GREATER GEELONGCITY COUNCIL
Contract No:
FORMAL INSTRUMENT OF AGREEMENT
Contract Description:
Contractor:
THIS AGREEMENT is made on 2018
BETWEEN
1 / GREATER GEELONGCITY COUNCILhaving its municipal office at City Hall, Gheringhap Street, Geelong,Victoria
(“Principal”)
2 / ABN
of
(“Contractor”)
1AGREEMENT
It is agreed that -
1the General Conditions of Contract;
2the Specification;
3the Drawings;
4the Other Contract Documents; and
5this Formal Instrument of Agreement -
together comprise and evidence the contract between the parties.
2DEFINITIONS
In this Formal Instrument of Agreement:
“Appendix” means an appendix to this Formal Instrument of Agreement;
“Drawings” means the drawings listed in Appendix A;
“General Conditions of Contract” means the Australian Standard General Conditions of Contract AS 4905-2002 (with the Annexure in the form contained in Appendix B);
“Other Contract Documents” means the documents listed in Appendix C; and
“Specification” means the documents listed in Appendix D.
3FORM OF CONTRACT
A copy of AS 4905-2002 is not included in the contract documents. The Contractor must obtain its own copy.
Appendices A, C and D may contain documents which are listed in those Appendices. Other documents may be listed, but are not contained in the Appendices. Such documents are incorporated into the Contract by reference.
4ENTIRE AGREEMENT
The Contract constitutes the entire agreement between the Principal and the Contractor with respect to the work under the Contract and the Works. The Contract supersedes and extinguishes all prior agreements, representations and understandings between the parties.
5CONTRACT SUM
The Contract Sum is $______(exclusive of GST).
The Contract Sum is inclusive of the following provisional sums:
ITEM / PROVISIONAL SUM (exclusive of GST)6RATES FOR VARIATIONS
The following rates and prices must be used by the Superintendent to value variations in accordance with clause 40.5 of the General Conditions of Contract:
ITEM / RATE OR PRICE (exclusive of GST)7TRUSTEE WARRANTY
If the Contractor has entered into the Contract as trustee of a trust (“Trust”), the Contractor warrants that:
7.1it is the only trustee of the Trust and is not aware of any action to remove it as trustee of the Trust and will not take any action to resign as trustee before the completion of all obligations of the Contractor under the Contract;
7.2the trust deed of the Trust discloses all of the terms of the Trust;
7.3it has power under the trust deed of the Trust to enter into and observe its obligations under this Contract and it has entered into this Contract in its capacity as the trustee of the Trust and has formed the view that it is prudent to enter into this Contract;
7.4it has in full force and effect the authorisations necessary to enter into this Contract, perform obligations under this Contract and allow this Contract to be enforced;
7.5it is not in material default under the trust deed of the Trust and is not aware of any action proposed to terminate the Trust;
7.6the entry into and the performance of this Contract is for the benefit of the beneficiaries of the Trust, whose consents (if necessary) have been obtained; and
7.7it has a right to be indemnified fully out of the trust assets in respect of all of the obligations and liabilities incurred by it under this Contract.
This clause shall operate whether or not the Contractor has also entered into the Contract in its own right.
Executed by the parties on the date set out at the commencement of this Formal Instrument of Agreement:
1Execution clause for the Principal (strike out alternatives which are not applicable):
1.1If the Contract must be signed under seal:
THE COMMON SEAL ofGREATER GEELONG CITY COUNCIL was affixed hereto in the presence of: / )
)
)
Mayor
Chief Executive Officer
1.2If the Contract can be signed under delegation:
SIGNED by ______on behalf of the Principal in the presence of: / )
)
Chief Executive Officer / General Manager / Manager / Coordinator
Witness
2Execution clause for the Contractor (strike out alternatives which are not applicable):
2.1If the Contractor is a company it must execute this Contract under seal:
EXECUTED by______
[Name of Company]in accordance with section 127(1) of the Corporations Act 2001 by being signed by authorised persons: / )
)
)
)
Director / *Director/company secretary
*Delete whichever is inapplicable
Full Name / Full Name
Usual Address / Usual Address
2.2If the Contractor is an individual:
SIGNED SEALED AND DELIVEREDby ______ in the presence of: / )
)
)
Witness
2.3If the Contractor is a partnership (add extra execution clauses for each partner, as necessary):
SIGNED SEALED AND DELIVEREDby ______in the presence of: / )
)
)
Witness
SIGNED SEALED AND DELIVERED
by ______in the presence of: / )
)
)
Witness
APPENDIX A
DRAWINGS
Not ApplicableAs per Attached Documents Listed
APPENDIX B
ANNEXURE TO AS 4905-2002
Quotation Documents - Minor Works (AS 4905-2002) / Page 1 of 25City of Greater Geelong
Part A
Annexure to the Australian Standard
Minor works contract conditions (Superintendent administered)
AS 4905-2002
This Annexure shall be completed and issued as part of the tender documents and, subject to any amendments to be incorporated into the Contract, is to be attached to these Minor works contract conditions and shall be read as part of the Contract.
Item
1 / Principal
(clause 1) / Greater GeelongCity Council
ABN18 374 210 672
2 / Principal’s address / City Hall, Gheringhap Street,
Geelong, Victoria
Phone (03) 5272 5272 Fax (03) 5272 4277
3 / Contractor
(clause 1) / ………………………………………………………………….
………………………………………………………………….
ACN …………………………… ABN ……………………….
4 / Contractor’s address / ………………………………………………………………….
………………………………………………………………….
Phone ……………………… Fax ……………………….
5 / Superintendent
(clause 1) / ………………………………………………………………….
6 / Superintendent’s address / ………………………………………………………………….
………………………………………………………………….
Phone ……………………… Fax ……………………….
7 / a)Date for practical completion
(clause 1) / ………… day of ……………………………………….20…..
OR
b)Period of time for
practical completion
(clause 1) / ……… days* / weeks* after date of the Formal Instrument of Agreement
8 / Contractor’s security
a)Form
(clause 3) / Bank guarantee
b)Amount or maximum
percentage of contract sum
(clause 3) / 5%, of thecontract sum in the form of two equal bank guarantees
c)If retention moneys, percentage of each payment certificate
(clause 3) / ………………%, until the limit in Item 6(b)
If nothing stated, 10%, until the limit in Item 8(b)
d)Time for provision (except for
retention moneys)
(clause 3) / 7 days from the date of the letter of acceptance
9 / Amount of limit of indemnity for damage to other property of the Principal
(subclause 10.1(a)) / $………………………………………………………………..
If nothing stated, the amount of the public liability insurance cover in Item 9
10 / The amount of the contract works insurance cover
(clause 11) / $………………………………………………………………..
If nothing stated, the contract sum plus 20%
11 / The amount of public liability insurance cover in respect of any one occurrence shall not be less than
(clause 12) / $10,000,000
12 / The time for giving possession of the site to the Contractor
(clause 17) / within ………… days after date of the Formal Instrument of Agreement
If nothing stated, 14 days
______
* Delete one
13 / Liquidated damages
(subclause 20.5)
a)Rate / $………………… per day
b)Limit / $………………… OR ……………% of the contract sum
If nothing stated, there is no limit
14 / Delay damages, rate
(subclause 20.6) / $…………………. per day
If nothing stated, as assessed by the Principal
15 / Defects liability period
(clause 21) / 52 weeks
16 / Time for payment claims
(subclause 23.1) / Within 30 days of the first day of each month
17 / The rate of interest on overdue payments
(subclause 23.4) / …………………… % per annum
If no rate stated, 10% per annum
17A / Value of the subcontract
(subclause 24.1) / ......
If no amount stated, $5 000
18 / The rate of profit and attendance for provisional sum items
(subclause 31.2) / …………………… % of the value of the work
If no rate stated, 10%
Part B
Annexure to the Australian Standard
Minor works contract conditions (Superintendent administered)
AS 4905-2002
Deletions, amendments and additions
The following changes have been made to AS 4905-2002:
1All references to the words “progress certificate” are deleted wherever occurring and replaced with the words “payment schedule”.
2Allreferences to the words “progress claim” are deleted wherever occurring and replaced with the words “payment claim”.
3Delete the definition of ‘Contract’ from clause 1 and insert:
“Contract means the agreement between the Principal and the Contractor evidenced by the documents listed in the Formal Instrument of Agreement;”
4Delete the definition of ‘Contractor’ from clause 1 and insert:
“Contractor has the meaning ascribed to it by the Formal Instrument of Agreement;”
5Delete the words “except for minor defects” from the definition of “practical completion” in clause 1 and replace those words with “and able to be used by the Principal for their intended purpose”.
6Paragraph (b) of the definition of “qualifying cause of delay” is deleted in clause 1 and replaced with the following:
“(b)any of the following causes of delay occurring before the date for practical completion if they are beyond the reasonable control of the Contractor:
(i)inclement weather or the consequences of inclement weather; or
(ii)an industrial dispute not confined to the site;”
7The following new definitions are inserted in clause 1:
“business day means a day that is not:
(a)a Saturday or Sunday; or
(b)a day that is wholly or partly observed as a public holiday throughout Victoria;”.
“OH&S means occupational health and safety;”
“Security of Payment Act means the Building and Construction Industry Security of Payment Act 2002;”.
8The following words are inserted at the end of subclause 2.1:
“, subject to the WUC being performed in accordance with the Contract and being fit for its purpose to the reasonable satisfaction of the Principal”.
9In clause 5:
9.1the second paragraph is deleted and replaced by:
“The Contractor is not entitled to any additional payment or adjustment to the contract sum with respect to any inconsistency, ambiguity or discrepancy in any document, or any compliance with a direction given by the Principal under this clause.”; and
9.2a new (third) paragraph is inserted at the conclusion to read as follows:
“The Contractor is deemed to have reviewed all plans and specifications forming part of the Contract and to have satisfied itself that such plans and specifications are accurate and will enable the Works to be constructed in accordance with the intent of the Contract and all legal and practical requirements without alteration to the plans and specifications. Notwithstanding clause 22, the Contractor shall not be entitled to any payment, extension of time or delay costs with respect to any variation to the plans and specifications considered necessary by the Superintendent to enable the Works to be constructed in accordance with the intent of the Contract and all legal and practical requirements. For the purposes of this clause, the Contractor releases, to the fullest extent possible at law, the Principal, the Superintendent and the Principal’s employees, contractors and consultants, from any claims which the Contractor has or may have at any future date with respect to any deficiency, ambiguity or inconsistency in the plans and specifications forming part of the Contract, whether under this Contract, at common law, in equity, under statute or otherwise.”
10The following paragraphs are inserted at the conclusion of clause 17:
“The Contractor shall prepare, implement and comply with (and, at the request of the Superintendent, demonstrate that it has in place and complies with) an environmental management system which complies with all relevant legislative requirements and Australian Standards.
The Contractor shall, so far as is practicable, ensure that, in connection with the execution of the WUC, the Principal or the Superintendent does not become liable in connection with any environmental pollution or like matter and the Contractor shall, to the extent permitted by law, indemnify the Principal and the Superintendent in respect of any such liability or any allegation thereof and associated costs, losses or expenses.”
11The following paragraph is added at the conclusion of clause 11:
“The insurance shall be effected with an insurer and be on such terms, as are approved in writing by the Superintendent (which approval shall not be unreasonably withheld).”
12The following sentence is added at the end of subclause 18.1:
“Except to the extent that the Contract otherwise provides, incidental items not expressly mentioned in the Contract, but which are necessary for the satisfactory completion and performance of the WUC, shall be supplied and executed by the Contractor without adjustment to the contract sum.”
13The following is inserted at the conclusion of clause 19:
“If the Superintendent directs the Contractor to give the Principal a construction program, the Contractor shall submit to the Superintendent a construction program comprising at least a time scaled bar chart detailing the dates by which, or times within which, the various stages or portions of WUC are to be carried out or completed and the method proposed for completion of WUC.
The construction program shall clearly show for each item of work or activity, its planned start and finish date. It shall contain, where applicable, the following information, including but not limited to:
a)a clearly indicated critical path which shall indicate the sequence of activities which constitute the critical path;
b)a break up of the WUC to enable the Superintendent to accurately monitor progress of WUC both on and off the site;
c)all activities necessary for the completion of WUC;
e)the times for commissioning, final inspections and handovers;
f)off-site activities including prefabrication and equipment orders; and
g)the date for practical completion.
Any construction program prepared or provided by the Contractor shall not be used as a construction program for the purposes of this clause unless it has been approved by the Superintendent.
The working hours and working days shall be as stated in this clause and shall not be varied without the prior written approval of the Superintendent except when in the interests of safety of the WUC or to protect life or property the Contractor finds it necessary to carry out WUC outside the working hours or on other than the working days stated in the Contract. In such cases the Contractor shall promptly notify the Superintendent in writing of the circumstances.
Unless the Contract otherwise provides, the working hours shall be between 7.00am and 5.00pm and the working days shall be Monday to Friday inclusive, excluding public holidays and where applicable one day every four weeks, usually a Monday, which is a building industry rostered day off.
In approving a variation to the working hours or working days, the Superintendent may attach conditions which may preclude the performance of WUC requiring inspection or attendance by or on behalf of the Superintendent or Principal or may include a requirement that the Contractor meets the Superintendent’s or Principal’s costs of inspection or attendance of the WUC during the varied times approved by theSuperintendent.”
14The following paragraphs are inserted at the conclusion of subclause 20.2:
“Where more than one event causes concurrent delays and the cause of at least one of those events, but not all of them, is not a qualifying cause of delay, then to the extent that the delays are concurrent delays, the Contractor will be entitled to an EOT to the date for practical completion.
The Contractor shall not be entitled to an EOT to the date for practical completion unless a delay has occurred on activities forming the critical path on the construction program.”
15The following new paragraph is added at the conclusion of subclause 20.5:
“It is acknowledged and agreed that the liquidated damages stated in Item 13(a) may include, without limitation, allowances for -
(I)additional monetary costs which the Principal may incur;
(II)monetary losses and expenses that the Principal may sustain or incur;
(III)damage to the Principal’s reputation; and
(IV)loss of opportunity by the Principal –
through failure by the Contractor to complete the WUC by the date for practical completion.”
16The words “for a” in the first line of subclause 20.6 are deleted and replaced with the words “that relates solely to a”.
17In clause 21, the following words are inserted at the end of the second paragraph:
“and otherwise in accordance with the directions of theSuperintendent”.”.
18In subclause 23.2:
18.1the number “14” is deleted from the first line of the first paragraph and replaced with “10 business”;
18.2the number “21” is deleted from the first line of the second paragraph and replaced by “15 business”; and
18.3the following paragraphs are inserted at the conclusion:
“Notwithstanding anything to the contrary in this clause, the Principal shall not be required to make any payment pursuant to this clause until the Contractor has complied with its obligations under subclause14.1 and clause 19.”.
19New subclauses 23.5 and 23.6 are added as follows:
“23.5Set off by the Principal
Without limiting the Principal’s rights elsewhere under the Contract or otherwise, the Principal may deduct from the moneys due to the Contractor any moneys due from the Contractor to the Principal otherwise than under the Contract. If those moneys are insufficient, the Principal may have recourse to security or retention moneys.
23.6Security of Payment Act
In so far as necessary to ensure compliance with the Security of Payment Act, the Superintendent is deemed to issue any payment schedule under subclause 23.2 or final certificate under clause 23.3 as the agent of the Principal and each such schedule shall constitute a payment schedule for the purposes of the Security of Payment Act.
If the Contractor makes any payment claim under the Security of Payment Act, the Contractor must separately identify any excluded amount (within the meaning of the Security of Payment Act) and state that the excluded amount is not claimed under the Security of Payment Act.”
20The following is inserted at the conclusion of subclause 24.1:
“Documentary evidence of payments to any subcontractor with a subcontract of a value in excess of the amount stated in Item 17A shall be in the form of written and signed confirmation from the subcontractor confirming that it has been paid all moneys due and payable to the subcontractor at the date of the payment claim.”
21Subclause 25.11 is deleted (except the heading) and replaced by:
“If the Contractor, informs the Superintendent, the Principal or creditors generally that it is insolvent or is financially unable to proceed with the Contract or:
(a)being a person:
(i)becomes bankrupt, or files or is served with a petition in bankruptcy;
(ii)is served with a bankruptcy notice;
(iii)makes an assignment for the benefit of his or her creditors;
(iv)becomes bound as a debtor by any scheme of arrangement;
(v)executes as a debtor any deed of assignment or deed of arrangement;
(vi)has a mortgagee or other creditor take possession of any of his or her assets; or
(vii)informs the Principal in writing, or creditors generally, that he or she is insolvent or is financially unable to continue with the Contract; or