Works means the whole of the works and services to be carried out by the Participants (or any of them) from time to time under this Agreement, excluding the Completed Works, and includes: (a) Separable Portion 1; (b) Separable Portion 2;
(c) integration of the Completed Works with the Works; (d) all planning, management and administrative works and services associated with managing the Works as a whole and integration of the Works and the Completed Works;
(e) the works associated with any direction by Main Roads in accordance with clause 14.1 or Scope Changes; (f) Temporary Works; and
(g) rectification work necessary to make good any Defects in a Separable Portion arising during the Defects Correction Period applicable to that Separable Portion.
1.2 Interpretation
In this Agreement:
(a) headings and bold type are for convenience only and do not affect the interpretation of this Agreement; (b) the singular includes the plural and the plural includes the singular; Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 12
Project Alliance Agreement
(c) words of any gender include all genders; (d) other parts of speech and grammatical forms of a word or phrase defined in this Agreement have a corresponding meaning; (e) an expression importing a person includes any company, partnership, joint venture, association, corporation or other body corporate and any Government Agency as well as an individual;
(f) a reference to a clause, party, schedule, attachment, annexure or exhibit is a reference to a clause of, and a party, schedule, attachment, annexure or exhibit to, this Agreement and a reference to this Agreement includes any clause, schedule, attachment, annexure and exhibit;
(g) a reference to any legislation includes all delegated legislation made under it and amendments, consolidations, replacements or re-enactments; (h) a reference to a document (including this Agreement) is that document as varied, amended, novated, ratified or replaced from time to time; (i) if more than one person comprises a party, each person:
(i) is jointly and severally liable for the performance by that party of its obligations under this Agreement; and (ii) must act only jointly in relation to the exercise by that party of its rights under this Agreement;
(j) all money referred to under this Agreement is in Australian dollars; (k) a reference to a body (including an institute, association or authority), other than a party to this Agreement, whether statutory or not which ceases to exist or whose powers or functions are transferred to another body, is a reference to the body which replaces it or which substantially succeeds to its powers or functions; (l) specifying anything in this Agreement after the words “include” or “for example” or similar expressions does not limit what else is included; (m) a reference to writing includes any method of representing or reproducing words, figures, drawings, or symbols in a visible and tangible form and includes communication by email;
(n) non-defined terms commencing in the upper case have their apparent meanings;
(o) nothing in this Agreement is to be interpreted against a Participant solely on the ground that the Participant put forward this Agreement or any part of it;
(p) a reference to a Participant using, or obligation on a Participant to use, its 'best endeavours' does not oblige that Participant to:
(i) pay money: (A) in the form of an inducement or consideration to a Third Party to procure something (other than the payment of immaterial expenses or costs, including costs of advisers, to procure the relevant thing); or (B) in circumstances that are commercially onerous or unreasonable in the context of this Agreement; Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 13
Project Alliance Agreement
(ii) provide other valuable consideration to, or for the benefit of, any person; or (iii) agree to commercially onerous or unreasonable conditions; and
(q) a reference to a Covenantor or the Covenantor means a reference to each Covenantor.
1.3 References to Main Roads and the Owner Participant
(a) While Main Roads and the Owner Participant are the same entity, throughout this Agreement references are made to “Main Roads” and “Owner Participant” respectively to indicate when that entity is acting as the client for the Works and when it is acting as one of the Participants to the project alliance for the delivery of the Works.
(b) Main Roads must perform its obligations under this Agreement through a representative appointed in writing by Main Roads from time to time and who, as at the Effective Date, is (Main Roads' Representative). Main Roads may, from time to time, change the Main Roads' Representative by giving notice to the Non-Owner Participant.
(c) Main Roads’ Representative will also perform the roles and functions and have the powers and rights allocated to him or her as set out in Schedule 8. The Participants will provide all assistance necessary to ensure Main Roads’ Representative can fulfil the responsibilities, perform those roles and functions and exercise those rights.
1.4 Business Day
Where the day on or by which any thing is to be done is not a Business Day, that thing must be done on or by the next Business Day.
1.5 Ambiguity, discrepancy and inconsistency
Subject to clause 1.7, the Alliance Board must resolve any ambiguity, discrepancy or inconsistency in this Agreement, and the documents comprising this Agreement, in a manner consistent with the commitments given by the Participants under clause 3.
1.6 Provision of information and documentation by the Participants
The Participants have, prior to the Effective Date, exchanged information and advice about the Works and the performance of the Works. The Participants must continue to do this during the Relevant Period. To avoid the possibility of issues between the Participants arising and the need for any subsequent alterations to the Direct Cost Target, each Participant must undertake its own enquiries to satisfy itself as far as reasonably practical of the accuracy, completeness and relevance of that information or advice.
1.7 Order of precedence
(a) Unless there is a stipulation to the contrary, the following order of precedence will apply in respect of any inconsistency between any of the terms or other parts of this Agreement: (i) clauses 1 to 34 inclusive;
(ii) the SWTC; and (iii) the remainder of this Agreement; (b) If the application of clause 1.7(a):
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 14
Project Alliance Agreement
(i) does not assist in resolving an inconsistency; or (ii) in the opinion of a Participant would be inappropriate for a particular inconsistency and that Participant gives notice to Main Roads’ Representative to that effect,
the Alliance Board must give a direction as to how the inconsistency is to be resolved.
2. Alliance Principles, Purpose, and Objectives and Non-Owner Participant Obligations
2.1 Alliance Principles and Purpose
The Participants will perform the Works in accordance with the Alliance Principles and the Alliance Purpose set out in Schedule 1. The Alliance Principles and the Alliance Purpose will underpin the relationship between the Participants at all levels of the project alliance.
2.2 Project Objectives The Project Objectives set out in Schedule 1 are the key drivers of the Project.
2.3 Non-Owner Participant Obligations
The Non-Owner Participant must: (a) design the Works in accordance with this Agreement;
(b) ensure that the design of the Works is Fit for Purpose; and (c) in addition to meeting all minimum requirements required in the SWTC, perform all of its obligations under this Agreement to ensure that the design of the Works provides a safe environment for all users.
3. Commitments
3.1 Good Faith
(a) In the context of this Agreement, Good Faith means:
(i) acting in accordance with the Alliance Principles and the Alliance Purpose both in a literal sense and with their intent; (ii) undertaking, adopting and implementing all things reasonably necessary to ensure a Best For Alliance outcome; and (iii) being fair, honest and reasonable and acting with integrity at all times. (b) Subject to clauses 3.1(c) and 3.2, the Participants must act in Good Faith in exercising their rights and performing their obligations under this Agreement. (c) The Participants' obligations to act in Good Faith do not apply to: (i) the exercise of Main Roads' discretion under clause 5.9;
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 15
Project Alliance Agreement
(ii) the exercise of any right or remedy by a Participant consequent upon any of the circumstances set out in clause 4.3 arising;
(iii) the Non-Owner Participant's obligations, and the rights and discretions of Main Roads in relation to the Non-Owner Participant's obligations, under clause 2.3, 7 and 8.
3.2 Privilege
Nothing in this Agreement requires a Participant to waive any entitlement or right to legal professional privilege or disclose confidential lawyer/client communications.
3.3 Results orientated
The Participants commit to working together to meet the Project Objectives and to produce outstanding and innovative results in carrying out the Works.
3.4 Best For Alliance
The Participants commit to establishing an alliance culture based on the Alliance Principles and the Alliance Purpose and to act at all times in a manner that is consistent with a Best For Alliance approach.
3.5 Open book commitment
(a) Subject to clause 3.5(c), each Participant commits to:
(i) maintain, for at least the Relevant Period, all of the records and other documentation referred to in this Agreement that relate to the Works in accordance with, where applicable, good accounting practices, standards and procedures;
(ii) make the records and other documentation available to each other (or each other’s nominated auditor) on request; and
(iii) make available to each other (or each other’s nominated auditor) any existing documentation or information in whatever form relating to the Works. (b) The Non-Owner Participant commits to making available to the Owner Participant existing documentation or information in whatever form relating to the Completed Works. (c) The obligation to make records and documentation available does not apply to records or documentation that may be the subject of legal professional privilege or are confidential lawyer/client communications.
3.6 Commitment to “no-blame” culture (a) Subject to clause 3.6(b) or an express statement or intention otherwise, a key purpose of this Agreement is, and the Participants will commit themselves to: (i) promoting and maintaining a 'no-blame' culture between the Participants in relation to disputes, errors, mistakes, poor performance and other issues which may arise; and
(ii) the prompt and mutual resolution of all disputes, differences and other issues by all Participants within the framework created by this Agreement.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 16
Project Alliance Agreement
(b) Clause 3.6(a) does not apply in relation to the Non-Owner Participant's obligations, and the rights and discretions of Main Roads in relation to the Non-Owner Participant's obligations, under clauses 2.3, 7 and 8:
4. Avoidance of issues between the Participants
4.1 No litigation or arbitration
(a) Subject to clause 4.3, the Participants agree that, as a fundamental element of, and objective in, establishing the alliance relationship under this Agreement, there will be no litigation or arbitration between them arising out of or in connection with this Agreement. The Participants must use their best endeavours to avoid issues arising as between each other and, to the extent an issue arises, must resolve the issue internally. The Alliance Board must resolve issues in accordance with the principles and procedures set out in Schedule 14.
(b) The Participants agree that, subject to the exceptions listed in clause 4.3, a failure by a Participant to perform any obligation or to discharge any duty under, or arising out of or in connection with this Agreement, or which is otherwise an obligation to or duty owed to another Participant however arising, does not give rise to any enforceable right or obligation at law or in equity and, to the extent that it does, the other Participants release and discharge that Participant from any consequences at law or in equity for that failure.
4.2 Immediate notification of possible issue
Each Participant agrees to immediately notify the other Participants of any matter which may amount to or result in an issue between the Participants in relation to this Agreement.
4.3 Saving of certain legal and equitable rights
Clause 4.1 has no force or effect: (a) in respect of a Wilful Default by a Participant; (b) in respect of a Participant’s motor vehicle insurer exercising a right of subrogation, to the extent it is permitted to do so, against another Participant;
(c) where a Participant has a right to bring a claim or action under a Statutory Requirement which cannot be excluded as a matter of law by the Participants;
(d) any claims for breach of any Statutory Requirement (including any prosecution brought against a Participant by a Government Agency) in connection with the Works;
(e) in respect of a breach of an obligation to indemnify under this Agreement; (f) where this Agreement expressly states that clause 4.1 does not apply; (g) any breach by the Non-Owner Participant or Covenantor of: (i) clause 2.3 (Non-Owner Participant's Obligations); (ii) clause 7 (Non-Owner Participant's Warranties);
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 17
Project Alliance Agreement
(iii) clause 8.2 (Non-Owner Participant's design obligations), clause 8.3 (Design development), clause 8.4 (Preparation of Design Documentation), clause 8.5 (Design warranties), clause 8.6 (Minimum Requirements under SWTC), clause 8.7 (Design Verifier), or clause 8.8 (Delivery up of Project Documentation); (iv) clause 13.6 (Defects); (v) clause 29 (Security);
(vi) clause 31 (Intellectual Property); or (vii) clause 33.8 (Confidentiality);
5. Alliance Board
5.1 Establishment and composition
The Participants have established the Alliance Board. The Alliance Board comprises four representatives, each to be a senior member of the relevant Participant’s organisation, of which:
(a) two will be appointed by the Owner Participant; and (b) two will be appointed by the Non-Owner Participant. The initial representatives appointed by each Participant are set out in Schedule 1. Each Participant, with the agreement of the other Participants, may remove or replace its representatives on the Alliance Board.
5.2 Chairperson
The Owner Participant must appoint a chairperson. The chairperson must be a representative of the Owner Participant and a member of the Alliance Board.
5.3 Functions and responsibilities
The primary function of the Alliance Board is to ensure that this Agreement runs as smoothly and efficiently as possible for the benefit of the Participants. The roles and responsibilities of the Alliance Board are more fully described in Schedule 1.
5.4 Representatives authorised to bind Participant
A Participant’s representative is authorised to represent and bind their appointor on any matter relating to this Agreement. A decision will bind a Participant, if, when the decision was made, its representative reasonably believed the decision was within the representative’s authorisation limit.
5.5 Meetings
(a) The Alliance Board must hold a meeting at intervals of no greater than monthly and otherwise when reasonably required by any Participant. The procedures for Alliance Board meetings must be decided by the Alliance Board at its first meeting. Those procedures may be changed at any time by a decision of the Alliance Board.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 18
Project Alliance Agreement
(b) The Participants acknowledge that the continuous involvement in and attendance at the Alliance Board meetings of the nominated Alliance Board representatives is critical to the success of the project alliance.
5.6 Decisions
(a) No decision can be made by the Alliance Board unless: (i) one representative of the Owner Participant; and (ii) two representatives of the Non-Owner Participant, are present at the meeting and unanimity is achieved.
(b) Each Participant must use its best endeavours to ensure a decision made by the Alliance Board is unanimous. (c) If the Alliance Board does not achieve unanimity on an issue, the issues resolution procedure in Schedule 14 will apply.
5.7 Compliance with decisions
(a) Subject to paragraph (b), a Participant must comply with an Alliance Board decision that is within the matters contemplated by this Agreement.
(b) If a Participant genuinely believes that compliance with an Alliance Board decision would cause the Participant or a Participant’s officer, director, agent or employee to do or omit to do anything that contravenes any law or Statutory Requirement, or the Participant’s constituent statute, constitution, memorandum or articles of association, the Participant need not comply, but must immediately notify the remaining Participants.
5.8 Disclosure of conflict of interest
(a) A Participant’s representative must fully disclose to an Alliance Board meeting, an Alliance Management Team meeting or Alliance Project Team meeting (as the case may be), any conflicting interest or duty, or potential conflict of interest or duty the representative may have (whether personally or as a representative) before participating in any: (i) action, decision or determination to be taken or made by the Alliance Board, Alliance Management Team or Alliance Project Team (as the case may be) associated with or connected to the conflict; or
(ii) discussion or consideration of any relevant issue or making a decision or determination about, or taking an action in respect of, that issue associated with or connected to the conflict, during an Alliance Board meeting, Alliance Management Team meeting or Alliance Project Team meeting (as the case may be), (paragraphs (i) and (ii) collectively, Action). (b) The Alliance Board, in the absence of the representative concerned, will consider each such disclosure under paragraph (a) and determine (adopting best corporate governance practices) if the representative has a conflict and, if so, how to resolve or mitigate that conflict in accordance with a Best For Alliance approach.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 19
Project Alliance Agreement
(c) Where the Alliance Board resolves, in accordance with paragraph (b), to exclude the representative (Excluded Representative) from an Alliance Board meeting, an Alliance Management Team meeting or Alliance Project Team meeting (as the case may be) in respect of the Action, then that Action may not proceed until another representative of the Participant attends and performs the role, functions and duties of the Excluded Representative in respect of the Action.
5.9 Main Roads’ Reserved Powers
(a) Notwithstanding the alliance relationship established under this Agreement, the Non-Owner Participant acknowledges that the final decision on the following matters (Main Roads’ Reserved Powers) ought to be, and are, reserved for unilateral determination by Main Roads: (i) any decisions, directions or actions of Main Roads related to the Non-Owner Participant's obligations under clause 2.3, clause 7 and clause 8;
(ii) the decision to suspend all or part of the Works under clause 25; (iii) any decisions, directions or actions Main Roads determines are necessary following any event which significantly impacts on the Works or any part of the Works; and
(iv) unless otherwise specified, the decision to terminate this Agreement where Main Roads has such a right under this Agreement.
(b) The Participants must abide by and implement a decision by Main Roads under paragraph (a) as though it was a decision of the Alliance Board. (c) The impact, if any, that the exercise of a Main Roads’ Reserved Power has on compensation to the Non-Owner Participant under this Agreement will be calculated in accordance with the manner prescribed by this Agreement, and if no manner is prescribed, as determined by the Alliance Board.
6. Alliance Director, Alliance Management Team and Alliance Project Team
6.1 Alliance Director – appointment and functions
The Alliance Board has selected and appointed as the Alliance Director. The functions and responsibilities of the Alliance Director will be determined by the Alliance Board as soon as practicable after the Effective Date.
6.2 Alliance Management Team – selection and endorsement
(a) Subject to paragraph (b), the Alliance Management Team will be selected by the Alliance Director and endorsed by the Alliance Board and will comprise of the Alliance Director and individuals drawn from the Participants reporting directly to the Alliance Director provided always that at least one representative from each Participant must be selected and endorsed.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 20
Project Alliance Agreement
(b) The Owner Participant may nominate Main Roads' personnel for inclusion in the Alliance Management Team and those persons nominated must form part of the Alliance Management Team.
(c) The membership of the Alliance Management Team may be amended with the approval of the Alliance Board. (d) The Alliance Management Team must perform the functions determined by the Alliance Board as soon as practical after the Effective Date.
6.3 Change in membership of Alliance Management Team
The Participants must (subject to satisfactory performance by the relevant personnel) use their best endeavours to ensure that, where appropriate, the personnel that have been assigned to the Alliance Management Team remain as members of the Alliance Management Team for the duration of the Works or otherwise until the Alliance Board or the Alliance Director, as appropriate, decides that he or she is no longer required.
6.4 Alliance Project Team
(a) Subject to the requirements of this clause, an Alliance Project Team will be selected by the Alliance Director. (b) The Alliance Project Team must:
(i) include personnel from each of the Participants; and
(ii) under the guidance of the Alliance Board and the Alliance Management Team, perform the functions determined by the Alliance Board and Alliance Management Team as soon as practicable after the Effective Date and from time to time during the Alliance Term.
(c) The Owner Participant plans to nominate personnel for inclusion in the Alliance Project Team (including nominating some personnel for the purpose of gaining training and experience in program alliancing). The Alliance Director must include in the Alliance Project Team those persons nominated by the Owner Participant and at all times give due consideration for and accommodate the normal work conditions and conditions of employment of the Owner Participant's personnel.
6.5 Change in membership of Alliance Project Team
The Participants must (subject to satisfactory performance by the relevant personnel) use their best endeavours to ensure that, where appropriate, the personnel that have been assigned to the Alliance Project Team remain as members of the Alliance Project Team for the Alliance Term or otherwise until the Alliance Board or the Alliance Management Team decides that he or she is no longer required.
6.6 Project office
The Participants must provide Project offices as soon as practicable after the Effective Date until the Date of Practical Completion for the last Separable Portion.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 21
Project Alliance Agreement
7. Non-Owner Participant's Warranties
7.1 General warranties The Non-Owner Participant represents and warrants to Main Roads that:
(a) it has full legal capacity and power: (i) to own its property and assets and to carry on its business; and (ii) to enter into this Agreement and to perform its obligations under this Agreement; (b) it has taken all corporate action that is necessary to authorise its entry into this Agreement and to perform its obligations under this Agreement; (c) this Agreement constitutes its legal, valid and binding obligations enforceable against the Non-Owner Participant in accordance with its terms (except to the extent limited by equitable principles and laws affecting creditors’ rights generally);
(d) neither its execution of this Agreement nor the carrying out of its obligations under this Agreement, does or will: (i) contravene any Law to which it or any of its property is subject or any order of any Authority or other person that is binding on it or any of its property; (ii) contravene any undertaking or instrument binding on it or any of its property; or (iii) contravene its constitution;
(e) no litigation, arbitration, mediation, conciliation or administrative proceedings are taking place, pending or threatened against it which, if adversely decided, could have a material adverse effect on the Non-Owner Participant’s business, assets or financial condition or its ability to perform its obligations under this Agreement;
(f) no controller (as defined in the Corporations Act), administrator, receiver, receiver and manager, provisional liquidator, liquidator or other officer of the Court is currently appointed in relation to any of its property; (g) it is not insolvent, unable to pay its debts as and when they fall due, or subject to voluntary administration;
(h) it is not entering into this Agreement as trustee of any trust or settlement or for, or on behalf of, any other person;
(i) it and the Non-Owner Participant's Personnel have the requisite expertise, applicable professional skills and capabilities to carry out the Project, and will continue to have them during the term of this Agreement; (j) it and the Non-Owner Participant's Personnel have satisfied and complied with, or will be able to and will satisfy and comply with, as and when required, all Laws applicable in any way in connection with the Project; (k) it has familiarised itself with local conditions (including the Site and any applicable Shared Site Access Protocols) and all applicable Laws;
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 22
Project Alliance Agreement
(l) the Non-Owner Participant's Personnel will not enter the Site without having first familiarised themselves to the extent necessary with local conditions and Laws and any applicable Shared Site Access Protocols;
(m) it will not knowingly do or permit anything which might damage the name or reputation of any State Entity or reasonably invite adverse public criticism or result in any State Entity being the subject of any official investigation;
(n) any information given or representation made to Main Roads or to Main Roads’ Representative in connection with the Project is accurate, current and is not misleading or deceptive in any respect;
(o) at the date of entering into this Agreement, no conflict of interest exists and it will ensure none will arise in the performance of the Project (if, during the term of this Agreement, a conflict or risk of conflict of interest arises, the Non-Owner Participant must give notice to Main Roads’ Representative immediately of the conflict or risk); and (p) it will act consistently with all of its warranties as contained in this Agreement.
7.2 Site and information warranties
Without limiting clause 7.1, the Non-Owner Participant represents and warrants to Main Roads that: (a) it enters into this Agreement based on its own investigations, interpretations, deductions, information and determinations;
(b) it has not relied and will not rely on any data, representation, statement, document or information (including the Provided Information) provided to the Non-Owner Participant by Main Roads, anyone on behalf of Main Roads or any State Entity;
(c) prior to the date of this Agreement: (i) it had sufficient opportunity to itself undertake, and to request others to undertake, tests, enquiries and investigations:
(A) relating to the Provided Information; and (B) for design purposes and otherwise; (ii) it had sufficient opportunity to review and obtain, and has obtained, all necessary legal, geotechnical and other technical advice in relation to this Agreement, the Provided Information, the physical conditions and characteristics of the Site, as well as the risks, contingencies and other circumstances having an effect on the cost of performing its obligations and its potential liabilities under this Agreement; and
(iii) it had sufficient access to the Site, undertook sufficient tests, enquiries and investigations, had sufficient information and obtained a sufficient understanding of the risks involved to enable it to make an informed decision about whether or not to enter into this Agreement and assume the obligations and potential risks and liabilities that it imposes on the Non-Owner Participant.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 23
Project Alliance Agreement
7.3 Reliance by Main Roads The Non-Owner Participant acknowledges that Main Roads has executed this Agreement in reliance on the representations and warranties contained in clause 7.1 and clause 7.2.
7.4 Continuing warranties
The representations, warranties and acknowledgments contained in clause 7.1, clause 7.2, and clause 7.3 will be treated as made and be binding upon the Non-Owner Participant continuously during the Alliance Term.
8. Project Plans and Design
8.1 Project Management Plan for the Works
(a) Promptly following the Effective Date, the Alliance Management Team must develop the PMP. The PMP must include the following:
(i) a detailed design and construction program which achieves the required Dates for Practical Completion (the D&C Program);
(ii) a project cash-flow which is consistent with the D&C Program; (iii) if necessary, updated versions of the following plans provided by the Non-Owner Participant and approved by Main Roads under this Agreement prior to the Effective Date:
(A) Aboriginal Heritage Management Plan;
(B) Community and Stakeholder Engagement Plan; (C) Construction Management Plan; (D) Durability Plan; (E) Environmental Management Plan
(F) Interface Management Plan; (G) Quality Plan; (H) Safety and Health Management Plan; (I) Project Traffic Management Plan;
(J) Training Plan; (iv) an update to the Industry Participation Plan in force under this Agreement prior to the Effective Date; and
(v) the following new plans: (A) Alliance Management Plan; (B) Asset Commissioning and Handover Plan; (C) Audit Plan;
(D) Commercial Management Plan;
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 24
Project Alliance Agreement
(E) Emergency Response Management Plan; (F) Industrial Relations Management Plan;
(G) Insurance Risk Management Plan; (H) Records Management Plan (which must be consistent with the Record Keeping Code); and
(I) Risk Management Plan. (b) The Participants must, in consultation with the Alliance Board, develop and implement any other management plans necessary to ensure that the Project is managed and delivered to the standards and in the manner required to ensure the Project Objectives are satisfied.
(c) The Participants must implement the management plans.
8.2 Non-Owner Participant's design obligations
The Non-Owner Participant must ensure that the design of the Works: (a) satisfies the requirements of this Agreement; (b) is Fit For Purpose; (c) supports the Project Objectives; and
(d) is compatible with the Completed Works.
8.3 Design development
(a) The Non-Owner Participant must hold regular meetings of its design team including its design consultants and Design Verifier. (b) The Non-Owner Participant must:
(i) consult with Main Roads’ Representative during the design phase of the Project in accordance with clause 4.1(g) of the SWTC;
(ii) liaise with Main Roads' Representative to ensure that Main Roads is kept fully informed of all design issues, design progress, stakeholder discussions and any other matters that affect either or both of the design of the Project Works or the Design Documentation; and (iii) if Main Roads requires, make available (at its own cost) the relevant Non-Owner Participant's Personnel to explain the Design Documentation, or any design issues, or provide such information as Main Roads may require (and in such form as Main Roads may require) in order to demonstrate that the Design Documentation meet the requirements of this Agreement and all interface and integration aspects of the Project Works have been considered and appropriately addressed.
(c) The Non-Owner Participant must give reasonable notice to Main Roads’ Representative of design team meetings and of any other meetings at which design issues are to be discussed. (d) The Non-Owner Participant must give Main Roads’ Representative minutes of the design team meetings within 48 hours of the meeting.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 25
Project Alliance Agreement
(e) Main Roads’ Representative is entitled to attend meetings referred to in this clause 8.3, including to discuss health and safety issues under Division 12 of Part 3 of the Occupational Safety and Health Regulations 1996 (WA).
8.4 Preparation of Design Documentation
(a) The Non-Owner Participant must give Main Roads’ Representative the opportunity to comment on and monitor the design performance of the Non-Owner Participant in relation to the Project.
(b) The Non-Owner Participant must develop and complete all Design Documentation in accordance with this Agreement and otherwise in accordance with Best Practice.
(c) The Non-Owner Participant must give Main Roads’ Representative, at the completion stage of 15% and 85% of each discrete Project design element and at any other times Main Roads may reasonably require, three copies of draft Design Documentation relating to that discrete part which may be reviewed and commented upon. Any reasonable request by Main Roads regarding the timing and staging of the submission of the Design Documents will not constitute a Scope Change or meet the requirements of clause 10.2(a)(i) or clause 10.2(a)(iv). (d) The Design Documentation at the 15% and 85% completion stage, or at any other stage reasonably requested by Main Roads, in respect of any Project design element must: (i) include a list of all the significant design parameters and standards specified for that Project design element; and
(ii) in relation to the 15% and 85% completion stage only, be verified in accordance with clause 8.4(e).
(e) The Design Verifier must verify, including carrying out independent calculations of key elements of that design, that each of the 15% and 85% versions of the:
(i) structural design; (ii) geotechnical design; and (iii) waterways and drainage design, (iv) for each Separable Portion (as applicable):
(v) is carried out with the appropriate professional care and skill to be expected of a designer exercising Best Practice; and (vi) complies with the SWTC.
(f) The Design Verifier must verify, including carrying out independent calculations of key elements of that design, that each of the 100% versions (“final versions”) of the designs referred to in clause 8.4(e):
(i) is appropriate for construction; (ii) is carried out with the appropriate professional care and skill to be expected of a designer exercising Best Practice; and (iii) complies with the SWTC.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 26
Project Alliance Agreement
This verification must be confirmed in the Design Verifier’s report for each of the final versions (to be provided in accordance with clause 4.1(b) of the SWTC) and shown on the drawings and specifications forming part of the Design Documentation.
(g) Where a Project design element involves the use of a design (whether registered or unregistered) created or owned by a Third Party, the Design Verifier must not rely solely on, and must independently verify, Technical Information provided by that Third Party in carrying out the independent calculations for that Project design element required by clause 8.4(e) and clause 8.4(f). (h) The Non-Owner Participant must:
(i) only use final versions of the Design Documentation for construction purposes;
(ii) promptly give Main Roads’ Representative three copies of all final versions of the Design Documentation in accordance with this Agreement, including amended versions and any Design Documentation verified in accordance with clause 8.4(f);
(iii) allow 14 days from the date the copies are given to Main Roads’ Representative for Main Roads’ Representative (if Main Roads’ Representative so desires) to consult with the Non-Owner Participant and to comment on that documentation; (iv) not use that documentation for construction purposes until the earlier of the time that the 14 day period has expired or Main Roads’ Representative has confirmed (for the particular Design Documentation in question) that it either has no comments or has provided all comments on the documentation;
(v) provide written responses to all comments made by Main Roads’ Representative under clause 8.4(h)(iii) and have regard to such comments, provided however that if Main Roads' Representative rejects part or all of a submission of Design Documentation, the Non-Owner Participant shall promptly make an amended or new submission which shall comply with the requirements of this Agreement; and
(vi) not amend Design Documentation which has been submitted to Main Roads for comment in accordance with clause 8.4(h)(iii) unless it gives amended Design Documentation (duly verified under clause 8.4(f) as applicable) to Main Roads’ Representative and the process in clause 8.4(h) has been reapplied.
(i) The parties acknowledge that:
(i) receipt or review of, or consultation or comments regarding, any Design Documentation by Main Roads’ Representative under this Agreement is solely for the purpose of monitoring the performance of the Non-Owner Participant; (ii) Main Roads’ Representative owes no duty to the Non-Owner Participant to review the Design Documentation for errors, omissions or compliance with the requirements of this Agreement;
(iii) Main Roads’ Representative’s review of, or consultation or comments regarding (including any indication of approval), Design Documentation does not relieve the Non-Owner Participant from responsibility for the Non-Owner Participant's errors or omissions or from compliance with the requirements of the Agreement or otherwise affect the Non-Owner Participant's Obligations; Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 27
Project Alliance Agreement
(iv) any Design Documentation initialled by a Main Roads’ Representative is solely for identification purposes and is subject to the qualifications set out in this clause 8.4(i); and
(v) the involvement of Main Roads or Main Roads' Representative in specifying, reviewing, consulting on, commenting on (including any indication of approval) or monitoring the Design Documentation or the Non-Owner Participant's design performance does not constitute involvement by Main Roads in the design and that, as between Main Roads and the Non-Owner Participant, the Non-Owner Participant is the designer for the purposes of any Occupational Safety and Health Law.
(j) The Non-Owner Participant must give Main Roads’ Representative four copies of all final drawings that form part of the Design Documentation initialled by a Main Roads’ Representative in accordance with clause 8.3 of the SWTC.
8.5 Design warranties
The Non-Owner Participant warrants the following to Main Roads: (a) it now has, and will continue to have for the Term, the resources and expertise required to perform its obligations under this Agreement including to undertake the design work in accordance with this Agreement; (b) in undertaking the design work, it has exercised and will continue to exercise Best Practice;
(c) the Design Documentation:
(i) is suitable, appropriate and adequate to deliver Project Works that will: (A) comply with the requirements of this Agreement; and (B) be Fit for Purpose, having regard to the assumptions that the Non-Owner Participant can be reasonably expected to make in accordance with Best Practice; (ii) has been properly coordinated, including having regard to interface and integration issues between the Project Works and the new Perth Stadium Project; and
(iii) complies with the requirements of the SWTC; and (d) it has reviewed the SWTC so as to ensure that there are no material omissions, inconsistencies or errors as to the design, operational, architectural, engineering and technical specifications set out in the SWTC.
8.6 Minimum Requirements under SWTC
The Non-Owner Participant acknowledges that where the SWTC specifies or prescribes minimum requirements, compliance with such requirements will not of itself be sufficient for the Project Works to be Fit for Purpose.
8.7 Design Verifier
The Non-Owner Participant must ensure that the Design Verifier:
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 28
Project Alliance Agreement
(a) is independent of the Non-Owner Participant, its design consultants and subcontractors; (b) is experienced in the design and construction of large engineering projects similar in character, size and complexity to the Project as well as experienced in the particular field for which verification is required under this Agreement;
(c) provides the functions contemplated in clause 8.4(e) and clause 8.4(f); and (d) is appropriately informed during the design phase of the Project in respect of the development of the Design Documentation including being copied any comments Main Roads’ Representative provides the Non-Owner Participant in respect of the development of Design Documentation.
8.8 Delivery up of Project Documentation
To the extent not already provided to Main Roads during the Project, at the request of the Main Roads' Representative or, if this Agreement is terminated under clause 26 or clause 27, the Non- Owner Participant must immediately deliver all Project Documentation to Main Roads. This clause 8.8 is without prejudice to any other of the Non-Owner Participant's Obligations and survives termination of this Agreement.
8.9 Site responsibilities The Participants must ensure that, in consultation with Main Roads' Representative, the Participants, relevant Main Roads' organisational units and all other relevant contractors and service providers engaged by Main Roads or a State Entity for the management of the existing roads and structures located within, or connected to, the Site, agree between them the roles and responsibilities of each entity with respect to:
(a) general maintenance; (b) traffic management; (c) network operations; and
(d) incident management, issues occurring within, or connected to, the Site and document any agreement reached in the PMP.
9. Direct Cost Target
9.1 Direct Cost Target
The Direct Cost Target is fixed and not subject to alteration or escalation except in accordance with: (a) clause 9.2 (New Site); (b) clauses 13.6(e) and 13.6(f) (Defects); (c) clause 14.3(b) (Scope Change);
(d) clause 21.3(e) (Insurances); (e) clause 25.3(b) (Suspension costs); or (f) clause 30.2(b)(i) (Force Majeure),
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 29
Project Alliance Agreement
and is inclusive of all Direct Costs and RCP.
9.2 New Site development of the Direct Cost Target component
(a) The Alliance Management Team in consultation with the Alliance Board must estimate the Direct Cost Target component for the establishment of the New Site. (b) The proposed Direct Cost Target component for the New Site Works must be accepted (or otherwise) by Main Roads before it becomes the Direct Cost Target component for the New Site Works.
(c) In preparing the Direct Cost Target component for the New Site Works, the Alliance Management Team must ensure that adequate risk provisions are included as the Participants agree that it is unlikely that any subsequent costs relating to the events or matters contemplated by the risk provisions will result in an alteration to the Direct Cost Target. (d) The Alliance Management Team must ensure that the design of the scope for the New Site Works is iterated sufficiently to achieve the optimum value for money, based on parameters agreed by the Participants.
(e) The decision on the final design option for the New Site Works used as the basis of cost estimation for the Direct Cost Target component for the New Site Works shall be considered with reference to input from Main Roads' Representative.
(f) The estimates leading to the calculation of the proposed Direct Cost Target component for the New Site Works may be progressively verified by an independent estimator. Main Roads may engage the services of an independent estimator to verify all assumptions, quantities, rates, amounts, estimations and contingencies used or included in the calculation of the proposed Direct Cost Target component for the New Site Works. (g) Main Roads will ensure that any discrepancies identified by the independent estimator are promptly brought to the attention of the Participants for their consideration and resolution. (h) The Participants agree, in the spirit of the commitments and undertakings they have made to each other under this Agreement, to provide the independent estimator with full access to the basis of all assumptions, quantities, rates, amounts, estimations and contingencies referred to above during the investigations and the preparation of the Direct Cost Target component for the New Site Works.
(i) The Participants commit to an “open book” approach, meaning that all Participants can have access to all information and data in the possession of the others which in any way has a bearing on the proposed Direct Cost Target component for the New Site Works.
10. Timing
10.1 Completion
The Participants must use their best endeavours to execute each Separable Portion to the stage of Practical Completion by the Date for Practical Completion.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 30
Project Alliance Agreement
10.2 Extension of time (a) If the Alliance Board considers that the Participants are or will be delayed in reaching Practical Completion as a result of any of the following: (i) a direction by Main Roads in accordance with clause 14.1 (but not including a direction which the Alliance Boards determines to be a Scope Change under clause 14.2(e));
(ii) a Force Majeure Event; (iii) an abnormal or exceptional cause that was unforeseeable or that the Alliance Board decides is or was beyond the reasonable control of the Participants; or
(iv) suspension by Main Roads of all or part of the Works under clause 25, it must decide any appropriate extension of time to the Date for Practical Completion. (b) Lack of funds or financial resources of the Non-Owner Participant is not a cause of delay beyond the reasonable control of a Participant and does not entitle a Participant to any extension of time to the Date for Practical Completion.
(c) The following does not meet the requirements of clause 10.2(a)(i) to clause 10.2(a)(iv) and must not result in an extension of time to the Date for Practical Completion: delays resulting from the supply or fabrication of the steel component of the Works.
11. Practical Completion
11.1 Definition of Practical Completion
Practical Completion means, in respect of a Separable Portion, the stage in the execution of that Separable Portion when, as applicable: (a) all required Authorisations have been obtained;
(b) the works identified in that Separable Portion are complete except for: (i) minor omissions and defects which do not prevent the Separable Portion from being reasonably capable of being used for the purpose as intended in the SWTC (either expressly or by implication); (ii) minor omissions and defects which the Participants have reasonable grounds for not promptly rectifying; and
(iii) minor omissions and defects rectification of which will not prejudice the immediate and convenient use of the Separable Portion for the purpose as intended in the SWTC (either expressly or by implication); (c) the requirements of all relevant certifying authorities and insurance surveyors have been met; and (d) Main Roads has received all documents, certifications and information about the design and construction of the Separable Portion including all Design, surveys and as constructed information and drawings and other documentation reasonably required by Main Roads with respect to the Separable Portion.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 31
Project Alliance Agreement
11.2 Issue of Certificate of Practical Completion (a) If the Alliance Board decides that Practical Completion has been reached in respect of a Separable Portion, it must notify Main Roads accordingly. (b) Main Roads must, if it agrees that Practical Completion has been reached, within 20 Business Days after receiving that notification, issue a certificate of Practical Completion in respect of that Separable Portion (Certificate of Practical Completion) to the Participants, stating the Date of Practical Completion notified by the Alliance Board.
11.3 Disagreement whether Practical Completion reached
(a) If Main Roads does not agree that Practical Completion has been reached, it must, within 20 Business Days after receiving notification from the Alliance Board, notify the Alliance Board that it disagrees and the reasons why it believes that Practical Completion has not been reached. (b) The Alliance Board must then ensure that the Participants promptly address the matters specified by Main Roads, and when those matters have been addressed, re-notify Main Roads that the Alliance Board has decided that Practical Completion has been reached.
(c) Main Roads must then re-consider whether it agrees that Practical Completion has been reached. If Main Roads agrees that Practical Completion has been reached, clause 11.2(b) will apply. If Main Roads does not agree that Practical Completion has been reached, clause 11.3(a) will apply.
11.4 Certificate does not constitute approval
The issue of a Certificate of Practical Completion does not constitute approval of the applicable Separable Portion.
12. Final reconciliation and Final Certificate
12.1 Issue of Final Certificate
If the Participants have complied with all their obligations relating to the Works (including all obligations arising during the Defects Correction Period), the Alliance Board must issue to Main Roads a final payment claim endorsed 'final certificate' (Final Certificate).
12.2 Content of Final Certificate
In the Final Certificate, the Alliance Board must certify: (a) that all of the Participants’ obligations relating to the Works have been properly completed in accordance with this Agreement; (b) the amount which, in the opinion of the Alliance Board, is finally due and payable to the Non-Owner Participant by Main Roads, or from the Non-Owner Participant to Main Roads (as the case may be); (c) the calculation of any Cost Performance Amount payable; and
(d) the Completion Date.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 32
Project Alliance Agreement
12.3 Payment under Final Certificate If Main Roads and the Non-Owner Participant agree with the contents of the Final Certificate, Main Roads or the Non-Owner Participant (as the case may be) must make the payment contemplated by the Final Certificate within 20 Business Days of the date that the Final Certificate is received by Main Roads.
12.4 Disagreement over contents of Final Certificate
(a) If Main Roads does not agree with the contents of the Final Certificate, it must, within 20 Business Days after receiving the Final Certificate, notify the Alliance Board which part of the contents of the Final Certificate it does not agree with and the reasons it does not agree.
(b) The Alliance Board must then ensure that the Participants promptly address the matters specified by Main Roads and when those matters have been addressed, re-submit the Final Certificate to Main Roads. (c) Main Roads must then re-consider whether it agrees with the contents of the Final Certificate. If Main Roads agrees with the contents of the Final Certificate then clause 12.3 will apply. If Main Roads does not agree with the contents of the Final Certificate paragraph (a) will apply.
12.5 Certificates evidence of completion
Subject to clause 17.6, once payment has been made on the Final Certificate, the Final Certificate is evidence that the Works have been completed in accordance with the terms of this Agreement on the Completion Date and that all payments required to be made by Main Roads or by the Non-Owner Participant (as the case may be) in respect of the Works have been made in full.
13. Construction of the Works
13.1 Standard of work
The Participants must: (a) commence to carry out the Works on the Effective Date in accordance with this Agreement; (b) carry out all of the Works with Diligence; (c) construct, to the extent applicable, the Works to meet the requirements set out in the SWTC;
(d) construct the Works to minimise whole of life cost for the Works as a whole based on the various design lives of each component of the Works;
(e) take all reasonable precautions to ensure that the Works cause as little disturbance as reasonably possible to the general public and Main Roads, its employees, other contractors and service providers engaged by Main Roads; and (f) carry out the Works such that rectification work necessary to make good any Defects arising during the Defects Correction Period are promptly rectified to the satisfaction of Main Roads before the end of the Defects Correction Period.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 33
Project Alliance Agreement
13.2 Authorisations for construction (a) The Participants may not commence construction of the Works until the necessary Authorisations for construction have been obtained. (b) If the Participants are unable to obtain all of the Authorisations necessary for the construction of the Works or any part of the Works, then the Alliance Board must promptly meet and decide how and under what conditions, if any, the Works are to proceed.
13.3 Responsibility for Separable Portions
From the date the Participants are given possession of the Site in respect of a Separable Portion and until the Date of Practical Completion applicable to that Separable Portion, the Participants are responsible for the works and services, rectification of any defects and maintenance associated with that Separable Portion.
13.4 Maintenance (a) Subject to paragraph (b), maintenance of a Separable Portion after the Date of Practical Completion applicable to that Separable Portion is the sole responsibility of Main Roads. (b) The Participants must maintain all landscaping, revegetation and drainage for the duration of the Defects Correction Period for Separable Portion 1.
13.5 Not used
13.6 Defects
(a) Following Practical Completion and any time prior to the expiry of the relevant Defects Correction Period, Main Roads’ Representative may, in respect of any Defect in relation to which the relevant defects correction period has not expired: (i) Direct the Non-Owner Participant to correct the Defect;
(ii) notify the Non-Owner Participant that Main Roads elects to accept the Defect; or (iii) Direct a change to the SWTC under clause 14.1 to overcome the Defect. (b) A Direction given under clause 13.6(a) must identify the Defect and must state a date by which the Non-Owner Participant must comply with that Direction.
(c) If a Direction is given under clause 13.6(a)(i), the Non-Owner Participant must carry out any work directed:
(i) at times agreed with Main Roads’ Representative, and in accordance with any Utility Service owner requirements, to minimise impact on the use of the Works; (ii) in a manner which causes no risk to the safety of members of the public; and
(iii) in a manner which causes as little inconvenience as possible to supply of Utility Services and users of the Works and the adjacent community. (d) If Main Roads’ Representative gives a Direction under clause 13.6(a)(i), the Non-Owner Participant must carry out the work directed at its own cost and risk.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 34
Project Alliance Agreement
(e) If Main Roads’ Representative gives a notice to the Non-Owner Participant under clause 13.6(a)(ii), the Direct Cost Target will be reduced by an amount to be determined by the Alliance Board having regard to:
(i) the actual cost that would have been incurred by the Non-Owner Participant in correcting the Defect; or (ii) if that cost is totally disproportionate to the impact of the Defect on Main Roads or the Works or both, the greater of: (A) the diminution in value of the Works resulting from the Defect; and (B) the actual cost saving to the Non-Owner Participant in carrying out the Works with the Defect. (f) If Main Roads’ Representative gives a Direction under clause 13.6(a)(iii), the Non-Owner Participant must carry out the work directed at its own cost and risk unless the value of the change to the SWTC Directed exceeds the cost that Main Roads' Representative determines would otherwise have been incurred by the Non-Owner Participant in correcting the Defect, in which case the Non-Owner Participant will be entitled to an adjustment to the Direct Cost Target.
14. Directions, Scope Changes and changes to funding
14.1 Directions
Main Roads (acting on its own accord or following a recommendation from the Alliance Board) may direct the Participants in writing to:
(a) change the design of the Works; (b) change the Works; (c) increase, decrease or omit any part of the Works;
(d) change the character or quality of any material or work; (e) change the levels, lines, positions or dimensions of any part of the Works; (f) execute additional work; (g) demolish or remove material or work no longer required by Main Roads;
(h) change the SWTC; or
(i) subject to clause 14.4, change, alter or amend the D&C Program, and the Participants must, subject to obtaining any necessary Authorisation or amendment to an existing Authorisation and, in the case of a Scope Change, Main Roads’ endorsement of the Scope Change, within a reasonable time, implement that direction. No direction will invalidate this Agreement and, unless the direction is a Scope Change, there will be no change to the Direct Cost Target.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 35
Project Alliance Agreement
The Participants agree that an amount for directions of the kind contemplated by this clause 14.1, other than directions determined to be a Scope Change, will be, and is, included in the RCP component of the Direct Cost Target.
14.2 Scope Change
(a) A scope change (Scope Change) is a direction by Main Roads under clause 14.1 which amounts to either: (i) a significant change, amendment or alteration to the SWTC; or
(ii) a significant change to the fundamental requirements of the Works.
Examples of when a direction by Main Roads in accordance with clause 14.1 is also a Scope Change are set out in Schedule 9.
(b) The Participants acknowledge that it is their expectation that Scope Changes are unlikely to occur during the Alliance Term and agree that the following do not constitute Scope Changes:
(i) the establishment of the New Site, pursuant to clause 9.2; (ii) changes to the SWTC or the Works in relation to the New Site; and
(iii) any direction of Main Roads in relation to the New Site. (c) Where the Alliance Board considers that a direction by Main Roads under clause 14.1 is a Scope Change, the Alliance Board must, prior to implementation by the Participants of the direction, notify Main Roads in writing. (d) The determination as to whether a direction by Main Roads under clause 14.1 is a Scope Change must be made by the Alliance Board applying the principles set out in paragraph 14.2(a) and the examples set out in Schedule 9.
(e) If the Alliance Board determines that a direction by Main Roads under clause 14.1 is a Scope Change, the Alliance Board must determine: (i) the proposed reasonable alterations, if any, required to the Direct Cost Target; and
(ii) the proposed reasonable extension of time, if any, required to the Date for Practical Completion, and as soon as reasonably practicable notify Main Roads of its determination.
14.3 Endorsement by Main Roads
(a) Within 5 Business Days of receipt of a notice under clause 14.2(e), Main Roads must, by notice to the Alliance Board, endorse or reject: (i) the Scope Change;
(ii) any reasonable alteration to the Direct Cost Target proposed by the Alliance Board; and (iii) any reasonable extension of time to the Date for Practical Completion proposed by the Alliance Board.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 36
Project Alliance Agreement
(b) If, in accordance with paragraph (a), Main Roads endorses the Scope Change and the matters referred to in paragraphs (a)(ii) and (a)(iii), the Participants, subject to obtaining any necessary Authorisation or amendment to an existing Authorisation, must within a reasonable time, implement the Scope Change. (c) If, in accordance with paragraph (a), Main Roads rejects the Scope Change or any one of the matters referred to in paragraphs (a)(ii) and (a)(iii), the Participants may not implement the Scope Change.
(d) If a direction by Main Roads under clause 14.1 is implemented by the Participants prior to the endorsement by Main Roads in accordance with paragraph (a), the Participants will not at any time be entitled to:
(i) an alteration of the Direct Cost Target; or (ii) an extension to the Date for Practical Completion.
14.4 Change in funding
If, during the Alliance Term and as a result of changes in funding for the Project, Main Roads directs the Participants to substantially change the D&C Program with effect that significant additional Works are required to be performed by the Participants or a significant part of the Works are required to be omitted, the Alliance Board must promptly meet and decide how, and under what conditions, if any, this Agreement is to proceed.
15. Site
15.1 Site (a) The Participants acknowledge and agree that subject to clauses 15.2 and 15.3 of this Agreement the terms and conditions in respect of the Site as set out in clause 4 of the Original Project Deed continue to apply to the Works as if set out in this Agreement.
(b) A reference to the Contractor in the Original Project Deed shall be read as a reference to the Participants for the purpose of this clause.
15.2 New Site
Notwithstanding the provisions of clause 4.5 of the Original Project Deed, the Participants may establish a New Site outside of the current Site, to facilitate the delivery of the Works.
15.3 Demobilisation from the Stadium Site
(a) The Non-Owner Participant must demobilise and hand back the Stadium Site by 31 August 2017. (b) The Non-Owner Participant must perform the demobilisation scope as set out in Annexure A, in order for the Stadium Site to be handed back to Main Roads.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 37
Project Alliance Agreement
16. Policies, procedures and Project Management System
16.1 Subcontracts (a) Subcontracts may be entered into by any of the Participants within the authorisation limits set by the Alliance Board from time to time. (b) Any Subcontract entered into by a Non-Owner Participant is entered into in its own right and not as an agent of Main Roads. (c) The general terms and conditions of Subcontracts (including the insurance obligations of the Subcontractors) must be decided by the Participants through the Alliance Management Team and approved by the Alliance Board. (d) Notwithstanding paragraph (c), a Subcontract must:
(i) contain the grant of a licence of Intellectual Property by the Subcontractor to each Participant; and
(ii) contain written warranties in favour of Main Roads to the extent that such warranties are relevant, that any: (A) materials incorporated into the Works are correctly designed, fabricated and installed to the standards set out in this Agreement or, if not set out, then to the relevant industry standards and codes of practice; and
(B) Design and any materials incorporated into the Works are of the required quality and fit for the intended uses stated in this Agreement.
16.2 Subcontracts with associated person needs Alliance Board approval (a) The Participants recognise that difficulties may arise in the proper calculation of Direct Costs if one or more of the Participants enters into a contract, arrangement or understanding related to this Agreement with a person that is in any way related to or associated with the Participant concerned. (b) The Participants agree that before any of them enters into any contract, arrangement or understanding with any person which is in any way related to or associated with the Participant or, in the case of the Non-Owner Participant, related in any way to York, Rizzani or a Covenantor, they must first seek the approval of the Alliance Board to that contract, arrangement or understanding.
16.3 Compliance with Statutory Requirements
(a) The Participants must comply with all Statutory Requirements that affect or relate to the performance of the Works, including obtaining and complying with all Authorisations necessary to perform each particular portion of the Works, prior to undertaking that particular portion of the Works.
(b) Notwithstanding clause 4.1, a failure by a Participant to comply with the requirements of paragraph (a) confers on the other Participants an enforceable right at law or in equity to seek any one of or a combination of specific performance, injunction or damages and, to the
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 38
Project Alliance Agreement
extent that any right under an Act of Parliament may be excluded by this Agreement, under that Act of Parliament.
(c) Without limiting paragraph (a), the Participants must comply with the State of Western Australia's 'Government Building Training Policy' administered by the Department of Training and Workforce Development.
16.4 Not used
16.5 Protection of people and property
(a) Without limiting any other obligation of the Participants under this Agreement, the Participants are committed to protecting both people and property when carrying out the Works, and must take all action to ensure this commitment is met including:
(i) providing all Materials, procedures and training and taking all measures necessary to protect people and property; (ii) avoiding unnecessary interference with the passage of people and vehicles;
(iii) except to the extent necessary in relocating, replacing or protecting any Utility Service, avoiding damage, obstruction or other interference with any Utility Service or other similar services to the Site; (iv) minimising the effect of the Works on the aesthetic qualities of the Environment and social activities of local community members;
(v) eliminating nuisance including implementing appropriate dust control measures and avoiding unnecessary noise and disturbance; and
(vi) preventing unlawful environmental damage or Pollution. (b) The Participants' responsibilities include the provision of barricades, guards, fencing, temporary roads, warning signs, lighting, traffic flagging, safety helmets, training of personnel and clothing, removal of obstructions and protection of Utility Services of the kind referred to in paragraph (a).
16.6 Purchase of Materials
(a) Any Materials necessary for the Works must be purchased on a Best For Alliance basis. (b) If a Non-Owner Participant acquires Materials, it must ensure that:
(i) the benefit of any express warranty attaching to the Materials is assigned to Main Roads; (ii) Main Roads obtains unencumbered title to those Materials upon payment for those Materials by Main Roads through the Direct Cost reimbursement principle set out in clause 17.1; and (iii) it maintains an up to date register of all assets including a register of all express and implied warranties pertaining to those Materials as provided by the relevant supplier or prescribed by a Statutory Requirement.
(d) Any surplus Materials that have been paid for by Main Roads as a Direct Cost must be disposed of at the direction of Main Roads and Main Roads is entitled to the proceeds of Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 39
Project Alliance Agreement
that disposal and the Actual Direct Cost must be reduced by the sum of the proceeds from that disposal.
16.7 Project Management System
(a) Promptly following the Effective Date, the Alliance Management Team must develop and implement an integrated project management system in accordance with the requirements of CB 025-2008 'A Guide to Project Management Body of Knowledge (PMBOK Guide) – 4th Edition' (Project Management System).
(b) The Project Management System must be of a standard that is capable of Third Party certification to AS/NZS ISO 9000:2000 Quality Management Systems - Requirements.
16.8 Native Title Claim, Aboriginal heritage and employment
(a) The Participants must carry out the Project Works in accordance with the conditions on the consent obtained by Main Roads under section 18 of the Aboriginal Heritage Act 1972 (WA).
(b) Generally, and including in relation to areas over which section 18 consent has been obtained (or is required), the Participants must ensure that whenever possible, Aboriginal Sites are protected and preserved. The Participants must ensure that no Aboriginal Sites are in any way disturbed, unless they obtain Main Roads’ consent and all relevant Authorisations.
(c) If, during the execution of the Project Works, the Participants encounter the existence of an Aboriginal Site on the Site (which is not an Aboriginal Site referred to or contemplated in the consent the subject of clause 16.8(a)) or skeletal remains on the Site, the Participants must:
(i) promptly give notice to Main Roads’ Representative with details of: (A) the Aboriginal Site encountered; and (B) the action the Participants propose to take in relation to the Aboriginal Site;
(ii) comply with the Aboriginal Heritage Management Plan and the Aboriginal Engagement Strategy, save that for the purposes of this clause, a requirement in the Aboriginal Heritage Management Plan to notify “Strategic Projects” of any matter must be read as being a requirement to notify Main Roads’ Representative;
(iii) comply with Law in relation to the Aboriginal Site, including obtaining section 18 consent under the Aboriginal Heritage Act 1972 (WA) if required; and
(iv) obtain Main Roads’ Representative’s prior written approval to all consultations with and payments made to Aboriginal representatives in relation to the Aboriginal Site.
(d) If there is: (i) a legal challenge to the consent referred to in clause 16.8(a)); or (ii) a Native Title Claim,
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 40
Project Alliance Agreement
the Participants must continue to perform their obligations under this Agreement unless, as a result of or in light of that legal challenge or Native Title Claim, the Participants are otherwise:
(iii) ordered by a court; or (iv) Directed by Main Roads’ Representative. (e) The Participants must: (i) use its best endeavours to provide employment to Aboriginal and Torres Strait Islander people during the course of the Project; and (ii) undertake the Project Works, and deliver the Project, in accordance with the Aboriginal Heritage Management Plan and the Aboriginal Engagement Strategy.
16.9 Project Industry Participation Plan
(a) The Participants commit to work constructively with Western Australian and Australian industry to identify and develop options for maximising local content in performing the work under the Agreement. (b) For the purposes of this clause 16.9:
(i) full means Australian industry has the same opportunity afforded to other global supply chain partners to participate in all aspects of the Works (eg. design, engineering, project management, professional services, IT architecture);
(ii) fair means Australian industry is provided the same opportunity as global suppliers to compete on an equal and transparent basis, including being given reasonable time in which to tender; and (iii) reasonable means tenders are free from non-market burdens that might rule out Western Australian industry and are structured in such a way as to provide Australian industries the opportunity to participate in the Works.
(c) The Participants must comply with the Industry Participation Plan, including strategies set out in the Industry Participation Plan that must be undertaken by the Participants to ensure Western Australian industry is provided a full, fair and reasonable opportunity to participate in all aspects of the Works.
(d) The Participants may enlist the assistance of the Industry Capability Network of Western Australia ("ICNWA") to assist in maximising the opportunities for Western Australian and Australian businesses. Contact details for ICNWA are www.icnwa.org.au and email: [email protected].
(e) The Participants must provide reports to Main Roads in accordance with the requirements of the Industry Participation Plan.
16.10 Industrial Relations Management Plan
Promptly after the Effective Date, the Participants, through the Alliance Management Team, must develop, implement and include in the PMP an Industrial Relations Management Plan in relation to the Works and the Project that is in compliance with relevant Statutory Requirements, codes of
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 41
Project Alliance Agreement
practice and guidelines. The Industrial Relations Management Plan is to be approved (or otherwise) by the Alliance Board and once approved, implemented by the Alliance Management Team.
17. Payments
17.1 General
Unless otherwise expressly provided in this Agreement, no matter what events, circumstances, contingencies, conditions (Latent Conditions or otherwise), or degree of difficulty is encountered by the Participants in carrying out the Works, the Non-Owner Participant's entitlement, and only entitlement, to payment by Main Roads for the Works is for:
(a) Direct Costs reimbursement; (b) the Cost Performance Amount if, under the applicable portion of the Performance Payment methodology set out in clause 2 of Schedule 4, a Cost Performance Amount is payable; and
(c) the Completion Payment if, under clause 3 of Schedule 4, a Completion Payment is payable.
17.2 Acknowledgement
The Non-Owner Participant acknowledges that Main Roads has entered into this Agreement in reliance on representations by the Non-Owner Participant that the Direct Costs do not include any element of:
(a) profit, mark up or overhead component to the Non-Owner Participant; or (b) any costs or amounts recovered by the Contractor prior to the Effective Date or recovered by the Contractor for the Completed Works.
17.3 Project Bank Account
(a) The Non-Owner Participant must establish a separate bank account for the purposes of this Agreement (Project Bank Account).
(b) Main Roads must ensure that payments to the Non-Owner Participant for their Direct Costs, Cost Performance Amount and Completion Payment are made to the Project Bank Account.
17.4 Procedure for payment
The entitlement procedure and principles which will govern: (a) reimbursement of Direct Costs; (b) payment by Main Roads or the Non-Owner Participant (as the case may be) of the Cost Performance Amount; and (c) payment by Main Roads to the Non-Owner Participant of the Completion Payment, are set out in Schedule 11.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 42
Project Alliance Agreement
17.5 Payment not evidence Payment of moneys is not evidence of the value of the Works, or that the Works have been executed satisfactorily, or an admission of liability, but is payment on account only.
17.6 Overpayments and underpayments
(a) If, on completion of any inspection and audit it is discovered that the total payments made to the Non-Owner Participant are greater than the Non-Owner Participant's entitlement to payment under this Agreement, Main Roads may either:
(i) deduct an amount equal to the excess from moneys due or becoming due to the Non-Owner Participant whether under this Agreement or otherwise; or
(ii) require the Non-Owner Participant to reimburse the excess to Main Roads.
(b) If, on completion of any inspection and audit it is discovered that the total payments made to the Non-Owner Participant are less than the Non-Owner Participant's entitlement to payment under this Agreement, the Non-Owner Participant may require Main Roads to pay any shortfall to the Non-Owner Participant.
(c) This clause 17.6 applies: (i) even if the Final Certificate has been issued under clause 12 or this Agreement has terminated; and
(ii) whether the inspection and audit was carried out under clause 18.5, or otherwise.
(d) If Main Roads or the Non-Owner Participant is required to make a payment under this clause 17.6, they must make that payment within 20 Business Days of a request for payment being made. (e) Notwithstanding clause 4.1, Main Roads or the Non-Owner Participant (as the case may be) may commence proceedings to recover any amount payable to them under this clause 17.6 not paid on time.
17.7 Payment of Subcontractors
(a) If a Non-Owner Participant informs Main Roads, or Main Roads becomes aware, that a Non-Owner Participant has failed to pay an amount that is due and payable to a Subcontractor, Main Roads may pay the Subcontractor directly and the amount paid will be a Direct Cost.
(b) If Main Roads pays a Subcontractor directly, it is not liable to pay the Non-Owner Participant for the work performed by the Subcontractor the subject of the payment.
17.8 Construction Contracts Act 2004
(a) The Non-Owner Participant must: (i) promptly give Main Roads a copy of any notice that the Non-Owner Participant receives from a Subcontractor; and (ii) ensure that each Subcontractor promptly gives Main Roads and the Non-Owner Participant a copy of any notice that the Subcontractor receives from another party,
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 43
Project Alliance Agreement
under sections 42 or 43 of the Construction Contracts Act 2004 (WA) (CCA). (b) If Main Roads becomes aware that the Subcontractor is entitled to suspend any works or services (which form part of the Works) under section 42 of the CCA, Main Roads may pay the Subcontractor such money as is or may be owing to the Subcontractor in respect of works or services forming part of the Works. Any amount paid by Main Roads will be a Direct Cost and Main Roads is not liable to pay the Non-Owner Participant for the work performed by the Subcontractor the subject of the payment.
(c) If a Participant applies for adjudication of a payment dispute under the CCA, the prescribed appointer for the purposes of section 26(1)(c) of the CCA is The Western Australian Chapter of The Institute of Arbitrators and Mediators Australia.
(d) For the purposes of this clause 17.8, a reference to: (i) a Subcontractor includes any person engaged by a Non-Owner Participant, its subcontractors or any other person to carry out works or services which forms part of the Works; and
(ii) works or services refers to all or any part of the Works a Non-Owner Participant is or may be required to execute or provide under this Agreement and includes equipment, services (including design work), Materials, Construction Plant and Temporary Works.
17.9 Unfixed Materials Without limiting clause 16.6, Main Roads will not pay for any Materials off-Site unless:
(a) Main Roads is satisfied that the unencumbered title to those Materials will pass to Main Roads on payment and the Owner Participant is satisfied that the Materials are protected and insured to Main Roads’ satisfaction; or (b) the Materials are delivered to the Site and the terms of the supply of the Materials are that unencumbered title to those Materials passes to Main Roads or the Non-Owner Participant on delivery.
17.10 Goods and Services Tax (GST Exclusive Prices)
(a) Any reference in this clause 17.10 to a term defined or used in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) is, unless the context indicates otherwise, a reference to that term as defined or used in that Act.
(b) Unless expressly included, the consideration for any supply made under or in connection with this Agreement does not include an amount on account of GST in respect of the supply (GST Exclusive Consideration) except as provided under this clause 17.10. (c) Any amount referred to in this Agreement (other than an amount referred to in paragraph (h)) which is relevant in determining a payment to be made by one of the Participants to another is, unless indicated otherwise, a reference to that amount expressed on a GST exclusive basis. (d) To the extent that GST is payable in respect of any supply made by a Participant (Supplier) under or in connection with this Agreement, the consideration to be provided under this
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 44
Project Alliance Agreement
Agreement for that supply (unless it is expressly stated to include GST) is increased by an amount equal to the GST Exclusive Consideration (or its GST exclusive market value if applicable) multiplied by the rate at which GST is imposed in respect of the supply.
(e) The recipient must pay the additional amount payable under paragraph (d) to the Supplier at the same time as the GST Exclusive Consideration is otherwise required to be provided. (f) The Supplier must issue a tax invoice to the recipient of the taxable supply at or before the time of payment of the consideration for the supply as increased on account of GST under paragraph (d) or at such other time as the parties agree.
(g) Whenever an adjustment event occurs in relation to any taxable supply made under or in connection with this Agreement the Supplier must determine the net GST in relation to the supply (taking into account any adjustment) and if the net GST differs from the amount previously paid under paragraph (e), the amount of the difference must be paid by, refunded to or credited to the recipient, as applicable. (h) If one of the Participants is entitled to be reimbursed or indemnified for a loss, cost, expense or outgoing incurred in connection with this Agreement, then the amount of the reimbursement or indemnity payment must first be reduced by an amount equal to any input tax credit to which the Participant being reimbursed or indemnified (or its representative member) is entitled in relation to that loss, cost, expense or outgoing and then, if the amount of the payment is consideration or part consideration for a taxable supply, it must be increased on account of GST under paragraph (d).
(i) The Participants, through the Alliance Management Team must, as soon as practicable after the Effective Date, develop and implement a system to manage the GST implications of the Works.
18. Reports, records, access and audit
18.1 Reports
The Participants must ensure that the Alliance Management Team prepares, as a minimum, the following:
(a) D&C Program status reports; (b) Separable Portion status reports;
(c) KRA performance reports;
(d) monthly earned value reports; and (e) monthly cash flow statements covering a 3 month rolling period, relating to the Works in a format and at times which are acceptable to Main Roads.
18.2 Alliance records
The Participants must maintain for the Relevant Period, a complete set of: (a) all records which show how the Direct Cost Target was calculated and how any Scope Changes were valued for the purposes of clause 14.2;
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 45
Project Alliance Agreement
(b) all purchase orders, invoices, accounts, records and bank statements including for the Project Bank Account (to the extent they relate to the Works) under good and accepted accounting principles showing all of the Direct Costs reasonably and actually incurred in the performance of the Works; and (c) all correspondence, tenders, Subcontracts, minutes of meetings, notes, reports, drawings, as constructed information and all other documentation associated with the Works.
18.3 State records
(a) For this purposes of this clause 18.3, records and State records have the meanings given to them in the State Records Act 2000 (WA).
(b) The Participants acknowledge that the State Records Act 2000 (WA) requires Main Roads and the Participants to provide for the keeping of State records related to contracts. Records must be kept in accordance with Main Roads' document entitled 'Record Keeping Code of Practice for the Management of Contract Records' (Record Keeping Code).
(c) As part of their obligations under this clause 18.3, the Participants, through the Alliance Board, must:
(i) manage its record keeping obligations by complying with the Records Management Plan for the keeping of all records in accordance with the Record Keeping Code; and
(ii) must maintain and comply with the Records Management Plan until the end of the Defects Correction Period.
18.4 Access
The Participant who holds the original of any of the records referred to in clause 18.2 must: (a) keep them for the Relevant Period; and (b) on request, make them available to any other Participant and that Participant’s nominated auditor.
18.5 Audit
(a) Subject to paragraph (b) and clause 33.13, any Participant or its nominated auditor may inspect and audit documentation referred to in clause 18.2:
(i) at the times identified in the audit plan to be developed by the Participants promptly after the Effective Date and approved by the Alliance Board; or (ii) at any other time as agreed by the Alliance Board.
(b) Main Roads or its nominated auditor may inspect and audit documentation referred to in clause 18.2 at any time determined by Main Roads. (c) A Participant must provide each other Participant with proper access to their personnel and facilities to enable any Participant or its nominated auditor to undertake any inspection and audit of the kind set out in this clause 18.5.
(d) Subject to paragraph (e), all inspection and audit costs must be paid by the Participant undertaking the inspection and audit and are not Direct Costs. Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 46
Project Alliance Agreement
(e) If an inspection and audit under this clause 18.5 reveals that the other Participant is in default (as that term is defined in clause 27.1), then without limiting any other rights and obligations of a Participant, the Participant in default is responsible for all costs incurred by the Participant undertaking the inspection and audit and those costs are not Direct Costs.
19. Insurance
The parties must comply with the provisions of Annexure B in respect of insurance. The parties acknowledge that, subject to clause 21, the insurances required by the Original Project Deed to be maintained prior to the Effective Date:
(a) are required by this Agreement to be maintained from the Effective Date; and (b) will continue to apply and respond in respect of work and activities undertaken under the Original Project Deed prior to the Effective Date.
20. Not used
21. Review of insurances and Insurance Risk Management Plan
21.1 Review of Insurances
The Alliance Board must systematically and regularly review the insurances referred to in this Agreement (including certificates of currency, the adequacy and appropriateness of the insurances and levels of coverage and excesses applicable to those insurances).
21.2 Decision to be made by Alliance Board
(a) As part of the review, the Alliance Board must decide whether any: (i) additional or alternative insurance policies are required;
(ii) insurance policies in place at the time of the review are still required; and (iii) consequential amendments must be made to this Agreement to reflect any new or alternate arrangements agreed.
(b) To allow the Alliance Board to perform this function, the Participants must provide certificates of currency and, to the extent that they are able, the insurance policies and accompanying schedules they are required to take out under this Agreement to the Alliance Board.
21.3 Implementation of recommendations (a) The Alliance Board must, as soon as reasonably practicable after a review, notify any recommendations for changes to the insurances to the relevant Participant. (b) The relevant Participant must, within 10 Business Days of receiving notice from the Alliance Board, commence negotiations with its underwriters in an attempt to amend the insurances to reflect the recommendations of the Alliance Board.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 47
Project Alliance Agreement
(c) The relevant Participant must promptly notify the Alliance Board if it is unable to, or it becomes apparent that it will be unable to, comply with the recommendations of the Alliance Board.
(d) The Alliance Board must decide what action, if any, is to be taken following receipt of this notification. (e) The Alliance Board must decide whether any cost incurred by a Participant in complying with a recommendation made under this clause is a Direct Cost and whether any change is required to the Direct Cost Target.
21.4 Insurance Risk Management Plan
(a) As part of the systematic and regular review required to be undertaken by the Alliance Board under this clause, the Alliance Board must start to develop an insurance risk management plan (Insurance Risk Management Plan). (b) The Insurance Risk Management Plan must set out, as a minimum, the policies, procedures and guidelines to be adopted by the Participants to ensure compliance by the Participants and their Subcontractors with the insurances taken out by the Participants under this Agreement. (c) The Insurance Risk Management Plan must be completed 60 Business Days after the Effective Date, or a later date on which the Participants may agree.
22. Indemnities
22.1 Non-compliance with insurance requirements (a) Each Non-Owner Participant indemnifies and must keep indemnified the Owner Participant and the directors, officers, employees and agents of the Owner Participant against losses, damages or claims suffered by the Owner Participant and the directors, officers, employees and agents of the Owner Participant as a consequence of non compliance by a Non-Owner Participant with the terms and conditions of clauses 19 and 21 and Annexure B, or the terms and conditions of the insurance policies required to be taken out and maintained by the Participants under this Agreement. (b) The Owner Participant indemnifies and must keep indemnified each Non-Owner Participant and the directors, officers, employees and agents of each Non-Owner Participant against losses, damages or claims suffered by each Non-Owner Participant and the directors, officers, employees and agents of each Non-Owner Participant as a consequence of non-compliance by the Owner Participant with the terms and conditions of clauses 19 and 21 and Annexure B, or the terms and conditions of the insurance policies required to be taken out and maintained by the Participants under this Agreement.
22.2 Wilful Default
(a) The Non-Owner Participant indemnifies and must keep indemnified the Owner Participant and the directors, officers, employees and agents of the Owner Participant against losses, damages or claims suffered by the Owner Participant and the directors, officers, employees
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 48
Project Alliance Agreement
and agents of the Owner Participant as a consequence of or arising from any Wilful Default by a Non-Owner Participant.
(b) The Owner Participant indemnifies and must keep indemnified the Non-Owner Participant and the directors, officers, employees and agents of the Non-Owner Participant against losses, damages or claims suffered by the Non-Owner Participant and the directors, officers, employees and agents of the Non-Owner Participant as a consequence of or arising from any Wilful Default by the Owner Participant.
22.3 Proportionate liability (a) The liability of the Non-Owner Participant under the indemnities contained in clauses 22.1(a) and 22.2(a) is reduced proportionately to the extent that a negligent act or omission of the Owner Participant, its directors, officers, employees, agents, contractors or Subcontractors, or a breach of this Agreement by the Owner Participant, contributed to the loss, damage or claim.
(b) The liability of the Owner Participant under the indemnities contained in clauses 22.1(b) and 22.2(b) is reduced proportionately to the extent that an act or omission of a Non-Owner Participant, its directors, officers, employees, agents, contractors or Subcontractors contributed to the loss, damage or claim.
22.4 Insurance obligations are primary
For the avoidance of doubt, the insurances required to be taken out and maintained by the Participants under this Agreement are primary and not secondary to the indemnities referred to in this clause 22.
22.5 References to the Non-Owner Participant
For the purposes of this clause 22, any act or omission caused by the Non-Owner Participant, the Non-Owner Participant's Representative, or the Non-Owner Participant's Personnel is deemed to be an act or omission of the Non-Owner Participant.
22.6 General indemnity The Non-Owner Participant must indemnify each Indemnified Party against any Loss or Claim suffered or incurred: (a) by an Indemnified Party; or
(b) in connection with any Claim by a Third Party against an Indemnified Party, arising from or in connection with the performance or the non-performance of the Non-Owner Participant's Obligations or any act or omission by the Non-Owner Participant, including by reason of any: (c) breach by the Non-Owner Participant of this Agreement; (d) tort, including negligence or breach of a Law; or
(e) breach of equitable duty, including breach of confidentiality or breach of fiduciary duty.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 49
Project Alliance Agreement
22.7 Intellectual property indemnity Without limiting clause 22.6, the Non-Owner Participant must indemnify Main Roads and Main Roads' Personnel against any Loss or Claim arising from or in connection with any breach by the Non-Owner Participant of the warranties under clause 31.2.
22.8 Apportionment of liability
The Non-Owner Participant's liability under clause 22.6 and clause 22.7 reduces proportionately to the extent that the Loss or Claim was caused by the negligence of, or breach of this Agreement by, Main Roads or Main Roads' Personnel.
22.9 Enforcement of indemnity
An Indemnified Party need not incur any cost or make any payment before enforcing any right of indemnity under this clause 22.
22.10 Conduct of litigation
(a) If a Claim from a Third Party is made against an Indemnified Party in the circumstances described in clauses 22.6 or 22.7, Main Roads must, as soon as reasonably practicable:
(b) give notice to the Non-Owner Participant of the Claim; and (c) provide the Non-Owner Participant with such details as are available to Main Roads about the Claim.
(d) Nothing in clause 22.10(a) requires Main Roads to provide to the Non-Owner Participant legal advice received by Main Roads or any other Indemnified Party. (e) If the Non-Owner Participant acknowledges in writing that it is liable to indemnify an Indemnified Party against the Claim from the Third Party under clauses 22.6 or 22.7: (i) the relevant Indemnified Party may conduct the defence of the Claim itself; or
(ii) Main Roads may, at any time require by notice to the Non-Owner Participant that the Non-Owner Participant take over the defence of the Claim. (f) The party conducting the defence of the Claim must keep the other party informed of all material matters relating to the conduct of any defence or response in respect of the Claim and where an Indemnified Party is conducting the defence of the Claim (other than Main Roads), Main Roads must keep the Non-Owner Participant so informed.
(g) The Non-Owner Participant, if conducting the defence of a Claim in accordance with clause 22.10(e)(ii), must have regard to Main Roads’ expressed views if those views are confirmed in writing and are reasonable having regard to the legitimate interests of the parties and the relevant Indemnified Party and must not make any admission in respect of any Claim, without the Indemnified Party’s consent.
22.11 Release of State Entities in respect of access roads
The State Entities have no liability in respect of any injuries or losses incurred by the Non-Owner Participant through its use of any access tracks during the performance of the Non-Owner Participant's Obligations.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 50
Project Alliance Agreement
22.12 Interests of the State Entities (a) For the purposes of section 11 of the Property Law Act 1969 (WA), the Non-Owner Participant intends to confer a benefit on each Indemnified Party in each indemnity given by the Non-Owner Participant in favour of the Indemnified Parties in this Agreement and Main Roads declares that it holds the benefit of each of those indemnities on trust for each Indemnified Party.
(b) Main Roads and the Non-Owner Participant agree that the consent of an Indemnified Party (other than Main Roads) will not be required for any amendment to, or waiver of, rights in accordance with this Agreement.
22.13 Indemnity re Demobilisation from the Stadium Site
With effect on and from the Effective Date, the Non-Owner Participant and each Covenantor indemnifies Main Roads and the State Entities against any Loss suffered or incurred by, or Claim made against, Main Roads or any State Entity, in respect of the Stadium Site not being handed back to the Stadium project by 2 September 2017, if control of the Stadium Site is not handed back to Main Roads by 31 August 2017, as a result of or in connection with the Non-Owner Participant failing to perform its obligations in respect of the demobilisation by the Non-Owner Participant from the Stadium Site as required in clause 15.3 of this Agreement up to a maximum of $259,000.00 (exclusive of GST) per day for each calendar day after 31 August 2017 until the Non-Owner Participant meets its obligations to hand back the Stadium Site to Main Roads pursuant to this Agreement.
23. Limits of liability
23.1 Total liability of Non-Owner Participants to Main Roads
Subject to clause 24, the total liability of the Non-Owner Participants to Main Roads (whether as the client or as the Owner Participant) for any losses or damages by reason of any claims (including negligence claims) arising out of or in connection with this Agreement is limited in the aggregate for all claims to the sum of: (a) (b)
23.2 Total Liability of Covenators
(a) In respect of any claim, debt or damages arising pursuant to this clause 23 in respect of a joint liability under this Agreement:
(i)
(ii)
(b) For the avoidance of doubt this paragraph does not apply to any several liability arising under this Agreement. Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 51
Project Alliance Agreement
23.3 Total liability of Main Roads to Non-Owner Participants Subject to clause 24, the total liability of Main Roads (whether as the client or as the Owner Participant) to the Non-Owner Participants for any losses or damages by reason of any claims (including negligence claims) arising out of or in connection with this Agreement is limited in the aggregate for all claims to the sum of: (a)
(b)
23.4 No liability for Consequential Loss
Subject to clause 24 (except to the extent that Consequential Loss is covered and is recoverable under a policy of insurance taken out under this Agreement, in which case a Participant will be liable), no Participant will be liable to another Participant (including to Main Roads whether as the client or as the Owner Participant) for any Consequential Loss sustained by a Participant, whether caused by that Participant’s breach of this Agreement, negligence or otherwise.
23.5 Exclusion of Civil Liability Act
(a) The operation of Part 1F of the Civil Liability Act 2002 (WA) is excluded as to all and any rights, obligations and liabilities arising under or in connection with this Agreement and irrespective of whether such rights, obligations or liabilities are sought to be enforced as a breach of contract or claim in tort (including negligence), in equity, under statute or otherwise at law. (b) Without limiting paragraph (a), it is further agreed that the rights, obligations and liabilities of the Participants (including those relating to proportionate liability) are as specified in this Agreement and not otherwise whether such rights, obligations and liabilities are sought to be enforced as a breach of contract or claim in tort (including negligence), in equity, under statute or otherwise at law.
24. When limits of liability do not apply
24.1 Wilful default The limits of liability set out in clause 23 do not apply to claims brought by a Participant for losses or damages suffered by that Participant arising out of or in connection with a Wilful Default by another Participant.
24.2 Failure to comply with insurance obligations
The limits of liability set out in clause 23 do not apply to a Participant if: (a) the Participant has failed (other than where the failure is due to the Wilful Default of a Participant in which case clause 24.1 will apply) to take out an insurance policy covering the claim where such an insurance policy was required to be taken out by that Participant in accordance with this Agreement or the Original Project Deed (as the case may be); or
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 52
Project Alliance Agreement
(b) because of any act or omission of that Participant (other than an act or omission amounting to a Wilful Default of that Participant in which case clause 24.1 will apply), an insurance policy taken out by Owner Participant or the Non-Owner Participants in accordance with this Agreement or the Original Project Deed (as the case may be) for the purposes of covering such a claim fails to respond to the claim,
in which case the limit of liability will be: (c) in the case of Main Roads (whether as client or the Owner Participant), the sum of: (i) (ii)
(d) in the case of the Non-Owner Participants, the sum of: (i) (ii)
24.3 Non-payment of Excluded Amounts
The limits of liability in clause 23 do not apply to the non-payment of Excluded Amounts.
24.4 Limits of liability are separate from limits under the risk/reward regime
The limits of liability in clause 23 are separate from, do not relate to and are not limited, voided or compromised by any cap or limit imposed on the Non-Owner Participant's obligation to pay any Cost Performance Amount to Main Roads under the Performance Payment methodology in Schedule 4 and this Agreement.
25. Suspension
25.1 Suspension by the Participants
The Participants may only suspend the whole or any part of the Works with prior written agreement from Main Roads unless there is, or there is a real risk of:
(a) injury to persons or damage to the Environment; or (b) an adverse impact on Aboriginal Heritage.
25.2 Suspension by Main Roads
If Main Roads considers that suspension of the whole or part of the Works is necessary or appropriate for any reason, Main Roads may direct the Participants in writing to immediately suspend the progress of the whole or part of the Works for the period specified by Main Roads in writing, and the Participants must promptly suspend the Works.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 53
Project Alliance Agreement
25.3 Suspension costs (a) If Main Roads directs suspension (other than as a result of a breach of this Agreement by a Non-Owner Participant), Main Roads must continue to pay any Direct Costs reasonably and actually incurred during the period of suspension. Any Direct Costs paid by Main Roads in respect of the period of suspension will be known as 'Suspension Costs'. (b) The total of all Suspension Costs paid by Main Roads must be added to the Direct Cost Target so that the Direct Cost Target is increased for the purposes of the calculation of any Cost Performance Amount.
25.4 Recommencement
When Main Roads chooses, Main Roads may direct the Participants to recommence the whole or the relevant part of the Works and the Participants must recommence the Works at the time directed by Main Roads or, if no time is stated, within a reasonable time after the direction.
26. No fault termination
26.1 No fault termination
Main Roads may terminate this Agreement at any time by serving a notice on the Non-Owner Participant.
26.2 Termination payment
(a) If Main Roads elects to terminate this Agreement under clause 26.1, subject to Main Roads' rights under or in connection with this Agreement, Main Roads must pay the Non-Owner Participant, or the Non-Owner Participant must pay Main Roads (as the case may be), an amount calculated or decided under Schedule 2. The Participants must take all reasonable steps to minimise and mitigate any costs incurred by them arising from termination of this Agreement under clause 26.1.
(b) Upon payment of any termination payment by Main Roads to the Non-Owner Participant or the Non-Owner Participant to Main Roads (as the case may be) under this clause 26.2, Main Roads and the Non-Owner Participant must enter into a deed of release under which, subject to clause 33.14 which survives termination of this Agreement, each of Main Roads and the Non-Owner Participant:
(i) agree that all payments required to be made by Main Roads or by the Non-Owner Participant (as the case may be) in respect of this Agreement have been made in full; and (ii) release each other from any claims arising out of or in connection with this Agreement.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 54
Project Alliance Agreement
27. Termination for default and repudiation
27.1 Events of Default Subject to clause 27.3, if any of the Participants or, where appropriate, Main Roads (Defaulting Participant): (a) commits a Wilful Default;
(b) commits any material breach of clauses 18.4, 18.5, 22 or 33.8 of this Agreement, whether or not amounting to a Wilful Default; or (c) is the subject of an Insolvency Event,
(each a default), then the non-defaulting Participants may give notice to the Defaulting Participant of: (d) the default and of their intention to exercise their rights under clause 27.3 on the expiration of 15 Business Days if the default is capable of being rectified but is not rectified within the 15 Business Days period; or (e) their intention to exercise their rights under clause 27.3 immediately if the default is not capable of being rectified, or in the case of an Insolvency Event. A notice given under this clause 27.1 must specify that it is a default notice under this clause.
27.2 Defaulting Participant
For the purposes of clause 27.1(b), a Participant is only deemed to be a Defaulting Participant for the purposes of this clause 27 where: (a) the relevant material breach or failure to perform, as the case may be, relates to a particular duty, obligation, term or condition arising out of, or connected with, this Agreement (Stipulation);
(b) the Alliance Board has, in writing and with express reference to this clause 27.2, allocated responsibility and performance of the Stipulation to the Participant in question; and (c) the Participant in question has committed a material breach in respect of all or part of that Stipulation.
27.3 Failure to remedy
(a) If: (i) the Defaulting Participant fails within 15 Business Days after receipt of a notice given under clause 27.1(d) to either remedy a default or in writing show (to the satisfaction of the non-defaulting Participants) that reasonable progress has been made in rectifying the default; or (ii) if the non-defaulting Participants give notice under clause 27.1(e),
then, subject to clause 27.3(b): (iii) where Main Roads is not in default, Main Roads may, without prejudice to its rights under this Agreement or otherwise, at any time thereafter wholly or partly
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 55
Project Alliance Agreement
suspend the Defaulting Participant’s portion of any payment due to the Non- Owner Participant under this Agreement until the default has been remedied to the satisfaction of the non-defaulting Participants; or
(iv) the non-defaulting Participants may, without prejudice to their rights under this Agreement or otherwise, terminate this Agreement by notice to the Defaulting Participant.
(b) Where: (i) the Defaulting Participant is not Main Roads; and (ii) the non-defaulting Participants are entitled to exercise their rights under clause 27.3(a) but have not exercised those rights, the non-defaulting Participants may, subject to the approval of Main Roads and without prejudice to their rights under this Agreement or otherwise, by joint notice exclude the Defaulting Participant from further participation in the performance of any of the Works and step-in and assume the rights and obligations allocated to the Defaulting Participant, in which case the provisions of clause 27.4 will apply.
27.4 Exclusion from further participation in this Agreement
If the non-defaulting Participants exclude the Defaulting Participant from further participation in the performance of any of the Works and this Agreement by notice under clause 27.3:
(a) the non-defaulting Participants may employ and pay other persons to replace the Defaulting Participant in the performance of the Works and may use all Temporary Works and Construction Plant provided by the Defaulting Participant and necessary to perform the Works;
(b) the Defaulting Participant will, if required by the non-defaulting Participants, promptly assign or novate to Main Roads, without payment, the benefit of any agreements for the performance of any part of the Works;
(c) as and when required by Main Roads (and not before), the Defaulting Participant will remove from the Site any Temporary Works, Construction Plant and other property provided by the Defaulting Participant. If the Defaulting Participant fails to do so not less than 15 Business Days after notice to it of the non-defaulting Participants' intention to do so (but without being responsible for any loss or damage), the non-defaulting Participants may remove and/or sell any such Temporary Works, Construction Plant or other property;
(d) the non-defaulting Participants may execute all deeds and documents and will do all such things on behalf of the Defaulting Participant, including making decisions on behalf of the Defaulting Participant’s representatives at the Alliance Board, as are necessary for the performance of the Works; and
(e) to enable the execution of deeds and documents under paragraph (d), the Defaulting Participant by this Agreement irrevocably authorises any directors, managers or officers of the non-defaulting Participants to act as its attorneys for the purpose of executing deeds and documents and doing all things of that kind. The non-defaulting Participants must act reasonably in the performance of any right permitted under this paragraph (e).
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 56
Project Alliance Agreement
Notwithstanding the exclusion of the Defaulting Participant from further participation in the performance of the Works and this Agreement by notice under clause 27.3(b), the Defaulting Participant will continue to be subject to the requirements of clauses 4, 17, 18, Error! Reference source not found., 22, 23, 24, 27.4, 27.5, 28, 29, 31, 32 and 33 and Schedule 2.
27.5 Loss and damage
(a) If the non-defaulting Participants elect to terminate this Agreement under clause 27.3(a)(iv), or exclude the Defaulting Participant under clause 27.3(b), then notwithstanding clause 4.1, subject only to clause 23, the non-defaulting Participants may recover from the Defaulting Participant any and all losses, damages, costs and expenses suffered by the non-defaulting Participants arising out of any, all, or any combination of:
(i) the default or non- performance; (ii) any exclusion under this clause 27; or (iii) termination under this clause 27. (b) If one of the Participants repudiates this Agreement, then notwithstanding clause 4.1 and subject only to clause 23, nothing in this Agreement prejudices the other Participants’ rights to recover damages or to exercise any other right in connection with that repudiation.
28. Consequences of termination
28.1 Termination
A reference in this clause 28 to termination means termination of the Agreement for any reason whatever.
28.2 Work to cease
Upon termination, the Participants must immediately cease the Works.
28.3 Consequences of notice of termination
(a) Upon termination, the Participants must immediately, to the extent each of the following is applicable, comply with any directions by Main Roads including and to the extent directed, to:
(i) protect property in the possession of the Non-Owner Participant in which Main Roads has or may acquire an interest; (ii) demobilise from the Site persons, Construction Plant, vehicles, equipment and other things; (iii) assign or novate to Main Roads all rights and benefits under contracts with Third Parties; and
(iv) provide Main Roads with all Project Documentation. For the avoidance of doubt and subject to the Non-Owner Participant’s obligations under clause 33.8, nothing in this clause operates to prevent the Non-Owner Participant from keeping a bona fide copy of the Project Documentation for its records.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 57
Project Alliance Agreement
(b) Without limiting any other obligation of the Participants, where this Agreement is terminated by Main Roads for default by a Non-Owner Participant, the Participants must provide Main Roads with possession of all Materials, Construction Plant, Temporary Works, vehicles, equipment and other things on the Site or off-Site, which are required by Main Roads for the purpose of, and for such time as necessary, to make the Works safe.
28.4 Works continuation
Without limiting any other rights of the Participants under this Agreement, if this Agreement is terminated for any reason whatever, the Non-Owner Participant acknowledges that Main Roads may continue with the Works either:
(a) with parties other than the Non-Owner Participant; or (b) on an alliance, conventional contractual or any other basis that Main Roads may decide,
and the Non-Owner Participant must do all things and execute all further documents necessary to ensure that Main Roads is free to continue with the Works in the manner set out in this clause 28.4 within the time period prescribed by Main Roads.
29. Security
29.1 Performance bonds (a) The Non-Owner Participant must give Main Roads’ Representative within 10 days of the date of this Agreement three unconditional on demand performance bonds in favour of Main Roads:
(i) (ii) (iii)
that are acceptable to Main Roads (in its absolute discretion) in both form and substance as security for the Non-Owner Participant's performance of the Non-Owner Participant's Obligations.
Main Roads confirms that the performance bonds provided by the Non-Owner Participant under the Original Project Deed on or about 25 May 2015 are acceptable to Main Roads.
(b) If a performance bond referred to in clause 29.1(a) is provided by an insurance company, the Non-Owner Participant must immediately give Main Roads’ Representative notice if the credit rating of the insurance company is downgraded. If Main Roads considers that the downgraded credit rating is unsatisfactory, Main Roads’ Representative may direct the Non-Owner Participant, at the Non-Owner Participant's cost, to provide a replacement performance bond which is acceptable to Main Roads (in its absolute discretion) in both form and substance. (c) Main Roads may from time to time have recourse to any one or more of the performance bonds referred to in clause 29.1(a) if the Non-Owner Participant, in the opinion of Main Roads formed at the relevant time, is in default of a Non-Owner Participant's Obligation.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 58
Project Alliance Agreement
(d) The Non-Owner Participant must not, and warrants that it will not, take any steps to: (i) injunct or otherwise restrain the issuer of a performance bond referred to in clause 29.1(a) from making a payment under it; or (ii) restrain, hinder or in any way obstruct Main Roads from calling on or otherwise exercising its rights under a performance bond. (e) Main Roads must release: (i) the performance bond provided in accordance with clause 29.1(a)(i) within 28 days after the later of: (A) the Date of Practical Completion of Separable Portion 2;
(B) the date the Participants deliver to Main Roads the as constructed information contemplated in clause 8.3 of the SWTC; and (C) the date the Participants provide to Main Roads in writing the results of the pavement condition performance measures as required in clause 3.8 of the SWTC which demonstrate full compliance with the terms of this Agreement; (ii) the performance bond provided in accordance with clause 29.1(a)(ii) within 28 days after the expiration of the Defects Correct Period for Separable Portion 1; and
(iii) the performance bond provided in accordance with clause 29.1(a)(iii) within 28 days after the Completion Date.
(f) If Main Roads makes a call under a performance bond, Main Roads’ Representative may require the Non-Owner Participant by notice to re-establish the performance bond to its original amount. The re-established performance bond must be provided to Main Roads’ Representative within 30 days of the giving of the notice requiring re-establishment.
(g) Subject to clause 29.1(j), Main Roads is not liable to the Non-Owner Participant, or anyone claiming through the Non-Owner Participant, for any Loss resulting directly or indirectly from the exercise by Main Roads of its rights under a performance bond, even though it is later established that, at the relevant time, the Non-Owner Participant was not in default of a Non–Owner's Participant's Obligation. (h) This clause does not apply if, in exercising its rights under a performance bond, Main Roads was not acting in the genuine belief that, in the circumstances, it was entitled to have recourse to the performance bond.
(i) The Non-Owner Participant must indemnify Main Roads against any Loss Main Roads may incur arising from a call under a performance bond made by Main Roads in the genuine belief that, in the circumstances, it was entitled to have recourse to the performance bond.
(j) If the amount received by Main Roads under a call on a performance bond exceeds the amount later established as due by the Non-Owner Participant to Main Roads at the time the call was made, interest on the excess will be payable by Main Roads in accordance with Default Interest Provisions established under the Original Project Deed.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 59
Project Alliance Agreement
29.2 Costs of establishing security The:
(a) costs of establishing a security after the Effective Date and maintaining that security will be Direct Costs;
(b) the amount of any call made on the Non-Owner Participant by the financial institution(s) which issue the security in respect of a payment made to Main Roads under the security and the cost of such calls, will not be a Direct Cost but will be the responsibility of the Non- Owner Participant.
29.3 Covenantor's Obligations
(a) The Covenantor guarantees to Main Roads the due and punctual payment of all debts and damages due and payable or from time to time to become due and payable to Main Roads under or in connection with this Agreement.
(b) If the Non-Owner Participant defaults in the performance or observance of any of the Non- Owner Participant's Obligations, the Covenantor must on demand from time to time by Main Roads immediately perform or procure the performance of all of the Non-Owner Participant's Obligations in the same manner as, and to the extent that, the Non-Owner Participant is required to perform them. (c) The Covenantor must:
(i) indemnify the State Entities against all Loss which the State Entities suffer or incur in respect of a failure by the Non-Owner Participant to do what this Agreement states it must do, including any Loss incurred by a State Entity:
(A) to the extent that it is caused or contributed to by the Non-Owner Participant's failure to perform any of the Non-Owner Participant's Obligations; (B) because this Agreement is void, voidable or otherwise unenforceable against the Non-Owner Participant; or (C) because of the winding up of the Non-Owner Participant; and (ii) pay the amount of any Loss on demand to Main Roads or the relevant State Entity.
(d) The Covenantor’s obligations under clause 33.8, clause 33.16, clause 29.3(a), clause 29.3(b) and clause 29.3(c) are separate and independent from each other. (e) This clause 29.3 will continue and the Covenantor will remain liable to Main Roads notwithstanding that: (i) as a consequence of any breach or non-observance by the Non-Owner Participant, Main Roads has exercised any of its rights under this Agreement; or
(ii) the Non-Owner Participant may be wound up. (f) The liability of the Covenantor is absolute and unconditional and is not affected by any act, omission, matter or thing which, but for this provision, might operate to release or otherwise exonerate the Covenantor from any of its obligations including any one or more of the following (whether occurring with or without the consent of any person): Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 60
Project Alliance Agreement
(i) the grant to the Non-Owner Participant or the Covenantor of any time, waiver or other indulgence or concession or any whole or partial discharge or release of the Non-Owner Participant or the Covenantor;
(ii) any transaction or arrangement that may take place between Main Roads and the Non-Owner Participant or the Covenantor in respect of the Project; (iii) the winding up, liquidation of, or the appointment of an administrator to, the Non- Owner Participant or the Covenantor; (iv) the amendment, or assignment by a party, of this Agreement; (v) the failure by Main Roads to give notice to the Covenantor of any default by the Non-Owner Participant; (vi) any legal limitation, disability, incapacity or other circumstance related to the Non- Owner Participant or the Covenantor; (vii) any failure or delay by Main Roads in exercising any rights under this Agreement; or
(viii) the fact that any person who was intended to be bound as a covenantor in respect of this clause 29.3 does not become bound or having been bound ceases to be bound. (g) Main Roads and the Covenantor acknowledge and agree that the Covenantor’s obligations under this Agreement may be enforced against the Covenantor without Main Roads being required to make any demand or exercise any remedy it may have against the Non-Owner Participant. (h) The Covenantor’s obligations under this Agreement continue notwithstanding any settlement of account, intervening payment or other matter whatever and are irrevocable until discharged.
(i) Any certificate, expert determination, judgment, order, arbitral award or mediation or settlement agreement binding upon the Non-Owner Participant is also binding upon the Covenantor.
(j) The Covenantor must hold on trust for Main Roads any security that the Covenantor holds from the Non-Owner Participant, to secure the liability of the Covenantor to Main Roads under this Agreement but only to the extent that the security secures any liability of the Non-Owner Participant to the Covenantor in respect of this Agreement.
(k) The Covenantor must not: (i) be subrogated to Main Roads’ rights against the Non-Owner Participant or any other surety or any security of Main Roads;
(ii) have or exercise any rights as surety; or (iii) prove in the winding up of:
(A) the Non-Owner Participant; or (B) any other surety for the Non-Owner Participant's Obligations,
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 61
Project Alliance Agreement
in competition with Main Roads unless the amount Main Roads is entitled to will not be reduced as a result.
(l) In respect of any winding up of the Non-Owner Participant and until the discharge of the Covenantor’s obligations under this Agreement:
(i) the Covenantor irrevocably authorises Main Roads (but without any obligation on the part of Main Roads) to prove in the Non-Owner Participant’s winding up for all moneys and damages owed (actually or contingently) by the Non-Owner Participant to the Covenantor;
(ii) if any dividends are received by the Covenantor from the Non-Owner Participant’s winding up it must immediately pay them to Main Roads and until it does so it must hold them upon trust for Main Roads; and (iii) Main Roads may retain any dividends from the Non-Owner Participant’s winding up or moneys received from the Covenantor under this clause 29.3(l) and apply them towards satisfaction of the Covenantor’s indebtedness to Main Roads under this Agreement. (m) The Covenantor represents and warrants to Main Roads that: (i) it has full legal capacity and power:
(A) to own its property and assets and to carry on its business; and (B) to enter into this Agreement and to perform its obligations under this Agreement;
(ii) it has taken all corporate action that is necessary to authorise its entry into this Agreement and to perform its obligations under this Agreement;
(iii) this Agreement constitutes its legal, valid and binding obligations enforceable against the Covenantor in accordance with its terms (except to the extent limited by equitable principles and laws affecting creditors’ rights generally);
(iv) neither its execution of this Agreement nor the carrying out of its obligations under this Agreement, does or will:
(A) contravene any Law to which it or any of its property is subject or any order of any Authority or other person that is binding on it or any of its property;
(B) contravene any undertaking or instrument binding on it or any of its property; or
(C) contravene its constitution; (v) no litigation, arbitration, mediation, conciliation or administrative proceedings are taking place, pending or threatened against it that (if adversely decided) could have a material adverse effect on the Covenantor’s business, assets or financial condition or its ability to perform its obligations under this Agreement;
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 62
Project Alliance Agreement
(vi) no controller (as defined in the Corporations Act), administrator, receiver, receiver and manager, provisional liquidator, liquidator or other officer of the Court is currently appointed in relation to any of its property;
(vii) it is not insolvent, unable to pay its debts as and when they fall due, or subject to voluntary administration; (viii) it is not entering into this Agreement as trustee of any trust or settlement or for, or on behalf of, any other person; (ix) the Covenantor’s payment obligations under this clause 29.3 rank at least equally with all of the Covenantor’s other unsecured and unsubordinated payment obligations (whether present or future, actual or contingent) other than obligations that are mandatorily preferred by Law; and (x) the Covenantor and its property are free of any right of immunity from set-off, proceedings or execution in respect of its obligations under this clause 29.3.
(n) The Covenantor acknowledges that Main Roads has executed this Agreement in reliance on the representations and warranties that are made in clause 29.3(m).
(o) Main Roads may exercise a right under this clause 29.3 at its discretion and separately or concurrently with another right.
(p) The Covenantor acknowledges that it has not entered into this Agreement in reliance on or as a result of any statement or conduct of any kind of or on behalf of Main Roads or any other State Entity or State's Personnel.
(q) Subject to clause 29.3(r) the maximum liability of the Covenantors combined pursuant to this clause 29.3 is no greater than the maximum liability of the Non-Owner Participant to Main Roads under this Agreement or, where for any reason this Agreement is void, voidable or otherwise unenforceable against the Non-Owner Participant, the maximum liability which the Non-Owner Participant would have had to Main Roads but for this Agreement being void, voidable or otherwise unenforceable. (r) In respect of any claim, debt or damages arising pursuant to this clause 29.3 in respect of a joint liability pursuant to clause 1.2(i)(i) of this Agreement:
(i) the maximum liability of Rizzani de Eccher SpA is 50% of that joint liability (in respect of Rizzani de Eccher Australia Pty Ltd); and
(ii) the maximum liability of Ian Stanley Tarbotton together with Domenico Marc Vieceli is 50% of that joint liability (in respect of York Civil Pty Ltd).
For the avoidance of doubt this paragraph does not apply to any several liability arising under clause 1.2(i)(i) of this Agreement.
30. Force Majeure
30.1 Definition of Force Majeure Event
Force Majeure Event means an event set out in paragraphs (a) – (i) below which is beyond the reasonable control of the relevant Participant:
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 63
Project Alliance Agreement
(a) war, invasion, act of foreign enemies, hostilities (whether war is declared or not), civil war, rebellion, revolution, insurrection or military or usurped powers, martial law or confiscation by order of any Government Agency or public authority;
(b) ionising radiations or contamination by radioactivity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel; (c) an act of a public enemy, including lawful or unlawful protests by members of the public which substantially interfere or disrupt with the delivery of the Project; (d) an industrial dispute other than industrial disputes which are confined to the relevant Participant, any Subcontractor, the Site or the Works;
(e) pressure waves caused by aircraft or other aerial devices travelling at sonic or supersonic speeds;
(f) earthquake, cyclone, or other physical disaster or act of God; (g) fire or explosion (including radioactive and toxic explosion); (h) aviation disaster; and
(i) a Terrorist Act as defined in the Terrorism Insurance Act 2003 (Cth), but does not include: (j) any event which could have been prevented or overcome by the exercise by the relevant Participant of the standard of a reasonable and prudent person;
(k) any event which was caused by the relevant Participant or contributed to by the relevant Participant, to the extent of the contribution;
(l) lack of funds for any reason; or (m) inability to use available funds. For the purposes of this definition, the relevant Participant is the Participant who is prevented from complying with its obligations under this Agreement (other than an obligation to pay money).
30.2 Effect of Force Majeure Event
(a) Where a Force Majeure Event occurs which, notwithstanding the taking of all practicable care and precautionary steps, prevents a Participant from complying with its obligations under this Agreement (other than an obligation to pay money), the Alliance Board must promptly meet and decide how, and under what conditions, if any, the Works are to proceed. (b) In making a decision under this clause 30.2, the Alliance Board may, where appropriate and without limiting any of its other rights under this Agreement, recommend to Main Roads for approval (or otherwise) that:
(i) the Direct Cost Target be altered; (ii) the applicable Date for Practical Completion be altered; or (iii) this Agreement be terminated and specify the consequences which flow from such a termination under the principles of this Agreement.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 64
Project Alliance Agreement
31. Intellectual Property
31.1 Ownership of and licences to use Intellectual Property (a) Any Intellectual Property in the materials forming part of the Project Documentation, where those materials have been generated, developed or created by or on behalf of Main Roads or the Non-Owner Participant (including by any Non-Owner Participant's Personnel ) for the purposes of the Project, will vest on creation in Main Roads. The Non-Owner Participant must do all things necessary to vest those Intellectual Property Rights in Main Roads.
(b) The Non-Owner Participant assigns, and will procure that the Non-Owner Participant's Personnel assign, to Main Roads all right, title and interest in all materials forming part of the Project Documentation, where those materials have been generated, developed or created by or on behalf of the Non-Owner Participant (including by any Non-Owner Participant's Personnel) for the purposes of the Project. (c) The Non-Owner Participant will execute such further documents and take all steps necessary, and will procure that any relevant Third Party executes such documents and takes such steps necessary, to give effect to the assignments contemplated in clause 31.1(b). (d) To the extent that Intellectual Property is not the subject of the assignments under clause 31.1(b) and it: (i) subsists in subject matter that has been generated, developed or created by or on behalf of the Non-Owner Participant (including by any Non-Owner Participant's Personnel), whether or not for the purposes of the Project; or
(ii) subsists in subject matter used or incorporated in the Project by the Non-Owner Participant (or by any Non-Owner Participant's Personnel),
the Non-Owner Participant grants to Main Roads, and will procure that all owners of any such Intellectual Property grant to Main Roads, a perpetual, royalty-free, non-exclusive licence (including the right to sub-license and disclose to any Third Party) to use that Intellectual Property for the purpose of commissioning, designing, constructing, testing, using, repairing, maintaining, upgrading, developing or modifying the Project Works or otherwise in connection with the Project or the Site.
(e) To the extent necessary for the performance of the Non-Owner Participant's Obligations, Main Roads grants to the Non-Owner Participant, for the term of this Agreement, a royalty- free, non-exclusive licence (including the right to sub-license to Approved subcontractors on the same terms) to use any Intellectual Property owned by or licensed to Main Roads for the purposes of the Project only.
31.2 IP warranties
(a) The Non-Owner Participant undertakes and warrants to Main Roads that: (i) the Non-Owner Participant is the sole legal and beneficial owner of the Intellectual Property assigned by the Non-Owner Participant under clause 31.1(b) and has full power and authority to grant the licence under clause 31.1(d);
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 65
Project Alliance Agreement
(ii) the Project Documentation, the Project Works, the Service Works and any other design, materials, documents and methods of working provided or used by or on behalf of the Non-Owner Participant in connection with the Project ("Project Deliverables") do not infringe any Intellectual Property Rights of any Third Party; (iii) the use or exploitation of the Intellectual Property the subject of the assignments under clause 31.1(b) and the licences under clause 31.1(d) by Main Roads will not infringe any Intellectual Property Rights of any Third Party;
(iv) if the Non-Owner Participant, in the course of the Project, reproduces, impacts or makes use of any work or other subject matter in which copyright subsists ("Copyright Work"), the Non-Owner Participant will obtain from every person who is an author of that Copyright Work a written consent signed by that person for the benefit of Main Roads, and its successors and assigns, under which (to the maximum extent permitted by Law that person irrevocably and unconditionally consents to Main Roads, its successors and assigns or any person authorised by any of them:
(A) changing, relocating, demolishing or destroying, using, disclosing, reproducing, transmitting, exhibiting, communicating, renting, adapting or publishing that Copyright Work anywhere in the world in whatever form Main Roads thinks fit (including the making of any distortions, additions or alterations to that Copyright Work or any adaptation, or to any part of that Copyright Work or of any such adaptation); and
(B) using, disclosing, reproducing, transmitting, exhibiting, communicating, renting, adapting or publishing that Copyright Work or any adaptation (or any part of that Copyright Work or of any such adaptation) anywhere in the world without making any identification of that person in relation thereto; and (v) in procuring the consent required under clause 31.2(a)(iv), the Non-Owner Participant will not (and will not encourage or permit anyone else to) apply any duress to any person or make a statement to any person knowing that the statement is false or misleading in a material particular, or knowing that a matter or thing has been omitted from the statement without which the statement is false or misleading in a material particular.
(b) The undertakings and warranties set out in this clause 31.2 are given continuously and survive the expiry or termination of this Agreement.
31.3 Obligations
(a) If Main Roads is prevented from utilising all or any part of the Project Deliverables in relation to the Project as a result of any Claim in relation to the infringement of any Intellectual Property Rights for which the Non-Owner Participant is responsible under this clause 31, the Non-Owner Participant must, at its cost, take all steps necessary to procure for Main Roads the right to utilise such Project Deliverables, or the relevant part thereof for the purpose for which it was intended.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 66
Project Alliance Agreement
(b) If the Non-Owner Participant cannot procure the rights referred to in clause 31.3(a) within a reasonable time, but not exceeding 60 days, unless Main Roads otherwise agrees, the Non- Owner Participant must notify Main Roads accordingly and Main Roads' Representative may direct the Non-Owner Participant to immediately, at the Non-Owner Participant’s expense:
(i) alter the Project Deliverables or the relevant part thereof to avoid infringement or violation of the Intellectual Property Rights or any of them either by removing and/or redesigning the infringing part of the Project Works; or (ii) acquire a licence for Main Roads to use the Intellectual Property Rights that the Project Deliverables or the relevant part thereof are infringing.
31.4 Saving
Notwithstanding clause 4.1, a failure by: (a) the Non-Owner Participant to comply with the requirements of this clause confers on Main Roads; or
(b) Main Roads to comply with the requirements of this clause confers on the Non-Owner Participant,
an enforceable right at law or in equity to seek any one of or a combination of specific performance, injunction or damages and, to the extent that any right under a Statutory Requirement may be excluded this Agreement, any right under that Statutory Requirement.
32. Notices
32.1 All Notices
Any notice, demand, consent or other communication (Notice) given or made under this Agreement (unless it is given or made under clause 32.2):
(a) must be in writing and signed by the sender or a person duly authorised by the sender; (b) must be delivered to the intended recipient by prepaid post (if posted to an address in another country, by registered airmail) or by hand to the address for that recipient in Schedule 6 or as otherwise specified by a recipient by Notice; and
(c) will be conclusively taken to be duly given or made: (i) in the case of delivery in person, when delivered; and
(ii) in the case of delivery by post, 2 Business Days after the date of posting (if posted to an address in the same country) or 7 Business Days after the date of posting (if posted to an address in another country),
but if the result is that a Notice would be taken to be given or made on a day that is not a Business Day in the place to which the Notice is sent or is later than 4pm (local time) it will be conclusively taken to have been duly given or made at the start of business on the next Business Day in that place.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 67
Project Alliance Agreement
32.2 Notices by email Any Notice which may be made or given under this Agreement may instead be sent by email if the Notice: (a) is sent by a person clearly authorised by the sender;
(b) is sent to the Participant's email address in Schedule 6 or as otherwise specified by the Participant by Notice; and (c) the sender keeps an electronic copy of the Notice sent.
The recipient of a Notice sent under this clause 32.2 must promptly acknowledge receipt of a Notice sent under this clause and must keep an electronic copy of the Notice.
32.3 Receipt of Notices sent by email
A Notice sent under clause 32.2 will be conclusively taken to be duly given or made on the first to occur of: (a) a receipt by the sender of an email acknowledgement from the recipient's information system showing that the Notice has been delivered to the Participant's email address in Schedule 6 or as otherwise specified by a Participant by Notice;
(b) the time that the Notice enters an information system which is under the control of the recipient; and (c) the time that the Notice is first opened or read by the recipient,
but if the result is that a Notice would be taken to be given or made on a day that is not a Business Day in the place to which the Notice is sent or is later than 4pm (local time) it will be conclusively taken to have been duly given or made at the start of business on the next Business Day in that place.
33. General
33.1 Governing law and jurisdiction
(a) This Agreement is governed by the law in force in Western Australia. (b) Each Participant irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in Western Australia and courts of appeal from those in respect of any proceedings arising out of or in connection with this Agreement. Each Participant irrevocably waives any objection to the venue of any legal process in these courts on the basis that the process has been brought in an inconvenient forum.
33.2 Invalidity and enforceability
If any term or part of this Agreement is or becomes for any reason invalid or unenforceable at law, then in that event, that term or part of this Agreement will be and be hereby deemed to be severed from this Agreement without thereby affecting the remainder of this Agreement and the remainder of this Agreement will continue to be valid and enforceable in all things.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 68
Project Alliance Agreement
33.3 Waiver (a) No Participant to this Agreement may rely on the words or conduct of any other Participant as a waiver of any right unless the waiver is in writing and signed by the Participant granting the waiver.
(b) In this clause 33.3: (i) conduct includes delay in the exercise of a right; (ii) right means any right arising under or in connection with this Agreement and includes the right to rely on this clause; and (iii) waiver includes an election between rights and remedies, and conduct which might otherwise give rise to an estoppel.
33.4 Amendments
Amendment of this Agreement must be in writing and signed by the Participants.
33.5 Entire agreement
This Agreement states all the express terms of the agreement between the Participants in respect of its subject matter. It supersedes all prior discussions, negotiations, understandings and agreements in respect of its subject matter.
33.6 Counterparts
This Agreement may be executed in any number of counterparts. All counterparts together will be taken to constitute one instrument.
33.7 No Assignment
Neither the Non-Owner Participant nor a Covenantor may sell, novate, assign, transfer, encumber, charge, grant any option, lease or licence in respect of, or in any manner alienate, dispose of, or part with possession of, or declare oneself trustee of or in relation to all or part of its rights or obligations arising under this Agreement without the prior written approval of Main Roads.
33.8 Confidentiality
(a) Subject to clause 33.8(b), the Non-Owner Participant and the Covenantor must: (i) keep confidential the terms of this Agreement and any information about the Project including the discussions and negotiations leading to this Agreement ("Confidential Information"); and
(ii) ensure that each of the Non-Owner Participant's Personnel complies with the terms of clause 33.8(a)(i). (b) The Non-Owner Participant and the Covenantor are not obliged to keep confidential any Confidential Information: (i) that is otherwise in the public domain through no default of the Non-Owner Participant or the Covenantor; or
(ii) the disclosure of which is:
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 69
Project Alliance Agreement
(A) required by Law; (B) given with the prior consent of Main Roads; or
(iii) given to a court in the course of proceedings to which the Non-Owner Participant or the Covenantor are a party.
(c) The Non-Owner Participant must immediately notify Main Roads if it becomes aware of any loss or unauthorised use, access, copying, or disclosure of Confidential Information. (d) Nothing in this Agreement prevents Main Roads from providing any information relating to the Agreement or the Works to any Government Minister of the State of Western Australia or to the Parliament of Western Australia or to any committee or sub-committee of that Parliament in the context of any issue or enquiry that may be made concerning the Agreement or the Works.
(e) For the purposes of section 275(6) of the Personal Property Securities Act 2009 (Cth), Main Roads, the Non-Owner Participant and the Covenantor agree that, subject to clause 33.8(b), none of the parties may disclose any information of the kind referred to in section 275(1) of the Personal Property Securities Act 2009 (Cth).
(f) Notwithstanding clause 4.1, a failure by a Participant to comply with the requirements of this clause 33.8 confers on the other Participants an enforceable right at law or in equity to seek any one of or a combination of specific performance, injunction or damages and, to the extent that any right under an Act of Parliament may be excluded by this Agreement, under that Act of Parliament.
33.9 Relationship of the Participants
(a) Nothing in this Agreement gives a Participant authority to bind any other Participant in any way. (b) The Non-Owner Participant is an independent contractor of Main Roads. The employees, agents and Subcontractors of the Non-Owner Participant will not be deemed to be employees, agents or Subcontractors of Main Roads and each Participant must pay all costs associated with its employees.
(c) This Agreement, and the project alliance relationship created by it, is not intended to create, nor will it be construed as creating, any partnership, joint venture or fiduciary obligation with regard to, or as between, the Participants.
33.10 Corporate power and authority
Each Participant represents and warrants to the others that it has full power to enter into and perform its obligations under this Agreement and that when executed it will constitute legal, valid and binding obligations under its terms.
33.11 Financial difficulties
A Participant must immediately notify the other Participants in writing if it forms the opinion that it will be unable to, or be unlikely to be able to, satisfy any of its financial obligations in relation to this Agreement from the financial resources available, or likely to be available to it, at the time the financial obligation is due.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 70
Project Alliance Agreement
33.12 Change in Control (a) A Change in Control of the Non-Owner Participant, York or Rizzani must not occur without the prior written approval of Main Roads. (b) A Change in Control of the Non-Owner Participant, York or Rizzani without the prior written approval of Main Roads is a substantial breach of this Agreement.
33.13 Main Roads’ statutory functions
Nothing contained in or implied by this Agreement or any document contemplated by this Agreement has the effect of constraining:
(a) Main Roads or placing any fetter on its statutory rights, duties, powers and functions, including those contained or referred to in any Statutory Requirement; and
(b) the Auditor-General for the State of Western Australia or placing any fetter on its statutory rights, duties, powers and functions under the Financial Administration and Audit Act 1985 (WA).
33.14 Survival
Clauses 4, 17, 18, 19, 22, 23, 24, 27.4, 27.5, 28, 31, 32 and 33 and Schedule 2 and Annexure B survive the expiration of the Term.
33.15 Costs
Each Participant must pay its own costs and disbursements in connection with the negotiations, preparation and execution of this Agreement. For the avoidance of doubt these costs are not Direct Costs.
33.16 Media, advertising and public statements
(a) The Non-Owner Participant and the Covenantor must not disclose any information concerning the Project for distribution through any communications media without Main Roads’ Representative’s prior written approval. The Non-Owner Participant and the Covenantor must refer to Main Roads’ Representative any enquiries from any media concerning the Project. (b) The Non-Owner Participant must not allow any advertisement to be exhibited on the Site without Main Roads’ Representative’s prior written approval.
(c) The Non-Owner Participant must not, without the prior written approval of Main Roads' Representative: (i) use this Agreement or any State Entity’s name or logo; (ii) use the name or logo of any person specified in this Agreement, the Government of Western Australia or any other Authority; (iii) refer to the Non-Owner Participant's association with Main Roads, the Government of Western Australia or any State Entity which results from this Agreement; or
(iv) make any statement concerning this Agreement or the Project,
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 71
Project Alliance Agreement
in any publication, advertisement, media release or public statement, except to the extent authorised pursuant to clause 33.16(a).
(d) Any State Entity may use this Agreement and the Non-Owner Participant's name and logo in connection with this Agreement as Main Roads reasonably requires, provided that the State Entity acknowledges the role of the Non-Owner Participant to the extent that is reasonable in the circumstances.
(e) The Non-Owner Participant must ensure that each subcontract contains an obligation in the same terms as this clause 33.16 on each of the subcontractors.
34. Personal Property Securities Act
34.1 Meanings of terms
In this clause 34, security interest, perfected, personal property, possession and control have the meanings given to them in the PPSA.
34.2 PPSA further steps
(a) Whenever Main Roads requests that the Non-Owner Participant does anything to ensure any security interest granted under this Agreement is fully effective, enforceable and perfected with the priority required by Main Roads, the Non-Owner Participant must promptly do it at the Non-Owner Participant's cost.
(b) This may include: (i) doing anything to make, procure or obtain any consent, authorisation, registration or approval in respect of anything, or to facilitate it; (ii) creating or executing (or procuring the creation or execution of) any document, including any form, notice, consent or agreement; and
(iii) delivering documents or evidence of title or otherwise giving possession or control with respect to any personal property or other asset.
34.3 Provision of information
Main Roads may request the Non-Owner Participant to provide information relating to a security interest (in favour of any person) in this Agreement or any matter contemplated by this Agreement, including requesting a copy of any form, notice, consent or agreement relating to such a security interest. The Non-Owner Participant must promptly (and at their own cost) comply with such a request.
34.4 PPSA requirements
(a) The Non-Owner Participant must promptly take all reasonable steps which are prudent for its business under or in relation to the PPSA, including doing anything reasonably requested by Main Roads for that purpose. (b) Without limiting paragraph (a), each Non-Owner Participant must take reasonable steps to identify security interests in its favour and to perfect and protect them, with the highest
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 72
Project Alliance Agreement
priority reasonably available, except to the extent it is not reasonable or practicable to do so, taking into account the costs and risks involved.
(c) Main Roads may request that the Non-Owner Participant provide evidence of their compliance with this clause 34.4, and the Non-Owner Participant must promptly comply with that request.
34.5 PPSA exclusions
(a) To the extent this Agreement or the transactions contemplated by it give rise to a security interest under the PPSA, the Participants contract out of each provision which sections 115(1) or 115(7) permits them to contract out, other than sections 117 and 118 (relationship with land laws), 128 and 129 (disposal of collateral) and 134(1) and 135 (retention of collateral). Any disposal or other exercise of a right, power or remedy under this Agreement or otherwise will only be taken to be under a provision listed in this paragraph (a) if the exercising Participant so elects.
(b) The Non-Owner Participant waives its rights to receive: (i) each notice which section 157(3) permits it to waive and, to the extent capable of being waived, notice under any other provision of the PPSA; and (ii) anything from the other party under section 275 and agrees not to make any request of the other party under that section.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 73
Project Alliance Agreement
Schedule 1 – Alliance Framework
1. Alliance Principles
The Alliance Principles are: (a) all Participants win, or all Participants lose, based on achieved Project outcomes;
(b) Participants have a peer relationship where each Participant has an equal say; (c) responsibilities are shared and managed collectively; (d) risks and rewards are shared equitably among Participants;
(e) Participants provide the best available resources; (f) Participants act consistently according to espoused values;
(g) Participants are committed to developing a culture that promotes and drives collaboration, innovation and outstanding performance;
(h) there is a clear definition of responsibilities in a ‘no-blame’ culture; (i) the Alliance Board, Alliance Management Team and Alliance Project Team are empowered to make decisions and actions;
(j) all transactions are fully 'open-book'; (k) communication between all Participants is open and honest;
(l) important decisions are made on a ‘Best for Alliance’ basis; and (m) safety is our number one priority at all times – never compromise safety for time or cost.
2. Alliance Purpose
To safely deliver a functional bridge that can be safely used for major events at the stadium by the 16th March 2018.
On completion, the Swan River Pedestrian Bridge will enhance the greater precinct, standing as an iconic landmark that links the City of Perth with the Burswood Peninsula across the Swan River.
The bridge will be completed using local fabrication providing a boost to local employment and the local economy.
3. Alliance Vision
Not used.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 74
Project Alliance Agreement
4. Project Objectives
The Project Objectives are to: (a) deliver a functional bridge that can be safely used as part of the overall public transport solution for the new Perth Stadium;
(b) provide efficient and safe access and egress for pedestrians to access the Burswood Peninsula; (c) achieve value for money for Western Australia;
(d) undertake the Project in an environmentally and socially sensitive manner (including in a manner sensitive to local indigenous and heritage issues);
(e) complete the Project in accordance with Main Roads' requirements and standards;
(f) achieve innovative approaches to the design and construction of the Project Works so as to create a landmark expression of exemplary design quality, which is visually distinctive, legible, robust and responsive to the surrounding context and the new Perth Stadium Project;
(g) integrate the Project Works with the new Perth Stadium Project and allow for the management of all interfaces between the Project and the new Perth Stadium Project, and (h) ensure good governance,
and will include the following Delivery Objectives: (i) deliver the Project Objectives;
(j) accomplish value for money procurement; (k) achieve Project milestones and deliver a functional bridge that can be safely used for events by 16 March 2018; (l) realise budget certainty;
(m) minimise and clearly define Project risk; (n) achieve environmental compliance; (o) attain positive stakeholder and community acceptance; and (p) enhance physical and visual amenity.
5. Alliance Board
5.1 Alliance Board members
As at the Effective Date, the Alliance Board members are: • Owner Participant • Owner Participant • Non-Owner Participant • Non-Owner Participant
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 75
Project Alliance Agreement
5.2 Alliance Board roles and responsibilities The role of the Alliance Board is to:
(a) facilitate project alliance culture, continuous improvement and innovation, and provide the governance required to promote improvement on business as usual;
(b) provide visible, ongoing, challenging and strategic leadership; (c) establish and review the Project Objectives; (d) appoint the Alliance Director and endorse the Alliance Management Team; (e) ensure adequate resourcing at all times; (f) lead the adoption of the Alliance Purpose, Project Objectives and strategic direction for the Project; (g) approve the initial PMP, and all associated plans outlined in the Agreement, and amendments as necessary through the life of the Project; (h) monitor Project performance including cost and KRA outcomes, and take remedial action where necessary;
(i) monitor progressive performance with respect to payments and estimated Performance Payment;
(j) consider relevant changes identified during the course of the Project, and where appropriate, recommend changes to the Direct Cost Target to Main Roads;
(k) review and endorse new initiatives, including community initiatives, and approve specific funding;
(l) review and determine whether internally generated charge out rates used to calculate Direct Costs are fair and reasonable; (m) liaise with and influence high level stakeholders to facilitate project alliance performance and success;
(n) recommend changes to the Agreement which would improve the provision of Works; and (o) provide the final point for resolution of issues.
5.3 Alliance Board code of conduct
The Alliance Board must, as a minimum, abide by the following principles:
(a) Best For Alliance decision making;
(b) have the power to commit resources within the limits of their fiduciary responsibilities to their parent company;
(c) deal with issues promptly; (d) no surprises – timely agenda; (e) be prepared and available; (f) open and honest communication;
(g) strategic thinking rather than operational;
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 76
Project Alliance Agreement
(h) unanimous decisions; (i) Alliance Board members own Alliance Board decisions; and
(j) act professionally at all times.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 77
Project Alliance Agreement
Schedule 2 – Termination payment
1. Termination payments – termination of Agreement for convenience
(a) Subject to Main Roads’ rights under or in connection with this Agreement, if this Agreement is terminated in accordance with clause 26.1, Main Roads must pay the Non- Owner Participant, or the Non-Owner Participant must pay Main Roads (as the case may be), an amount which is to be agreed between the Participants or, failing agreement, an amount determined by an Adjudicator in accordance with the provisions of this Schedule 2.
(b) In agreeing the amount payable under this clause, the Participants must have regard to the following:
(i) the Direct Costs payable in accordance with clause 17.1 for the Works carried out prior to the date of termination; (ii) the cost of Materials reasonably ordered by the Non-Owner Participant for the Works, which the Non-Owner Participant are legally liable to accept, but only if the Materials become the property of Main Roads upon payment;
(iii) costs reasonably and actually incurred by the Non-Owner Participant in the expectation of completing the whole of the Works including costs or damages incurred by reason of the Non-Owner Participant having to terminate contractual arrangements with other parties that were entered into for the purposes of the Works, those costs and damages not having been accounted for in any payment by Main Roads (including any payment to be made by Main Roads under a new agreement as referred to in paragraph (b)(vii) of this Schedule 2); (iv) reasonable costs of demobilisation;
(v) the reasonable costs of complying with any directions given by Main Roads upon, or subsequent to, termination; (vi) any amounts which Main Roads has previously paid to the Non-Owner Participant; and (vii) if the Non-Owner Participant agrees to continue with the Works as contemplated by clause 28.4, the extent to which Materials, orders made and other matters the subject of the costs outlined in this paragraph (b) can be used in any new agreement entered into by the Non-Owner Participant for the continuation of the Works.
(c) Payments made under this Schedule 2 are the only liability of Main Roads in relation to or in connection with a termination under clause 26.1 and Main Roads is not otherwise liable to the Non-Owner Participant for any cost, loss (including loss of production, loss of revenue, loss of profit or anticipated profit, loss of business reputation, business interruptions of any nature or wasted overheads), expense or damage incurred by the Non- Owner Participant as a consequence of, or in connection with, this Agreement, the Works, or the termination.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 78
Project Alliance Agreement
(d) Any issue between the Participants regarding the amount payable under paragraph (a) of this Schedule 2 must be referred to the Adjudicator for determination.
(e) Notwithstanding the undertaking to avoid issues arising between the Participants and litigation or arbitration set out in clause 4.1 of this Agreement, Main Roads and the Non- Owner Participant are entitled to recover the amount as determined in accordance with this clause if that amount is not paid within 20 Business Days of the date of agreement between the Participants or the date of determination by an Adjudicator, as the case may be.
2. Independent Adjudicator
2.1 Referral of certain issues to an Adjudicator
If an issue arises between the Participants in respect of the amount payable under clause 1 of this Schedule 2, then a Participant may by notice to the others, specify the nature of the issue and call for submission of the issue to an Adjudicator to determine it. In the event of a submission of the issue to the Adjudicator, the Adjudicator must determine the amount payable by Main Roads to the Non- Owner Participant or the Non-Owner Participant to Main Roads (as the case may be) by determining the net sum of the amounts set out in clauses 1(b)(i) – 1(b)(vii) of this Schedule 2 (Determination).
2.2 Nomination of Adjudicator
The procedure for appointing the Adjudicator is as follows: (a) Notice must be given by the Participant calling for the appointment of the Adjudicator, including details of the matter to be resolved by the Adjudicator, to the other Participants.
(b) If the matter is not resolved within 5 Business Days from the date of the notice, the Participants must agree on a single Adjudicator to determine the issue.
(c) If, within 5 Business Days of the notice, the Participants fail to agree on a single Adjudicator, then the Participants must, as soon as practicable, request the President of CPA Australia or the most senior officer of CPA Australia to appoint the Adjudicator. (d) Upon agreement of the Participants, or appointment of an Adjudicator under paragraph (c) of this Schedule 2, the Participants and the Adjudicator must enter into an agreement which will govern the determination of the issue. That agreement must be consistent with the provisions of this Schedule 2.
2.3 Adjudicator to have appropriate experience
(a) The Adjudicator must have appropriate commercial and practical experience and expertise in the area of the issue. (b) Any person nominated to act as an Adjudicator must fully disclose any interest or duty prior to that person's appointment. If that person has or may have any interest or duty which conflicts with their appointment as Adjudicator, then that person must not be appointed except with the agreement of all the Participants.
(c) In resolving the issue the Adjudicator must act impartially.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 79
Project Alliance Agreement
2.4 Confidentiality It will be a term of the Adjudicator’s appointment that the Adjudicator must be required to undertake to keep confidential matters coming to the Adjudicator’s knowledge by reason of the Adjudicator’s appointment and carrying it out.
2.5 Powers of Adjudicator
The Adjudicator will have the following powers: (a) to determine an issue regarding the amount payable under clause 1(a) of this Schedule 2; (b) to inform itself independently as to facts to which the issue relates; (c) to obtain evidence from any person in relation to any aspect of the issue;
(d) to receive written submissions and sworn and unsworn written statements and to photocopy documents and to act upon the same;
(e) to consult with such other professionally qualified persons as the Adjudicator in its absolute discretion thinks fit; and (f) to take such measures as the Adjudicator thinks fit to expedite the completion of the issue resolution, but the Adjudicator will only have the power to determine an issue regarding the amount payable under clause 1(a) of this Schedule 2 and no other issue (unless the Participants otherwise agree).
2.6 Timing of issue resolution
It will be a term of the Adjudicator's appointment that the Adjudicator must be required to make a determination of the issue within 20 Business Days of the Adjudicator’s appointment or such further period as the Participants may agree. If any Participant considers that the issue is of an urgent nature and needs to be resolved within a shorter period, then that Participant may require the period of 20 Business Days to be reduced to such period as that Participant may reasonably require, being not less than 5 Business Days.
2.7 Written determination
The Adjudicator must deliver a written determination which sets out the reasons for the determination and the findings of fact on which the determination is based.
2.8 Issue resolution to be held in Perth, Western Australia
The issue resolution must be held in Perth, Western Australia unless the Participants otherwise agree.
2.9 Adjudicator's Determination is final
The Adjudicator must act as an expert and not an arbitrator. The determination is final and binding on the Participants except in the case of manifest error or if the Adjudicator has acted in bad faith.
2.10 Costs of Adjudicator
The costs of the Adjudicator must be borne equally by the Participants and are not Direct Costs.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 80
Project Alliance Agreement
2.11 Referral to Adjudicator does not affect the obligations of the Participants The referral of any matter to an Adjudicator does not in any manner relieve any Participant from performing its obligations under this Agreement pending the determination of the issue.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 81
Project Alliance Agreement
Schedule 3 – Direct Costs
For the Works, all costs which are actually and reasonably incurred by the Participants in connection with the Works: (a) between the Effective Date and the Amendment and Restatement Date, provided that all Participants have been notified of those costs prior to the Amendment and Restatement Date; or
(b) on and from the Amendment and Restatement Date, will be direct costs (Direct Costs) apart from: (c) any costs recovered by the Contractor under the Original Project Deed prior to the Effective Date or recovered by the Contractor through the Completed Works Sum;
(d) any corporate overhead component (whether or not specific to the Works); and (e) profit or mark up of any kind. It is a fundamental underlying principle of this Agreement that:
(a) no Participant will derive any mark up, overhead, profit or unreasonable advantage from the utilisation of their resources for the Works; (b) direct costs which are recovered under clause 1 of this Schedule 3 cannot be also recovered under clauses 2 to 16 of this Schedule 3; and (c) neither costs recovered under the Original Project Deed prior to the Effective Date, nor the Completed Works Sum can be recovered under this Schedule 3.
Direct Costs include the following costs which are actually and reasonably incurred:
1 Labour, staff and supervision
The Participants are entitled to recover the actual cost for labour, staff and supervision employed by the Participants and assigned to the Alliance Management Team and Alliance Project Team for the purposes of performing the Works in accordance with this clause 1, including as set out under the following categories:
(a) Employees of Constructor Participant(s); (b) Direct Labour – Project employed personnel; and (c) Other Costs.
The following table sets out the treatment of Main Roads' personnel on the Project.
Item Direct Comments Cost
Main Roads' personnel Yes Costs of secondee's salaries, allowances, seconded salary, allowance payroll overheads, vehicles, excluding any and vehicle costs secondees nominated by the Alliance Board.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 82
Project Alliance Agreement
Main Roads' general advice No Casual interactions with Main Roads' staff / support
Main Roads in-house No Planned days of interaction with Main specific technical advice Roads' technical staff and assistance
1.1 Employees of Constructor Participant(s)
The Participants are entitled to recover the following actual labour costs for employees of the Constructor Participant(s) for their time spent on the Project:
(a) the base salary - salaries actually paid to an employee, including site allowances, shift allowances, vehicle allowances which form part of an employee’s salary package and allowance for sick leave and public holidays; and
(b) an on-cost multiplier – an on-cost multiplier of which will be added to the base salary and which is deemed to include the following costs:
(i) superannuation contributions; (ii) payroll costs and tax; (iii) leave burdens, annual leave loading and long service leave entitlements to the extent they are accrued during the period they are employed on the Works;
(iv) termination/redundancy payments to staff to the extent that they accrue during the period they are employed on the Works;
(v) bonus payments, reasonable benefits and allowances made by or provisioned by the Participants to staff; and
(vi) training related to corporate requirements.
1.2 Not used
1.3 Direct Labour - Project Employed Personnel
Direct labour may be engaged for carrying out the Works provided an Enterprise Agreement is entered into to govern the rules under which the direct labour will be employed. All direct labour shall provide weekly timesheets which will determine the amount paid. Direct labour employed by the Participants for the Project will be paid as required under an Enterprise Agreement and the necessary provisions will be made, as described in the Enterprise Agreement, to cover the on-costs associated with employing the labour. The on-costs associated with employing the labour will include the following: (a) superannuation contributions payable; (a) payroll costs and tax;
(b) annual leave burdens, sick leave, public holidays and long service leave entitlements to the extent they are accrued during the period they are employed on the Works;
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 83
Project Alliance Agreement
(c) termination/redundancy payments to the extent they are accrued during the period they are employed on the Works; and
(d) income protection insurance.
1.4 Other Costs
Costs which are not recovered through the on-cost multiplier, but are recovered directly for the amount actually and reasonably incurred, include the following:
(a) project specific team functions and recognition; (b) incentive payments made to staff/labour employed on the Works which are directly related to the performance of the Works and that are as approved in writing by the Alliance Board prior to making the payment;
(c) project specific training costs; (d) project specific travel costs, including Project specific travel, accommodation and subsistence allowances;
(e) project specific clothing and safety equipment with alliance branding; (f) provisions of registered industrial agreements relevant to this Project, provided that Main Roads is consulted prior to any new entitlements being accorded to employees and agrees to the new entitlements; (g) costs directly associated with a Participant’s implementation and compliance with State and Federal Government policies and guidelines including the State of Western Australia's 'Government Building Training Policy' administered by the Department of Training and Workforce Development as required by this Project; (h) costs directly associated with a Participant’s management of the insurances referred to in this Agreement required to be maintained by the Owner Participant or the Non-Owner Participant, including any related claims management, injury management and return to work programs; and (i) all costs associated with PPSA.
2. Taxes, fees and charges
All fees, charges, duties, royalties, licences, Fringe Benefit Tax and statutory charges of any kind or nature, imposed or levied with respect to the performance of the Works (including any Building and Construction Industry Training Levy payable in respect of the Works).
3. Legal expenses
Subject to the exclusion in clause 18 of this Schedule 3, all reasonable costs paid in defending or prosecuting lawsuits or claims (including payment of judgments, awards, orders, damages, restitution, compensation or interest) arising out of or in connection with the Works (but excluding costs, payment of judgments, awards, orders, damages, restitution, compensation or interest incurred or suffered in relation to issues between the Participants as contemplated in clause 4.3 of this
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 84
Project Alliance Agreement
Agreement), or any reasonable legal costs otherwise necessary or expedient for the Works other than legal services used in the preparation, negotiation or execution of this Agreement.
4. Subcontractors and consultancies
(a) Cost of Subcontract works and services and the provision of equipment in connection with Works from sources other than the Participants.
(b) Consultancy services of consultants engaged by the Alliance Board or the Alliance Management Team in connection with the Works.
5. Materials
(a) Cost of Materials purchased by any of the Participants for the Works, including Materials purchased for research and development directly related to the Works.
(b) Cost of the disposal of Materials not required for the purposes of undertaking the Works.
6. Participant facilities
Cost of the use of on-Site and off-Site Construction Plant and Temporary Works provided for the Works. These costs will be allocated on a basis determined by the Alliance Board if the Construction Plant and Temporary Works in question are also used for purposes other than the Works.
7. Site establishment costs
Costs associated with the establishment of the Site, including:
(a) mobilisation and demobilisation; (b) connection and disconnection of temporary services; (c) the costs associated with negotiating, investigating, surveying and designing land acquisitions and arranging Site access, possession and laydown areas;
(d) the costs associated with establishing the Site offices; (e) the costs associated with acquiring land outside the Site; (f) accommodation works on, and modifications to accesses to, properties impacted by the Works;
(g) applying for Development Applications and complying with the conditions of those Development Applications;
(h) Site fencing, remedial fencing, access gates and hoardings; (i) protection of existing facilities; (j) Project signboard; and
(k) inductions (to the extent not covered under clause 1 of this Schedule 3).
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 85
Project Alliance Agreement
8. Site running costs
Costs associated with running the Site, including: (a) the Site offices; (b) storage facilities (whether on-Site or off-Site). These costs will be allocated on a basis determined by the Alliance Board if the storage facilities are also used for purposes other than for the Works; (c) laydown areas;
(d) ablutions; (e) compliance with quality assurance, occupational health and safety and environmental requirements;
(f) compliance with public relations and Aboriginal Heritage issues; (g) traffic management; (h) power and water consumption; (i) rubbish removal;
(j) Site security; and (k) consumables (for example, petty cash, first aid, tea and coffee).
9. Participants' Construction Plant
(a) The cost of Construction Plant which is required across the whole spectrum of the Works, including:
(i) cranage; (ii) scaffolding and access; (iii) Site vehicles; (iv) earthmoving plant;
(v) road and structure construction plant; (vi) concrete placing plant; (vii) general small tools; and (viii) the supply, installation and miscellaneous (eg. freight) costs of mechanical equipment; any additional equipment for testing. (b) The hire rate to the Project for all Participant owned Construction Plant will be the lesser of:
(i) the published internal rate currently being utilised by the Participant; or (ii) the best external hire rate for a similar piece of equipment for a similar period of hire.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 86
Project Alliance Agreement
(c) Participants must provide evidence of the published internal hire rate referred to in paragraph (b)(i).
10. Photocopying and printing
All costs associated with producing, copying and binding: (a) all drawings; (b) maintenance and operation manuals; (c) test reports; and
(d) other documents produced as part of the Works.
11. Insurance
(a) The Non-Owner Participant's cost of providing the insurances referred to in this Agreement and any difference in cover insurance approved by the Alliance Board. (b) Any deductible or excess payable in relation to the insurances referred to in this Agreement or unrecovered amounts and the cost of preparing any claims. (c) If any of the insurances referred to in this Agreement are not specific to this Agreement, the Alliance Board must determine the extent that the cost of that insurance should be apportioned for the purpose of being a Direct Cost.
12. Security
Subject to clause 29 of this Agreement, all costs of establishing and maintaining the security referred to in clause 29 of this Agreement.
13. Project Office
Leasing, support and equipment (including communications and signage) costs of the Project offices referred to in clause 6.6 of this Agreement.
14. Specialist groups
The costs charged by any specialist group within any of the Participants when their services are used by the Alliance Management Team for the purposes of the Works.
15. Not used
16. IT Costs
The cost of:
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 87
Project Alliance Agreement
(a) cabling; (b) switching infrastructure;
(c) telephone system; (d) implementation and installation; (e) servers; (f) network costs;
(g) data link costs; (h) PCs (including design software and other software purchased specifically for the Works but excluding design software and software used by the Participants in their day to day operations); (i) amortisations and licences;
(j) printers, plotters, MFM, scanners; (k) cameras and videos to the extent they are purchased or used solely for the Works; (l) MIS services and support charges; and (m) IT support,
located at the Project offices referred to in clause 6.6 in this Agreement.
17. Other
Any other cost that, in the view of the Alliance Board, should be a Direct Cost including any costs incurred by the Non-Owner Participant in running an overdraft in the Project Bank Account.
18. Exclusions
For the avoidance of doubt, the following costs incurred by the Participants will not be Direct Costs (and to the extent that they have been incorrectly recognised as Direct Costs, will be credited against Direct Costs): (a) any legal costs incurred by a Participant in defending any prosecution or claim brought against a Participant by a Governmental Agency by reason of an alleged breach of any Statutory Requirement;
(b) proceeds recovered under any insurance policy required to be effected and maintained by a Participant or any other insurance policy in place, or put in place, by a Participant covering the Works or the obligations of that Participant;
(c) costs incurred by a Participant where those costs are subsequently recouped by that Participant including where those costs are recouped under security provided by the Non- Owner Participant, an insurance policy required to be effected and maintained by a Participant or any other insurance policy in place, or put in place, by a Participant covering the Works or the obligations of that Participant or from a Third Party;
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 88
Project Alliance Agreement
(d) any costs associated with Participants’ representatives attending an Alliance Board meeting;
(e) any costs, liabilities or payments incurred or made by a Participant in indemnifying another Participant in accordance with this Agreement;
(f) any costs, liabilities or payments incurred or made by a Participant in defending or prosecuting lawsuits of claims (including payment of judgments, awards, orders, damages, restitution, compensation or interest) by or against another Participant in accordance with clause 4.3 of this Agreement;
(g) any and all costs, losses, damages and expenses suffered or incurred by the Defaulting Participant arising out of or in connection with a default (as that term is defined in clause 27.1) and/or exclusion and/or termination under clauses 27 and 28; (h) any corporate or personal income tax or capital gains tax imposed on a Participant; (i) GST;
(j) any penalties or fines in respect of the matters referred to in this Schedule 3; (k) any costs incurred by a Participant, or to be incurred by a Participant, specifically excluded under this Agreement as being a Direct Cost;
(l) costs incurred by Main Roads in effecting its Principal Controlled Insurance Program; (m) any corporate overhead component (whether or not specific to the Works); (n) profit or mark up of any kind; (o) all costs incurred in making good any Defects; and
(p) any costs or expenses incurred by York or Rizzani in the administration, operation or conduct of the Rizzani York Joint Venture.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 89
Project Alliance Agreement
Schedule 4 – Performance Payment
1. General
The methodology for deriving the Performance Payment is separated into two broad components namely:
(a) the cost performance component – Direct Costs underrun or overrun (which may result in a payment of a Cost Performance Amount); and
(b) the timely Practical Completion component (which may result in payment of a Completion Payment). This Schedule 4 sets out the general principles as to how the Participants intend the above Performance Payment components to operate.
2. Cost Performance – Direct Costs underrun or overrun
2.1 Principles
The Cost Performance Amount for the Project will be applied such that: (a) in respect of any Direct Costs underrun sharing 70/30 (Main Roads/Non-Owner Participant); and
(b) in respect of any Direct Cost overrun sharing, 40/60 (Main Roads/Non-Owner Participant).
2.2 Calculation of Cost Performance Amount after Completion Date
The Cost Performance Amount (if any) payable by Main Roads to the Non-Owner Participant or the Non-Owner Participant to Main Roads (as the case may be) after the Completion Date will be calculated as follows: (a) if Actual Direct Costs for the period from the Effective Date until the Completion Date are less than the Direct Cost Target, then: the Cost Performance Amount payable = (30% x (Direct Cost Target – Actual Direct Costs)); (b) if Actual Direct Costs for the period from the Effective Date until the Completion Date are greater than the Direct Cost Target, then:
the Cost Performance Amount payable = (40% x (Actual Direct Costs – Direct Cost Target)).
For the avoidance of doubt, only one claim may be made for the Cost Performance Amount following the Completion Date.
2.3 Payment of Cost Performance Amount Payment of any Cost Performance Amount will be made in accordance with clause 6 of Schedule 11.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 90
Project Alliance Agreement
3. Completion Payment
3.1 Completion Payment and Practical Completion If the Date of Practical Completion of Separable Portion 2 occurs in a period specified in the following table, Main Roads will pay the Non-Owner Participant the amount specified for that period in the table (Completion Payment):
Date of Practical Completion of Separable Portion 2 Completion occurs: Payment
1 On or before 16 March 2018 $2.6m
2 Between 17 March 2018 and 23 March 2018 (inclusive) $2.1m
3 Between 24 March 2018 and 30 March 2018 (inclusive) $1.6m
4 Between 31 March 2018 and 6 April 2018 (inclusive) $1.1m
5 Between 7 April 2018 and 13 April 2018 (inclusive) $600,000
6 Between 14 April and 20 April 2018 (inclusive) $100,000
7 On or after 21 April 2018 $0
For the avoidance of doubt, only one claim may be made for the Completion Payment and the maximum Completion Payment payable by Main Roads is $2.6m.
3.2 Payment of Completion Payment
Payment of any Completion Payment will be made in accordance with clause 7 of Schedule 11.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 91
Project Alliance Agreement
Schedule 5 – Not Used
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 92
Project Alliance Agreement
Schedule 6 – Participants’ contact details
1. Main Roads (client)
Address: Main Roads Don Aitken Centre Waterloo Crescent East Perth WA 6004
Email: Attention:
2. Owner Participant
Address: Main Roads Don Aitken Centre Waterloo Crescent East Perth WA 6004 Email: Attention:
3. Non-Owner Participant
Address: Rizzani York Joint Venture 27 Tikalara Street
Regency Park SA 5010 Email Attention:
4. Covenantor 1
Address: C/O – York Civil Pty Ltd
27 Tikalara Street
Regency Park SA 5010 Email:
Attention:
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 93
Project Alliance Agreement
5. Covenantor 2
Address: C/O – York Civil Pty Ltd 27 Tikalara Street Regency Park SA 5010
Email: Attention:
6. Covenantor 3
Address: Rizzani de Eccher SpA, Via Buttrio, 36 Frazione Cargnacco 33050 Pozzuolo del Friuli (UD) Italy Email: Attention:
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 94
Project Alliance Agreement
Schedule 7 – Not Used
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 95
Project Alliance Agreement
Schedule 8 – Main Roads’ Representative
1. Role
Main Roads’ Representative must perform all of Main Roads’ obligations in Main Roads’ capacity as client under this Agreement. In performing Main Roads' obligations under this Agreement (except to the extent such obligations comprise the exercise of a Main Roads' Reserved Power or the context requires otherwise), Main Roads' Representative must act honestly, reasonably and with integrity.
2. Responsibilities
2.1 General
Main Roads’ Representative’s responsibilities can be divided into 4 categories: (a) scope of Works;
(b) financial accountability; (c) liaison and facilitation; and (d) ownership. The responsibilities of Main Roads in respect of the 4 categories identified above include the matters set out in clauses 2.2 to 2.5 of this Schedule 8.
2.2 Scope of Works
Main Roads’ Representative: (a) must facilitate the Participants’ access to documentation, which describes Main Roads’ requirements for the design, documentation and construction of the Works; and (b) may direct the Participants in writing to change the Works in accordance with clause 14.1.
2.3 Financial Accountability
Main Roads’ Representative must:
(a) assist the Participants in the development of design to achieve and adopt the design that represents best value for money;
(b) specify the required format and intervals for reporting to Main Roads on financial and other matters; (c) ensure all payments to the Non-Owner Participant for the Direct Costs that the Non-Owner Participant reasonably, properly and actually incurred are made into the Project Bank Account;
(d) ensure verification and payment of any Cost Performance Amount; (e) ensure verification and payment of any Completion Payment after the Date of Practical Completion of the final Separable Portion; Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 96
Project Alliance Agreement
(f) receive the security for performance required to be provided by the Non-Owner Participant under this Agreement;
(g) make a demand on the security provided by the Non-Owner Participant; (h) return the security provided by the Non-Owner Participant to the Non-Owner Participant in accordance with this Agreement; and (i) ensure payment on the Final Certificate to the extent Main Roads is required to make payment to the Non-Owner Participant under the Final Certificate.
2.4 Liaison and facilitation
Main Roads’ Representative must:
(a) communicate directly with the chairperson of the Alliance Board, the Alliance Director and, with the acknowledgement of the Alliance Director, the Alliance Management Team on operational issues; (b) attend Alliance Board meetings as required, and other meetings by agreement with the Alliance Director; (c) ensure that Main Roads provides relevant information in a timely manner;
(d) communicate to Main Roads issues arising from the Participants; (e) ensure that resources and expertise are available within Main Roads for the benefit of the alliance; and
(f) ensure relevant support staff within Main Roads understand the nature of the alliance, and the obligations placed on the Participants.
2.5 Ownership
Main Roads’ Representative must:
(a) if necessary, suspend the progress of the whole or part of the Works in accordance with clause 25.2; (b) issue a Certificate of Practical Completion for each Separable Portion to the Participants in accordance with this Agreement and be satisfied that defects or omissions are rectified before the end of the Defects Correction Period;
(c) receive all documents and information in respect of the design and construction of the Works including all design documentation, surveys and as constructed information together with any other documentation, which ought to be held by Main Roads with respect to the Works; and
(d) issue a Final Certificate to the Participants in accordance with this Agreement once satisfaction is gained that defects or omissions have been rectified.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 97
Project Alliance Agreement
Schedule 9 – Scope Changes
The following examples are to assist Main Roads in determining whether a direction by Main Roads in accordance with clause 14.1 is a Scope Change:
Item Event Specific Context Scope Change? No. (Yes or No)
Minor scope change, minor change in design No standards or minor change in fundamental (Unless project requirements requiring a direction by Minor change to SWTC or approved on a Main Roads. 1. fundamental requirements of case by case the Works. Alliance Manager and Main Roads basis by Representative to discuss and agree on case by Alliance case basis (Alliance Board to approve). Board).
Significant scope change, significant change in Significant change to SWTC or design standards or significant change in fundamental requirements of Yes 2. fundamental project requirements requiring a the Works. direction by Main Roads.
Aggregation of minor scope Several minor scope changes aggregate to Yes 3. changes. create a significant change
Requiring a significant change to the Scope of 4. Change in Act of Parliament. Works and Technical Criteria or fundamental Yes requirements of the Works.
Environmental approvals Requiring a significant change to the Scope of involve conditions which are 5. Works and Technical Criteria or fundamental Yes different from what would requirements of the Works. reasonably be expected.
Requiring a significant change to the Scope of Change in stakeholder Works and Technical Criteria or fundamental Yes 6. requirements. requirements of the Works.
Protests or other action by the community Community opposition. No 7. impacts on the delivery of the Works.
Removal, treatment or both of any types of contaminated material, including PASS, ASS and asbestos, but excluding: class IV or class V materials which cannot be treated to become a lesser class; and 8. Contaminated materials. unreasonable and unforecasted costs No incurred in complying with Authority’s requirements for dealing with contaminated materials as approved by the Alliance Board, provided that the Participants use their best endeavours to minimise these costs.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 98
Project Alliance Agreement
Ground conditions vary from that assumed in 9. Geotechnical information. developing the Direct Cost Target. No
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 99
Project Alliance Agreement
Schedule 10 – Not Used
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 100
Project Alliance Agreement
Schedule 11 – Payment Procedures
1. Introduction
(a) For the avoidance of doubt, Main Roads and the Non-Owner Participant agree that: (i) Main Roads will reimburse the Non-Owner Participant for Direct Costs (as defined in Schedule 3) incurred by the Non-Owner Participant; (ii) if applicable, Main Roads will pay the Non-Owner Participant a Cost Performance Amount, or the Non-Owner Participant will pay Main Roads a Cost Performance Amount; and (iii) if applicable, Main Roads will pay the Non-Owner Participant a Completion Payment. (b) This Schedule 11 sets out the procedure which will govern the payments referred to above.
2. Cash neutrality
A key principle governing the payment procedures to apply to the Works is ensuring that the Non- Owner Participant is put in a cash neutral position in relation to the reimbursement of Direct Costs.
3. Cash flow forecasting
(a) The Alliance Management Team must prepare and deliver to Main Roads a cash flow forecast in respect of the first month of the Alliance Term within 5 Business Days (or as otherwise agreed by the Participants) from the Effective Date. The cash flow forecast must be in a format approved by the Alliance Board and must detail for the first month of the Term the Directs Costs that are expected to be incurred by the Non-Owner Participant in the first month of the Term
The cash flow forecast must identify the amount, if any, to be paid in advance by Main Roads into the Project Bank Account and the date for payment of that amount.
(b) By no later than 10 Business Days (or as otherwise agreed by the Participants) prior to the end of the first month of the Alliance Term and thereafter each subsequent month during the Alliance Term, the Alliance Management Team must prepare and deliver to Main Roads a cash flow forecast. The cash flow forecast must be in a format approved by the Alliance Board and must detail for the following month of the Alliance Term the Directs Costs that are expected to be incurred by the Non-Owner Participant in the following month of the Alliance Term. The cash flow forecast must identify the amount, if any, to be paid in advance by Main Roads into the Project Bank Account and the date for payment of that amount.
(c) For the purpose of this Schedule 11, the amounts identified under clauses 3(a) and (b) of this Schedule 11 are advance payment amounts (Advance Payment Amounts).
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 101
Project Alliance Agreement
4. Advance Payment Amount by Main Roads
Main Roads must pay each Advance Payment Amount on the date for payment of that amount identified in the applicable cash flow forecast.
5. Reconciliation
(a) As soon as practicable after the end of each month during the Alliance Term, the Alliance Management Team must prepare and deliver a notice in a format approved by the Alliance Board to the Non-Owner Participant and Main Roads: (i) detailing for that month of the Alliance Term Actual Directs Costs incurred by the Non-Owner Participant (Entitlement Amount); (ii) identifying the amount of the difference (if any) between the Advance Payment Amount and the Entitlement Amount for that month of the Alliance Term (Difference Amount); and
(iii) attaching a statutory declaration provided by the Non-Owner Participant in the form set out in Schedule 12 in respect of payment by the Non-Owner Participant of any amounts that are due and payable to Subcontractors.
(b) All supporting documentation relating to the amounts contained in any notice prepared under clause 5(a) in this Schedule 11 must be available for inspection and audit.
(c) If the Entitlement Amount is greater than the Advance Payment Amount, then Main Roads must make payment of the Difference Amount into the Project Bank Account within 5 Business Days of receipt of the notice under clause 5(a) in this Schedule 11. (d) If the Entitlement Amount is less than the Advance Payment Amount, then the Non-Owner Participant must reimburse Main Roads the Difference Amount from the Project Bank Account within 5 Business Days of receipt of the notice under clause 5(a) in this Schedule 11. (e) If Main Roads is not satisfied for any reason with any of the amounts set out in a notice given by the Non-Owner Participant under clause 5(a) in this Schedule 11, Main Roads must:
(i) if the Difference Amount is payable by Main Roads under clause 5(c) of this Schedule 11, pay the Difference Amount; and (ii) within 5 Business Days of receipt of the notice under clause 5(a) in this Schedule 11, give notice to the Alliance Management Team that Main Roads is not satisfied with the amounts set out in the notice under clause 5(a) in this Schedule 11 and full details of why it is not satisfied. The Alliance Management Team must then promptly satisfy Main Roads’ concerns and the provisions of clause 17.6 of this Agreement will apply to any overpayment by Main Roads of the Difference Amount.
(f) This clause 5 of this Schedule 11 does not limit Main Roads’ right to withhold or deduct payments in accordance with this Agreement.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 102
Project Alliance Agreement
6. Payment of Cost Performance Amount
(a) As soon as practicable after the Date of Practical Completion of the last Separable Portion, Main Roads must pay the Non-Owner Participant or the Non-Owner Participant must pay Main Roads (as the case may be) an interim payment of an appropriate proportion of the anticipated final Cost Performance Amount as approved by the Alliance Board.
(b) As soon as practicable after the Completion Date, the Alliance Management Team must prepare and deliver a notice in a format approved by the Alliance Board to the Non-Owner Participant and Main Roads detailing for the period from the Effective Date until the Completion Date the Cost Performance Amount (if any) payable by Main Roads to the Non-Owner Participant or the Non-Owner Participant to Main Roads (as the case may be), in accordance with Schedule 4. The amount payable must take into account any interim payment made under clause 6(a) of this Schedule 11. (c) All supporting documentation relating to the amount set out in any notice prepared under clause 6(b) of this Schedule 11 must be available for inspection and audit.
(d) Within 20 Business Days of receipt of the notice under clause 6(b) of this Schedule 11, Main Roads must pay the Non-Owner Participant, or the Non-Owner Participant must pay Main Roads (as the case may be) the amount set out in the notice issued under clause 6(b) of this Schedule 11.
(e) If a Participant is not satisfied for any reason with the amount set out in a notice under clause 6(b) of this Schedule 11, that Participant must nonetheless pay the amount, and the Participant must, within 10 Business Days of a payment being made, give notice to the Alliance Management Team that the Participant is not satisfied with the amount set out in the notice under clause 6(b) of this Schedule 11 and full details of why it is not satisfied. The Alliance Management Team must then promptly satisfy that Participant’s concerns and the provisions of clause 17.6 of this Agreement will apply to any overpayment of the amount set out in the notice under clause 6(b)of this Schedule 11.
7. Payment of Completion Payment
(a) As soon as practicable after the Date of Practical Completion of the last Separable Portion, the Alliance Management Team must prepare and deliver a notice in a format approved by the Alliance Board to the Non-Owner Participants and Main Roads detailing the Completion Payment (if any) payable by Main Roads to the Non-Owner Participant given the Date of Practical Completion of the last Separable Portion.
(b) All supporting documentation relating to the amount set out in any notice prepared under clause 7(a) of this Schedule 11 must be available for inspection and audit. (c) Subject to clause 7(d) of this Schedule 11, within 20 Business Days of receipt of the notice under clause 7(a) of this Schedule 11, Main Roads must pay the Non-Owner Participant the amount set out in the notice issued under clause 7(a) of this Schedule 11.
(d) If a Participant is not satisfied for any reason with the amount set out in a notice under clause 7(a) of this Schedule 11, that Participant must nonetheless pay the amount, and the
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 103
Project Alliance Agreement
Participant must, within 10 Business Days of a payment being made, give notice to the Alliance Management Team that the Participant is not satisfied with the amount set out in the notice under clause 7(a) of this Schedule 11 and full details of why it is not satisfied. The Alliance Management Team must then promptly satisfy the Participant’s concerns and the provisions of clause 17.6 of this Agreement will apply to any overpayment of the amount set out in the notice under clause 7(a) of this Schedule 11.
8. Direct Costs incurred by Main Roads
For the purposes of the Performance Payment methodology set out in Schedule 4, the Alliance Management Team will monitor the Actual Direct Costs incurred by the Owner Participant in relation to the Works during the Alliance Term.
9. Procedures
Within 20 Business Days of the Effective Date, the Alliance Management Team must develop such further procedures as are necessary to define in detail the processes for payment. Those procedures must be based on the principles set out in this Schedule 11 and are subject to the approval (or otherwise) of the Alliance Board.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 104
Project Alliance Agreement
Schedule 12 – Form of Statutory Declaration
Contract No. 26/13 Statutory Declaration
I ...... (FULL NAME) of ......
(ADDRESS) ...... Postcode ...... in the State of Western Australia (insert your occupation(s))...... sincerely declare that all workers, suppliers, subcontractors and consultants engaged by any or all of...... (Non-Owner Participant) have been paid all moneys due and payable to them in respect of work under Contract No. 26/13.
I confirm that I have made enquiries of all appropriate persons and taken such other steps so as to obtain the knowledge and information required to make this statutory declaration and am duly authorised to make this statutory declaration on behalf of the Non-Owner Participant. This declaration is true and I know that it is an offence to make a declaration knowing that it is false in a material particular. This declaration is made under the Oaths, Affidavits and Statutory Declarations Act 2005 (WA) at: (insert place) ………………………. on
(insert date) ………………………... by ...... (SIGNATURE OF DECLARANT) in the presence of
......
(SIGNATURE OF WITNESS)
...... (NAME OF WITNESS)
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 105
Project Alliance Agreement
Schedule 13 – Not Used
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 106
Project Alliance Agreement
Schedule 14 – Issues Resolution Procedures
1. Resolution principles
Subject to clause 3 of this Schedule 14, the principles that will underpin how issues arising out of or in connection with this Agreement will be handled by the Participants are agreed as follows:
(a) issues must be immediately notified; (b) issues must be resolved, or attempted to be resolved, in accordance with the Alliance Principles;
(c) issues must be resolved at the lowest practical and appropriate level within the Alliance (commensurate with the nature of the issue) in a way that promotes ongoing efficient and cooperative relations; and (d) issues must be resolved as quickly as possible.
2. Resolution process
The resolution of issues involves consideration of the issue at various levels: (a) The Alliance Board must use its best endeavours to first attempt to resolve an issue through, if necessary, no less than two separate Alliance Board meetings. (b) If the issue cannot be resolved in the first instance by the Alliance Board, the Alliance Board must refer the issue to a separate meeting of authorised officers from each Participant who must meet within 2 Business Days of the issue being referred to them and attempt to resolve the issue within 5 Business Days following their first meeting. (c) If the issue cannot be resolved in the second instance by the authorised officers of each Participant, the Participants must refer the issue to an Expert appointed by the Alliance Board. In referring the issue to an Expert, a report describing the unresolved issues and the grounds for each Participant's position on the matter must be forwarded to the Expert. (d) The Expert must consider the issue and make a decision as to how that issue should be resolved. The decision of the Expert is final and binding on the Participants, except in the case of manifest error or if the Expert has acted in bad faith.
(e) The resolution of the issue must be documented and tabled for noting at the next Alliance Board meeting.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 107
Project Alliance Agreement
Annexure A – Stadium Site and Demobilisation Scope
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 108
Project Alliance Agreement
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 109
Project Alliance Agreement
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 110
Project Alliance Agreement
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 111
Project Alliance Agreement
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 112
Project Alliance Agreement
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 113
Project Alliance Agreement
Annexure B – Insurances
For the purposes of this annexure B, unless the context otherwise requires, a reference to: (a) Contractor's Obligations means, after the Effective Date, the Non-Owner Participant's Obligations; and (b) a Subcontractor means a subcontractor of the Contractor, including a consultant and a Design Verifier, for the performance of the Contractor’s Obligations.
1 MAIN ROADS’ CONTROLLED INSURANCE PROGRAM – CONTRACT WORKS MATERIAL DAMAGE INSURANCE AND CONTRACT WORKS LIABILITY INSURANCE
1.1 Main Roads’ Controlled Insurance Program The Main Roads’ Controlled Insurance Program Policies (“MRCIP Policies”) will be constituted by the Contract Works Material Damage Insurance Policy (“CWMDI Policy”) and Contract Works Liability Insurance Policy (“CWLI Policy”).
1.2 Contract Works Material Damage Insurance Policy Main Roads must maintain or effect and maintain a CWMDI Policy.
1.3 Contract Works Liability Insurance Policy Main Roads must maintain or effect and maintain a CWLI Policy.
1.4 Coverage The MRCIP Policies must provide cover to Main Roads, the Contractor and all Subcontractors for their respective rights, interests and liabilities.
1.5 Period of Cover The MRCIP Policies must be effected and maintained by Main Roads from a date no later than 25 May 2015 and continue:
(a) in the case of the CWMDI Policy referred to in clause 1.2 of this annexure B, until the Date of Practical Completion of the whole of the Project Works; and (b) in the case of the CWLI Policy referred to in clause 1.3 of this annexure B, until the date that is two years from the Date of Practical Completion of the whole of the Project Works, or earlier termination of this Agreement. Main Roads’ obligations under clauses 1.2, 1.3 and this clause 1.5 of this annexure B may be discharged by renewing or replacing (as required) the MRCIP Policies first effected with policies that are materially on the same terms and conditions as those MRCIP Policies first effected, as those terms and conditions materially relate to the Contractor and its Subcontractors. For the avoidance of doubt, this clause is subject to clause 1.6 of this annexure B.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 114
Project Alliance Agreement
1.6 Change in MRCIP Policies If, having made reasonable enquiries of the insurance market, Main Roads considers that it is not commercially feasible to comply strictly with clauses 1.2 to 1.5 of this annexure B (namely such insurances cease to be available on commercially reasonable terms (including price and terms and conditions)), Main Roads may in its absolute discretion replace or renew the MRCIP Policies on terms and conditions that are materially different to the terms and conditions of those MRCIP Policies first effected, and Main Roads must, within a reasonable period of time: (a) notify the Contractor that the MRCIP Policies have been replaced or renewed on terms materially different to the terms and conditions of those MRCIP Policies first effected or not renewed at all where the cover provided by the MRCIP policies first effected is no longer available, as the case may be; and (b) provide to the Contractor access to copies of the relevant policy wording and schedule.
2 MRCIP POLICIES – GENERAL ISSUES
2.1 Interpretation of MRCIP Policies Main Roads does not hold out or make any representation as to the interpretation or application of any MRCIP Policies and the Contractor acknowledges and agrees that before entering into the Original Project Deed and this Agreement it has satisfied itself as to the provisions, terms, conditions, sub-limits, exclusions, deductibles and excesses of the MRCIP Policies and that it accepts the same in full satisfaction of Main Roads’ obligations under clause 1 of this annexure B.
2.2 Breach of MRCIP Policies In the performance of its obligations under the Original Project Deed or this Agreement, Main Roads will not be required to do any act or thing that may constitute a breach of the MRCIP Policies.
2.3 Contractor to Comply with MRCIP Policies (a) The Contractor must itself, and must ensure that each of its Subcontractors, comply with the terms and conditions of the MRCIP Policies and the requirements of the relevant insurers and must not do or permit any act or permit any circumstance by which any of the MRCIP Policies may, at any time, become void or voidable or the rights of the insureds thereunder are prejudiced or the continued effectiveness of such policies are derogated from. (b) The Contractor must indemnify and keep indemnified Main Roads from and against any Claim or Loss incurred or suffered by Main Roads as a consequence of non- compliance by the Contractor with the requirements of clause 2.3(a) of this annexure B. This indemnity survives the termination of this Agreement.
2.4 Contractor’s Liability Unaffected (a) Nothing in clause 1 or this clause 2 of this annexure B limits the obligations, liabilities or responsibilities of the Contractor, whether under the Original Project Deed, this Agreement or otherwise.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 115
Project Alliance Agreement
(b) Without limiting the generality of clause 2.4(a) of this annexure B, the Contractor will remain responsible and liable for any Loss that it is otherwise responsible or liable for under the Original Project Deed, this Agreement or at Law.
2.5 Incidents and Claims (a) All claims by the Contractor and its Subcontractors under the MRCIP Policies must be made in accordance with the following procedures and any other requirements of this Agreement. (b) The Contractor must at all times fully co-operate with Main Roads in pursuing recovery of any insurance claim from the insurers under the MRCIP Policies including, without limiting the generality of this clause, by providing reports, information and other matters or assistance required by Main Roads from time to time, and assisting with the conduct of any litigation. (c) Upon the happening of any incident likely to give rise to a claim under any MRCIP Policy the Contractor must, as soon as practicable, but not later than 24 hours thereafter or as might otherwise be required sooner by an insurer under a MRCIP Policy, give notice of the incident to Main Roads’ Representative. (d) Not later than seven days, or as might otherwise be required sooner by an insurer under a MRCIP Policy, after any incident referred to in clause 2.5(c) of this annexure B, the Contractor must deliver to Main Roads’ Representative written advice in the form prescribed by Main Roads and provide any further particulars, information, proofs and explanations as may be reasonably required by Main Roads or the insurers. (e) The Contractor must take all reasonable steps to limit, reduce and otherwise mitigate any loss or damage and the Contractor must, unless Main Roads’ Representative otherwise Directs, take such emergency action as may be required to mitigate the loss or damage. (f) All dealings of the Contractor and its Subcontractors with the insurers under the MRCIP Policies must be conducted through Main Roads and all claims under a MRCIP Policy must be submitted to Main Roads for lodgement with the relevant insurer. (g) Main Roads will, at its option and acting reasonably, have the absolute authority to negotiate any settlement or effect a compromise in respect of any claim against underwriters or insurers under the MRCIP Policies, without being in any way liable to the Contractor or its Subcontractors for any losses suffered. (h) Money recovered under the MRCIP Policies in respect of a claim of the Contractor or its Subcontractors submitted in accordance with this clause 2 of this annexure B will be received by Main Roads. Main Roads will, subject to clauses 2.5(i), 2.5(j) and 4.6 of this annexure B, within 14 days after receipt from the relevant insurer pay such money (to the extent that such money is in respect of loss or damage suffered by the Contractor or its Subcontractors) to the Contractor after deducting any amount payable to Main Roads from the Contractor or that Main Roads is otherwise entitled to deduct or set off (whether pursuant to the Original Project Deed, this Agreement, equity or law) from money otherwise payable to the Contractor.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 116
Project Alliance Agreement
(i) The Contractor will be responsible for the payment of any excess or deductible relating to the MRCIP Policies where: (i) it makes a claim under any such policy; or (ii) Main Roads makes a claim under such policy, to the extent that Main Roads determines that the Contractor or any Subcontractor was responsible or liable for the relevant loss or damage. (j) Where the Contractor fails to pay an excess or deductible referred to in clause 2.5(i)(ii) of this annexure B, the Contractor will be liable to Main Roads in respect of such excess or deductible, and such amount will be a debt due and payable by the Contractor to Main Roads.
3 CONTRACTOR’S INSURANCES
3.1 Contractor’s Plant & Equipment (a) The Contractor must maintain or effect and maintain a policy that provides cover: (i) in respect of the plant and equipment under the ownership or control of the Contractor or its Subcontractors (whether owned, hired or leased and not otherwise being the property of Main Roads) for which the Contractor and its Subcontractors are responsible (whether located on or off-Site) that is not otherwise covered under the CWMDI Policy or motor vehicle insurance policy required under clause 3.2 of this annexure B; and (ii) any liability to third parties for personal injury, death, disease or illness (including mental illness) or liability to third parties for loss or damage to property caused by or in connection with the use of the plant and equipment. (b) The policy referred to in clause 3.1(a) of this annexure B must: (i) be extended to cover Main Roads, all Subcontractors and their respective representatives, agents and employees for their respective rights, interests and liabilities; (ii) have a limit of cover at least equal to the full market value of the plant and equipment referred to in clause 3.1(a)(i) of this annexure B, including delivery to the Site; and (iii) have a limit of liability in respect of the cover referred to in clause 3.1(a)(ii) of this annexure B of no less than $10,000,000 (ten million dollars). (c) The Contractor must, from the time it commences physical works under the Original Project Deed, maintain continuous cover under the policy referred to in clause 3.1(a) of this annexure B or a replacement policy in the same material terms until (and including) the Date of Practical Completion of the whole of the Project Works. (d) The Contractor must ensure that the policy referred to in clause 3.1(a) of this annexure B provides that the insurer waives all rights and all entitlements to remedies or relief against Main Roads and its representatives, agents and employees to which the insurer might become entitled by way of subrogation.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 117
Project Alliance Agreement
3.2 Motor Vehicle Insurance (a) The Contractor must maintain or effect and maintain, and ensure that each of its Subcontractors maintains or effects and maintains insurance cover in relation to motor vehicles in respect of liability to third parties for personal injury, death, disease or illness (including mental illness) or liability to third parties for loss of or damage to property. (b) The Contractor must, from 25 May 2015, maintain continuous insurance cover in relation to motor vehicles in the terms referred to in clause 3.2(a) of this annexure B until the expiration of all defects correction periods under this Agreement. (c) The limit of liability must be no less than $5,000,000 (five million dollars). (d) Other than for compulsory third party motor vehicle insurance, the insurance must be in the name of the Contractor and, to the extent permitted by Law, be extended to indemnify Main Roads as principal for Claims from Third Parties.
3.3 Professional Indemnity Insurance (a) The Contractor must maintain or effect and maintain a professional indemnity insurance policy that covers any civil liability of the Contractor incurred in respect of: (i) a breach of a duty owed by the Contractor in the course of the performance of the Contractor’s business or profession, whether as a result of a breach of contract, negligence or otherwise; and (ii) misleading or deceptive conduct, arising out of any act or omission of the Contractor in relation to the performance of the Project Works and the carrying out of the Contractor’s Obligations.
(b) The professional indemnity policy must have limits of indemnity at least equal or equivalent to: (i) $20,000,000 (twenty million dollars) any one claim but limited to $20,000,000 (twenty million dollars) for all claims during the period of the policy. (c) The Contractor must, from 25 May 2015, either continue to maintain the professional indemnity insurance policy or a replacement policy in similar terms until: (i) at least six years have expired after the expiration of all defects correction periods under this Agreement; or (ii) the expiration of all defects correction periods under this Agreement, and from that date effect and maintain a run off professional indemnity insurance policy that provides similar cover for a period of at least six years.
3.4 Goods in Transit The Contractor must maintain or effect and maintain a suitable insurance policy that covers loss or damage to the transport of any goods (including marine transit insurance if applicable) in the course of carrying out the Project Works during transit to or from the Site, regardless of whether Main Roads has paid for those goods.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 118
Project Alliance Agreement
3.5 Workers Compensation Insurance (a) The Contractor must maintain or effect and maintain, and ensure that each of its Subcontractors maintains or effects and maintains, a policy that provides or policies that together provide cover: (i) in respect of any injury, damage, expense, loss or liability suffered or incurred by any person engaged in carrying out the Contractor’s Obligations (or their dependants) giving rise to a claim: (A) under any statute relating to workers’ or accident compensation; or (B) for employer’s liability at common law; and (ii) in Western Australia, in every State or Territory or other jurisdiction where the Contractor’s Obligations will be carried out, as well as in each State or Territory or other jurisdiction where the Contractor’s employees normally reside or where their respective contracts of employment were made, including any such coverage as may be necessary to cover liability in respect of expatriate personnel under the laws of the state or country of their origin for the benefits required to be covered by insurance at that point in time. (b) The policy referred to in clause 3.5(a) of this annexure B must, in relation to employer’s liability at common law, have a limit of cover of at least: (i) for a policy maintained or effected and maintained by a Subcontractor where the subcontract value is less than $2,000,000 (two million dollars), $50,000,000 (fifty million dollars); and (ii) in all other circumstances, $200,000,000 (two hundred million dollars), arising out of any one occurrence or event. Such policy must, unless prohibited by law, extend to indemnify Main Roads as principal for all statutory claims and at common law and provide a waiver by the insurer of all rights of subrogation, action or relief against Main Roads. (c) The Contractor must, from 25 May 2015, maintain continuous cover under the policy referred to in clause 3.5(a) of this annexure B until the expiration of all defects correction periods under this Agreement. (d) Where possible under the relevant law of the State or Territory or other jurisdiction governing workers compensation insurance, the Contractor must procure an extension to the policy referred to in clause 3.5(a) of this annexure B to indemnify Main Roads as principal for Main Roads’ liability, under any statute relating to workers’ or accident compensation, to persons engaged by the Contractor (and their dependants) and provide a waiver of all rights of subrogation, action or relief against Main Roads. The policy must provide a common law limit that is at least customary in such state, territory or country.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 119
Project Alliance Agreement
4 CONTRACTOR’S INSURANCE – OTHER RIGHTS AND OBLIGATIONS
4.1 Main Roads’ Right to Approve Policies (a) The Contractor must as soon as practicable after the applicable commencement dates specified in clause 3 of this annexure B, secure Main Roads’ Representative’s Approval of: (i) the proposed terms and conditions of each policy required to be effected under clause 3 of this annexure B; and (ii) the identity of the insurer or insurers, and Main Roads’ Representative must act reasonably in determining whether or not to give such Approval.
(b) Before the Contractor renews any of the policies of insurance Approved by Main Roads’ Representative pursuant to clause 4.1(a) of this annexure B, the Contractor must secure Main Roads’ Representative’s Approval for: (i) the proposed terms and conditions of each renewal policy; and (ii) the identity of the insurer or insurers of the renewal policy, and Main Roads’ Representative must act reasonably in determining whether or not to give such Approval.
4.2 Evidence of Policies The Contractor must, in respect of each policy of insurance it is required to effect or maintain, give Main Roads’ Representative: (a) proof, to Main Roads’ Representative's reasonable satisfaction, of currency and coverage of each policy of insurance before the relevant commencement date specified in this annexure B; (b) on request, certified copies of all cover notes, policies, certificates of currency, renewal certificates and endorsement slips within a reasonable time after the Contractor receives such request; and (c) on request, other evidence of the insurances that Main Roads’ Representative reasonably requires.
4.3 Premiums and Deductibles Without limitation to other obligations set out in this Agreement, the Contractor must punctually pay all premiums and deductibles in respect of all insurance policies the Contractor is required to effect and maintain.
4.4 Main Roads’ Right to Effect Insurance (a) If the Contractor does not comply with clauses 4.2 or 4.3 of this annexure B, or fails to maintain or effect and maintain any policy required under this Agreement to be maintained or effected and maintained (other than those forming part of the MRCIP Policies), Main Roads may, but is not obliged to, effect or renew the relevant insurance policy, or pay the premium due in respect of that policy, and may recover the cost of doing so: Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 120
Project Alliance Agreement
(i) as a debt due from the Contractor; (ii) from amounts payable to the Contractor; or (iii) from the proceeds of the performance bonds provided by the Contractor pursuant to clause 29 of this Agreement. (b) The rights given to Main Roads under this clause 4.4 of this annexure B are in addition to any other rights Main Roads may have.
4.5 Mitigation and Reinstatement If any of the Project Works, temporary works, plant or equipment or other property the subject of the Contractor’s Obligations for which the Contractor is responsible is damaged or destroyed:
(a) at any time on or before the Date of Practical Completion, the Contractor must take the following steps to: (i) make secure the Project Works, temporary works, plant or equipment or other property and the Site; (ii) notify: (A) appropriate authorities, emergency services and the like; and (B) all relevant insurers, of the occurrence and comply with their reasonable instructions; and (iii) subject to clause 4.5(a)(ii) of this annexure B, clear any debris and begin work to repair or replace the Project Works, temporary works, plant or equipment or other property; (b) at any time after the Date of Practical Completion and before the end of the relevant defects correction period, and while the Contractor is on the Site discharging any of its obligations under clause 13.6 of this Agreement, the Contractor must take the following steps: (i) immediately notify Main Roads’ Representative and comply with all reasonable Directions of Main Roads’ Representative; and (ii) subject to a Direction of Main Roads’ Representative to the contrary, take the steps specified in clause 4.5(a) of this annexure B; and (c) in either of the circumstances described in clauses 4.5(a) and (b) of this annexure B, the Contractor must, in addition to its obligations set out in clauses 4.5(a) or (b) of this annexure B, also promptly consult with Main Roads’ Representative to procure its Approval for steps to ensure: (i) the prompt repair or replacement of the Project Works, temporary works, plant or equipment or other property to ensure that: (A) the Project Works or temporary works comply with the standards and specifications required by this Agreement; and (B) any disruption to the free flow of traffic in the areas surrounding the property being repaired or replaced is minimised; and
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 121
Project Alliance Agreement
(ii) that, to the greatest extent possible, it continues to comply with the Contractor’s Obligations.
4.6 Application of Insurance Proceeds Unless Main Roads’ Representative otherwise Directs, if any of the Project Works, temporary works, or property of Main Roads are damaged or destroyed:
(a) all insurance proceeds in respect of that damage or destruction must be applied towards repair or reinstatement of the Project Works, temporary works, or property of Main Roads; and (b) if Main Roads has carried out the repair or reinstatement of the Project Works, temporary works, or property of Main Roads, all insurance proceeds in respect of that damage or destruction must be paid to Main Roads.
4.7 No Waiver by Main Roads Main Roads is not to be taken to have waived any rights or any breaches by the Contractor merely because it has not exercised or sought to enforce any of its rights under clauses 4.1 to 4.5 of this annexure B (inclusive).
4.8 Contractor Comprising Two or More Companies Where the Contractor comprises two or more companies: (a) insurances effected pursuant to the Contractor’s Obligations (with the exception of insurances effected pursuant to clause 3.2 of this annexure B) must be effected jointly by those companies, unless Main Roads otherwise Approves; and (b) each such insurance must name each company comprising the Contractor as an insured.
4.9 Notice from or to Insurer In respect of any insurance that the Contractor is required to take out under clause 3 of this annexure B:
(a) the Contractor must inform Main Roads' Representative whenever the insurer gives a notice in connection with the policy; (b) the Contractor must give Main Roads' Representative a copy of any notice of cancellation, non-renewal or material alteration given by the insurer to the Contractor within 24 hours of its receipt; (c) if there is a difference of opinion or disagreement between the Contractor and Main Roads' Representative as to whether or not a Claim should be made, Main Roads as a party whose interest is noted on the relevant policies will have the right under the policy of insurance to directly inform the insurer of its position with respect to a Claim being made and the existence of the difference of opinion or disagreement; (d) the insurance will provide that a notice of Claim given to the insurer by either party, Main Roads' Representative, or a Subcontractor must be accepted by the insurer as a notice of Claim given by both parties, Main Roads' Representative, and the Subcontractor; and
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 122
Project Alliance Agreement
(e) if the policy ceases or notification of cessation is issued by the insurer, the Contractor must promptly give notice to Main Roads' Representative and, in any event, prior to the cancellation, non-renewal or material alteration of any of the policies required under clause 3 of this annexure B.
4.10 Notices of Potential Claims The Contractor must, as soon as practicable and in writing, inform the relevant insurer of any occurrence that may give rise to a Claim under an insurance policy required by clause 3 of this annexure B and must keep Main Roads' Representative informed of subsequent developments concerning the Claim. The Contractor must ensure that its Subcontractors in respect of their operations similarly inform the parties.
4.11 Common Terms (a) Unless otherwise stated in this Agreement, every policy of insurance required under clause 3 of this annexure B must provide that: (i) any breach of the conditions of the insurances by the Contractor must not in any way prejudice or diminish any rights that Main Roads has under the insurances; and (ii) the insurance is primary with respect to the interests of Main Roads and any other insurance maintained by Main Roads is excess to and not contributory with the insurance policies required under clause 3 of this annexure B. (b) If Main Roads is not a named insured entitled to cover under any policy required to be taken out under clause 3 of this annexure B, the Contractor must cause its insurers to waive all rights of subrogation against Main Roads in respect of a Claim arising under the insurance policy.
4.12 Contractor’s Further Obligations The Contractor must not do or omit to do any act that would be grounds for an insurer to refuse to pay a Claim made under any of the policies of insurance.
5 INTENT OF THIS ANNEXURE (a) The insurances contemplated in this annexure B are primary and not secondary to the indemnities referred to in this Agreement. However, Main Roads is not obliged to make a Claim or institute proceedings against any insurer under the insurance policies before enforcing any of its rights or remedies under the indemnities referred to in this Agreement, or generally. In addition, the parties acknowledge that if a claim is made under an insurance policy by Main Roads, it is their intention that the insurer cannot require Main Roads to exhaust any indemnities referred to in this Agreement before the insurer considers or meets the relevant claim. (b) The Contractor acknowledges that regardless of whether the insurance policies respond or not, and regardless of the reason why the insurance policies respond or fail to respond, the Contractor is not released (in whole or in part), from any of its obligations under the indemnities referred to in this Agreement, or generally.
Swan River Pedestrian Bridge – Project Alliance Agreement – Final Page 123