Subcontract
[Project Name]
[Project # ……..]
[Subcontractor name]
[ACN...... ]
[Subcontract works]
[Muli Ref# S...... ]
Contract Control Services Pty Ltd
ACN 007 453 965
TABLE OF CONTENTS
Page no.
1 Definitions and interpretation 5
2 Basis of Engagement 8
3 Performance of Subcontract Works 9
4 Parties’ representatives and Directions 9
5 Assignment and subcontracting 10
6 Materials and workmanship 10
7 Equipment 10
8 Protection of People and Property 11
9 Security 11
10 Insurance 12
11 Site 12
12 Safety 13
13 Industrial Relations 14
14 Working hours 15
15 Quality assurance 15
16 Variations 15
17 Time and extension of time 16
18 Extension of time sole remedy for delay 17
19 Subcontract Sum 17
20 Payment 18
21 Security of Payment Act 19
22 Goods and services tax 19
23 Unfixed goods and materials 20
24 Warranties 20
25 Intellectual property rights 21
26 Suspension 21
27 Completion 21
27A Final Completion 22
28 Liquidated damages 22
29 Defects 23
30 Breach of Subcontract 23
31 Termination 23
32 Termination of Head Contract 24
33 Rights and liabilities following termination 24
34 Set off 24
35 Dispute resolution 24
36 Confidentiality 25
37 Notification of claims 25
38 Notices 25
39 General 26
schedule A - subcontract particulars 27
schedule B - design obligations (if applicable) 29
schedule C - other special conditions 31
schedule D - letter of intent 33
schedule E - scope of SUBCONTRACT works 35
schedule F - construction program 37
schedule G - MILESTONES 39
schedule h - trade contract interview 41
schedule i - oh&s management plan 43
schedule J - payment claim format 45
schedule K - Schedule of rates 47
schedule L - RCTI AGREEMENT 49
schedule m - deed of collateral warranty 51
4
Contract Control Services Pty Ltd 71-89 Hobsons Road, Kensington Victoria 3031
THIS AGREEMENT is made on 2010
PARTIES
CONTRACT CONTROL SERVICES PTY LTD
ACN 007 453 965
of 71-89 Hobsons Road, Kensington, Victoria, 3031
(“Contractor”)
and
THE SUBCONTRACTOR
Identified in Item 2 of Schedule A
(“Subcontractor”)
BACKGROUND
A The Contractor wishes to engage the Subcontractor to perform the Subcontract Works.
B The Subcontractor has agreed to perform the Subcontract Works on the terms of this Subcontract.
AGREED TERMS
1 Definitions and interpretation
1.1 Definitions
In this document, unless the context requires otherwise:
“Building Laws” means all laws governing the Subcontract Works and includes without limitation the Building Act 1993 (Vic), the Building Code of Australia, and any regulations, orders, declarations or any subordinate legislation or instruments in force under them and applicable Australian Standards.
“Business Day” means a day on which banks are open for general banking business in Melbourne, excluding Saturdays, Sundays and public holidays.
“Completion” means the stage in the execution of the Subcontract Works when:
(a) the Subcontract Works are substantially complete except for minor omissions and minor defects:
(i) which do not prevent the Subcontract Works from being reasonably capable of being used for their proper purpose;
(ii) which the Contractor determines the Subcontractor has reasonable grounds for not promptly rectifying; and
(iii) completion and rectification of which will not prevent the practical completion by the Contractor of the Project under the Head Contract;
(b) those tests which are required by this Subcontract to be carried out and passed before the Subcontract Works reach Completion have been carried out and passed; and
(c) all documents, manuals, “as-installed” drawings, regulatory certification and all other information required under this Subcontract have been supplied to the Contractor.
(d) the Subcontractor has complied with its obligations under clause 24.
“Construction Program” means the program for performance of the Subcontract Works annexed in Schedule F.
“Contractor’s Representative” means the person stated in Item 6 of Schedule A or such other person from time to time appointed in writing by the Contractor as the Contractor’s Representative.
“Date for Completion” means the date in Item 5 of Schedule A.
“Date for Practical Completion” means the date in which the works under the Head Contract are required to be brought to a state of Practical Completion.
“Date of Completion” means the date when the Contractor’s Representative certifies Completion has taken place.
“Date of Practical Completion” means the date in which the Contractor receives a Notice of Practical Completion under the Head Contract from the Principal, or its representative, as evidence that the works under the Head Contract have been brought to a state of Practical Completion.
“Defects Liability Period” means the period specified in Item 17 of Schedule A commencing from the Date of Completion of the Subcontract works, or the Date of Practical Completion of the Head Contract, whichever is the later.
“Drawings and Specifications” means the design documents listed or referred to in Schedule E.
“Final Certificate” means a certificate issued by the Contractor’s Representative under clause 27A.
“Final Completion” has meaning in clause 27A.
“Head Contract” means the Contract between the Contractor and a principal for the performance of the Project of which the Subcontract Works form part.
“Latent Conditions” are physical conditions on the Site, including artificial things but excluding weather conditions, which differ materially from the physical conditions which should reasonably been anticipated by the Subcontractor at the date of the Subcontract if the Subcontractor had:
(a) examined all information made available in writing by the Contractor to the Subcontractor for the purpose of tendering; and
(b) examined all information relevant to the risks, contingencies and other circumstances having an effect on the tender and obtainable by making reasonable inquiries; and
(c) inspected the Site and its surroundings.
“Milestone” means any activity critical to the timely performance of the Subcontract Works specified in Schedule G.
“Milestone Date” means any date for commencement or for completion of a Milestone, as specified in Schedule G, subject to extensions of time under the Subcontract.
“OH&S Act” means the Occupational Health and Safety Act 2004 (Vic) as amended.
“OH&S Laws” means all legislation and regulations governing or relevant to occupational health and safety and dangerous goods and including without limitation the OH&S Act, the Dangerous Goods Act 1985 (Vic) and all regulations, directions, guidelines and codes of practice made or issued thereunder respectively.
“OH&S Management Plan” means the Site Specific Management Plan to be prepared by the Subcontractor to manage its occupational health and safety obligations for the Subcontract Works, which must meet the requirements specified in Schedule I and all requirements of applicable OH&S Laws.
“Project” means the project described in Item 1 of Schedule A.
“Qualifying Cause of Delay” means an event or circumstance causing delay to Completion of the Subcontract Works, as specified in item 12 of Schedule A.
“RCTI Agreement” means an agreement in the form annexed in Schedule L.
“Schedule of Rates” means the schedule of unit rates or prices annexed in Schedule K.
“Security of Payment Act” means the Building and Construction Industry Security of Payment Act 2002 (Vic).
“Site” means the site of the Project.
“Subcontract” means this agreement between the Contractor and the Subcontractor and includes the Drawings and Specifications listed or annexed in Schedule E and any other documents listed or annexed in the Schedules to this Subcontract.
“Subcontract Sum” means the fixed lump sum specified in Item 4 of Schedule A.
“Subcontract Works” means the whole of the work described briefly in Item 3 of Schedule A which is to be executed in accordance with this Subcontract, including all other work reasonably required and not specifically mentioned which is necessary to carry out the work, variations, remedial work, provision of construction plant, equipment and temporary works, and all other work provided for by this Subcontract.
“Subcontractor’s Representative” means the person stated in Item 7 of Schedule A or such other person appointed as the Subcontractor’s Representative and approved by the Contractor.
1.2 Words and expressions
In this document, unless the context requires otherwise:
(a) the singular includes the plural and vice versa;
(b) where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(c) a reference to a party, clause, paragraph, schedule or annexure is a reference to a party, clause, paragraph, schedule or annexure to or of this document;
(d) a reference to this document includes any schedules or annexures;
(e) a reference to a party includes its executors, administrators, successors, substitutes (including persons taking by novation) and permitted assigns;
(f) a reference to any legislation or to any provision of any legislation includes:
(i) any modification or reenactment of the legislation; and
(ii) any legislative provision substituted for, and all legislation, statutory instruments and regulations issued under, the legislation or provision;
(g) no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this document or any part of it; and
(h) the words “including”, “for example”, “such as” or other similar expressions (in any form) are not words of limitation.
1.3 Other rules of interpretation
In this document, unless expressly provided otherwise:
(a) (Business Days) if:
(i) the day on or by which any act, matter or thing is to be done is a day other than a Business Day, the act, matter or thing will be done on the next Business Day;
(ii) any money falls due for payment on a date other than a Business Day, that money will be paid on the next Business Day (without interest or any other amount being payable in respect of the intervening period);
(b) (agreement prevails) if a clause of this document is inconsistent with a schedule or annexure of this document, the clause prevails to the extent of the inconsistency; and
(c) (order of precedence in Schedules) in the event of any inconsistency between any document listed or annexed in a Schedule, whether identified by either party, the Contractor’s Representative shall direct the Subcontractor as to the proper interpretation to be followed.
2 Basis of Engagement
(a) The Contractor engages the Subcontractor to perform the Subcontract Works in accordance with, and otherwise to comply with, all requirements of this Subcontract including, without limitation, the requirements of all documents annexed in the Schedules to this Subcontract (with which the Subcontractor shall be deemed to have familiarised itself).
(b) In consideration for the proper performance of the Subcontract Works, the Contractor agrees to pay the Subcontract Sum to the Subcontractor in accordance with the Subcontract.
(c) This Subcontract constitutes the entire agreement between the parties in relation to its subject matter. All prior discussions, offers, quotations, undertakings, agreements, representations, warranties and indemnities in relation to that subject matter are replaced by this document and have no further effect.
3 Performance of Subcontract Works
The Subcontractor agrees to perform and complete the Subcontract Works:
(a) in accordance with this Subcontract including without limitation the Drawings and Specifications as may be varied pursuant to this Subcontract;
(b) in a manner which is fit for the proper purpose of the Subcontract Works;
(c) so as to ensure compliance with all Building Laws, OH&S Laws and all other laws and requirements of any authority or government agency having jurisdiction over the Subcontract Works;
(d) in a timely manner and so as to:
(i) achieve each Milestone by the applicable Milestone Date; and
(ii) bring the Subcontract Works to Completion by the Date for Completion;
(e) in co-operation with the Contractor and the work of other trade contractors engaged by the Contractor, and so as to minimise interference with their other work, and to secure the completion of the Project in the most efficient manner;
(f) using good quality, proper and workmanlike construction practices; and
(g) in accordance with all directions given by the Contractor’s Representative.
4 Parties’ representatives and Directions
(a) The Contractor’s Representative will give directions and carry out all its other functions under this Subcontract as the agent of the Contractor. The Subcontractor must comply with any Site instruction or other direction given by the Contractor’s Representative. Except where this Subcontract otherwise provides, the Contractor’s Representative may give a direction orally but will as soon as practicable confirm it in writing.
(b) The Subcontractor’s Representative must be present at the Site at all times reasonably required by the Contractor. A direction is deemed to be given to the Subcontractor if it is given to the Subcontractor’s Representative. The Subcontractor's Representative shall be authorised to act on behalf of the Subcontractor.
(c) All notices, requests, demands, consents, approvals, agreements or other communications required to be made by the Subcontractor under or in connection with the Subcontract shall be in writing and must be given to either the Contractor or the Contractor’s Representative.
5 Assignment and subcontracting
(a) The Subcontractor shall not, without the prior written approval of the Contractor, assign this Subcontract or any payment or any other right or benefit or interest in this Subcontract.
(b) The Subcontractor shall not, without the prior written approval of the Contractor, subcontract the whole or substantially the whole of the work under this Subcontract.
(c) Approval to subcontract shall not relieve the Subcontractor from any liability or obligation under this Subcontract. The Subcontractor shall be liable to the Contractor for the acts and omissions of its subcontractors and employees and agents, as if they were acts or omissions of the Subcontractor.
(d) If liability for loss or damage suffered by the Contractor by reason of an act or omission of a subcontractor engaged by the Subcontractor or employees and agents of a subcontractor becomes payable at law to the Contractor directly by any such subcontractor, its employees or agents, the Subcontractor indemnifies the Contractor for, and will pay on demand to the Contractor, an amount equal to such loss and damage suffered by the Contractor which is not satisfied by the subcontractor, its employees or agents (as the case may be).