Forestry Corporation of NSW. and. [Company] Pty Ltd. Site Preparation Agreement

Transcription

1 Forestry Corporation of NSW and [Company] Pty Ltd Site Preparation Agreement DD/MM/YYY

2 TABLE OF CONTENTS RECITALS: INTERPRETATION Definitions Construction Headings SCOPE OF AGREEMENT TERM OF AGREEMENT... 4 Term, Annual Plan STANDARD OF SITE PREPARATION WORK CONTRACTOR PERSONNEL AND EQUIPMENT SUPERVISION OF OPERATIONS SAFETY MANAGEMENT RATES AND PAYMENTS Applicable Rates: Assessment Invoicing Reassessment Costs of Reassessment Terms of payment SECURITY TOTAL CONTRACT VALUE... 9

3 11 GST FIRE FIGHTING SERVICES Training and Accreditation Fire Fighting Services Rate of Payment Reimbursement for Loss or Damage to the Equipment Limitation of Liability BREACHES OF THE AGREEMENT TERMINATION, VARIATION AND SUSPENSION Intention to terminate or vary the Agreement Requirements of notice to terminate or vary Termination or variation notice Suspension of Agreement GRIEVANCE RESOLUTION INDEMNITIES AND INSURANCE REQUIREMENTS Indemnity Insurances TAKING OVER CONTRACTOR S OBLIGATIONS FIRE PRECAUTIONS ASSIGNMENT AND SUBCONTRACTING COMPLIANCE WITH FORESTRY REGULATIONS AND OTHER LEGISLATION OR REQUIREMENTS ENVIRONMENTAL PROTECTION APPLICABLE LAW... 15

4 22 COSTS AND EXPENSES SEVERANCE WHOLE AGREEMENT VARIATION OF CONDITIONS NOTICE SCHEDULE SAFETY OBLIGATIONS Definitions Contractor Obligations SCHEDULE MANDATORY EQUIPMENT SPECIFICATIONS SCHEDULE UNIT RATES SCHEDULE SUB CONTRACTORS STATEMENT Statement Retention Further Information... 34

5 THIS AGREEMENT is made on the date specified in Schedule 1 item 1 to this Agreement BETWEEN: AND: THE FORESTRY CORPORATION OF NEW SOUTH WALES, a statutory State owned corporation constituted under the Forestry Act 2012 (NSW) ( FCNSW ) of the one part the CONTRACTOR whose details appear in Item 2 of Schedule 1 ( the Contractor ). RECITALS: A. FCNSW has requested the Contractor to carry out Site Preparation Work on the Work Area which the Contractor has agreed to do upon the terms and subject to the conditions contained in this Agreement. NOW IT IS AGREED: 1. INTERPRETATION 1.1. Definitions In the interpretation of this Agreement the following words and expressions shall, unless inconsistent with the context or subject matter, have the following meanings: Accounts Complaints Officer means the FCNSW officer whose title and contact details are specified as in Item 9 Schedule 1 Annual Plan means a statement prepared by FCNSW setting out the list of Operational Plans that FCNSW proposes that the Contractor undertake Site Preparation Work during the Year to which the Plan applies. The Annual Plan must include: The location and area of the Operational Plan; The type of Site Preparation to be undertaken; The estimated month during the Year in which Site Preparation Work will be undertaken. Assessment Area means an area within which the Contractor has claimed to have completed Site Preparation Work and within which FCNSW will subsequently determine the actual area completed (in accordance with clause 8.5) in accordance with the required Specifications. Completion Date means the date specified as the Completion Date in Item 4 Schedule 1; District Manager means the Manager of the Forestry Corporation Management Area in which the Site Preparation Work is being carried out. Equipment includes vehicles, tools, machinery and other necessary equipment or things that are necessary for the complete and safe conduct and performance of the work under this Agreement. FCNSW means the Forestry Corporation of New South Wales General Manager means the General Manager of Softwood Plantations Division (SPD) of Forestry Corporation of NSW. Operations Plan a plan prepared by FCNSW setting out specific instructions for carrying out the Site Preparation Work; Parties means the Contractor and FCNSW. Page: 1 of 35

6 Plantation Fire Threat Period means a period of heightened fire risk declared by the relevant Regional Manager as a Plantation Fire Threat Period. Plot means a sample area located within an Assessment Area that the Contractor asserts Site Preparation Work has been completed for the purpose of assessing the standard of the Contractor s work and providing a basis to calculate payments due to the Contractor for its work. Site Preparation Induction means an information session provided by FCNSW covering a range of issues related to the Work program proposed by this Agreement. Regional Manager means the Manager of the FCNSW Region in which the Site Preparation Work is being carried out. Site Preparation Work means any mechanical clearing, cultivation and residue management tasks or other plantation establishment tasks that are identified as the Site Preparation Work in Item 5 of Schedule 1. Specifications means the specifications for the Site Preparation Work set out as Site Preparation Manual. Statutory Bush Fire Danger Period means that period between October 1 and March 31 of each Year unless varied by the Commissioner of the Rural Fire Service. Sub Contractor s Statement means the form attached as Schedule 5. Supervising Forest Officer or SFO means any officer of FCNSW authorised by FCNSW to supervise the Site Preparation Work to be performed under this Agreement. Target Stocking means the target number of cultivation spots or spot mounds per ha as identified in Schedule 3. Total Contract Amount means the amount set out in Item 8 of Schedule 1. Value of Compliance means a numerical value calculated in accordance with Schedule 5 as a measure of the standard of the Contractor s work within an Assessment Area. Work Area: means the FCNSW Region or part of the Region, identified as the Work Area in Item 6 of Schedule 1. Work Zone: means a consolidated area of plantation (State forest or land managed by FCNSW) which is geographically distinct from other parts of a region and which is determined by FCNSW to be a Work Zone and is specifically identified to the Contractor as a Work Zone. Year means a period of twelve (12) months commencing on 01 July. 1.2 Construction In this document unless the context otherwise requires: Words importing the singular include the plural and vice versa; Words importing any gender include the other gender; Page: 2 of 35

7 1.2.3 References to persons include corporations and bodies politic; References to a person include the legal personal representative, successors and assigns of that person; A reference to a statute, ordinance, code or other law includes regulations and other statutory instruments under it and consolidations, amendments, re-enactments or replacements of any of them (whether of the same or any other legislative authority having jurisdiction); References to this or any other document include the document as varied or replaced, and notwithstanding any change in the identity of the parties; References to writing include any mode of representing or reproducing words in tangible and permanently visible form, and includes telex and facsimile transmission; An obligation of two (2) or more parties shall bind them jointly and severally; If a word or phrase is defined, cognate words and phrases have corresponding definitions; References to a person which has ceased to exist or has been reconstituted, amalgamated, reconstructed or merged, or the functions of which have become exercisable by any other person or body in its place, shall be taken to refer to the person or body established or constituted in its place or by which its functions have become exercisable; References to this document include its Schedules and annexures A reference to anything includes a part of that thing A reference to a clause schedule or annexure is a reference to a clause schedule or annexure of this Agreement. 1.3 Headings Headings shall be ignored in construing this document. 2. SCOPE OF AGREEMENT Subject to the terms of this Agreement: 2.1 FCNSW agrees to grant the Contractor access to the Work Area. 2.2 The Contractor agrees to carry out Site Preparation Work in the Work Area as scheduled by FCNSW in Annual Plans and Monthly Plans. 2.3 FCNSW will pay to the Contractor for its services at rates determined under this Agreement. 2.4 The cost of transferring plant and or equipment to perform Site Preparation Work within regions or Work Zones will be managed in accordance with clause 2 of Schedule Within the limitations of normal forest management, including FCNSW plans for reestablishment in a particular Work Zone, the minimum and maximum quantity of Site Preparation Work that FCNSW must make available to the contractor in the First Year of the Agreement is specified in Schedule 1 Item 5. Page: 3 of 35

8 2.6 Prior to the commencement of the second, and each subsequent year, FCNSW will confirm a quantity of Site Preparation Work in writing to the Contractor as per Clause 3 (Annual Plan). FCNSW may, at its sole discretion, elect to vary the quantity of Site Preparation Work allocated to the Contractor from one Year to the next based on performance, financial and operational considerations that include: The performance of the Contractor as assessed by FCNSW in a preceding Year(s); and The quantity of Site Preparation Work to be undertaken in the relevant Region or Work Zone as applicable based on FCNSW forest management planning, budget and planting forecasts for that Year. 3. TERM OF AGREEMENT Term, Annual Plan 3.1 This Agreement will commence on the date specified in Item 3 of Schedule The Agreement shall operate until the Completion Date unless extended or terminated sooner as provided in this Agreement. 3.3 FCNSW will the Contractor an Annual Plan for each Year prior to the commencement of the Year to which it applies, except for the first Year, which will be provided at the Commencement Date. 3.4 The parties agree that each Annual Plan sets out indicative information that is subject to variation. While FCNSW will endeavour to provide the best information available to assist the Contractor to plan its operations, no guarantee is given as to either the accuracy of the information or the scope of Site Preparation Work indicated by an Annual Plan. 4 STANDARD OF SITE PREPARATION WORK 4.1 The Contractor must: commence the Site Preparation Work on the dates specified by the SFO; complete the Site Preparation Work on or before the Completion Date and in this respect time shall be of the essence; perform the Site Preparation Work in accordance with the Site Preparation Manual; use its best endeavours to achieve the Targets; comply with any order of work specified from time to time by the SFO; comply with any directions given from time to time by the SFO under clause 6.4; record and report site preparation data (such as treatment area and treatment type and relevant dates), safety data and suitable GPS data as requested by FCNSW from time to time. 5 CONTRACTOR PERSONNEL AND EQUIPMENT 5.1 The Contractor must ensure that its personnel engaged in the Site Preparation Work: Page: 4 of 35

9 5.1.1 are covered by the terms and conditions of the relevant industrial award, contract or agreement; are licensed in accordance with the Road Transport (Driver Licensing) Act, 1998 if driving or operating road vehicles, earthmoving machinery, or any other relevant machinery on land managed by FCNSW; comply with such safety, security and general access rules as set out in this Agreement or as may be reasonably specified by FCNSW. 5.2 The Contractor must: The Contractor must own, hire or lease the Equipment and meet all operating costs including installation and maintenance of the Equipment and Mandatory Equipment Specifications specified in Schedule 3, and any other equipment necessary to perform the work under this Agreement supply at its own expense anything necessary for the continuous and satisfactory operation of the equipment; manage the movement of plant and equipment in accordance with clause ensure all vehicles and plant comprising Equipment are appropriately registered with the NSW Roads and Maritime Service or with a registration authority of another State or Territory where necessary in the performance of the Site Preparation Work ensure where the Contractor has an annual Work allocation of five hundred (500) hectares or more, any powered machinery used by the Contractor to perform such Work is fitted with an automatic fire suppression capability provide the spatial data as captured by the FCNSW Electronic Mapping Application. The frequency of data transfer is outlined in clause in the event that data from the FCNSW Electronic Mapping Application is unavailable, FCNSW will provide the Contractor with a GPS device capable of storing GPX files that will be stored as a single consolidated.gpx file (or ESRI shapefile) for individual machines for each month s work If requested by FCNSW during the term of the Agreement, commence regular (monthly) self monitoring and reporting of operational compliance of their Work. Once requested, this activity would become an essential and mandatory aspect of performing Work for FCNSW. 5.3 The Contractor hereby represents that it and all its personnel that will be involved in the provision of Site Preparation Work are qualified and competent to comply with the Contractors obligations, and they have the necessary expertise to carry out their obligations in a manner that is, so far as is reasonably practicable, without risks to the health and safety of any person. The Contractor acknowledges and agrees that FCNSW, in entering this agreement, has relied on the Contractors representations accordingly. 5.4 The Contractor must provide on request by FCNSW evidence of the registration, accreditation, training, or other requirement specified in this clause 5 in relation to personnel or Equipment Page: 5 of 35

10 6 SUPERVISION OF OPERATIONS 6.1 The SFO shall provide the Contractor with an Operation Plan, maps and other information required for the Contractor to perform the Site Preparation Work. 6.2 During the term of this Agreement FCNSW may audit and or monitor the Contractor s compliance with the requirements of this Agreement and, in particular, implementation and adherence to any specific safety requirements of this Agreement in addition to the Contractor s obligations under the Work Health & Safety Act 2011 and the Work Health & Safety Regulation Auditing and monitoring undertaken by FCNSW is independent of a Contractor s internal auditing and monitoring responsibilities. FCNSW may use information recorded while performance monitoring in consideration of, but not limited to: Any action initiated by FCNSW to vary, suspend or terminate this Agreement; In consideration of any extension of the Agreement duration; and Validation of the Contractor s past performance with respect to evaluating proponents for future allocation of works with FCNSW. 6.3 Subject to FCNSW acting reasonably, the Contractor must assist FCNSW in satisfaction of its auditing and monitoring requirements. 6.4 Further to clause 6.3, FCNSW may during the term of the Agreement request the Contractor to adopt and perform self monitoring and reporting of its performance against a set of criteria nominated by FCNSW. Once the Contractor is formally advised of this requirement it will become an essential component of performing Site Preparation Work for FCNSW 6.5 The SFO may give written or verbal directions to the Contractor regarding performance of the Site Preparation Work or to suspend the performance of the Site Preparation Work if in the reasonable opinion of the Supervising Forest Officer, work is not being conducted in accordance with this Agreement. 7 SAFETY MANAGEMENT 7.1. Schedule 2 applies The Contractor must ensure that transportation of plant, equipment, tools and materials to and from and within the Work Area is done in a safe manner according to all applicable legislation. All loads must be properly secured in transit The Contractor must provide monthly to FCNSW, workplace incident statistics in accordance with Australian Standard AS Workplace Injury and Disease Recording Standard, or its equivalent, including: sum of all hours worked by each effective full time equivalent person; total number of effective full time equivalent persons; and number of lost time and medical treatment injuries other relevant information as requested The Contractor must have systems in place to ensure that all workers engaged by the Contractor are fit for work and are not impaired by alcohol or drugs. FCNSW reserves the Page: 6 of 35

11 right to implement drug and alcohol testing of contractors and their workers if at any time this becomes a policy of FCNSW. 8. RATES AND PAYMENTS 8.1. Applicable Rates: The amounts payable by FCNSW to the Contractor for its services under this Agreement are determined by: (a) Application of the Unit Rates detailed in Schedule 4, which may be varied from time to time in accordance with this Agreement; (b) (c) Consideration of the standard of a Contractor s Work as required in accordance with Schedule 3 of this Agreement; and Application of the Assessment Method as provided for in the Site Preparation Manual. The parties acknowledge that in accordance with the Assessments Methods outlined in the Site Preparation Manual, payments due to the Contractor per hectare of completed Site Preparation Work vary in accordance with the standard of the Contractor s work The Unit Rates payable by FCNSW to the Contractor under this Agreement, as specified in Schedule 4, remain applicable from the Commencement Date until the 30 th June 2020 (i.e. the Fixed Rate Period ) Rates applicable beyond the Fixed Rate Period will be as agreed by the parties and in default of agreement either party may, by not less than 14 days notice in writing to the other, terminate this Agreement Assessment By close of business on Friday of each week, the Contractor must provide; a data sync of the FCNSW Electronic Mapping Application whilst the Smart Device has mobile network connectivity. By close of business on the final calendar day of each month, the Contractor must provide; written advice of completed Assessment Areas inclusive of operation type, hectares, hours and applicable payment rate the required safety information as detailed under Clause a data sync of the FCNSW Electronic Mapping Application whilst the Smart Device has mobile network connectivity if requested, electronic shapefiles and hardcopies of cultivation depth; and electronic shapefiles with date and time information and machine hours for any hourly rate claims. 8.3 FCNSW may carry out an assessment of the Contractor s work using the inventory methods described in the Site Preparation Manual. 8.4 Contractor representatives may be present during FCNSW assessment. The Regional or District Manager has the right to exclude Contractor representatives, or place conditions on the presence of Contractor representatives. In either case, the Regional or District Manager will provide reasons for his decision, in writing, to the Contractor. 8.5 The number of hectares in the Assessment Area will be determined by FCNSW using its GIS mapping system, or by survey if necessary, using the methods and person(s) nominated by Page: 7 of 35

12 FCNSW. The area will be adjusted for roads, swamps, drainage protection areas or other areas not treated under this Agreement. 8.6 Invoicing Following assessment, FCNSW will issue a recipient-created tax invoice in accordance with clause 11. Payments may not be processed unless the required information is provided Not withstanding clause 8.6, FCNSW is not obliged to issue any recipient created tax invoice unless the Contractor has provided FCNSW with the following information; (a) Any information detailed under clause 7.3 (b) (c) Spatial data as captured by the FCNSW Electronic Mapping Application and provided to FCNSW as per clause 8.2. computer generated GPS electronic files (projected as GDA 1994 MGA) and labelled according to machine type, forest name, and operation type, in support of any request for payment made by the Contractor in that month. 8.7 Subject to clause 8.8, FCNSW must make payments within 30 days of the end of the month in which a claim for payment from the Contractor is received. 8.8 If FCNSW assessment shows that an area that the Contractor claims has been completed has not been completed in accordance with this Agreement, FCNSW may direct or allow reworking to be done. In this case payment must be made within 30 days of the end of the month in which a reassessment of the area is carried out. 8.9 Progress payments shall not be evidence or an admission of liability or that work has been performed satisfactorily, but shall be a payment of account only Reassessment The Contractor may, within fourteen (14) days of being notified of the result of a FCNSW assessment, request a re-assessment either in a representative s presence, or not, and FCNSW will as soon as practicable thereafter carry out the re-assessment If the Contractor does not request a re-assessment in accordance with clause 8.10, FCNSW s initial assessment will be accepted by the parties as final FCNSW reassessment under clause 8.10 will be accepted by both parties as final for the purposes of payment Costs of Reassessment If: FCNSW conducts a reassessment at the request of the Contractor and the re-assessed estimate of work completed falls within the range covered by the 95% probability confidence interval of the original assessment; or FCNSW conducts a reassessment of a previously assessed area following the Contractor reworking those areas; the Contractor shall be liable to pay for the cost of re-assessment at the rate of $100 per Plot (GST exclusive) involved in the reassessment FCNSW may at its option, deduct any monies the Contractor is liable to pay under this clause 8 from other monies due the Contractor under this Agreement. Page: 8 of 35

13 8.15 Terms of payment In accordance with Clause 13 of the Public Finance and Audit Regulation 2015, the Contractor is advised as follows: The Regulation requires that if the Agreement has been properly performed by the supplier, and a payment is not made within the time provided in this Agreement, the supplier should take the matter up with the Accounts Complaints Officer referred to below: If the account is not paid within the prescribed time referred to in clause , and if the Agreement has been properly performed by the supplier, the Chief Executive Officer may direct that interest at the rate determined by the Treasurer s directions be paid on the amount not paid within that time, from that time until the time of payment. 9 SECURITY 9.1 FCNSW may require from the Contractor security up to a maximum of $10,000 for the Contractors performance of this Agreement. 9.2 The security will be provided by withholding 10% of each payment owed to the Contractor until $10,000 is accumulated. 9.3 The security must be paid to the Contractor on the satisfactory completion of the Site Preparation Work and Contractor providing FCNSW with a fully completed and truthfully declared and signed Sub Contractors Statement. 10 TOTAL CONTRACT VALUE The total amount paid to the Contractor under this Agreement may not exceed the Total Contract Amount without the written consent of the officer who executed this Agreement on behalf of FCNSW. 11 GST In this clause: (a) (b) (c) (d) (e) (f) (g) (h) 'adjustment note' has the same meaning as in the GST Act; 'GST' has the same meaning as in the GST Act; 'GST Act' means the A New Tax System (Goods and Services Tax) Act 1999 (C'wealth); 'GST Price Adjustment' means the adjustment to the amount payable to the Contractor provided for in clause 2; 'recipient created tax invoice' (RCTI) has the same meaning as in the GST Act and in subsequent Tax Rulings issued by ATO in relation to RCTIs; 'tax invoice' has the same meaning as in the GST Act; 'taxable supply' has the same meaning as in the GST Act and 'taxable supplies' has a corresponding meaning; references to any statute or statutory provision include that statute or statutory provision as amended, extended, consolidated or replaced by subsequent legislation and any orders, regulations, instruments or other subordinate legislation made under the relevant statute The amounts due to the Contractor under this Agreement shall include an amount equal to the GST liability incurred by the Contractor under the GST Act in connection with taxable supplies made pursuant to this Agreement. Page: 9 of 35

14 11.2 FCNSW will issue a recipient created tax invoice in respect of each taxable supply made by the Contractor pursuant to this Agreement and the Contractor must not issue a tax invoice in relation to any such taxable supply. In addition: The Contractor warrants that, as at the date this clause becomes binding on the parties, it is registered under the GST Act and must immediately notify FCNSW if it ceases to be so registered; FCNSW warrants that, as at the date this clause becomes binding on the parties, it is registered under the GST Act and must immediately notify the Contractor if it ceases to be so registered; FCNSW indemnifies the Contractor against any liability for GST and any penalties or interest for late payment that may be incurred by the Contractor from an understatement of the GST payable on any taxable supply pursuant to this Agreement for which FCNSW issues a recipient created tax invoice 11.3 FCNSW will issue any adjustment notes as required under the GST Act instead of adjustment notes being issued by the Contractor. 12 FIRE FIGHTING SERVICES 12.1 Contractors must provide all extra fire-fighting plant and personnel specified in the approval, unless negotiated with FCNSW Training and Accreditation FCNSW may make provision for the fire fighting training and fire fighting accreditation of the Contractor s employees, servants and subcontractors, involved in the performance of the Site Preparation Work ( the Contractor s personnel ). Accreditation includes meeting FCNSW Fire Fighter Health and Fitness requirements which include medical assessment and task based fitness assessment ( an accredited fire fighter ) If requested by FCNSW, the Contractor must require each of its personnel to undertake FCNSW fire fighting training course and become an accredited fire fighter under that course ( an accredited fire fighter ), unless that person is exempted in writing from the course by FCNSW because of physical disability or other sufficient reason ( an exempted person ) FCNSW must provide the fire fighting training of the Contractor s personnel employed at the date of this Agreement at its own expense. If the Contractor replaces any accredited fire fighter during the term of this Agreement the Contractor must pay FCNSW reasonable costs of the fire fighting training of the replacement. FCNSW will not pay for the time spent training by replacement personnel The Contractor must not permit: a person who is not an exempted person and who refuses to undertake FCNSW fire fighting training course; or a person who undertakes FCNSW fire fighting training course but failed to attain accreditation because, in the reasonable opinion of FCNSW, the person failed to make a bona fide attempt to attain accreditation; to participate in the performance of the Site Preparation Work The Contractor must either be registered on the NSW Rural Fire Service Heavy Plant Register ( Call When Needed List ) (i.e. be registered on this list) or become registered following a request to do so from FCNSW. Page: 10 of 35

15 12.3. Fire Fighting Services Despite any other obligation under this Agreement the Contractor must provide fire fighting services to FCNSW as follows: the Contractor must require its personnel who are accredited fire fighters to make themselves and the Equipment available, if requested by FCNSW (verbally or in writing); or if requested by FCNSW (verbally or in writing), the Contractor must make its personnel who are accredited fire fighters and the Equipment available to FCNSW, to suppress, control or fight any fire in the Region within which the Site Preparation Work is to be performed, in accordance with directions (written or verbal) from FCNSW Rate of Payment If they are required for firefighting, FCNSW will pay the Contractor for its personnel at the rates set in Item 2 Schedule Reimbursement for Loss or Damage to the Equipment Subject to clause 12.5 FCNSW will reimburse and indemnify the Contractor for any loss of or damage to the Equipment occurring while the Equipment was under the direction and control of FCNSW and being used in the suppression or control of fire The requirements of clause 12.4 will not apply where; the loss or damage to the Contractor s Equipment is covered by insurances taken out by the Contractor (except regarding any insurance excess or increase in insurance premiums on the Equipment s insurance, payable by the Contractor as a consequence of claiming insurance cover in relation to the loss or damage); in the reasonable opinion of FCNSW the fire was knowingly or negligently lit, caused or maintained by the Contractor, or its subcontractors Limitation of Liability Except as provided in clause 12.4, as qualified by clause 12.5, FCNSW shall not be liable in any way and the Contractor indemnifies, and must at all times indemnify and keep indemnified, FCNSW against all actions, proceedings, claims, demands, costs and expenses in connection with or arising out of the loss of or damage to the Equipment. 13. BREACHES OF THE AGREEMENT TERMINATION, VARIATION AND SUSPENSION 13.1 Intention to terminate or vary the Agreement If the Contractor fails to commence the work, or fails to comply with any time schedules stipulated in the Agreement, or commits any other substantial breach of this Agreement, including failing to comply with reasonable directions, then FCNSW may give written notice to the Contractor of intention to terminate or vary the Agreement and requiring the Contractor to give reasons why the Agreement should not be terminated or varied Requirements of notice to terminate or vary A notice under clause 13.1 must state that it is a notice under clause 13.1 of the Agreement; specify the alleged breach and proposed action (termination or variation); Page: 11 of 35

16 require the Contractor to give reasons in writing why the Agreement should not be terminated or varied; specify the time and date by which the Contractor must give those reasons (to be not less than 7 clear days after the notice is given to the Contractor); specify the address for reply Termination or variation notice If, by the time specified in a notice under clause 13.2, the Contractor fails to specify adequate reasons why the Agreement should not be terminated or varied, FCNSW may terminate or vary the Agreement Suspension of Agreement Upon giving a notice under clause 13.2, FCNSW may suspend Site Preparation Work under the Agreement until the expiration of the earliest of: the date on which the Contractor gives adequate reasons why the Agreement should not be terminated or varied; the date on which FCNSW terminates or varies the Agreement, or; the date referred to in clause Despite any other provisions of this Agreement, FCNSW shall not: be required to make any payment whatsoever to the Contractor, during periods of suspension by FCNSW under clause 13.4 or other provision of this Agreement; or be liable to pay the Contractor for any losses suffered by the Contractor as a result of such suspension Extension of the Agreement The term of this Agreement may be varied by up to one (1) Year, subject to the sole discretion, terms and conditions specified by FCNSW. In considering an extension of term for this Agreement, FCNSW may, amongst other issues, consider: The performance of the Contractor as assessed by FCNSW in a preceding Year(s); and The quantity of Site Preparation Work to be undertaken in the relevant Region or Work Zone as applicable; The provision of demonstrable savings in the cost of Site Preparation Work for FCNSW by the Contractor. 14. GRIEVANCE RESOLUTION 14.1 If the Contractor has a grievance regarding this Agreement it must at first instance raise the matter with the Supervising Forest Officer. The Supervising Forest Officer should respond as quickly as possible, and, in any case, within forty-eight (48) hours (not including weekends). A response shall be in writing and a copy must be kept by both parties If the Contractor does not accept the SFO s response as resolving the matter either the Contractor or the SFO may refer the matter to the either the Regional or District Manager as appropriate. The Regional or District Manager shall respond as quickly as practicable, and, in any case, forty-eight (48) hours (not including weekends). The Regional or District Manager s response shall be in writing and a copy must be kept by both parties If the Contractor does not accept the Regional or District Manager s response as resolving the Page: 12 of 35

17 matter either the Contractor or the Regional or District Manager may refer to the General Manager of Softwood Plantations Division who should respond as quickly as possible, and, in any case, within forty-eight (48) hours (not including weekends). A response shall be in writing and a copy must be kept by both parties If the Contractor does not accept the General Manager s response as resolving the matter, and if requested by the Contractor, the General Manager shall refer the matter to an independent mediator, acceptable to the Contractor, and at the joint expense of the Parties, to assist the Parties to resolve the matter If mediation fails to resolve the matter, the Contractor may exercise its other rights at law The Contractor may not without the consent of FCNSW take any other action in relation to its grievance unless and until all the procedures set out in this clause 14 have been followed. 15. INDEMNITIES AND INSURANCE REQUIREMENTS 15.1 Indemnity The Contractor shall be solely liable for and indemnifies FCNSW (which in this clause includes its employees, officers or agents) against liability for all loss or damage resulting from personal injury to or death of any person, and for all loss of or damage to any property whatsoever arising out of or as a consequence of the performance of the Site Preparation Work specified herein other than such liability resulting from any negligent act or omission of FCNSW Insurances Before commencing Site Preparation Work under this Agreement the Contractor must obtain and maintain for the currency of the Agreement, with insurers acceptable to FCNSW: Workers Compensation Insurance to give cover to the Contractor and all his employees against any liability arising, under the NSW Workers Compensation Act, 1987 or other applicable legislation or award, as a result of the Contractor or any person employed by the Contractor performing the Site Preparation Work required by this Agreement, and: Public Liability Insurance for an amount not less than the sum of $20,000,000 must be provided by the Contractor. Policies are to be noted with FCNSW as an interested party Before commencing Site Preparation Work under this Agreement and whenever subsequently requested by the Supervising Forest Officer, the Contractor shall produce evidence, of the insurances obtained and maintained by the Contractor for the purposes of this clause Any insurance policy referred to in clause 15.2 must contain a provision requiring the insurer, whenever the insurer gives to or serves on the Contractor a notice of cancellation or any other notice under or in relation to the said policy of insurance, at the same time to inform FCNSW in writing that the notice has been given to or served on the Contractor and ensure that notice of any claim is given by the insurer to FCNSW and that FCNSW is kept fully informed of subsequent action and developments concerning such claim If in breach of clause 15.3 the Contractor fails to produce any certificate of currency or such other evidence of the currency of any insurance when required by FCNSW then, despite any other provision of this Agreement and without limiting FCNSW rights to exercise any other remedy in relation to the breach, FCNSW may withhold payment of any money due to the Contractor under this Agreement until the breach is remedied. Page: 13 of 35

18 16. TAKING OVER CONTRACTOR S OBLIGATIONS 16.1 If FCNSW determines on a reasonable basis that the Contractor is unable to perform any of its obligations under this Agreement for any reason FCNSW may after consultation with the Contractor and notice in writing to the Contractor take over the performance of the whole or part of the Contractors obligations for the duration of the Contractors incapacity to perform If the Contractor is unable to perform its obligations and FCNSW takes over the performance of those obligations under clause 16.1 and the cost incurred by FCNSW in performing the Contractors obligations is greater than the amount which would have been paid to the Contractor if it had been performed by the Contractor the difference shall be a debt due from the Contractor to FCNSW Nothing in this clause will prejudice the rights of FCNSW to recover damages or exercise any other right relating to the Contractor s incapacity to perform its obligations. 17. FIRE PRECAUTIONS 17.1 The Contractor must comply with and must cause its employees to comply with the provisions of the Forestry Regulation 2012 and the Rural Fires Act 1997, and the provisions hereunder in respect of the lighting, use and control of fires FCNSW will not be liable to the Contractor or his employees for any interruption to the Work caused by wildfire, the need to burn windrows or hazard reduce, or by FCNSW suspending the Work during any period due to conditions of high fire hazard, provided that the Agreement period must be extended accordingly In the earlier of either the Plantation Fire Danger Period or declared Statutory Bush Fire Danger period the Contractor may be directed to vary his normal working hours and days as per the Site Preparation Manual The Contractor must utilise plant and equipment and perform any Site Preparation Work in accordance with the Site Preparation Manual of this Agreement 18 ASSIGNMENT AND SUBCONTRACTING The Contractor must not assign or subcontract the Site Preparation Work or any part of it without the written approval of the relevant Regional Manager. 19 COMPLIANCE WITH FORESTRY REGULATIONS AND OTHER LEGISLATION OR REQUIREMENTS 20.1 The Contractor in carrying out the Site Preparation Work, must comply with: all relevant Commonwealth, NSW legislation and in particular the Forestry Regulation 2012, the Protection of the Environment Operations Act 1997 (in relation to littering) and the Plantation and Reafforestation Regulation (Code) 2001; the Operations Plan; All reasonable instructions or directions given by a SFO 20.2 The Contractor must ensure that all persons engaged or employed by it to carry out Site Preparation Work complies with this clause A breach of this clause 20 may be taken as a substantial breach of the Agreement for the purposes of clause 13. Page: 14 of 35

19 20 ENVIRONMENTAL PROTECTION The Contractor is responsible for carrying out operations in accordance with the Site Preparation Manual and the Operational Plan. 21 APPLICABLE LAW This Agreement shall be governed by and construed in accordance with the laws in force from time to time in the State of New South Wales and the parties agree to submit to the jurisdiction of the Courts of New South Wales. 22 COSTS AND EXPENSES The Contractor shall pay for the stamping of this Agreement otherwise each party must pay and bear its own costs and expenses of, and relating to, the negotiation, preparation, and execution of this Agreement. 23 SEVERANCE If any provisions of this Agreement are held to be invalid, illegal or unenforceable by a Court or other tribunal of competent jurisdiction, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby. 24 WHOLE AGREEMENT This Agreement constitutes the sole and entire agreement between the parties and no warranties, representations, guarantees or other terms and conditions of whatsoever nature which are not contained herein shall be of any force or effect. 25 VARIATION OF CONDITIONS Any variation, waiver, discharge or release (either at law or in equity) of any of the provisions of this Agreement shall have no effect unless agreed by the Parties in writing. 26 NOTICE 27.1 Any notice required to be served on a party under this Agreement may be served by delivering, posting, facsimile transmitting or other electronic transmission ( ) to the business address and/or nominated contact arrangement designated for the party in Item 2 of Schedule Any notice sent shall be deemed to have been properly served; If delivered to any of the above addresses - at the time of delivery if before 5pm on a Business Day, otherwise at 9am on the next Business Day; If posted to any of the above addresses - on the second business day after posting; If sent by facsimile transmission - on the next business day after such notice is given provided receipt of the facsimile transmission is verified by the sender s activity reports specifying the addressee s facsimile number If sent by electronic transmission ( ), if a Delivery receipt has been received by the sender and can be provided to the other party as proof of the transaction. Page: 15 of 35

20 EXECUTED AS AN AGREEMENT: Executed for and on behalf of Forestry Corporation of NSW Delegate Name Delegate Signature Witness Name Witness Signature Date Executed for and on behalf of the Contractor Director(s) Name Director(s) Signature Witness Name Witness Signature Date Page: 16 of 35

21 ITEM 1 Date of Agreement: SCHEDULE 1 PARTICULARS ITEM 2 : CONTACT DETAILS OF THE PARTIES (a) Contractor Company Name: Name(s) of Principal(s): ABN CAN Business Address: Telephone Number: Facsimile Number: (b) Forestry Corporation of NSW Contact person / Title: Business Address: Telephone Number: Facsimile Number: ITEM 3 Commencement Date ITEM 4 Completion Date ITEM 5 Mechanical Site Preparation Work (Year 1) Type of Work Estimated Quantity ITEM 6 Work Area: Page: 17 of 35

22 ITEM 7 Blank ITEM 8 Total Contract Amount (estimated maximum) ITEM 9 Accounts Complaint Officer The Business Manager, Softwood Plantations Division Telephone: (02) Page: 18 of 35

23 1. Definitions SCHEDULE 2 SAFETY OBLIGATIONS In the interpretation of this Schedule the following words and expressions shall, unless inconsistent with the context or subject matter, have the following meanings: "construction work" has the same meanings given to that term under the Work Health and Safety Regulation 2011 (NSW). Contractor Site means the area in which the work pursuant to this Agreement will be performed. Contractor Risk Controls has the meaning given to that term in clause 3(d) of this Schedule. ISO means any applicable international standards as established by the International Organisation for Standardisation, which is the body that develops and publishes the international standards. Lost Time Incident means an incident during the performance of this Agreement where an worker suffers injury or illness which results in at least one full work day/shift being lost after the day on which the injury occurred. Medical Treatment Incident means an incident during the performance of this Agreement where a worker is injured and requires professional medical treatment. Near Miss means an unplanned incident that occurs which does not result in injury or disease although it had the potential to do so "Notifiable Incident" means an act or omission which is required to be notified to the relevant work health and safety regulator or mines regulator in accordance with WHS Laws. "principal contractor" has the same meanings given to that term under the Work Health and Safety Regulation 2011 (NSW). Reportable Incident means a Loss Time Incident, Medical Treatment Incident or a Near Miss which is not a Notifiable Incident. Safety Management System means a documented system for the management of all matters relating to Work Health and Safety including induction records, emergency procedures, inspections, consultation, training programs, incident reporting, accident records, safe working systems, hazard management and performance monitoring. Specifically the system must be in accordance with relevant Australian or International Standards for Safety Management for example AS4801 and the WHS Laws. "WHS Laws" means: (a) (b) (c) (d) Work Health and Safety Act 2011 (NSW), as amended from time to time; Work Health and Safety Regulation 2011 (NSW) as amended from time to time; Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW), as amended from time to time; Work Health and Safety (Mines and Petroleum Sites) Regulation 2014 (NSW), as amended from time to time Page: 19 of 35

24 (e) (f) (e) any Australian Standards and any ISOs that are applicable and relevant to any work performed pursuant to this Agreement; any Codes of Practice that are applicable and relevant to the work performed pursuant to this Agreement; and any other obligations imposed or standard prescribed by any other Act, Regulation, Australian Standard, Code of Practice, Order, or any other instrument creating legal obligations or prescribing standards relevant to work performed pursuant to this Agreement. WHS Plan means a plan prepared in accordance with clause 3.5 of this Schedule WHS Risk Register means a register of the WHS risks identified at the Contractor Site, along with the inherent risk rating, current controls and residual risk ratings. "Worker" has the meaning given to that term in the Work Health and NSW Safety Act 2011 (NSW) "workplace" has the same meanings given to that term under the Work Health and Safety Act 2011 (NSW) 2. Contractor Obligations 2.1 General Without limiting its obligations under this Agreement, the Contractor must at all times comply, and must ensure that its subcontractors and any other person engaged by the Contractor for the purpose of this Agreement complies, with the WHS Laws. 2.2 Management and Control The FCNSW authorises the Contractor to manage and control each Contractor Site during the Term except in circumstances where it is agreed by the parties in writing that FCNSW resumes back the management and control of the Contractor Site on a temporary basis. 2.3 Principal Contractor where Construction Work is Undertaken Without limiting the Contractor's obligations under any other provision of this Agreement, to the extent the work pursuant to this Agreement includes construction work to be carried out by the contractor: (a) (b) (c) (d) the FCNSW engages the Contractor as principal contractor in respect of the work pursuant to this Agreement; the FCNSW authorises the Contractor to have management and control of each workplace which the work pursuant to this Agreement is to be carried out and to discharge the duties of a principal contractor under the WHS Laws; the Contractor accepts the engagement as principal contractor and agrees to discharge the duties imposed on a principal contractor by the WHS Laws; and the Contractor's engagement and authorisation as principal contractor will continue while ever any construction work is carried out during the Term, Page: 20 of 35

25 unless sooner revoked by FCNSW terminating this Agreement pursuant to any provision of this Agreement or according to law. 2.4 Warranty The Contractor represents and warrants that: (a) (b) it has given careful, prudent and comprehensive consideration to the work, health and safety implications of the work to be performed by it pursuant to this Agreement; and the proposed method of performance of that work complies with, and includes a system for identifying and managing work, health and safety risks which complies with the WHS Laws. 3. Safety Management Systems 3.1 Hazard Identification, Risk Assessment and Control The Contractor: (a) (b) (c) (d) (e) must maintain and apply a Safety Management System which must as a minimum comply with all WHS Laws applicable to the Contractor; must provide copies of documents recording the Safety Management System to FCNSW if requested; must not, and must do all that is reasonably practicable to ensure that its subcontractors and any other person engaged by the Contractor do not, at any time, cause FCNSW to be in contravention of a WHS Law or any other law; acknowledges that, as at the commencement of the Term, it has systems (including the Safety Management System), processes, practices and procedures in place which address and mitigate the risks involved in the performance of work pursuant to this Agreement ( Contractor Risk Controls ): during the Term maintain and apply the Contractor Risk Controls. 3.2 Where a hazard is identified When the Contractor discovers a new hazard to work, health and safety at the applicable Contractor Site that is of sufficient concern that it is proposed to add it to the WHS Risk Register, the Contractor shall: (a) (b) (c) immediately notify the FCNSW Representative, detailing the hazard; follow all instructions and directions of the FCNSW Representative; (if any) and take all reasonable steps to eliminate or minimise the risks to health, work and safety associated with the identified hazard; and provide to the FCNSW Representative within 10 working days of discovery of the hazard, details of any updates to the Safety Management System or Contractor Risk Controls which identifies the hazard and describes the risk mitigation strategies necessary to address the related work, health and safety risks. Page: 21 of 35