Monash Children's Hospital Project

Transcription

1 Final Version Monash Children's Hospital Project Managing Contractor Design and Construction Management Stage One with option for Stage Two (Guaranteed Construction Sum) (This is an amended form of the Queensland Government Department of Public Works 'Managing Contractor Design and Construction Management (February 2011)' Contract) Monash Children's Hospital Managing Contractor - Design and Construction Management page 1

2 Managing Contractor - Design and Construction Management Stage One with option for Stage Two (Guaranteed Construction Sum Details 11 Agreed terms Interpretation Obligation of the Managing Contractor Obligation of the Principal Stage Two Works Contract documents Administrative Provisions Entire Agreement Power of attorney 13 Conditions of contract Construction of contract Defined terms & interpretation Defined terms General Nature and scope of Contract Evidence of Contract Contract documents Discrepancies Dimensions Collusive arrangements Commitment and good faith Commitment Good faith Role of the Principal Quality assurance Security, retention moneys and performance undertakings Purpose Provision of security Form of security Time for lodgement of security 40 Monash Children's Hospital Managing Contractor - Design and Construction Management page 2

3 9.5 Not used Subcontract retentions Substitution of security for retention moneys Additional security - unfixed plant and materials Conversion of security and recourse to retention moneys Adjustment of security and retention moneys Release of security Interest on security and retention moneys Deed of guarantee and indemnity Service of notices Address Service GCS offer A Confirmation of Total Construction Cost Managing Contractor's GCS offer Principal's options Adjustment of fees at time of GCS Offer / Alternative GCS Offer Warranties Managing Contractor's warranties Warranties and indemnities unaffected Principal's reliance on warranties Manufacturers' Performance Warranties Project Operations Group Establishment, duration and purpose Membership Meetings Decisions of the POG Managing Contractor's reports Project partnership group meetings Design Work Documentation Work Construction Work Completion of the Works Commissioning work Early works A Enabling Works Early Works direction Early Works Subcontracts Consultants Engagement of other consultants Other consultancy services required by the Principal Responsibility for Nominated Consultants Co-ordination of Nominated Consultants Termination of a Consultancy Agreement 62 Monash Children's Hospital Managing Contractor - Design and Construction Management page 3

4 18.6 Changes in Nominated Consultant's staff Not used Quantity surveyor Design change variations during Stage One Changes at the direction of the Principal's Representative Changes for the convenience of the Managing Contractor Supply of documents Supply of documents by Principal Supply of documents by Managing Contractor Supply of documentation Availability of documents Confidential information Media releases Assignment and subcontracting Assignment A Change in Control Construction Work Requirements of subcontracts Responsibility for Subcontractors Latent Conditions Definition Notification Cost of dealing with Latent Condition Extension of time Patents, copyright and other intellectual property rights Warranty and indemnity Intellectual property rights granted to Principal Moral Rights Statutory Requirements and Policies Variance with the Contract Changes in Statutory Requirements Managing Contractor's declaration and indemnity Documents evidencing approvals of Authorities Not used A OHS to be paramount consideration B Occupational Health and Safety C Appointment as Principal Contractor D Induction E Breach of OHS Law F Managing Contractor and Subcontractor obligations G Managing Contractor to give risk assessment Compliance with government policy Australian Government Building and Construction OHS Accreditation Scheme Project Plans 78 24A Victorian Code and Victorian Guidelines 78 Monash Children's Hospital Managing Contractor - Design and Construction Management page 4

5 24A.1 Defined Terms 78 24A.2 Primary Obligation 78 24A.3 Access and Information 79 24A.4 Sanctions 79 24A.5 Compliance Site Access Protocol, noise, disturbance and nuisance control Protection of people and property Protection measures Traffic Management Not used Urgent protection Care of the work under the Contract and reinstatement of damage Care of the work under the Contract Reinstatement Excepted Risks Damage to persons and property other than the work under the Contract Indemnity by the Managing Contractor Insurance of the work under the Contract Public liability insurance Insurance of employees Professional indemnity insurance Managing Contractor to effect insurance Period of insurance 88 33A Other insurances Inspection and provision of insurance policies Proof of insurance Failure to produce proof of insurance Notices from or to the insurer Notices of potential claims Settlement of claims Cross liability Principal's Representative General Site accommodation Site representative General Managing Contractor's representative, management structure and personnel Personnel Managing Contractor's Representative Management structure Control of Managing Contractor's employees and Subcontractors 92 Monash Children's Hospital Managing Contractor - Design and Construction Management page 5

6 38.1 Removal of personnel Probity Events and Probity Investigations National Police Checks Site Access to and possession of Site Access for the Principal and others Delivery of materials to and work on Site before access Use of Site by the Managing Contractor Finding of minerals, fossils and relics Extra land required by the Managing Contractor Continuing Hospital Functions Setting out the Works Setting out Care of survey marks Errors in setting out Materials, labour and constructional plant Provision of materials, labour and constructional plant Removal of materials and constructional plant Manufacture and supply of materials Not used Victorian Industry Participation Policy Not used Not used Materials and Work Quality of materials and Work A Samples or prototypes Defective materials or Work Variations due to defective materials or Work Acceptance of defective material or Work Generally Examination and testing Principal's Representative may order tests Covering up of Work Who conducts tests Notice of tests Procedure if tests delayed Results of tests Costs of testing Access for testing Working hours and Working Days Programming Submission and approval of program Rights not affected Progress Rate of progress 104 Monash Children's Hospital Managing Contractor - Design and Construction Management page 6

7 47. Acceleration Acceleration proposal Acceptance of acceleration proposal Direction to accelerate Suspension of the Works Suspension by Principal's Representative Suspension by the Managing Contractor Recommencement of Work Cost of suspension Effect of suspension Times for commencement and completion Time for commencement Time for completion Extension of time Liquidated damages Separable portions Use of partly completed Works Delay or disruption costs Principal's obligation and liability Costs for delay or disruption Provisional delay allowance Defects liability Cleaning up Variations Variations to the work under the Contract Proposed variations Variations for the convenience of the Managing Contractor Valuation of Variations Omissions Notice of Variations Not used Rates of exchange and duty Custom tariff (anti dumping) legislation Variations in rates of exchange and duty Not used Claims, certificates and payments GST and PAYG Payment claims Payment certificates Payment Amount properly due Audit of Actual Construction Sum Unfixed plant and material Provisional Sums 125 Monash Children's Hospital Managing Contractor - Design and Construction Management page 7

8 57.9 Certificate of Practical Completion Effect of certificates Final Payment Claim Final Certificate Interest on overdue payments General right of set off by the Principal Security of Payment Act - Notices Security of Payment - suspension Security of Payment - Miscellaneous Security of Payment - Disputes Security of Payment Payment of workers and Subcontractors Payment direct to worker or Subcontractor Statutory declaration Details of payments Court order Default or insolvency Preservation of other rights Default by the Managing Contractor Requirements of a notice by the Principal to show cause Rights of the Principal Procedure when the Principal takes over Work Adjustment on completion of the Work taken out of the hands of the Managing Contractor Default of the Principal Requirements of a notice by the Managing Contractor to show cause Rights of the Managing Contractor Rights of the parties on termination Insolvency Personal Property Security Act 2009 (Cth) No requirement for PPS Act notices Priority of Principal s interest Notices to be given to the Principal Negative undertakings Principal s interest remains unaffected Confidentiality for the purposes of the PPS Act Costs and expenses relating to PPS Act and registration Termination Termination by frustration Principal's rights of termination Notification of Claims Notice of Intention to Claim Liability for failure to give Notice of Intention to Claim Notice of Claim Liability for failure to give notice of Claim Dispute resolution Notice of dispute 143 Monash Children's Hospital Managing Contractor - Design and Construction Management page 8

9 62.2 Further steps required before mediation Mediation notice Mediation Arbitrator Arbitration Proportionate liability Waiver of conditions Records and access to records Not used Disclosure of information Information privacy act Principal may disclose No signage Limit on liability 147 Schedule 1 - Managing Contractor's Fee Breakdown 153 Schedule 2 - Approved form of undertakings 201 Schedule 3 - Performance warranty from suppliers or manufacturers 203 Schedule 4 Form of Consultancy Agreement 211 Schedule 5 Existing Facility plan 337 Schedule 6 Notice of acceptance of a subcontract tender including warranties and indemnity 345 Schedule 7 - Statutory declaration of Managing Contractor, statutory declaration of Subcontractor 347 Schedule 8 - Key Personnel 351 Schedule 9 - Not used 353 Schedule 10 - Deed of guarantee and indemnity 355 Schedule 11 - Not used 363 Schedule 12 - Not used 365 Schedule 13 - Not used 367 Schedule 14 - Not used 369 Schedule 15 - Requirements for GCS offer 371 Schedule 16 - Specification and Duties of the Managing Contractor 373 Schedule 17 - VIPP Plan 375 Schedule 18 - Refurbishment Works 411 Schedule 19 - Site Licence 418 Schedule 20 - Principal Controlled Insurance 428 Monash Children's Hospital Managing Contractor - Design and Construction Management page 9

10 Schedule 21 - Project Methodology Plan 468 Monash Children's Hospital Managing Contractor - Design and Construction Management page 10

11 Details Date Parties Name The Secretary to the Department of Health, a body corporate established under the Public Health and Wellbeing Act Short form name Principal Notice details 50 Lonsdale Street, Melbourne, VIC 3001 Name Lend Lease Building Contractors Pty Limited (formerly Baulderstone) (ABN ) Short form name Managing Contractor Notice details The Gauge, 825 Bourke Street, Docklands VIC 3008 Background A B C The Principal requires the provision of design management services, subcontract construction documentation management services, construction management services, information and communication technology management services and refurbishment works in relation to the Monash Children's Hospital Project ('the Project'). The Managing Contractor represents that it has the necessary experience, skill and expertise to perform and complete the work under the Contract. The parties wish to enter into this Contract to accurately record the terms of their agreement. Monash Children's Hospital Managing Contractor - Design and Construction Management page 11

12 Agreed terms 1. Interpretation The particular terms which are used in this Contract are defined in the Conditions of Contract. 2. Obligation of the Managing Contractor In consideration of the promises on the part of the Principal in this Contract the Managing Contractor: shall provide the materials and perform the work required to complete Stage One in accordance with the Conditions of Contract; acknowledges that if the Principal accepts the Managing Contractor's GCS Offer or Alternative GCS Offer, the Contract will include both Stage One and Stage Two and the Managing Contractor shall provide the materials and perform the work required to complete Stage Two; will otherwise perform, fulfil, comply with, submit to and observe all provisions of the Contract which are to be performed, fulfilled, complied with, submitted to or observed by or on the part of the Managing Contractor; and accepts all risks and costs of performing the Works and the work under Contract except those expressly stated to be the responsibility of the Principal. 3. Obligation of the Principal In consideration of the promises on the part of the Managing Contractor in this Contract the Principal shall make payments to the Managing Contractor in accordance with the Contract and will otherwise perform, fulfil, comply with, submit to and observe all provisions of the Contract which are to be performed, fulfilled, complied with, submitted to and observed by or on the part of the Principal. 4. Stage Two Works The Managing Contractor acknowledges that, unless and until, the Principal accepts the Managing Contractor's GCS Offer or Alternative GCS Offer, the Contract is for the performance of Stage One only, and there is no guarantee of any kind that Stage Two will proceed (either at all or on any particular basis). Despite any other provision in the Contract, if Stage Two proceeds, the Managing Contractor will not be entitled to be paid and the Principal will not be liable to pay an amount that exceeds the sum of the Guaranteed Construction Sum, the Nominated Consultant's Fees and any delay damages payable pursuant to the Contract. 5. Contract documents The Contract between the Principal and the Managing Contractor comprises: this Agreement; the Conditions of Contract; and Monash Children's Hospital Managing Contractor - Design and Construction Management page 12

13 the Schedules to the Conditions of Contract. 6. Administrative Provisions 6.1 Entire Agreement This Agreement and the documents to which it refers contains the entire understanding of the subject matter of this Agreement. 6.2 Power of attorney Where this document is to be executed by any party under a power of attorney, each attorney signing this document warrants that, at the time of signing, he or she has not had any notice of the revocation of that power of attorney Monash Children's Hospital Managing Contractor - Design and Construction Management page 13

14 EXECUTED AS AN AGREEMENT The Corporate Seal of the Secretary to the Department of Health (ABN ), a body corporate established under the Public Health and Wellbeing Act 2008, was affixed by: Fran Thorn Corporate Seal Date Executed by Lend Lease Building Contractors Pty Limited (ABN ) (formerly Baulderstone) in accordance with Section 127 of the Corporations Act 2001 Signature of director Signature of director/company secretary (Please delete as applicable) Name of director in full Name of director/company secretary in full Monash Children's Hospital Managing Contractor - Design and Construction Management page 14

15 Conditions of contract 1. Construction of contract This Contract is governed by the laws of Victoria. The parties submit to the non-exclusive jurisdiction of the courts of Victoria. Unless otherwise provided, prices are in Australian currency and payments shall be made in Australian currency at Melbourne, Victoria. Measurements of physical quantities shall be in Australian legal units of measurement within the meaning of the National Measurement Act 1960 (Cth). This Contract is not subject to escalation unless expressly stated otherwise. 2. Defined terms & interpretation 2.1 Defined terms In this document: Acceleration Proposal has the meaning given in clause Actual Construction Sum means all costs of the Managing Contractor properly and actually incurred by the Managing Contractor, comprising a total of: the tendered cost of Subcontracts, exclusive of GST, in respect of Construction Work (which includes Early Works), plus valid adjustments pursuant to the terms of the Subcontracts, but excluding: the cost of rectifying non-complying and defective work; any other costs not properly incurred in respect of Construction Work pursuant to this Contract (including for the carrying out of any variations which are not the subject of a Variation or acceleration other than where the Principal has provided a direction to accelerate in accordance with clause 47); and any costs attributable to a termination of a Nominated Consultant or Subcontract and the engagement of another Subcontractor or Consultant; Subcontractor delay or disruption costs not otherwise paid pursuant to the Contract and payable pursuant to the terms of a Subcontract, except in respect of a breach of the Subcontract or act of prevention by the Managing Contractor (to the extent not caused by a breach of this Contract by the Principal); and valid claims by the Managing Contractor in respect of Construction Work performed by, and in accordance with the conditions imposed by the Principal's Representative upon, the Managing Contractor pursuant to clause 21.2, but shall not include Excluded Costs, and the Actual Construction Sum shall in aggregate with the Preliminaries, Design/Buildability Advisor Fee, ICT Management Fee and Off Site Overheads and Profit Fee in no circumstances exceed the Guaranteed Construction Sum. Alternative GCS Offer means: an offer by the Managing Contractor under clause 11.2 that offers Value for Money to the State and materially meets the requirements of this Contract for a GCS Offer but Monash Children's Hospital Managing Contractor - Design and Construction Management page 15

16 which differs in its price, timing or scope such that it does not meet all of the requirements of a GCS Offer; or a Modified GCS Offer that is deemed to be an Alternative GCS Offer under clause 11.3(f). Approval means all consents, notices, determinations, authorisations (including planning), registrations, certificates, permissions, licences, permits approvals or exemptions required from an Authority. Asset Management and Maintenance Database means the asset management and maintenance database required by the GCS Offer Project Brief. Authorised Nominating Authority means the person authorised by the Building Commission pursuant to section 42 of the Security of Payment Act to nominate persons to determine adjudication applications. Authority means any Federal, State, government or semi-governmental or local agency, authority or body or a utility with jurisdiction over the Site, the Works or the Project. Bank Guarantee means an irrevocable and unconditional bank guarantee: in the form set out in Schedule 2; issued by: an Australian trading bank registered pursuant to the Banking Act 1959 (Cth); or another bank, approved in writing by the Principal. Building Act means the Building Act 1993 (Vic). Building Services Engineers means Waterman AHW (Vic) Pty Ltd. Buildability Input includes input of the kind reasonably to be expected of a Relevant Managing Contractor, and which input: identifies and resolves Buildability Issues; identifies whether the Developed Design is, and how it can be made, consistent with the proposed methods, techniques and staging of construction to be used by the Managing Contractor; identifies whether and how, if the Works were to be built by the Developed Design they would enable the use of sound construction techniques and otherwise enable construction in a manner consistent with achieving the outcomes required by the Contract. Buildability Issue means any ambiguity, discrepancy, inconsistency or lack of co-ordination or integration of, between or in any documents comprising the Contract, the Design Documents or the Design Documents (MC) which are likely to increase the cost, reduce or adversely affect the Quality or delay the completion of the Works. business day has the meaning given in the Security of Payment Act. Certificate of Practical Completion means the certificate referred to in clause Certification Functions means those powers, discretions, rules and functions of the Principal's Representative as set out in clauses 11.4, 11.4, 11.4(e), 11.4(f), 19.1, 22.3, 34.5, 47.3, 48.4, 49.3(g), 53.4, 57.2, 57.3, 57.9 and Monash Children's Hospital Managing Contractor - Design and Construction Management page 16

17 Change in Control of a party means where, at any time any person alone or together with any associates ceases to or commences to, directly or indirectly, have Control of the party other than as a result of a Permitted Change in Control. Claim includes any claim, demand, action, proceeding or suit of any kind whatsoever which a party may make or bring against the other party or any of the other party's agents or employees relating to the construction of the Contract or as to any fact, matter or thing arising out of or in connection with the Contract or the work under the Contract including any claim, demand, action, proceeding or suit seeking an extension of time or the payment of money, or any costs, expenses, loss or damages on any ground whatsoever including pursuant to the Contract, on a quantum meruit, in quasi-contract, for unjust enrichment and insofar as is permitted by law, pursuant to any other principle of law. Completion of Stage One means the stage in the execution of the work under the Contract when the Managing Contractor has provided to the Principal a GCS Offer and, if applicable, an Alternative GCS Offer, in accordance with Schedule 15, one of which has been either accepted or rejected by the Principal pursuant to clause Construction Work comprises work under the Contract including Early Works and the administration, supervision, inspection and coordination of Works being executed by the Subcontractors, but excluding: On Site Overheads; Design Work; and Documentation Work. Consultancy Agreements means the agreements between the Principal and the following Consultants for developing the design of the Project: the Lead Consultant (which includes subconsultancies with the structural engineer Irwinconsult Pty Ltd, and the building surveyor PLP Building Surveyors & Consultants Pty Ltd); the Building Services Engineers; and the Environmentally Sustainable Development consultant AECOM Australia Pty Ltd. Consultants means the consultants engaged initially by the Principal in connection with designing the work under the Contract. Contract has the meaning in clause 4. Contract Materials means any work produced or required to be produced in the course of performing the work under the Contract and provided or required to be provided to the Principal, including the Works, Design Documents (MC) and the Subcontract Construction Documentation. Control means: control or influence of, or having the capacity to control or influence the composition of the board, or decision making, directly or indirectly, in relation to the financial and operating policies; being in a position to cast, or control the casting of, more than 20% of the maximum number of votes that may be cast at a general meeting; or having a relevant interest (as defined in section 608 of the Corporations Act) in more than 20% of the securities (as defined in the Corporations Act), Monash Children's Hospital Managing Contractor - Design and Construction Management page 17

18 of the Managing Contractor (whether alone or together with any associates). Controller means in relation to a change in control, the person or body corporate to whom Control will pass. Corporation Act means the Corporations Act 2001 (Cth). Date of Commencement of Stage Two means the date of acceptance, if any, of the Managing Contractor's GCS Offer or Alternative GCS Offer by the Principal pursuant to clause Date for GCS Offer means the date (specified in the Annexure) by which the Managing Contractor must make its GCS Offer, but if any extension of time for this Milestone is granted by the Principal's Representative it means the resulting date. Date for Practical Completion means the last day of the period of time for Practical Completion of the Works provided in the Managing Contractor's GCS Offer or Alternative GCS Offer (as applicable) accepted by the Principal as the Date for Practical Completion, or the Date for Practical Completion for the Works specified in the Annexure, whichever is applicable, but if any extension of time for Practical Completion is granted by the Principal's Representative it means the resulting date. Date of Practical Completion means the date certified by the Principal's Representative in a Certificate of Practical Completion issued pursuant to clause 57.9, as the date upon which Practical Completion of the Works was reached. day means calendar day except where the context otherwise indicates. Defect means: any error, deficiency, omission, failure or other defect in the Works or the work under the Contract; or any aspect of the Works or the work under the Contract which is not in accordance with the requirements of this Contract, including the Project Brief or the GCS Offer Project Brief. Defects Liability Period means: where the Principal's Representative has, during Stage One, specified a period for specific components of the Works, the period so specified; or otherwise, the period specified in the Annexure. Defects Liability Work means the work required by clause 51. Delay Event means: (e) a Latent Condition to which clause 22.4 applies; a change to a Statutory Requirement to which clause 24.2 applies; the Excepted Risks in clause 28.3, and ; statewide or nationwide industrial action which prevents any Construction Work for a period (per event) of not less than one Working Day; in respect of the Date for GCS Offer only, any other event beyond the reasonable control of the Managing Contractor, having exercised the degree of skill, care and diligence reasonably to be expected of a Relevant Managing Contractor; and Monash Children's Hospital Managing Contractor - Design and Construction Management page 18

19 (f) fire, flood (which might, at the date of this Contract, be expected to occur less frequently than once in every 100 years) natural disaster, or storm (being a category 10 storm on the Beaufort Wind Scale published on the Australian Bureau of Meteorology website), in each case except to the extent caused by an act or omission of the Managing Contractor. Department of Health Guidelines means the design guidelines for hospitals and day procedure centres, as published at Design/Buildability Advisor Fee means the lump sum amount, exclusive of GST, contained in Schedule 1 as the fee for all costs of any nature related to the Managing Contractor's obligations under the Contract during Stage One, as adjusted in accordance with the provisions of the Contract expressly allowing for an adjustment to the Design/Buildability Advisor Fee, and does not include a cost or expense included in the Actual Construction Sum, Preliminaries, ICT Management Fee or Off Site Overheads and Profit Fee. Design Documents means the documents prepared or required to be prepared in the performance of the Design Work but excluding Design Documents (MC). Design Documents (MC) means the documents prepared or required to be prepared by the Managing Contractor in the execution of the work under the Contract or by a Subcontractor in the performance of a Nominated D&C Package. Design Milestones means the stages of the Design Work described in the Consultancy Agreements. Design Milestones Dates means the timing requirements for completion of the Design Milestones set out in the Consultancy Agreements. Design Work means all work undertaken or required to be undertaken or managed by the Managing Contractor to assist the Consultants to achieve the Developed Design. Developed Design means the stage when, in the opinion of the Principal's Representative, the scope, functionality and quality standards of the Works are specified with sufficient particularity (including the room data sheets and layout sheets) to enable a Relevant Managing Contractor to undertake and complete the Documentation Work and lawfully commence and complete the Construction Work by the Date for Practical Completion. For the avoidance of doubt the Developed Design will include all design work up to the submission of the Managing Contractor's GCS Offer in accordance with clause Documentation Work means all work required to be undertaken or managed by the Managing Contractor to achieve the Subcontract Construction Documentation. Early Works means (as applicable) a Nominated D&C Package, Documentation Work or Construction Work the subject of a direction by the Principal's Representative pursuant to clause 17, including the Initial Early Works set described as early works in Part C of the Tender Documents. Early Works Subcontracts means the Subcontracts entered into by the Managing Contractor for Early Works. EDMS means Aconex, being an electronic document management system for the Project. Enabling Works means the council stormwater works and construction of the northern multi deck car park completed on or nearby the Site prior to the date of Site Access being granted. Monash Children's Hospital Managing Contractor - Design and Construction Management page 19

20 Environment means all: physical factors including the land (and subsurface), weather, waters, atmosphere, climate (including wind), sounds, odours and tastes; biological factors or animals and plants; social factors of aesthetics; and properties and occupants of those properties, at, around, nearby or affecting the Site. Environmental Law means any law regulating or relating to the Environment. Excluded Costs means any of the following amounts paid or payable by the Managing Contractor or incurred by the Managing Contractor: (e) (f) (g) (h) (j) (k) (l) (m) amounts in respect of which the Design/Buildability Advisor Fee or ICT Management Fee are paid; amounts in respect of which the Preliminaries, Off Site Overheads and Profit Fee or On Site Overheads are paid; liquidated damages; amounts which are recovered or but for the Managing Contractor's failure to comply with the relevant insurance policy would have been reimbursed under insurance policies; amounts which are in respect of remedial work, or repairing damage, to the Works; amounts which are, pursuant to an express provision of the Contract, to be borne or paid by the Managing Contractor or are due by the Managing Contractor to the Principal (including under an indemnity); costs not actually and properly and reasonably incurred or which the Managing Contractor cannot substantiate on an Open Book Basis; amounts not incurred on an arm's length basis; any costs attributable to a termination of a Nominated Consultant or a Subcontract and the engagement of another Subcontractor or Consultant; payments to Subcontractors or Nominated Consultants in relation to work or costs for which the Managing Contractor is not entitled to receive payment from the Principal under this Contract including any amounts for the carrying out of any variations which are not referrable to the works the subject of a Variation directed to be performed in accordance this Contract; amounts incurred due to the Managing Contractor's unlawful or negligent acts or omissions, breach or default; any amount payable by the Managing Contractor under clause 62; and any DIC insurance effected by the Managing Contractor in relation to the Project. Existing Facility means the Monash Medical Centre, Clayton, shown in grey on the plan in Schedule 5. Extra Land has the meaning given in clause FF&E means furniture, fittings and equipment. Monash Children's Hospital Managing Contractor - Design and Construction Management page 20

21 FF&E Works means the purchase, supply and installation of all FF&E required for the Project as further described in Annexure J to Part C of the Tender Documents, except for: the purchase and supply of Group 2b FF&E; the purchase, supply and installation of Group 3 FF&E; and any other works expressly excluded by the terms of the Contract. Final Certificate means a certificate issued by the Principal's Representative to the Principal and to the Managing Contractor pursuant to clause Final Payment Claim means the final payment claim referred to in clause Formal Instrument of Agreement means the formal instrument of agreement to which the Conditions of Contract are attached. GCS Offer means the Guaranteed Construction Sum offer to be submitted by the Managing Contractor, by the Date for GCS Offer, in accordance with the requirements set out in Schedule 15. GCS Offer Project Brief means the revised Project Brief that is compliant with the requirements of this Contract to be submitted as part of the GCS Offer and, where the GCS Offer or Alternative GCS Offer is accepted and Stage Two proceeds, means the GCS Offer Project Brief that is accepted by the Principal. Government Entity means: (e) department or part of a department of the State of Victoria; an executive agency, statutory agency or public service office; an authority, commission, corporation, instrumentality, office, or other entity, established under an Act or under State authorisation for a public or State purpose; another entity, or part of another entity, declared under a regulation to be a government entity; or an organisation that: is not an entity, and is either established by the State (whether under a law or not) to carry on an enterprise or established for a public purpose by an Australian law, and can be separately identified by reference to the nature of the activities carried on through the organisation or the location of the organisation, and for the avoidance of doubt, includes Monash Health. Group 2 FF&E means the indicative list of group 2 FF&E described as such in the Project Brief. Group 2b FF&E means the indicative list of group 2b FF&E described as such in the Project Brief. Group 3 FF&E means the indicative list of group 3 FF&E described as such in the Project Brief. GST has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth). Guaranteed Construction Sum means the sum, exclusive of GST, contained in the Managing Contractor's GCS Offer and accepted in writing by the Principal as the maximum price that may be payable by the Principal to the Managing Contractor for all work under the Contract, including Monash Children's Hospital Managing Contractor - Design and Construction Management page 21

22 Construction Work, Preliminaries, Design/Buildability Advisor Fee, ICT Management Fee and Off Site Overheads and Profit Fee, Included Matters and Refurbishment Works adjusted in accordance with the provisions of the Contract expressly allowing for an adjustment to the Guaranteed Construction Sum. Guarantor means Lend Lease Construction Australia Holdings Pty Limited (ABN ) Level 4, The Bond, 30 Hickson Road Millers Point NSW 2000 or such alternative guarantor as may be agreed to by the Principal. Hospital Functions means all clinical, medical imaging, research, education, clinical support, non-clinical support maintenance and administration functions undertaken at, or in the immediate vicinity of, the Existing Facility or which are incidental to such functions or activities, or which are incidental to the care, treatment and rehabilitation of patients, accommodation of patients and visitors. Hospital Users means: any patient being treated at the Existing Facility or visitors to the Existing Facility; Monash Health, and its employees, volunteers and students; members of professional groups, medical practitioners and researchers having business at the Existing Facility; and any person who has dealings with Monash Health in relation to the Existing Facility. ICT Management Fee means the lump sum amount, exclusive of GST, contained in Schedule 1 as the fee for all costs of any nature related to the Managing Contractor's obligations under the Contract in relation to the ICT Works, as adjusted in accordance with the provisions of the Contract expressly allowing for an adjustment to the ICT Management Fee, and does not include a cost or expense included in the Actual Construction Sum, Preliminaries, Design/Buildability Fee or Off Site Overheads and Profit Fee. ICT Works means the design, procurement, supply, delivery, installation, configuration, integration with or transition of existing systems where required, testing, commissioning, labelling, recording, documentation, training, support, maintenance, warranty and any other services necessary to ready the information and communication technology systems solution for operations, as further described in Annexure K to Part C of the Tender Documents. Included Matter means any work or activity necessary or incidental to the performance of the Works, to comply with the Contract, correct a Defect or address a Buildability Issue. Initial Early Works means those works described as early works in Schedule 1 and Part C of the Tender Documents. IPA Code of Practice means a code of practice as defined in, and approved under, the Information Privacy Act Key Personnel means the people listed in 0. Latent Condition means any of the conditions referred to in clause Lead Consultant means Silver Thomas Hanley (Aus) Pty Ltd. Liquidated Damages Cap means the amount of $30,000,000. Managing Contractor means the party bound to execute the work under the Contract and includes that party's heirs, executors and permitted assigns and in the case of a body corporate its successors and permitted assigns. Monash Children's Hospital Managing Contractor - Design and Construction Management page 22

23 Managing Contractor's Representative means a person appointed in writing by the Managing Contractor under clause Managing Contractor's Tender means the tender submitted by the Managing Contractor. Milestone means any milestone for the work under the Contract, including the Date for GCS Offer and the Date for Practical Completion. Milestone Date means the date specified in the Annexure of the Contract by which the Managing Contractor must achieve a Milestone, but if any extension of time for this Milestone is granted by the Principal's Representative it means the resulting date. Ministerial Direction means all Ministerial Directions issued under section 30 of the Project Development and Construction Management Act Modified GCS Offer has the meaning given in clause Monash Health means the public health service established under the Health Services Act 1988 (Vic). Moral Rights are the moral rights granted to creators under the Copyright Act 1968 (Cth) and any similar rights existing under foreign laws. Nominated Consultants means the following Consultants: Lead Consultant; and Building Services Engineers. Nominated Consultant's Fee means: NCF = CF - AP where: NCF is the Nominated Consultant's Fee; CF is the fee expressed to be payable to a Nominated Consultant under its Consultancy Agreement with the Principal; and AP is the amount paid or otherwise due to the Nominated Consultant by the Principal as at the date of the GCS Offer. Nominated D&C Package means the work required to complete the existing partial design and then construct a part of the Works as directed by the Principal's Representative under clause 17.1 to a standard consistent with the Project Brief and the then current Design Documents. Nomination Date means the date of the agreement between the Managing Contractor and the Nominated Consultants to perform the balance of the Subcontract Construction Documentation executed in accordance with clause 18.1A, which must not be before the commencement of Stage Two. notice has the meaning given to it by clause 10. Notice of Claim means a notice given under clause Notice of Intention to Claim means a notice given under clause OHS means occupational health and safety. OHS Law means all applicable OHS, environment protection, dangerous goods and electricity safety legislation and regulations made thereunder together with any directions on safety or notices issued by any relevant authority or any code of practice or compliance code which may be Monash Children's Hospital Managing Contractor - Design and Construction Management page 23

24 relevant to the Works, and includes the Occupational Health and Safety Act 2004 (Vic) and the Occupational Health and Safety Regulations 2007 (Vic). Off Site Overheads and Profit Fee means: for Stage One, the fixed lump sum amount, exclusive of GST, set out in Schedule 1; and for Stage Two, and in relation to any Early Works directed by the Principal's Representative pursuant to clause 17, the fixed lump sum amount, exclusive of GST set out in Schedule 1, as the Managing Contractor's fee for all costs associated with off site overheads and the Managing Contractor's profit margin. On Site Overheads means work, resources, personnel and items required for the construction of the Works, including the items listed in Schedule 1, but excluding any items or work the subject of the Design/Buildability Advisor Fee, ICT Management Fee, Nominated Consultant's Fee and Off Site Overheads and Profit Fee. For clarification, the following items are On Site Overheads: cranage, hoisting and scaffolding; waste removal; temporary roads and access, temporary fencing, site reinstatement and temporary services such as temporary power, sewerage, water and stormwater, however items to above are to be included in the Guaranteed Construction Sum. Open Book Basis means the provision of pricing, costing and other information on an open book basis to enable an assessment of actual costs and profit margins, including a breakdown of all relevant: (e) (f) (g) (h) preliminaries; insurances; labour; equipment; materials; Subcontract costs; overheads and margins; and discount rates used to calculate net present values, in a clear, transparent and fully auditable manner. Payment Deferral Event means any of the following failures by the Managing Contractor: failure to provide Security or any increase to the security or retention in accordance with clause 9: (j) failure to provide a Deed of Guarantee and Indemnity in accordance with clause 9.13; (k) (l) failing to comply with clause 11.1; failure to enter into agreements with the Nominated Consultants in accordance with clause 18.1A; Monash Children's Hospital Managing Contractor - Design and Construction Management page 24

25 (m) (n) failure to provide the evidence of compliance with occupational health and safety required by clause 24.5B, or execute the documents required to perfect the Managing Contractor's appointment as the principal contractor in accordance with clause 24.5C; failure to provide evidence of the insurances in accordance with clause 34.1; and (o) failure to deliver a statutory declaration in accordance with clause Permitted Change in Control means a Change in Control which occurs due to: a corporate restructure or reorganisation whereby the Managing Contractor continues to be a subsidiary (within the meaning given by Division 6 of Part 1.2 of the Corporations Act 2001 (Cth)) of Lend Lease Construction Australia Holdings Pty Limited (ABN ); or the acquisition of a relevant interest (as defined in section 608 of the Corporations Act) in Lend Lease Corporation (ABN ) securities on a stock exchange. person includes an individual and a corporation. Personal Property Securities Register means the register maintained pursuant to the PPS Act. PPS Act means Personal Properties Securities Act 2009 (Cth), and any amendment made at any time to the Corporations Act or any other legislation as a consequence of such legislation. Practical Completion is that stage in the execution of the work under the Contract when: the Works (including each discrete component of them) are complete except for minor omissions and minor defects: which do not prevent the Works (including any discrete component of them) from being reasonably capable of being used for its or their intended purpose; which the Principal's Representative determines the Managing Contractor has reasonable grounds for not promptly rectifying; and rectification of which will not prejudice the convenient use of the Works (including any discrete component of them) for its or their intended purpose; those tests which are required by the Contract to be carried out and passed or satisfied or which a Relevant Managing Contractor could reasonably be expected to have carried out or satisfied before the Works can be regarded as having reached the stage of Practical Completion, have been carried out and passed or satisfied; all specific requirements for Practical Completion set out in the Project Brief or the GCS Offer Project Brief, have been fully satisfied; documents and other information required under the Contract which, in the reasonable opinion of the Principal's Representative, are essential for the use, operation and maintenance of the Works have been supplied to the Principal's Representative. As a minimum, the Managing Contractor shall provide: one (1) hard and one (1) electronic copy of shop drawings and as built drawings in the format required by the Contract showing for each relevant design discipline, the Works as constructed, the location of all services infrastructure within the limits of the Works, and variations to design layouts, levels, coordinates, contours or sections; Monash Children's Hospital Managing Contractor - Design and Construction Management page 25

26 (e) (f) (g) (h) (j) (k) (l) (m) one original and one electronic copy of the final Asset Management and Maintenance Database and all final operating and maintenance manuals for all plant and equipment forming part of the Works; and all original warranties required by the Contract or otherwise obtained by the Managing Contractor; an occupancy permit for the Works has been issued under the Building Act (with no conditions which, in the Principal's Representative's reasonable opinion, prevent the Works (including any discrete component of them) from being reasonably capable of being used for its or their intended purpose) and all other necessary Approvals have been provided to the Principal's Representative; the Managing Contractor has provided to the Principal's Representative all keys, properly labelled, for the Works; all debris, rubbish, building materials, construction plant and equipment has been removed from the Site, and the Site and the Works have been professionally cleaned not earlier than ten (10) business days prior to Practical Completion; the Managing Contractor has demonstrated to the satisfaction of the Principal's Representative (including by testing required by the Principal's Representative) that: all new services and installations, or services which existed prior to the commencement of the Works and which the Managing Contractor has performed work on or which have been damaged by the Works, perform as required by the Contract under the maximum operating conditions (including emergency operating conditions) for the Works provided for in the Contract or, if none are expressed, which could reasonably have been anticipated by a Relevant Managing Contractor; and all existing services and installations which interface with or interact with the Works but in respect of which the Managing Contractor has not (and ought reasonably have not) performed work, perform to no worse condition (fair wear and tear excluded) than they did prior to performance of the Works; all Approvals in relation to access to or remediation of the Site have been obtained to the satisfaction of the applicable Authority; the Managing Contractor has provided to the Principal's Representative a certificate from a licensed surveyor certifying that the Works are located within the boundaries (including vertical boundaries) of the Site in the place and position required by the terms of the Contract; an independent consultant has provided a certificate that the fire services function under normal and simulated emergency operating conditions in accordance with Department of Health Guidelines; the Managing Contractor has provided the Principal with a certificate from the Lead Consultant and the Building Services Engineer that the Construction Work has been completed in accordance with the Developed Design and the GCS Offer Project Brief; and any other conditions which the Contract expressly requires to be satisfied prior to Practical Completion have been satisfied. Preliminaries means the lump sum amounts, exclusive of GST, set out in Schedule 1 as the Managing Contractor's fee for all costs associated with the On Site Overheads as adjusted in Monash Children's Hospital Managing Contractor - Design and Construction Management page 26