Management Agreement

Transcription

1 Management Agreement An Agreement between: THE AUSTRALIAN NATIONAL UNIVERSITY (the University) and (PM) with respect to the project known as: (Project) Date: (date) Commercial in Confidence Rev: March

2 TABLE OF CONTENTS 2) GENERAL CONDITIONS OF AGREEMENT ) INTERPRETATION AND DEFINITIONS ) CODE OF PRACTICE FOR THE CONSTRUCTION INDUSTRY ) EQUITY AND DIVERSITY ) THE FEE ) PAYMENTS ) SECURITY AND Retention ) GOODS AND SERVICES TAX (GST) ) PROJECT STAGES ) THE MANAGER OBLIGATIONS ) THE MANAGER - GENERAL DUTIES ) INCEPTION STAGE ) DESIGN STAGE ) CONSTRUCTION STAGE ) POST-CONSTRUCTION STAGE ) PRACTICAL AND FINAL COMPLETION ) RESPONSIBILITIES OF THE UNIVERSITY ) VARIATIONS ) The Manager s Insurance Obligations Failure to Insure Period of Insurance Notice of Potential Claim Procedure upon Loss or Damage Cross Liability ) CONFIDENTIALITY AND INTELLECTUAL PROPERTY ) PUBLICITY ) NOTICES ) USE OF PARTLY COMPLETED WORKS ) DEFAULT AND TERMINATION ) DISPUTE RESOLUTION SCHEDULE OF AGREEMENT ANNEXURE ANNEXURE ANNEXURE 2A ANNEXURE ANNEXURE ANNEXURE 4A ANNEXURE ANNEXURE ANNEXURE ANNEXURE

3 ATTACHMENT A SPECIAL CONDITIONS OF CONTRACT A) National Code of Practice for the Construction Industry... B) Equal Opportunity for Women... C) Small to Medium Enterprises... D) Minimisation of Management of Construction Waste... E) Use of Australian and New Zealand Products... F) Goods and Services Tax (Alt. A)... G) Goods and Services Tax (Alt. B)... H) Quality Assurance... ATTACHMENT B FINANCE AND ADMINISTRATION MANUAL Table of Contents ATTACHMENT C Related documents

4 1) EXECUTION This Agreement is made on the day of. Between The Australian National University,ABN , The Body Corporate, Acton, ACT 0200 established by The Australian National University Act 1991 Signed on behalf of the Australian National University by.. (Authorised Delegate) Signature of (Authorised Delegate) Signature of witness Name and address of witness and (Project Manager) ABN (hereinafter referred to as the Manager ) Whose registered office is located at: (Address) Signed and sealed on behalf of the Manager by an authorised Director or Company Secretary of the company: Signature of Director/Company Secretary Signature of witness Name and address of witness Attach Seal of the Manager here: Under this Agreement the University appoints the Manager to perform the services stated in this Agreement and attached documents in respect of the Project named in the Schedule of Agreement. For the performance of the services stated in this Agreement and attached documents the University will pay the Manager a Fee of: or other such amount as may become due under the terms of this Agreement. 4

5 Terms and Conditions of Agreement 2) GENERAL CONDITIONS OF AGREEMENT a) This Agreement comprises: i) The Execution ii) Terms and Conditions of Agreement iii) Schedule of Agreement iv) Annexure 1 Summary of Project Costs v) Annexure 2 Fixed Costs vi) Annexure 2A Details of Services included in Support Management Fee vii) Annexure 3 Loaded Salaries for On-Site Staff viii) Annexure 4 Building Works ix) Annexure 4A Details of Reimbursement Construction Costs x) Annexure 4B Preliminaries xi) Annexure 5 Manager s Program to Achieve Trade Package Committal xii) Annexure 6 Payment Schedule xiii) Annexure 7 Specified Project Personnel xiv) Annexure 8 Project Consultants xv) Attachment A Finance & Administration Manual xvi) Other attached documents as listed in the Schedule of Agreement b) Under this Agreement the University shall be the Principal. c) This agreement may not be assigned without the consent in writing of the University; such consent may be withheld at any time and without reason. d) The laws and courts of the Australian Capital Territory shall apply in interpreting this Agreement and in any litigation. e) This Agreement contains the entire terms of the appointment. The inclusion of any provision which is unenforceable or in anyway contradictory shall not negate the Agreement as a whole, but will be replaced by negotiation in good faith between the University and the Manager. f) The terms and conditions of this Agreement may be varied by agreement of both parties at any time. g) Each party shall bear its own costs of and incidental to this Agreement. 5

6 3) INTERPRETATION AND DEFINITIONS a) Unless otherwise stated all terms shall have their usual meaning in a project management and construction context. b) If the meaning of any term is unclear then the University shall decide upon its meaning. c) Day shall mean a calendar day. d) Project team shall mean the Manager and all consultants, contractors, suppliers and others employed by the Manager or the University in the delivery of the project. e) Total project sum shall mean the total cost to the University of the Project including the Fee payable under this Agreement and all amounts paid or to be paid to consultants, contractors, suppliers and others employed by the Manager or the University, and all charges and other costs. f) Working day shall mean Monday to Saturday inclusive, but excepting Public Holidays. g) Works shall mean the construction works arising from the Project. 4) CODE OF PRACTICE FOR THE CONSTRUCTION INDUSTRY a) The Manager shall comply, in the performance of this Agreement, with the requirements of the: i) National Code of Practice for the Construction Industry (the code) and ii) the Industry guidelines for the industrial relations and occupational health and safety components of the National Code of Practice for the Construction industry (the industry guidelines). b) Compliance with code or the industry guidelines shall not relieve the Manager from responsibility to perform the Agreement, or from liability for the Project arising from compliance with the code or industry guidelines. c) If complying with any part of the Agreement would affect compliance with the code or the industry guidelines the Manager shall submit a report to the University specifying the extent to which compliance with the code or the industry guidelines will be affected. d) The Manager shall maintain adequate records of the compliance with the code and the industry guidelines by itself and the project team. The Manager shall permit the University to have access to these records and to its premises, as is necessary to allow validation of its progress in complying with the code. The Manager, in all contracts, shall require project team members to maintain and provide access for the University to the project team member s records and premises to the same extent as required from the Manager by this clause. e) The Manager shall ensure that all contracts with project team members contain requirements functionally equivalent to the requirements of this clause. 6

7 5) EQUITY AND DIVERSITY a) The Manager must comply with their obligations under EEO and anti-discriminatory legislation and their commitment to EEO as presented in the Equal Opportunity Policy Statement. 6) THE FEE a) The Fee will be divided into the following elements: i) Profit - a fixed lump sum. (Refer Annexure 2) ii) Support Management Fee a fixed lump sum. (Refer Annexure 2 & 2A) iii) On Site Salaries a not to be exceeded provisional sum. (Refer Annexure 3) iv) Reimbursable Construction Costs a not to be exceeded provisional sum. (Refer Annexure 4A) v) Preliminaries a not to be exceeded provisional sum. (Refer Annexure 4B) vi) Consultants Fees a not to be exceeded provisional sum (Refer Annexure 8) b) The University will pay no amounts other than those stated above to the Manager. c) The Fee may be reduced or increased with respect to any variation issued by the University to reflect reasonable changes in the Manager s costs. d) Provisional sums are only to be expended with the University s prior written approval. e) In the event of a not to be exceeded sum being exceeded without the University s consent, the Manager shall bear the cost of the excess amount. f) The Fee will be paid by progress payments in accordance with the Payment Schedule attached to this Agreement. (Refer Annexure 6) 7) PAYMENTS a) The Manager will submit a progress claim for payment to the University on the dates stated in the Payment Schedule, which will be at approximately monthly intervals. b) Ensure that the final account of each project team member is received and evaluated within thirty days of the Practical Completion (or equivalent) of each individual member s involvement in the Project. The University will not recognise any claims after the expiration of the thirty-day period. c) The Manager shall substantiate to the University s reasonable satisfaction both progress claims and the Final Claim. d) If the Manager does not submit a Final Claim then the University shall in due course make its own assessment of the Final Claim and pay the Manager the amount the University believes due. In such instance the Manager shall not have a right of appeal against the Final Claim as assessed by the University. e) The University will pay the Manager the amount claimed, after adjustments allowed by this Agreement, within fourteen days of receipt of the claim. 7

8 f) The University may adjust the amount to be paid as follows: i) to correct any errors, ii) for any variations, iii) to disallow any unsubstantiated amounts iv) to recover any costs incurred by the University as a result of the Manager failing to fulfil its duties and responsibilities, v) as allowed elsewhere in this Agreement. g) No payment shall of itself be conclusive evidence that the Manager has complied with the requirements of this Agreement. 8) SECURITY AND RETENTION a) Either sub-clause (b) or (c) shall apply as stated in the Schedule of Agreement. b) Retention i) The University may deduct a percentage of each payment as retention, as stated in the Schedule of Agreement. ii) The maximum retention to be held by the University at any one time will be as stated in the Schedule of Agreement. c) Security i) Before the receipt of any payments the Manager will lodge with the University a security in the form of cash, unconditional bond, bank guarantee or other form acceptable to the University in the amount stated in the Schedule of Agreement. d) The amount of retention or security will be reduced to one-half of the amount stated in the Schedule of Agreement on the issue of a Certificate of Practical Completion by the University. e) The University may use the retention or security to pay such costs as it may incur due to the failure of the Manager to fulfil the requirements of this Agreement. This clause shall not prevent the University from seeking additional sums from the Manager if the costs incurred by the University exceed the amount of retention or security. f) The University will release any remaining retention or security to the Manager on the issue of a Certificate of Final Completion. g) Interest will not be due to the Manager in respect of the retention or security. 9) GOODS AND SERVICES TAX (GST) a) If the Fee does not include an amount to cover any liability of the Manager for Goods and Services Tax (GST) on any supplies made under this Agreement which are taxable supplies within the meaning of A New Tax System (Goods and Services Tax) Act 1999 (the GST Act) then: i) If applicable, the Manager agrees to reduce the Fee to ensure that the benefit of 8

9 any reduction in or removal of taxes, duties or charges which impacts on the costs to the Manager in performing this Agreement is passed onto the University. If a reduction to the Fee is made under this clause, the reduced amount will become the Fee for the purposes of this Agreement. ii) If a supply made by the Manager under this Agreement is a taxable supply under the GST Act, the Manager may, by notice in writing to the University, increase the Fee payable by the University, by the amount of GST that is payable by the Manager on that part of the Fee which relates to the taxable supply as if that part of the Fee is the value of the supply for the purposes of the GST Act. iii) The Manager shall substantiate to the University s reasonable satisfaction how any reduction or increase in the amounts payable by the University have been calculated before such changes will take effect. iv) In relation to taxable supplies made under this Agreement, the Manager agrees to issue the University with a tax invoice in accordance with the GST Act. (If the Manager does not quote its Australian Business Number, the University will withhold an amount for tax purposes as determined by the Australian Tax Office.) 10) PROJECT STAGES a) A project comprises four stages, summarised as: i) Inception including assessment of the University s needs and development of solutions by way of feasibility studies, preliminary budgets and programs, value engineering and consideration of funding options. ii) Design including preparation of drawings and documentation for construction purposes, obtaining planning consent, and other approvals and agreements necessary to allow the project to proceed. iii) Construction including construction of infrastructure works, buildings, structures and facilities. iv) Post-Construction including the defects liability period, maintenance works and post-occupancy evaluation. b) Any given stage may overlap with preceding or succeeding stages where this is to the benefit of the project as a whole. c) The Manager is appointed to manage those stages stated in the Schedule of Agreement. 11) THE MANAGER OBLIGATIONS a) The Manager will at all times proceed diligently with the obligations and duties required of it by this Agreement. b) The role of the Manager will be in accordance with accepted good practice for the profession and as detailed in this Agreement and attached documents. c) The Manager is appointed as the University s adviser, agent and representative. d) The Manager will be named as the University s agent and, or, representative in 9

10 various contracts let by the Manager or the University during the course of the Project and will administer such contracts on the University s behalf. e) The University will have access at all times to all the Manager s records for audit and other purposes related to this Agreement and Project. f) The Manager is the project team leader and accepts ultimate responsibility for the successful management of the Project. g) The Manager will in particular ensure that: i) the Project achieves its aims, objectives and requirements, ii) the University is professionally advised in all matters pertaining to the Project, iii) each stage is managed in the best interests of the University, iv) management procedures are in accordance with the procedures of the University and in particular the University s Financial and Administration Manual and Project Delivery Manual, v) each stage commences and is completed in accordance with the dates stated in the Schedule of Agreement, vi) no extension of time or additional costs are granted without the prior consent of the University, vii) a smooth transition occurs from one stage to the next, particularly when stages overlap or are not included in this Agreement. 12) THE MANAGER - GENERAL DUTIES a) For each stage that they are employed the Manager will: i) Be the project team leader and accept ultimate responsibility for the successful management of the stage. ii) Generally manage the stage, including liaison with and coordination of the project team. iii) Employ sufficient suitably experienced staff to meet its obligations under this Agreement and successfully execute the Project. iv) Designate one its employees as its representative and point of contact for the University and project team, as stated in the Schedule of Agreement. v) Develop, monitor and maintain a program, budget and cashflow forecast for the Project. vi) Ensure that the total project sum is not exceeded. vii) Promptly establish and maintain proper administrative procedures including, but not limited to: convening and minuting meetings, information management, financial control, health and safety, and industrial relations. viii) Obtain all necessary certificates, approvals, agreements and the like (including those with utilities) to allow the Project to proceed, and pay all charges associated with the same. 10

11 ix) Not allow, or make arrangements for, the Project to be used for any form of publicity without the prior written consent of the University. x) Provide other services in relation to the Project as reasonably requested from time to time by the University, for a fee agreed with the University. b) The Manager will report regularly to the University including, but not limited to: i) Review all aspects of the Project and advise the University as to the appropriateness of any proposed changes. ii) Evaluate and advise the University in good time with regards to potential or actual: breaches of contract, variations to cost or program, decisions required in order to progress the Project and any other matter likely to affect any aspect of the Project. iii) Provide the University with regular monthly reports including evaluation of the program, budget, cashflow and attainment of Project aims, objectives and requirements and other matters as requested by the University. iv) Give the University twenty-eight days written notice of the Practical Completion of a stage or separable portion within a stage v) After the Practical Completion the Manager is required to participate in the project Post Occupancy Evaluation which includes an assessment of the performance of each project team member and observations as to how the University might improve the stage on future projects. c) The Manager will oversee the procurement and management of resources required to execute the Project including, but not limited to: i) Prepare, issue, receive and evaluate tender documents for the contracting of project team members. Advise the University on the preparation of tender lists and assess the capabilities of potential tenderers. Make recommendations on the contracting of project team members, and forms of contract. ii) giving the fullest consideration to using Australian and New Zealand goods, materials and services where they represent value for money. Specifications or delivery requirements should not seek to exclude Australian or New Zealand goods, materials or services. iii) Maintain its commitment to small to medium enterprises as set out in the Small to Medium Enterprise Statement. iv) Arrange public tenders or expressions of interests with selected tender for contracts estimated to be valued in excess of $50,000. v) Obtain three or more quotations for contracts estimated to be valued in excess of $5,000 and up to $50,000. vi) Ensure that all project team members are adequately insured, at their own expense, as appropriate to their employment on the Project including, but not limited to: professional indemnity, public liability, workers compensation, statutory insurances and other risks vii) Evaluate and advise the University as to interim payments due to project team 11

12 members viii) Ensure that all Project documentation be retained by the Manager for the statutory period and offered to the University prior to disposal. d) The Manager (or any associated company) will not tender for or be awarded a contract without the prior written consent of the University. 13) INCEPTION STAGE a) In addition to the General Duties and other requirements of this Agreement the Manager will: i) Establish the University s aims, objectives and requirements with regards to the Project. ii) Develop and propose solutions to the Project that satisfy the aims, objectives and requirements. iii) Advise the University as to consents, agreements, service connections and the like to be obtained and make arrangements for their attainment. iv) At the conclusion of the stage provide the University with a Design Brief of sufficient detail to allow the Project to be fully developed and costed without undue delay. The Design Brief will document the solution agreed with the University including, but not limited to: 1) the Project s aims, objectives and requirements, 2) a total project sum with elemental analysis and cashflow forecast, 3) a statement outlining the source of funding for the project gathered from information supplied by the University, 4) a Project program, 5) a specification stating the quality of workmanship and finishes, the level of fitout and any particular design or construction requirements, 6) three dimensional drawings showing the relationship of the Project elements to one another and to the existing surrounds, 7) developed sketch drawings (at a scale of 1:100) showing: floor plans, elevations, sections, services and external works. b) Include in the stage evaluation a summary and assessment of the alternative solutions developed during this stage. 14) DESIGN STAGE a) In addition to the General Duties and other requirements of this Agreement the Manager will: i) Fully complete the design and documentation of the Project so that construction works can be procured and completed in accordance with the Design Brief. ii) The completed design and documentation will include as a minium: 12

13 1) 1:100 scale drawings of floor plans, elevations, sections, external works and setting out information, 2) 1:100 scale schematic drawings of all services, mechanical, electrical, fire, hydraulic, communication and other systems, 3) construction details at appropriate scales, 4) schedules of: finishes and materials, rooms and spaces, fixtures, fittings and furnishings. iii) Ensure that the University s written consent is obtained before performance specifications are prepared in lieu of fully detailed drawings and documentation. The University is under no obligation to give such consent. iv) Keep under review all aspects of the design and documentation and advise the University as to the appropriateness of departures from the Design Brief and any desirable changes. v) Ensure that all necessary consents, agreements, service connections and the like are obtained and paid for. vi) Ensure that the total project sum is not, and will not be, exceeded. Develop a precise elemental analysis and cashflow forecast. vii) Prepare a program, method statement, quality plan and safety plan for the construction of the Project. 15) CONSTRUCTION STAGE a) In addition to the General Duties and other requirements of this Agreement the Manager will: i) Prepare (or review and modify as appropriate if previously prepared) the program, method statement, quality plan and safety plan to ensure the efficient and effective construction of the Project. ii) Take possession of the site for the works from the University on the date of commencement for the Construction Stage as stated in the Schedule of Agreement. iii) Ensure that the Construction Stage is completed by the date of completion as stated in the Schedule of Agreement. iv) Establish and maintain the construction site in a safe, clean and tidy condition. v) The Manager will maintain its commitment to the minimisation and management of construction waste in accordance with the Minimisation and Management of Construction Waste Statement. vi) The Manager will maintain its commitment to Landscape Protection Guidelines 2004, applicable to the University. vii) Ensure that disruption to the day-to-day life of the University is kept to a minimum during the course of the works. viii) Provide preliminary works and facilities including, but not limited to: temporary 13

14 power, water and phone services, mess huts, changing rooms, sanitary facilities, site safety, 1 st aid, storage, waste management, access, fencing, security and hoisting. ix) Provide appropriate accommodation and facilities for various persons, such as consultants and the University, who may visit the site from time to time. x) Provide appropriate on-site accommodation and facilities for its employees. xi) Manage the site and supervise the works at all times to ensure that they comply with the design and documentation, program, method statement, quality plan and safety plan, and are undertaken safely. Advise the University as to any divergence from the same and implement remedial action as appropriate. xii) Organise site inspections by the University and other persons as nominated by the University. xiii) Provide a complete contract administration service. xiv) Issue Practical Completion and Final Certificates as appropriate. xv) Ensure that all appropriate testing and commissioning is undertaken and fully documented. xvi) Provide general labour as required. xvii) Arrange for the removal and safe disposal (including recycling) of waste and surplus materials arising from the works. xviii) Prepare and agree with the University a management plan for the postconstruction period, including the defects liability period. xix) The Construction Stage will be deemed complete when the Manager returns the site to the University in a clean and tidy condition with: 1) the construction works completed in accordance with the design and documentation, 2) practical completion certificates issued to, and final accounts agreed with, all project team members engaged on the works, 3) attend a project handover board meeting and fulfil the requirements of the Facilities Inspection Checklist. 4) all temporary facilities and services disconnected, made safe and removed from site, 5) grounds, roads and other areas affected by the works returned to their condition prior to the works commencing or better. 6) two printed and one electronic set of as-built drawings, documentation and manuals, 7) two copies of all necessary certificates, warranties, final accounts and the like, 8) the University s facilities management staff trained in use and maintenance, 14

15 9) a maintenance program for the life of the building. 16) POST-CONSTRUCTION STAGE a) The Post-construction Stage will begin upon Certificates of Practical Completion being issued to all members of the project team engaged in the Construction Stage. b) In addition to the General Duties and other requirements of this Agreement the Manager will: i) Ensure that all works outstanding from the issue of practical completion certificates, but not considered a defect under the defects liability period, are completed as soon as possible. ii) Liaise with the University with regards to the notification of defects, and arrange and supervise their rectification. iii) Ensure that appropriate maintenance work is completed during the defects liability period. iv) Undertake final inspections at the end of the defects liability period, and arrange and supervise the rectification of all defects. v) Undertake a concise post-occupancy survey and report for the University assessing the Project against the aims, objectives and requirements of the user. Fees for the survey will be agreed with the University prior to commencement. 17) PRACTICAL AND FINAL COMPLETION a) The University will issue to the Manager a Certificate of Practical Completion when, in the opinion of the University, the Manager has completed its obligations and duties on each to which it is appointed. At the same time the University will issue to the Manager a list of outstanding works which the Manager will complete without undue delay. b) The University will issue to the Manager a Certificate of Final Completion when, in the opinion of the University: i) the Manager has completed its obligations and duties on the last stage to which it is appointed, ii) the Manager s Final Claim has been agreed and paid, iii) all works listed by the University as outstanding at the time of Practical Completion have been completed. c) The issue of the Certificate of Final Completion shall be conclusive evidence that the Manager has completed its obligations and duties under this Agreement. Other than for reasons of fraud, latent defect or accidental error or omission neither party to this Agreement shall have any further claims under this Agreement subsequent to the issue of the Certificate of Final Completion. 18) RESPONSIBILITIES OF THE UNIVERSITY a) The responsibilities of the University include the following: 15

16 i) give possession of the site to the relevant Contractor on the date notified to the University by the Manager, to permit the commencement progress and completion of the Project in accordance with the Master Program; ii) promptly pay the Fee and all other monies to be paid by the University under this Agreement and under any contract with a Consultant or Contractor; iii) provide relevant information and the necessary decisions to the Manager within a reasonable time following a request; iv) comply with the laws which apply to the Property and the Project subject to any obligations upon the Manager under the terms of this agreement; v) not to hinder the Manager, and Consultant or Contractor or supplier under the control of the Manager (as agent of the University) or their employees or agents in carrying out their duties; and vi) provide suitably qualified personnel for the duties implied or expressed in performing those tasks under Clause 15(a)(xi). 19) VARIATIONS a) The University may vary, by addition or omission, the Project or the obligations and duties of the Manager provided that the whole remains within the general scope of this Agreement and Project. b) Upon receipt of a variation the Manager will: i) within three working days notify the University that the variation is refused being outside the general scope of this Agreement and Project, ii) proceed with the variation (unless refused in accordance with clause b(i), iii) within ten working days notify the University of any changes to the total project cost, the Management Fee, the dates for commencement or completion of any stage, and of any other consequences that are likely to arise from the variation. 20) THE MANAGER S INSURANCE OBLIGATIONS a) Before Work commences and before the Manager takes responsibility under this Agreement, the Manager must: i) effect and maintain the following insurances: 1) Public liability insurance in the joint names of the University and the Manager, and where applicable including all contractors and each of their subcontractors from time to time in relation to the Works for their respective rights, interests and liabilities, in respect of any one occurrence for a sum not less than $20,000,000.00, and including cover for the Manager s liability to the University and the University s liability to the Manager for loss of or damage to property and the death of or injury to any person (other than that required by law under a workers compensation policy of insurance); 2) Contract Works insurance in the joint names of the University and the Manager; and 16

17 3) Workers compensation insurance against liability for injury to or death of persons employed by the Manager; and 4) Professional indemnity insurance cover for any one claim and in aggregate of not less than $5,000,000 for the life of the Agreement and for five (5) years following the expiration of the defects liability period for the Agreement, each of which is to be: 5) for the respective amount referred to in this Agreement; 6) with reputable insurers satisfactory to the Principal; and 7) on terms and subject to limits which are satisfactory to the Principal; ii) in relation to the Workers Compensation Insurance: 1) ensure that each of its contractors and their subcontractors has similar insurance to the Workers Compensation Insurance and covering the contractor s and subcontractor s employees; iii) provide the Principal with evidence satisfactory to the Principal that the policy is current as required by the Principal before execution of this Agreement and from time to time as requested by the Principal; iv) ensure that each required insurance policy (other than statutory workers compensation or other insurance which the Manager is required by a Statutory Requirement to effect) includes provisions which require the Manager to inform the University whenever: 1) it receives a notice under or in connection with the insurance policy, including any claim; and 2) it gives any insured a notice under or in connection with the policy, which in the case of a notice of cancellation must be given to the University 30 days prior to the cancellation of the policy; v) ensure that it: 1) does not do anything which prejudices any insurance; 2) if necessary, rectifies anything which might prejudice any insurance; 3) reinstates an insurance policy if it lapses; 4) does not cancel, vary or allow an insurance policy to lapse without the prior written consent of the Principal; 5) immediately notifies the Principal of any event which may result in an insurance policy lapsing or being cancelled; and 6) gives full, true and particular information to the insurer of all matters and things the non-disclosure of which might in any way prejudice or affect any such policy or the payment of all or any benefits under the insurance; and vi) ensure that any contractors that perform any design work as part of the Manager's Activities maintain professional indemnity policies, in like manner to 17

18 that required to be effected by the Manager for the amount specified under clause 20.2(a). b) The effecting of insurance as required under this clause 20.2 will not in any way limit, reduce or otherwise affect any of the obligations, responsibilities and liabilities of the Manager under any other provisions of this Agreement or otherwise at law or in tort. The effecting of insurance by the Manager will not in any way limit, reduce or otherwise affect the rights of the University at law or otherwise against the Manager in regard this Agreement Failure to Insure a) If the Manager fails to: i) provide copies of any insurance policy together with evidence satisfactory to the Principal that the policy is current; or ii) effect insurance which is with insurers and on terms satisfactory to the Principal, as required by clause 20.2, the University may, without prejudice to any other rights it may have, take out the insurance and the cost will be a debt due from the Manager to the University Period of Insurance a) The insurance which the Manager is required to have in place under this clause 20 must be maintained: i) until the Manager ceases to bear the risk of loss of or damage under clause 20.1; ii) in the case of Public Liability Insurance and Workers Compensation Insurance, until the later of: 1) the end of the last Defects Liability Period; and 2) the date upon which all Defects have been rectified in accordance with any contract; and iii) in the case of Professional Indemnity Insurance, until the expiration of the period specified in this Agreement following: 1) the last Date of Completion; or 2) if project approval to proceed is not obtained the last day of the project development phase Notice of Potential Claim a) The Manager must: iii) as soon as possible inform the University in writing of any occurrence that may give rise to a claim under an insurance policy; iv) keep the University informed of subsequent developments concerning the claim; and 18

19 v) ensure that the contractors and subcontractors similarly inform the Manager and the University in respect of occurrences which may give rise to a claim by them Procedure upon Loss or Damage a) If loss of or damage to any part of the Works or a stage occurs whilst the Manager bears the risk of loss of or damage to the Works or the stage: i) the Manager must: 1) make the works, or the stage, and the site safe and secure; 2) notify the relevant insurers and comply with their instructions; and 3) promptly consult with the Principal to discuss the steps to be taken to: A. comply with any of its obligations under this Agreement; and B. ensure that, to the greatest extent possible, the Manager continues to comply with its other obligations under this Agreement; and ii) upon settlement of a claim under an insurance policy relating to loss or damage, the money received from this insurance will: 1) be paid to the Manager as and when the Manager reinstates the loss of or damage to the Works or the stage; and 2) be the limit of the Manager's entitlement to payment for reinstatement of the loss or damage Cross Liability a) Where the Agreement requires insurance to be effected in joint names, the Manager must ensure that the insurance policy provides that: i) insofar as the policy may cover more than one insured, all insuring agreements and endorsements (with the exception of limits of liability) will operate in the same manner as if there were a separate policy of insurance covering each named insured; ii) any non-disclosure by one insured does not prejudice the right of any other insured to claim on the policy; and iii) a notice to the insurer by one insured will be deemed to be notice by all insured parties. 21) CONFIDENTIALITY AND INTELLECTUAL PROPERTY a) The Manager must not, without the consent in writing of the University, divulge or make known any matter in connection with the Project other than as necessary for the proper performance of their duties and obligations under this agreement. b) The physical ownership of, and ownership of intellectual property in, all plans, drawings, specifications, programs, computer data, samples, models, manuals, documents and all other information relating to the Project remains vested at all times in the University. The Manager may use and keep copies of such materials 19

20 only for the purpose of providing services to the University. c) All tenders and contract documents shall be notated as being Commercial in Confidence. 22) PUBLICITY a) The Manager will only deal with arrangements for, and the undertaking of, any publicity relating to the Project, after having received written authority from, including any Terms and Conditions imposed by the University. 23) NOTICES a) Any notice, approval, consent or other communication in connection with this agreement must be: i) sent to the postal address, facsimile number or address and marked for the attention of the contact person as stated in the Schedule of Agreement. ii) iii) sent by airmail if posted to or from a place outside Australia. And will take effect from, in the case of: 1) a posted letter, on the third, (seventh if posted to or from a place outside Australia) day after posting; 2) a facsimile, on the day of transmission provided that the sender is able to produce a transmission report by the machine from which the facsimile was sent which indicates that the facsimile was sent in its entirety to the facsimile number of the recipient; 3) an , upon the recipient receiving the . 24) USE OF PARTLY COMPLETED WORKS a) The University shall have the right to use or occupy any part of the Works that the Manager certifies to be useable, provided that a partial Certificate of Occupancy and Use has been issued by the relevant Authority on the understanding that the whole of the Works may not be completed. The use or occupation, in a proper and normal manner, of any part of the Works by the University under this clause shall not limit or effect the Manager's rights and obligations under this Agreement. 25) DEFAULT AND TERMINATION a) If either party is in breach of any part of this Agreement then the other party may serve a default notice upon the Defaulting Party requiring the Defaulting Party to rectify the breach within seven (7) days or such longer period as the Non-Defaulting Party may decide. If the Defaulting Party does not rectify the breach within that time they shall remain in breach and this Agreement may, without prejudice to any other rights of the parties, be terminated by notice in writing from the Non-Defaulting Party to the Defaulting Party. 26) DISPUTE RESOLUTION a) In the event of a dispute between the parties that cannot be resolved by negotiation 20

21 in good faith then an alternative dispute resolution technique shall be used as agreed by the parties or, in the absence of agreement, as recommended by the Lawyers Engaged in Alternative Dispute Resolution ACT Chapter. b) If the dispute is not resolved by negotiation or ADR then either party may refer the dispute to arbitration by giving the other written notice and asking the President of the Law Society of the ACT to appoint an arbitrator. The arbitration shall be conducted in accordance with the Commercial Arbitration Act The decision of the arbitrator shall be final and binding, made in writing with reasons and apportioning of costs. 21

22 SCHEDULE OF AGREEMENT (page 1 of 2) The Project Title: Location: Australian National University Attached Documents forming part of this Agreement Annexure 1 Summary of Project Costs Annexure 2 Fixed Costs Annexure 2A Details of Services included in Support Management Fee Annexure 3 Loaded Salaries for on-site Staff Annexure 4 Building Works Annexure 4A Details of Reimbursement Construction Costs Annexure 4B Preliminaries Annexure 5 Manager s Program to achieve Trade Package Committal Annexure 6 Payment Schedule Annexure 7 Specified Project Personnel Annexure 8 Project Consultants Attachment A Finance & Administration Manual Attachment B, C, D, E Other: Project Stages The Manager is appointed for the following stages (delete those not applicable) Security and Retention (complete A or B, and delete the other) A) Retention (Clause 8(b) will apply): INCEPTION DESIGN CONSTRUCTION POST-CONSTRUCTION Retention to be deducted from each payment N/A Maximum percentage of Fee to be held as retention % 22

23 B) Security (Clause 8(c) will apply): The security value shall be: SCHEDULE OF AGREEMENT (page 2 of 2) Dates Project Stage Date for Commencement Date for Practical Completion Inception Design Construction Post- Construction The day on which the works are, in the opinion of the University, complete. 52 weeks after the date for commencement for the Post-Construction Stage. Note 1: A date for commencement must be entered for the first stage for which the Manager is appointed. A date for completion must be entered for the last stage for which the Manager is appointed. Note 2: If a date for completion is not entered then the stage must be completed so that the date for completion entered against any of the subsequent stages can reasonably be achieved. Note 3: If a date for commencement is not entered then the stage must commence such that the completion date for that stage and/or any subsequent stage can reasonably be achieved. Points of contact for notices, approvals, consents or other communication For the University For the Manager Person: Address: Facsimile: One party giving 7 days notice to the other (by post, facsimile or ) may vary their contact details given above. 23

24 SUMMARY OF PROJECT COSTS ANNEXURE 1 PROJECT: BUDGET: DATE FOR PRACTICAL COMPLETION: SUMMARY - PROJECT COST: Fixed Costs for Project and Support Management Fee (Refer Annexures 2 & 2A) On Site Salaries: (Refer Annexure 3) Building Works: (refer Annexures 4, 4A & 4B) Consultants' Fees: (Refer Annexure 8) Other: Start up works and Value Management TOTAL Signed for and on behalf of: 24

25 FIXED COSTS PROFIT $ ANNEXURE 2 State the fee required for profit to provide the management services contained in the Agreement. This amount is a Fixed Lump Sum SUPPORT MANAGEMENT FEE $ State the amount required for Management Support Services (Excluding on site staff) (Refer Annexure 2A) TOTAL FIXED COSTS $ The total fixed costs less 5% retention money shall be paid by approximately equal monthly instalments on the basis that one payment shall be made in each calendar month during a period of «Term» months the first of such payments being due one month after the relevant date as referred to in the final agreement. One half of the retention money shall be paid on Practical completion of the Works, with the balance to be released after completion of the appropriate Defect Period. Note: Approved Unconditional Bank Undertakings or other administrative arrangements may be considered in lieu of retention monies during the design and construction periods, or as otherwise agreed. TAXES, DUTIES CHARGES The basis of Australian tax that applies to this contract is that governed by Australian tax legislation at the Effective Date. The Parties agree that in the event of an Australian Federal Goods and Services Tax (GST) being levied with respect to the Supplies/Services the Parties will liase with the Principal s Division of Finance and Business Services to incorporate the appropriate GST provisions, which are proposed by the Division, in contracts to which the Principal is a party. 25

26 ANNEXURE 2A DETAILS OF SERVICES INCLUDED IN SUPPORT MANAGEMENT FEE Item Project Director Office Administration Support Head Office Support Allowance for Bank Guarantees Support Management Staff (refer below) TOTAL SUPPORT MANAGEMENT FEE $ (Off-site and on-site Management costs shall be included in the Support Management Fee. For the purposes of this submission, all Project/Construction Manager staff with an Annual Rate of Loaded Salary equal to or greater than $50,000pa are considered to be management staff and shall be included in the Support Management Fee.) Position & nominated employee Annual rate of loaded salary* Daily rate (Annual rate) 251 Estimated period required Estimated total cost ($) TOTAL $ * Base salary plus all other costs with respect to the position including but not limited to allowances and loadings for Payroll Tax, Worker's Compensation and Common Law Insurance, Annual Leave and Leave Bonus, Long Service Leave, Sick Leave and Superannuation where applicable. 26

27 LOADED SALARIES FOR ON-SITE STAFF ANNEXURE 3 Position & nominated employee Annual rate of loaded salary* Daily rate (Annual rate) 251 Estimated period on site Estimated total cost TOTAL $ * Base salary plus all other costs with respect to the position including but not limited to allowances and loadings for Payroll Tax, Worker's Compensation and Common Law Insurance, Annual Leave and Leave Bonus, Long Service Leave, Sick Leave and Superannuation where applicable. The above loaded salary shall be fixed for a minimum period of 12 months. Adjustments will then only be considered in conjunction with movements in the Consumer Price Index and the Government's current wage policy. Reimbursement will be made on the basis of a five-day week and there will be no separate reimbursement for overtime, weekend work or public holidays. 27

28 ANNEXURE 4 BUILDING WORKS! Trade contracts and material purchases! Day labour by Manager (Refer Annexure 4A)! Hire of plant and equipment (Refer Annexure 4A)! Preliminaries (Refer Annexure 4B) TOTAL BUILDING WORKS (includes Preliminaries) $ Notes: 1. The successful Manager will be required to provide a firm cost plan in terms of work components and method of execution. 2. Provide details in the following attachments of proposed treatment of cranage and scaffold (where applicable). 3 * State what work, plant or equipment (if any) your organisation would wish to provide from its own resources for which reimbursement would be claimed Generally the Manager's own resources should not be used. However, the Manager is free to discuss the use of their own resources where they believe the Principal can gain benefits. 4. The Manager will be required to lodge with the Principal an unconditional Bank Guarantee to the value of the estimated average monthly expenditure (average of two months reimbursable claims) subject to reimbursement. The cost of providing this security shall be shown separately in the Support Management Fees. Appropriate administrative procedures ensuring payment to prime, trade or sub contractors and suppliers will be considered in lieu of the Bank Guarantee. 5. An estimated cost break-up of contracts, supply orders, materials purchased and 28

29 day labour to be undertaken directly by the Manager shall be provided in Annexure 4A. ANNEXURE 4A DETAILS OF REIMBURSEMENT CONSTRUCTION COSTS List of work and materials anticipated to be organised directly by Project Manager DAY LABOUR BY MANAGER $ Including: Direct labour for general site cleaning, making good as required and providing assistance to Site Manager and Trade Contractors for safety and protection of material and equipment. HIRE OF PLANT AND EQUIPMENT$ Including: Hoisting Sundry minor plant hire Sundry scaffolding associated with items listed below ) MINOR SUB CONTRACTORS AND MATERIALS $ (Operators for JHA Plant and Equipment (and additional labour) Including: General Builder s Work associated with Services - Mechanical - Electrical - Fire Protection - Communications - Hydraulics Sundry Builder's Work and Miscellaneous Supply Items - Protection - Patching and Making Good to Building Fabric - Interim Cleaning 29

30 MINOR SUB CONTRACTS Including: Metalwork Operable Walls Ceramic Tiling Fences and Gates Construction Joint Caulking Scaffolding Supply, Erect and Dismantle Signage Door Mats Fire Extinguishers Builders Work Unidentified Trades. Final Building Clean Contingency TOTAL OF REIMBURSABLE CONSTRUCTION COSTS $ 30

31 PRELIMINARIES ANNEXURE 4B ESTIMATE OF REIMBURSABLE SITE EXPENDITURE All fees attributed to local Authorities Site Clearing, Final clearing Temporary fences and compounds Hire and establishment of site sheds Toilets (assuming use of onsite facilities) Site notice boards Installation and running costs of telephone2 electricity and water Hire of security service Waste Disposal Advertising costs First aid equipment Wet weather equipment Documentation costs Plan printing Insurance s (including works, public risk and common law indemnity) Courier costs Work-As-Executed - plans and Operation and Maintenance Manuals Engineering survey Temporary hydraulics Final Site re-instatement Other reimbursable cost items not included above: eg. hire charges, tools and operating supplies etc. Note that all goods and services are exempt from Sales Tax on University Projects TOTAL PRELIMINARIES $ TAXES, DUTIES CHARGES The basis of Australian tax that applies to this contract is that governed by Australian tax legislation at the Effective Date. The Parties agree that in the event of an Australian Federal Goods and Services Tax (GST) being levied with respect to the Supplies/Services the Parties will liaise with the Principal s Division of Finance and Business Services to incorporate the appropriate GST Provisions, which are proposed by the Division, in contracts to which the Principal is a party. 31