Western Water Development Contractor Accreditation · PDF fileWestern Water Development Contractor Accreditation Deed . ... prototypes, samples, ... (ii) a recital,

CONTRACTOR ACCREDITATION DEED VER.2 (AMENDED 12/02/2018)

Western Water Development Contractor Accreditation Deed

Western Water ABN 67 433 835 375

and

Company name: ABN:

February 2018


CONTENTS

1. DEFINITIONS AND INTERPRETATION........................................................................................... 1 1.1 Definitions ............................................................................................................................... 1 1.2 Rules for interpreting this Deed .................................................................................................. 4 1.3 Business Days .......................................................................................................................... 4 1.4 Multiple Parties ......................................................................................................................... 4

2. OBJECTIVES ............................................................................................................................. 5 2.1 Accreditation Purpose ................................................................................................................ 5

3. APPOINTMENT AND TERM .......................................................................................................... 5 3.1 Accreditation of Contractor ......................................................................................................... 5 3.2 Appointment Conditions ............................................................................................................. 5 3.3 Works without Accreditation Status ............................................................................................. 5 3.4 Term ....................................................................................................................................... 5

4. PARAMETERS OF accreditation ARRANGEMENT ............................................................................. 6 4.1 Accreditation of other contractors ............................................................................................... 6 4.2 No representation of volume of Construction Services ................................................................... 6

5. ACCREDITATION ....................................................................................................................... 6 5.1 Categories of Works .................................................................................................................. 6 5.2 Continual Compliance ................................................................................................................ 7

6. CONTRACTOR's CONFIRMATIONS AND OBLIGATIONS ................................................................... 7 6.1 Application of this Deed to Development Works ............................................................................ 7 6.2 Contractor confirmations ............................................................................................................ 7 6.3 Contractor's obligations ............................................................................................................. 7 6.4 Inconsistency between Standards ............................................................................................... 9

7. QUALITY MANAGEMENT SYSTEM ................................................................................................. 9 8. information ............................................................................................................................. 10

8.1 Provision of Information by WW ................................................................................................. 10 8.2 Security of Information ............................................................................................................. 10

9. DEFECTS AND FAULTS .............................................................................................................. 10 9.1 Defects ................................................................................................................................... 10 9.2 Remedy by WW ....................................................................................................................... 10 9.3 Payments ................................................................................................................................ 11 9.4 Warranty Period ....................................................................................................................... 11 9.5 Remedy by WW ....................................................................................................................... 11

10. PERSONNEL ............................................................................................................................ 11 10.1 Personnel, Subcontractors and Agents ....................................................................................... 11 10.2 Key Personnel ........................................................................................................................ 11

11. VARIATION OF DEED ................................................................................................................ 12 12. accreditation and PERFORMANCE ASSESSMENT ........................................................................... 12

12.1 Performance Reviews .............................................................................................................. 12 12.2 Provision of Information .......................................................................................................... 12 12.3 Review of Accreditation ........................................................................................................... 13 12.4 Suspension of Accreditation ..................................................................................................... 13 12.5 Request for Review ................................................................................................................. 14

13. COMMUNICATION AND REPORTING ............................................................................................ 14 14. REPRESENTATIVES .................................................................................................................. 15

14.1 WW's Representative .............................................................................................................. 15 14.2 Contractor's Representative ..................................................................................................... 15

15. INDEMNITY AND INSURANCE .................................................................................................... 15 15.1 Indemnity .............................................................................................................................. 15 15.2 Public and products liability insurance ....................................................................................... 15 15.3 Insurance of employees .......................................................................................................... 16 15.4 Inspection and provision of insurance policies ............................................................................ 16

16. CONFIDENTIALITY ................................................................................................................... 17 16.1 WW must Treat as Confidential................................................................................................. 17 16.2 Contractor must Treat as Confidential ....................................................................................... 17 16.3 Employees must Treat as Confidential ....................................................................................... 18 16.4 Return of Confidential Information ............................................................................................ 18 16.5 Use of Confidential Information ................................................................................................ 18


16.6 Injunction or other equitable relief ............................................................................................ 18 16.7 Limit of obligations ................................................................................................................. 18 16.8 Survival of obligations ............................................................................................................. 18

17. NOTICES ................................................................................................................................. 18 18. AMENDMENT, ASSIGNMENT and change of control ....................................................................... 19

18.1 Amendment ........................................................................................................................... 19 18.2 Assignment ............................................................................................................................ 19 18.3 Change of Control ................................................................................................................... 19

19. DISPUTES ............................................................................................................................... 19 19.1 Application ............................................................................................................................. 19 19.2 Mediation .............................................................................................................................. 20 19.3 Condition precedent to litigation ............................................................................................... 20 19.4 Continuance of performance .................................................................................................... 20 19.5 Summary or urgent relief ........................................................................................................ 20 19.6 Survive termination ................................................................................................................ 21

20. TERMINATION ......................................................................................................................... 21 20.1 Termination by WW ................................................................................................................ 21 20.2 Termination by the Contractor .................................................................................................. 21 20.3 Effect of Termination of Deed ................................................................................................... 21

21. REPRESENTATIONS AND CONFIRMATIONS .................................................................................. 22 22. GENERAL ................................................................................................................................ 22

22.1 No Partnership or Agency ........................................................................................................ 22 22.2 Governing Law ....................................................................................................................... 22 22.3 Liability for expenses .............................................................................................................. 22 22.4 Giving effect to this Deed ........................................................................................................ 22 22.5 Waiver of Rights ..................................................................................................................... 22 22.6 Operation of this Deed ............................................................................................................ 23 22.7 Operation of Indemnities ......................................................................................................... 23 22.8 Consents ............................................................................................................................... 23 22.9 Attorneys .............................................................................................................................. 23

Schedule 1 .......................................................................................................................................... 24 General ........................................................................................................................................... 24

Schedule 2 .......................................................................................................................................... 25 Contractor's Accredited Categories of Works ......................................................................................... 25

Schedule 3 .......................................................................................................................................... 26 Key Personnel................................................................................................................................... 26

Schedule 4 ........................................................................................................................................... 1 Development Contractor Accreditation Deed Signing Page ....................................................................... 1

CONTRACTOR ACCREDITATION DEED VER.2 (AMENDED 12/02/2018) 1

THIS DEED is made on (date)

BETWEEN: (1) Western Water ABN 67 433 835 375 (“WW”); and

(2) (Company Name) (Company (ABN)

(the “Contractor”).

RECITALS (A) The Contractor has submitted an Application for Registration as an Accredited Contractor or has

previously been registered as an Accredited Contractor with WW.

(B) Upon execution of this Deed, the Contractor is accredited to undertake Construction Services in theCategories of Works set out in Schedule 2 for the land development industry for Development Worksintended to vest in WW.

THE PARTIES AGREE AS FOLLOWS: 1.

1.1

DEFINITIONS AND INTERPRETATION

Definitions

“Acceptance of Works Certificate” means a certificate issued by WW that, subject to the Certificate

of Completion, the Development Works have been completed in accordance with all relevant

requirements.

“Accreditation” means the status of being an Accredited Contractor in accordance with WW's

accreditation assessment process in specified Categories of Works.

“Accredited Consultant” means a consultant approved as an Accredited Consultant by WW.

“Accredited Contractor” means a contractor approved as an Accredited Contractor by WW.

“Approved Products List” means the list of products approved by WW to be used in Development

Works, as notified by WW in the Land Development Manual at the Commencement Date and as updated

from time to time.

“Business Day” means a day other than a Saturday or Sunday or public holiday in Victoria.

“Categories of Works” means one or more of the designated categories set out in Schedule 2 that

detail the categories of the Construction Services that the Contractor is accredited to undertake in

relation to any Development Works.

“Certificate of Completion” means a certificate of completion for Development Works issued by WW

when all of WW's requirements for the Development Works have been met.

“Change of Control” has the meaning set out in section 18.3.

“Commencement Date” means the date set out in item 2 of Schedule 1.

“Construction Forms” means the notices and other information, in the form approved by WW from

time to time, that an Accredited Contractor is required to lodge with WW to verify that Development

Works have been constructed in accordance with WW's requirements.

“Construction Services” means the construction services required to carry out Development Works.

“Consultant” means a person engaged by the Developer to, amongst other things, undertake

engineering design and audit services for the Development Works.


“Contractor's Representative” means the person or people specified in item 6 of Schedule 1 or as the Contractor notifies WW in writing pursuant to clause 14.2.

“Control” means a power or control that is direct or indirect or is, or can be, exercised as a result of, by means of, in breach of, or by revocation of trusts, relevant agreements and practices, or any of them, whether or not they are enforceable.

“Corporations Act” means the Corporations Act 2001 (Cth).

“Deed” means this deed and includes the schedules and any documents incorporated by reference.

“Design” means a design for Development Works and includes all materials and equipment and prototypes, samples, models, processes for construction, commissioning and use of the Development Works and other information and recommendations provided by the Consultant.

“Developer” means a developer that has entered into a Development Agreement with WW under which the Developer must design and construct works for the supply of water, recycled water (where applicable) and sewerage assets and infrastructure to service a Development.

“Development Agreement” means the deed of agreement executed by WW and a Developer in relation to Development Works for a Development.

“Development Works” means the works to be designed and constructed for the supply of water, recycled water (where applicable) and sewerage for a particular Development.

“Expiry Date” means the date specified in item 3 of Schedule 1.

“Further Term” means the period specified in item 4 of Schedule 1.

“Induction Period” means a period of 12 months commencing on the Commencement Date.

“Insolvency Event” means, for a person, being in liquidation or provisional liquidation or under administration, having a controller (as defined in the Corporations Act) or analogous person appointed to it or any of its property, being taken under section 459F(1) of the Corporations Act to have failed to comply with a statutory demand, being unable to pay its debts or otherwise insolvent, dying, ceasing to be of full legal capacity or otherwise becoming incapable of managing its own affairs for any reason, taking any step that could result in the person becoming an insolvent under administration (as defined in section 9 of the Corporations Act), entering into a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors, or any analogous event.

“Key Personnel” means the personnel, subcontractors or agents of the Contractor:

(a) described in Schedule 3; or

(b) holding the positions or performing the roles described in Schedule 3,

and includes any replacement or alternative personnel appointed by the Contractor under clause 10.

“Land Development Manual” means WW's policies and procedures in the document of the same name applying from time to time, relating to land development and the supply of water and sewerage services which:

(a) is available on WW’s website; and

(b) a copy of which is available from WW upon request; and

(c) as may be amended by WW from time to time.


“Law” means the law in force in Victoria including, common or customary law, equity, judgment, legislation, orders, regulations, statutes, by-law, ordinances or any other legislative or regulatory measures and includes any amendment, modification or re-enactment of them.

“Live Assets” means any pipe or other infrastructure which, at the relevant time:

(a) is carrying water, recycled water, sewerage or trade waste; and

(b) is in operation,

and has not been isolated from other Live Assets by means of a plug, break, other blocking device or otherwise in accordance with WW's confined space procedure.

“Mediation Agreement” means the agreement contemplated in clause 19.

“Mediation Notice” means the notice contemplated in clause 19.

“Mediation Period” means the period contemplated in clause 19.

“MRWA” means a Melbourne Retail Water Agency.

“MRWA Standards” means standards prepared by the MRWAs.

“Notifiable Incident” has the meaning given to it under the Relevant Legislation and includes the death of a person, a person requiring immediate treatment as an inpatient in a hospital, a serious head or eye injury or a serious laceration.

“OHS” means occupational health and safety.

“Referring Parties” means as contemplated in clause 19.

“Reimbursement Works” means that part of the Development Works (if any) identified in a Development Agreement that WW will contribute to the cost of.

“Relevant Legislation” means all applicable OHS and environmental statutes, ordinances, regulations and by-laws whether Federal, State or local.

“Term” means the following periods (as applicable): (a) the period from the Commencement Date to the Expiry Date; and

(b) any Further Term granted under clause 3.4(d).

“Works Contract” means the contract executed by the Developer and the Contractor, under which the Contractor is engaged by the Developer to perform Construction Services.

“WSAA Codes” means the codes and industry standards prepared by the Water Services Association of Australia.

“WW’s Confidential Information” means so described in clause16.

“WW's Representative” means the person specified in item 5 of Schedule 1 who will represent WW for the purposes of this Deed or as notified by WW in writing pursuant to clause 14.1.

“WW Standards and Specifications” means any standards, specifications or requirements specified by WW for land development works which relate to the construction of Development Works, as notified to the Contractor by WW.


1.2 Rules for interpreting this Deed

Headings are for convenience only, and do not affect interpretation. The following rules also apply in interpreting this Deed, except where the context makes it clear that a rule is not intended to apply.

(a) A reference to:

(i) legislation (including subordinate legislation) is to that legislation as amended, re-enactedor replaced, and includes any subordinate legislation issued under it;

(ii) a recital, schedule, annexure or a description of the parties forms part of this Deed;

(iii) a document or agreement, or a provision of a document or agreement, is to that document,agreement or provision as amended, supplemented, replaced or novated;

(iv) a party to this Deed or to any other document or agreement includes a permitted substituteor a permitted assign of that party;

(v) a person includes any type of entity or body of persons, whether or not it is incorporatedor has a separate legal identity, and any executor, administrator or successor in law of theperson; and

(vi) anything (including a right, obligation or concept) includes each part of it.

(b) This “Deed” means this deed of agreement and includes any schedule, annexure to, together withany document incorporated by reference in this Agreement.

(c) A singular word includes the plural, and vice versa.

(d) A word which suggests one gender includes the other genders.

(e) If a word is defined, another part of speech has a corresponding meaning.

(f) If an example is given of anything (including a right, obligation or concept), such as by saying itincludes something else, the example does not limit the scope of that thing.

(g) The word “agreement” includes an undertaking or other binding arrangement or understanding,whether or not in writing.

1.3 Business Days

If the day on or by which a person must do something under this Deed is not a Business Day, the person must do it on or by the next Business Day.

1.4 Multiple Parties

If a party to this Deed is made up of more than one person, or a term is used in this Deed to refer to more than one party:

(a) an obligation of those persons is joint and several;

(b) a right of those persons is held by each of them severally; and

(c) any other reference to that party or term is a reference to each of those persons separately, sothat (for example) a representation, warranty or undertaking is given by each of them separately.


2. OBJECTIVES

2.1 Accreditation Purpose

The purposes of this agreement are:

(a) to appoint the Contractor as an Accredited Contractor on the terms of this agreement;

(b) to ensure that all Development Works are carried out by the Contractor in accordance with thisagreement, the Land Development Manual and terms of the Development Agreement for eachparticular Development the Contractor works on; and

(c) to operate as a deed to bind the parties to a series of legal commitments.

3. APPOINTMENT AND TERM

3.1 Accreditation of Contractor

The Contractor is, by this Agreement, appointed as an Accredited Contractor for the conduct ofDevelopment Works on the terms of this agreement.

3.2 Appointment Conditions

(a) If notified by WW, the Contractor will be required to serve an Induction Period during which theContractor will be closely monitored by WW and must regularly interact with WW (as required byWW) when performing Consultancy Services for Development Works.

(b) Subject to termination of this Deed under clause 20, the Contractor must comply with theContractor’s obligations contained in this Deed, for the duration of the Term.

3.3 Works without Accreditation Status

In any case where the Contractor has undertaken Development Works:

(a) before Accreditation occurs; or

(b) during any suspension or after termination, of that Accreditation; or

(c) after the Contractor’s period of Accreditation has ended;

(d) WW in its discretion declare (and the Contractor must accept such declaration) that the particularDevelopment Works have been undertaken by the Contractor upon the terms of this agreement,including all obligations of the Contractor in respect of such Development Works; or

(e) Direct the Contractor to remove the Development Works and reinstate the Property or any otherproperty impacted by the Development Works.

3.4 Term

(a) This Deed begins on the Commencement Date and continues until the Expiry Date unless:

(i) extended by WW, in accordance with clause 3.44(d); or

(ii) terminated earlier in accordance with its terms.

(b) In order to maintain accreditation, the Contractor must:

(i) provide an annual declaration of interest; and


(ii) demonstration by the Contractor of current activity with WW (a minimum of one projectper year).

(c) If this Deed is terminated for any reason, the Contractor will immediately lose its Accreditationand will not be permitted to perform Construction Services for any Development Works, includingDevelopment Works under any Works Contracts which have been entered into before the date oftermination unless otherwise agreed in writing by WW.

(d) At any time before the Expiry Date, WW may give the Contractor a written notice that the Deedwill be extended for the period of one Further Term commencing on the day after the Expiry Date.

4. PARAMETERS OF ACCREDITATION ARRANGEMENT

4.1 Accreditation of other contractors

The Contractor acknowledges that at any time WW may, at its absolute discretion, accredit othercontractors for the same Categories of Works as the Contractor.

4.2 No representation of volume of Construction Services

(a) The Contractor acknowledges that:

(i) nothing in this Deed, nor the Contractor's Accreditation in any way:

(A) assures the Contractor that it will be included on an invitation to tender for workissued by a Developer or be appointed by a Developer under any Works Contract;or

(B) imply or guarantee that the Contractor will be engaged to undertake any work orservices for a Developer; and

(ii) the Contractor's Accreditation:

(A) only entitles the Contractor to be considered by a Developer to provide work orservices in the Contractor's accredited Categories of Works; and

(B) does not remove the need for the Contractor to fully comply with any tenderinvitation issued by, or contractual arrangements entered into with, a Developer.

(b) The Contractor must not make any claim against WW on the basis that Developers have notinstructed or engaged the Contractor to perform any or sufficient Construction Services forDevelopment Works.

5. ACCREDITATION

5.1 Categories of Works

(a) The Contractor is accredited by WW in the Categories of Works set out in Schedule 2.

(b) The Contractor may at any time during the Term, provide WW with further information in relationto the Contractor's experience and areas of expertise in categories outside of the Contractor'saccredited Categories of Works.

(c) WW may have regard to the information provided by the Contractor under clause 5.1(b), and inWW's absolute discretion, vary the Categories of Works for which the Contractor is accredited.

(d) WW may, in WW's absolute discretion, vary the Categories of Works during the Term. If WWvaries the Categories of Works, WW may also vary the Categories of Works for which theContractor is accredited if necessary.


(e) Where WW varies the Categories of Works allocated to the Contractor, WW must provide theContractor with a written notice of the change to the Categories of Works.

(f) WW will not be liable for any costs, loss or damages suffered or incurred by the Contractor as aresult of a change to the Categories of Works or the Contractor's Accreditation in specifiedCategories of Works.

5.2 Continual Compliance

During the Term, the Contractor must continue to meet and comply with all WW requirements to maintain its Accreditation for the accredited Categories of Works it is accredited in.

6. CONTRACTOR'S CONFIRMATIONS AND OBLIGATIONS

6.1 Application of this Deed to Development Works

(a) The Contractor acknowledges that Developers are only permitted to engage AccreditedContractors to perform Construction Services for Development Works in the AccreditedContractor's accredited Categories of Works.

(b) If a Developer engages the Contractor to perform Construction Services, the Contractor agreesthat its obligations to WW under this Deed will apply to those Construction Services.

(c) The Contractor agrees that the terms and requirements of the Land Development Manual applyby reference to and form part, of this Agreement.

6.2 Contractor confirmations

The Contractor warrants to WW, that:

(a) the Contractor is prepared, and appropriately qualified, to undertake each of the obligations ofthe Contractor set out in this document; and

(b) any person nominated by the Contractor to perform any function (including signing any document)relating to things contemplated by this Deed, a Works Contract or Construction Services, is dulyauthorised to perform that function.

6.3 Contractor's obligations

In relation to any Construction Services performed by the Contractor for Development Works, the Contractor agrees, that it must:

(a) comply with:

(i) all Laws, including OHS Laws; and

(ii) the WW Standards and Specifications, the MRWA Standards, the WSAA Codes and the LandDevelopment Manual as they affect the construction of the Development Works;

(b) except with WW's prior written consent, construct the Development Works in accordance with:

(i) the approved Design;

(ii) WW Standards and Specifications;

(iii) WSAA Codes & MRWA Standards;

(iv) the Development Agreement for the particular development; and

(v) any reasonable directions given to the Contractor by WW;


(c) properly supervise all construction activities relating to the Development Works and ensure thatthe Development Works are undertaken in a safe manner;

(d) ensure that any person engaged by the Contractor (whether directly or indirectly) to perform anyaspect of the Construction Services for the Development Works is appropriately trained andqualified to perform those works;

(e) without limiting the foregoing, ensure that any person engaged by the Contractor (whetherdirectly or indirectly) to:

(i) undertake construction activities, has the qualifications specified in the Land DevelopmentManual;

(ii) undertaking work on any Live Assets complies with:

(A) every relevant provision of the Land Development Manual concerning Live Assets;and

(B) any other written requirement of WW given to the Contractor;

(f) lodge all Construction Forms and other specified information with WW in accordance with WW'slodging requirements, as specified in the Land Development Manual, or as otherwise WW notifiesthe Contractor from time to time;

(g) provide to WW such other information as WW reasonably requires to assist it in undertaking auditsof the construction of the relevant Development Works;

(h) at least five Business Days before the Contractor proposes to commence construction of anyDevelopment Works, provide to WW the required pre-commencement form in accordance withWW’s lodging requirements;

(i) give WW at least five Business Days' prior written notice:

(i) if the Contractor does not propose to commence construction of the Development Workson the date set out in any previous notice given of the date it proposes to commenceconstruction of the Development Works; and

(ii) of any later date upon which the Contractor proposes to commence construction of theDevelopment Works;

(j) ensure that all materials for the Development Works are either materials specified in the ApprovedProducts List or if they are not so specified, have been approved by WW;

(k) give WW at least five Business Days' prior notice in accordance with WW's lodging requirementsof any occasion upon which the Contractor proposes to work on the Development Works:

(i) outside the hours of 7.30am to 4.00pm, Monday to Saturday; or

(ii) on a Sunday or public holiday;

(l) promptly advise WW if the Contractor vacates the site, and give WW at least five Business Days'prior notice in accordance with WW's lodging requirements, of the day on which the Contractorwill resume the Development Works; and

(m) as far as practicable, ensure that any excavation made as part of the Development Works is whollycontained within an easement granted, or reserve or land vested or transferred, or proposed tobe granted, or vested or transferred, to WW and that if any part of an excavation is not within aneasement or transferred land, ensure that:

CCONTRACTOR ACCREDITATION DEED VER.2 (AMENDED 12/02/2018) 9

(i) the Contractor promptly backfills such part of the excavation as is not contained within thateasement, reserve or transferred land; or

(ii) the Contractor notifies the relevant Developer that the area of any easement, reserve ortransferred land needs to be increased to include that part of the excavation;

(n) lodge with WW the required Construction Form and any other information specified by WW oncethe Development Works have been completed;

(o) at any time after WW is provided with a form submitted under clause 6.3(n), comply with anyrequest made by WW to provide to WW such other information as WW reasonably requires, withinsuch period as WW may specify;

(p) effect and maintain the insurance required to be effected and maintained by the Contractor inaccordance with clause 15; and

(q) in any case where the Contractor conducts or is the Principal for a contract or tender relating toReimbursement Works, provide a statutory declaration (in a form required by WW) as relevant tothe circumstances, that any tender process in respect of the Reimbursement Works was conductedin accord with appropriate probity requirements and without any known conflict of interest,collusion or inappropriate benefit or advantage to any person or entity.

6.4 Inconsistency between Standards

If there is a conflict or inconsistency between provisions in any of the WW Standards and Specifications, the MRWA Standards, the WSAA Codes and the Land Development Manual, then, unless otherwise expressly agreed in writing by the parties, they rank in order of precedence as follows:

(a) the WW Standards and Specifications;

(b) the WSAA Codes;

(c) the MRWA Standards; and

(d) the Land Development Manual.

7. QUALITY MANAGEMENT SYSTEM

(a) The Contractor must provide the Construction Services in accordance with the Contractor's:

(i) quality management system;

(ii) environmental management system, processes or procedures; and

(iii) OHS management system, processes or procedures,

which must comply with all requirements of Relevant Legislation.

(b) The Contractor must ensure by no later than the Commencement Date that it has obtained andthen maintains throughout the Term, certification of the quality management system referred toin clause 7(a)(i) to ISO 9001 or an equivalent standard approved by WW, as assessed by a suitablyqualified, independent third party certified by JAS-ANZ.

(c) The Contractor must notify WW of any change to the assessed status of the Contractor's qualitymanagement system within five Business Days of the change.

(d) All relevant records must be made available to WW, WW's Representative or such other personsengaged by WW for the purposes of auditing the Contractor's compliance with the managementsystems referred to in clause 7(a) at such times as directed by WW's Representative.


8. INFORMATION

8.1 Provision of Information by WW

(a) Without limiting the operation of clause 8.1(b), WW will take reasonable care to ensure theaccuracy of any information that WW provides to the Contractor.

(b) To the extent that WW provides the Contractor with any information in relation to the ConstructionServices:

(i) as far as permitted by law, WW gives no warranty, representation or undertaking (expressor implied) as to the accuracy or reliability of the information supplied;

(ii) if any information provided to the Contractor by WW is to be used by the Contractor inundertaking the Construction Services, the Contractor must reasonably satisfy itself as tothe suitability and accuracy of the information for the Contractor’s purpose and acceptcomplete responsibility for its use and application;

(iii) the Contractor must undertake its own reasonable enquiries to test the accuracy andveracity of any information provided for and on behalf of WW before relying on thatinformation for the purpose of providing the Construction Services; and

(iv) WW disclaims any liability for any loss or damage arising from the use of the informationsupplied, including any liability in negligence (whether foreseeable or not).

8.2 Security of Information

(a) Each party must ensure that all information and materials of the other party in its custody orcontrol in connection with this Deed or a Works Contract are protected from unauthorised accessor use by a third party or misuse, damage or destruction by any person.

(b) The Contractor must comply with all security regulations, procedures or directions as may begiven by WW from time to time regarding any aspect of security or access to WW's informationor materials, including managing login access to WW's online Development Works portal andcontrolling the use of digital signatures.

9. DEFECTS AND FAULTS

9.1 Defects

During the Defects Liability Period for particular Development Works WW may:

(a) notify the Contractor in writing of any Defect that WW reasonably considers to be related to theconstruction or other role of the Contractor in relation to the Development Works and require theContractor, at the Contractor’s cost, to remedy the Defect within the period set out in the notice;or

(b) at its discretion, undertake emergency works in respect of any defect otherwise contemplated inthis clause 9.1 and recover the reasonable costs incurred in remedying the defect from any oneor more of the Works Warranty Bond or the Contractor or the Developer.

9.2 Remedy by WW

If the Contractor does not comply either within the relevant time or otherwise to the satisfaction of WW, to a notice served in relation to a Defect under clause 9.1, WW may remedy the Defect and recover the costs incurred in remedying the Defect from any one or more of the Works Warranty Bond, the Contractor or the Developer.


9.3 Payments

In the case where the Contractor is required to pay any amount to WW under this clause 9 it must do so within ten (10) business days after receiving notice from WW for payment of those costs.

9.4 Warranty Period

If at any time within three (3) years after issuing a Certificate of Completion for Development Works constructed by the Contractor, WW discovers any fault in those Development Works which WW reasonably considers is attributable to a deficiency in the construction of the Development Works, WW may:

(a) notify the Contractor in writing of the fault; and

(b) require the Contractor to remedy the fault within 10 Business Days after the date of the notice orany greater period specified in the notice; and

in which case the Contractor must remedy the fault.

9.5 Remedy by WW

If the Contractor does not comply with a notice under clause 9.4 WW may remedy the fault and recover the cost incurred in remedying the fault, as a debt due and payable, by and from the Contractor.

10. PERSONNEL

10.1 Personnel, Subcontractors and Agents

(a) The Contractor must ensure that all of its personnel, agents, subcontractors and subcontractorpersonnel providing the works or services during the Term:

(i) hold all necessary qualifications and permits, including those required by Law;

(ii) are adequately trained and are competent to carry out their duties in relation to theprovision of the works or services;

(iii) are made aware of and comply with the Contractor's obligations under this Deed and anyapplicable Works Contracts; and

(iv) are supervised by a construction supervisor, foreman or construction manager who hasadequate training and experience to carry out the duties in a competent manner and giveon-site training and instruction to employees under that person's control.

(b) The Contractor is:

(i) responsible for the work and performance of its personnel, agents and subcontractors; and

(ii) liable to WW for the acts, defaults and neglects of its personnel, agents and subcontractorsas if they were the acts, defaults or neglects of the Contractor.

(c) The Contractor is responsible for ensuring all personnel, agents and subcontractors attend, at theContractor's expense, any competency based training required by WW in respect of theContractor's accredited Categories of Works from time to time determined by WW.

10.2 Key Personnel

(a) The Key Personnel must:

(i) be available at all relevant times to manage and coordinate or personally undertake therole specified for them;


(ii) have the qualifications, technical skills and professional experience required to undertaketheir specified role; and

(iii) complete or have completed training required for their specified role, which may includeconfined spaces training and OHS general induction for construction work in Victoria (WhiteCard or equivalent).

(b) Alterations to the Key Personnel must be advised to WW in writing within two Business Days ofthe date the alteration occurs.

(c) WW may terminate a Contractor's Accreditation for particular Categories of Works if the Contractorceases to have appropriate Key Personnel working for the Contractor. Under such circumstances,WW may require the Contractor to complete any Development Works under WW's supervision (atthe Contractor's cost) or require the Developer for which the Contractor is working to terminatethe Contractor and engage an alternative Accredited Contractor.

(d) All supervision, documentation and certification for which the Contractor is responsible must beundertaken, prepared or signed by one or more Key Personnel.

11. VARIATION OF DEED

(a) Subject to clause 11(b), WW may at any time, with notice, vary this Deed.

(b) The Contractor is deemed to agree to the proposed variation of this Deed referred to in clause11(a), unless the Contractor notifies WW of the Contractor's objection to the variation to this Deedwithin 10 Business Days of receiving the notice from WW under clause 11(a).

(c) If the Contractor does not notify WW of the Contractor's objection in accordance with clause 11(b),the variation to this Deed will be effective from 10 Business Days after the Contractor receivesWW's notice under clause 11(a).

(d) Where WW receives an objection under clause 11(b), in respect of the proposed variation underclause 11(a), WW may, at its absolute discretion:

(i) issue a revised proposed variation to this Deed, to which clause 11(b) and clause 11(c) willapply; or

(ii) meet with the Contractor to discuss the Contractor's objection received under clause 11(b).

(e) Where WW decides to meet with the Contractor to discuss the Contractor's objection in accordancewith clause 11(d)(ii), and WW and the Contractor cannot resolve the Contractor's objection to theproposed variation within 15 Business Days from WW receiving an objection under clause 11(b),WW may exercise its rights under clause 11(d)(i) or terminate this Deed.

12. ACCREDITATION AND PERFORMANCE ASSESSMENT

12.1 Performance Reviews

(a) WW may conduct performance reviews and prepare performance reports on the Contractor. WWwill be entitled to retain details of these performance reports for use by WW when:

(i) reviewing the Contractor's Accreditation; and

(ii) assessing whether to extend the Term for a Further Term from the Expiry Date underclause 3.4.

12.2 Provision of Information

The Contractor acknowledges and agrees:


(a) details submitted by the Contractor in respect of its Accreditation application, ongoing reportingof information and performance reports about the Contractor prepared under clause 12.1 includingsuch information provided to or sourced from any external accreditation system adopted byWestern Water, may be provided to or sourced by, other water companies from Western Wateror such external accreditation system;

(b) the provision of information under clause 12.2(a) to other water companies is excluded fromapplication and does not constitute a breach of, any of the confidentiality or privacy obligations ofthis deed and (to the extent capable by law) the Contractor waives any rights in relation toconfidentiality or privacy in respect of such information pursuant to any statute or regulation.

12.3 Review of Accreditation

(a) A review of the Contractor's Accreditation may be conducted, at the discretion of WW, on theoccurrence of one or more of the following:

(i) as part of a regular, periodic review undertaken by WW;

(ii) at the request of a Developer;

(iii) at the request of the Contractor;

(iv) upon the occurrence of a Notifiable Incident;

(v) as a result of any performance review under clause 12.1;

(vi) if the Contractor's level of work activity is less than required to demonstrate a right tocontinued Accreditation; or

(vii) at any other time determined by WW.

(b) If a review is conducted under clause 12.3(a), WW may request the Contractor to do one or moreof the following:

(i) supply further information; or

(ii) submit a new Application for Registration as an Accredited Contractor.

(c) The Contractor must provide details specified pursuant to clause 12.3(b) upon request. Failureto comply with any request for such information by WW may result in suspension of theContractor's Accreditation.

(d) The Contractor will be notified in writing of the result of any review of the Contractor'sAccreditation.

12.4 Suspension of Accreditation

(a) Following a review of the Contractor's Accreditation under clause 12.3, WW may, in its absolutediscretion, suspend part or all of the Contractor's Accreditation by notice in writing if WWreasonably considers that the Contractor has:

(i) performed in a manner which places the Contractor in breach of its obligations under thisDeed or a Works Contract;

(ii) breached any conditions of its Accreditation; or

(iii) changed technical capacity significantly (which includes a change in Key Personnel).


(b) Before WW suspends the Contractor's Accreditation, WW will provide the Contractor with astatement of reasons for its proposed course of action. WW will give the Contractor a reasonableopportunity to show why WW should not suspend the Contractor's Accreditation.

(c) If the Contractor's Accreditation is suspended under this clause 12.4, the Contractor will beentitled to apply for reinstatement within a period specified by WW. Such applications will berequired to demonstrate, to WW's reasonable satisfaction, that any matters that led to suspensionhave been rectified.

(d) If an application for reinstatement under clause 12.4(c) is not received by WW within the periodspecified by WW, the Contractor's Accreditation may be terminated under clause 20.1.

(e) WW will not be liable for any costs, loss or damages suffered or incurred by the Contractor as aresult of a suspension of the Contractor's Accreditation.

12.5 Request for Review

(a) The Contractor may, within 20 Business Days of receipt of written notice from WW under clause5.1(e) or 12.4(a), apply to WW for a review of WW's decision to vary the Contractor's Accreditationin Categories of Works or suspend the Contractor's Accreditation.

(b) WW will review the request under clause 12.5(a) within 20 Business Days of receipt and notifythe Contractor of WW's decision in writing.

(c) WW must ensure that the person or persons who conduct the review under this clause 12.5 arenot those responsible for the initial decision under clause 5.1 or clause 12.4.

13. COMMUNICATION AND REPORTING

(a) If requested by WW, the Contractor must update WW's Representative on the status of anyDevelopment Works that it is engaged to carry out and report in a form and at a frequency agreedby the parties.

(b) The Contractor must promptly notify WW of any:

(i) substantial change to the Contractor's technical capacity to undertake ConstructionServices for Development Works; or

(ii) change to the Contractor's business registration details.

(c) If requested by WW, the Contractor must provide to WW a summary of any audit reports and thedetails of their findings pertaining to:

(i) the Contractor's:

(A) quality management system;

(B) environmental management system, processes or procedures; and

(C) OHS management system, processes or procedures;

(ii) a specific project management plan prepared by or on behalf of the Contractor forDevelopment Works;

(iii) the currency of training of Key Personnel; and

(iv) any other audits pertaining to the Construction Works carried out by the Contractor forDevelopment Works.


14. REPRESENTATIVES

14.1 WW's Representative

(a) WW has appointed WW's Representative to represent it for all purposes under this Deed. In thisregard:

(i) WW's Representative has the authority to represent and bind WW in relation to all mattersunder and concerning this Deed; and

(ii) any communication with or information given to WW's Representative by the Contractorwill be deemed to have been made or given to WW.

(b) WW may revoke or limit the authority of WW's Representative by giving written notice to theContractor and may appoint an alternative or substitute for WW's Representative by giving writtennotice to the Contractor.

14.2 Contractor's Representative

(a) The Contractor has appointed the Contractor's Representative to represent it for all purposesunder this Deed. In this regard:

(i) the Contractor's Representative has the authority to represent and bind the Contractor inrelation to all matters under and concerning this Deed; and

(ii) any communication with or information given to the Contractor's Representative by WWwill be deemed to have been made or given to the Contractor.

(b) The Contractor may revoke or limit the authority of the Contractor's Representative by givingwritten notice to WW and may appoint a single alternative or substitute for the Contractor'sRepresentative by giving written notice to WW.

15. INDEMNITY AND INSURANCE

15.1 Indemnity

(a) The Contractor indemnifies WW and must keep WW indemnified against damage, expense, lossor liability suffered by WW in respect of:

(i) personal injury (including death) to any person; or

(ii) damage to any property (including without limitation the property of WW),

arising, whether directly or indirectly, from, or in the course of, or caused by, the construction of the Development Works or any breach by the Contractor of its obligations to WW in relation to the Development Works, except to the extent that any such loss, destruction, damage, personal injury or death has been caused by the negligence of WW, its employees, agents or contractors (other than the Contractor).

(b) To the extent permitted by law, the Contractor indemnifies WW from and against any damage,expense, loss, liability or claim suffered or incurred by WW as a result of any difference betweenthe amount WW would otherwise have been entitled to recover, but for the operation of theWrongs Act 1958 (Vic), including as a result of the insolvency or incapacity of a concurrentwrongdoer (as that term is defined in the Wrongs Act 1958 (Vic)).

15.2 Public and products liability insurance

(a) Before the Commencement Date the Contractor must effect, and must then maintain for the Term,a public and products liability policy.


(b) The policy must:

(i) be in the name of the Contractor, indemnifying WW, for liabilities WW incurs arising out ofnegligent acts or omissions of the Contractor (including for sudden and accidentalpollution), and be on an occurrence basis;

(ii) cover liabilities of the Contractor, Developers, Consultants and subcontractors and theirrespective employees from time to time, whenever engaged in the Development Works;

(iii) cover the insured's liability to third parties for loss or damage to property and the death ofor injury to any person (other than liability which the law requires to be covered under aworkers compensation insurance policy);

(iv) be endorsed to cover liability arising from the use of any construction plant or motor vehicleto the extent such liability is not covered under a motor vehicle insurance policy orcompulsory third party motor vehicle insurance policy;

(v) provide insurance cover for an amount in respect of each and every occurrence of at least$10 million for public liability claims and cover for an amount in respect of each and everyoccurrence and in the aggregate for all occurrences in any 12-month policy period forproduct liability claims of not less than $20 million;

(vi) be on terms approved in writing by WW (which must not unreasonably withhold approval);

(vii) be with an insurer with a financial security rating of “A-” or better with Standard and Poorsor the equivalent rating with another recognised ratings agency; and

(viii) include cross liability and full severability and the agreement of the insurer not to imputeany pre-contractual non-disclosures from one insured to another for the purposes ofdetermining rights to coverage.

15.3 Insurance of employees

(a) Before the Commencement Date, the Contractor must insure against statutory liability for deathof or injury to persons employed by the Contractor and, where common law claims are permissibleoutside of the relevant statutory scheme, the Contractor must also insure against common lawliability for an amount as is good practice for that jurisdiction. The insurance cover must bemaintained until the completion of all Construction Services for Development Works.

(b) Where permitted under the relevant statutory scheme, and for all common law liability policies,the insurance policy or policies must be extended to provide indemnity for WW’s liability to theContractor’s employees.

(c) The Contractor must ensure that all subcontractors have similarly insured their employees.

15.4 Inspection and provision of insurance policies

(a) Proof of insurance

(i) The Contractor must ensure that, on or before the Commencement Date, WW receives:

(A) a copy of a certificate of currency for each insurance policy that the Contractor isrequired to effect under this clause 15; and

(B) a copy of the Contractor's WorkSafe certificate of currency.

(ii) The Contractor must notify WW of any change to details set out in the certificates ofcurrency previously provided to WW within five Business Days of the change where thatchange has the potential to materially reduce or prejudice cover under the insurance.


(iii) Whenever otherwise requested in writing by WW, the Contractor must provide satisfactoryevidence (in the form of copies of certificates of currency) of the Contractor's insurancepolicies.

(iv) Insurance must not limit liabilities or obligations at general law, under other provisions ofthis Deed or any Works Contract.

(b) Notices from or to insurer

(i) If an insurer gives the Contractor notice of its intention to cancel an insurance policy thatis the subject of this clause 15 (other than workers’ compensation insurance), theContractor must immediately give written notice to WW of the insurer's intention to cancelthe policy.

(ii) The Contractor must provide to WW a copy of any notice given by an insurer of a policyeffected by the Contractor within three Business Days of receipt, and must procure that itssubcontractors agree to provide WW a copy of any notice received by them from an insurerof a policy effected by the Contractor within three Business Days of receipt.

(c) Notices of potential claims

A party must, as soon as practicable, inform the other party in writing of any occurrence thatgives or may give rise to a claim under an insurance policy referred to in this clause 15 and mustkeep the other party informed of subsequent developments concerning the claim or potentialclaim. The Contractor must ensure that its subcontractors in respect of their operations, similarlyinform the parties.

(d) Currency and Notification of Insurance Policies

(i) The Contractor must renew or replace all insurance policies it is obliged to effect, at leastthree Business Days before expiry.

(ii) Evidence of the renewal of insurance policies must be submitted to WW within five BusinessDays after each renewal.

(e) Compliance with insurance policies

The Contractor must not do any act or permit or suffer any circumstances by which any policy ofinsurance taken out under this clause 15 may at any time become void, voidable or cancellableor which would entitle the insurer to reduce its liability (including to nil) for a claim under thepolicy, and the Contractor must at all times at its own expense comply with the conditions of suchpolicy so as to prevent its invalidation or cancellation, or prejudice rights of the insured undersuch policy. The Contractor indemnifies WW against any losses, damages, costs or expensesdirectly attributable to the Contractor's default under this clause 15.4(e).

16. CONFIDENTIALITY

16.1 WW must Treat as Confidential

Subject to both clause 12.2 and also to any disclosure in accordance with this clause 16, WW must treatas confidential all information provided, made available or accessible to it by the Contractor in accordancewith this Deed and marked or otherwise identified as being confidential.

16.2 Contractor must Treat as Confidential

The Contractor must treat as confidential all information provided, made available or accessible to it byWW under this Deed or as part of Development Works (“WW's Confidential Information”).


16.3 Employees must Treat as Confidential

(a) Subject to clause 16.3(b), the Contractor must not and must ensure that the Contractor'semployees, agents, directors, partners, shareholders or consultants do not, disclose to any personany of WW's Confidential Information or information relating to WW, which may have come to theknowledge of the Contractor or the Contractor's employees, agents, directors, partners,shareholders or consultants as a result of this Deed or the Contractor's performance ofConstruction Services.

(b) Clause 16.3(a) does not apply to the disclosure of WW's Confidential Information to a Developerthat has engaged the Contractor to undertake Construction Services, to the extent reasonablynecessary to undertake those Construction Services.

16.4 Return of Confidential Information

(a) Except to the extent necessary to comply with requirements under law, and wherever practicable,the Contractor must, upon completion of Construction Services for Development Works, return toWW, WW's Confidential Information, and all copies of WW's Confidential Information, in a materialform.

(b) To the extent that information provided, made available or accessible to the Contractor by WWunder this Deed or as part of the process for accrediting Contractors, is also made available oraccessible to the Contractor by WW or a Developer under a Works Contract, this clause 16 willapply to such information.

16.5 Use of Confidential Information

The Contractor must use WW's Confidential Information solely for the purposes of, and only to the extent necessary for, the delivery of Construction Services for the Development Works for which WW's Confidential Information was provided.

16.6 Injunction or other equitable relief

WW will be entitled (in addition to any entitlement to damages) to apply for an injunction or other equitable relief with respect to any actual or threatened breach by the Contractor of this clause 16 and without the need on the part of WW to prove any special damage.

16.7 Limit of obligations

A parties' obligations under this clause 16 will not extend to:

(a) information already in the public domain other than due to a breach of this Deed by the otherparty;

(b) any disclosure required by the listing rules of the Australian Stock Exchange; or

(c) any disclosure required by law.

16.8 Survival of obligations

The obligations in this clause 16 survive any termination or expiry of this Deed.

17. NOTICES

(a) Any notice to be given by any party under this Deed may be given by delivering it, posting it byprepaid post, sending it by email or by any other means agreed between the parties from time totime, to the address or email address, as the case may be, set out for that party in item 1 ofSchedule 1, as subsequently updated by written notice for that party to the other party.

(b) A notice that complies with this clause is regarded as given and received:


(i) if it is delivered, when it has been left at the addressee's address;

(ii) if it is sent by mail, three Business Days after it is posted; and

(iii) if it is sent by email, when the sender receives confirmation on its server that the messagehas been transmitted:

(A) if it is transmitted by 5.00 pm (Melbourne time) on a Business Day – on thatBusiness Day; or

(B) if it is transmitted after 5.00 pm (Melbourne time) on the Business Day, or on a daythat is not a Business Day – on the next Business Day.

18. AMENDMENT, ASSIGNMENT AND CHANGE OF CONTROL

18.1 Amendment

This document can be amended, supplemented, replaced or novated only by another document signedby the parties.

18.2 Assignment

(a) The Contractor may assign, transfer, dispose of, declare a trust over or otherwise create aninterest in its rights under this Deed only with the prior written consent of WW.

(b) The Contractor acknowledges that WW has entered into this Deed in reliance on the expertise andcapability of the Contractor and may withhold its consent under clause 18.2(a) in its absolutediscretion.

(c) WW may terminate this Deed if the Contractor does not obtain the prior written consent of WWin accordance with this clause 18.2.

18.3 Change of Control

(a) For the purpose of clause 18.2(a), a Change of Control of the Contractor is deemed to be a disposalof an interest under this Deed.

(b) In this clause, “Change of Control” means:

(i) in relation to a corporation, a change in:

(A) Control of the composition of the board of directors of the corporation;

(B) Control of more than half the voting rights attaching to shares in the corporation;or

(C) Control of more than half the issued shares of the corporation (excluding any partwhich carries no right to participate beyond a specified amount in the distribution ofeither profit or capital); and

(ii) in relation to a partnership, association or unincorporated joint venture, Control of its dayto day policy management procedures or operations.

19. DISPUTES

19.1 Application

Any dispute or difference between WW or the Contractor arising out of, relating to or in connection withthis Deed or any Development Works, must be determined in accordance with the procedure in thisclause 19.


19.2 Mediation

(a) If any dispute arises, a party to the dispute (the “Referring Party”) may by giving notice to theother party or parties to the dispute (the “Mediation Notice”) refer the dispute to mediation forresolution.

(b) The Mediation Notice must:

(i) be in writing;

(ii) state that it is given pursuant to this clause 19.2;

(iii) include or be accompanied by reasonable particulars of the dispute including:

(A) a brief description of the circumstances in which the dispute arose;

(B) references to any:

(aa) provisions of this document;

(bb) acts or omissions of any person,

relevant to the dispute; (C) where applicable, the amount in dispute (whether monetary or any other

commodity) and if not precisely known, the best estimate available.

(c) If a Mediation Notice is given, the parties must attempt to resolve the dispute by engaging inmediation in accordance with, and subject to, the Institute of Arbitrators & Mediators AustraliaMediation and Conciliation Rules and endeavour to settle the dispute by mediation within 20Business Days of the Referring Party giving the Mediation Notice or such further period as theparties may agree in writing (the “Mediation Period”).

(d) The mediation will take place in Melbourne and be administered by the Institute of Arbitrators &Mediators Australia.

(e) The parties must enter into an agreement with the appointed mediator on such terms as theparties and the mediator may agree (the “Mediation Agreement”), or failing agreement, onterms reasonably requested by the mediator, provided those terms do not conflict with this clause19.2.

(f) The parties must not withhold agreement to any reasonable fees and disbursements the mediatorrequests to be set out in the Mediation Agreement.

19.3 Condition precedent to litigation

Subject to clause 19.5, a party must not commence legal proceedings in respect of a dispute unless:

(a) a Mediation Notice has been given; and

(b) the Mediation Period has expired.

19.4 Continuance of performance

Despite the existence of a dispute, the parties must continue to perform their respective obligations under this document.

19.5 Summary or urgent relief

Nothing in this clause 19 will prevent a party from instituting proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a dispute.


19.6 Survive termination

This clause 19 survives the expiry or termination of this document.

20. TERMINATION

20.1 Termination by WW

(a) WW may terminate this Deed and the Contractor's Accreditation with immediate effect by writtennotice to the Contractor, if:

(i) an Insolvency Event occurs in relation to the Contractor;

(ii) the Contractor has breached a provision of this Deed and the breach that has occurred:

(A) is capable of being remedied, and is not remedied to the reasonable satisfaction ofWW within a reasonable period specified by WW; or

(B) is not capable of being remedied, and the Contractor has not complied with thereasonable requirements of WW in relation to the breach by the time required byWW;

(iii) the Contractor commits a Major Safety Breach; or

(iv) the Contractor does not apply for reinstatement of its Accreditation after its Accreditationis suspended under clause 12.4.

(b) Notwithstanding any other term of this Deed, WW may terminate this Deed and the Contractor'sAccreditation immediately on notice being given by WW, where WW and the Contractor cannotagree on a variation to this Deed under clause 11.

(c) Termination of this Deed does not limit any other rights, powers and remedies of WW or theContractor under this Deed or at law.

20.2 Termination by the Contractor

This Deed may be terminated by the Contractor on notice in writing to WW immediately on notice being given if:

(a) an Insolvency Event occurs in relation to WW; or

(b) WW commits a fundamental breach of this Deed and WW fails to remedy the default within 30Business Days from the date of service of a notice in accordance with clause 17 by the Contractoron WW specifying the relevant default.

20.3 Effect of Termination of Deed

(a) If this Deed is terminated by WW pursuant to clause 20.1(a), then:

(i) the Contractor will have no right to make any claim in respect of the termination of thisDeed; and

(ii) the rights of WW will be the same as they would have been under the law governing thisDeed had the Contractor repudiated the Deed and WW had elected to treat the Deed at anend and recover damages.

(b) If this Deed is terminated pursuant to clause 20.1(b), then neither party will have any claimagainst the other in respect of the termination of this Deed.

(c) If this Deed is terminated by the Contractor pursuant to clause 20.2 then:


(i) WW will have no right to make any claim in respect of the termination of this Deed; and

(ii) the rights of the Contractor will be the same as they would have been under the lawgoverning this Deed had WW repudiated the Deed and the Contractor had elected to treatthe Deed at an end and recover damages.

21. REPRESENTATIONS AND CONFIRMATIONS

The Contractor represents and confirms to WW that:

(a) if the Contractor is a company, it is duly incorporated and validly existing under the CorporationsAct;

(b) it has the legal right and power to enter into this Deed;

(c) it has entered into this Deed in its own right and not as a trustee or an agent on behalf of anyother entity;

(d) the execution, delivery and performance of this Deed by it has been duly and validly authorisedby all necessary corporate action and this Deed is a valid and binding Deed, enforceable inaccordance with its terms subject to the laws of insolvency;

(e) it has full corporate power and authority (whether as a company, trustee, individual orpartnership) to perform all of its obligations under this Deed;

(f) it has the requisite technology, skill, personnel and ability to enable it to perform all of itsobligations under this Deed; and

(g) its performance is and will continue to be in accordance with standards of care and diligencenormally found within the industry.

22. GENERAL

22.1 No Partnership or Agency

This Deed does not create a partnership between the parties. The Contractor has no authority expressor implied to bind WW in any manner without the prior written consent of WW.

22.2 Governing Law

(a) This Deed is governed by the law in force in Victoria.

(b) Each party submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in Victoria,and any court that may hear appeals from any of those courts, for any proceedings in connectionwith this document, and waives any right it might have to claim that those courts are aninconvenient forum.

22.3 Liability for expenses

Each party must pay its own expenses incurred in negotiating and executing this Deed.

22.4 Giving effect to this Deed

Each party must do, and must ensure that its employees and agents do, anything (including execute any document) that the other party may reasonably require to give full effect to this Deed.

22.5 Waiver of Rights

A right may only be waived in writing, signed by the party giving the waiver, and


(a) no other conduct of a party (including a failure to exercise, or delay in exercising, the right)operates as a waiver or otherwise prevents the exercise of the right;

(b) a waiver of a right on one or more occasions does not operate as a waiver of that right if it arisesagain; and

(c) the exercise of a right does not prevent any further exercise of that right or of any other right.

22.6 Operation of this Deed

(a) This Deed contains an entire agreement between the parties about its subject matter. Anyprevious understanding, agreement, representation or warranty relating to that subject matter isreplaced by this Deed and has no further effect.

(b) Any right that a person may have under this Deed is in addition to, and does not replace or limit,any other right that the person may have.

(c) Any provision of this Deed which is unenforceable or partly unenforceable is, where possible, tobe severed to the extent necessary to make this Deed enforceable, unless this would materiallychange the intended effect of this Deed.

22.7 Operation of Indemnities

(a) Each indemnity in this Deed survives the expiry or termination of this Deed.

(b) A party may recover a payment under an indemnity in this Deed before it makes the payment inrespect of which the indemnity is given.

22.8 Consents

Where this Deed contemplates that WW may agree to or consent to something (however it is described), WW may:

(a) agree or consent, or not agree or consent, in its absolute discretion; and

(b) agree or consent subject to conditions,

unless this Deed expressly contemplates otherwise.

22.9 Attorneys

Each person who executes this Deed on behalf of a party under a power of attorney declares that he or she is not aware of any fact or circumstance that might affect his or her authority to do so under that power of attorney.


SCHEDULE 1

General

ITEM 1: ADDRESSES FOR NOTICES (Clause 17)

WW

Address: 36 Macedon Street Sunbury VIC 3429

Email: [email protected]

Telephone: 1300 650 422

Attention: Manager Commercial Services

Contractor

Address:

Telephone:

ITEM 2: COMMENCEMENT DATE (Clause 1.1)

The date of execution by Western Water (refer to Page 1 of this Deed for the date of execution)

ITEM 3: EXPIRY DATE (Clause 1.1)

Date of expiry

ITEM 4: FURTHER TERM (Clause 3.4(d))

No further term is available beyond the Expiry Date (Item 3 above)

ITEM 5: WW'S REPRESENTATIVE (Clause 1.1)

Manager Commercial Services

ITEM 6: CONTRACTOR'S REPRESENTATIVE (Clause 1.1)

Key Contact name

Key Contact email

Key Contact mobile


SCHEDULE 2

Contractor's Accredited Categories of Works

has been granted accreditation to undertake the following categories of work –

CONSTRUCTION WORKS AND SERVICES COVERED BY THIS ACCREDITATION SCHEME

Live Sewer Works

Please note the above categories of work do not include “Live Sewer” works. Application for of live sewer accreditation is subject to a separate application. Details of live sewer accreditation can be obtained from Western Water.

All non-commissioned sewers and associated structures must be isolated from the Water Company live sewers, until the assets have been accepted by the Water Company.

Requests for isolations from live sewers, and authorisation by Accredited Contractors for these isolations to be removed must be in writing (on forms approved by the Water Company).

Please note that non-commissioned sewers and associated structures may still be considered as confined spaces under the definition of the Victoria Worksafe Code of Practice for Confined Spaces. Competent Personnel must undertake a site/task specific job safety analysis or the use of a Confined Space Entry permit prior to any entry.

Subcontractors Contractors shall ensure that their sub-contractors are registered in the appropriate category for the subcontracted part of the project.

Contractors entering into a subcontract with a sub-contractor for which there is no registration category are responsible for the competence of that sub-contractor and must therefore satisfy themselves that the sub-contractor has appropriate qualifications, expertise and experience.

Specialised Services Contractor pre-qualification is not required for specialised services that are not encompassed by the registration categories in this document. Consultants or Contractors entering into a direct contract with a specialised contractor not encompassed by one of the registration categories should satisfy themselves that the contractor has appropriate qualifications, expertise and experience to carry out the work required.

WC1 - Reticulation Water Mains ≤DN 280 [Covers supply and installation, testing and commissioning of reticulation water mains ≤ DN280 associated components and structures]

WC2 - Distribution Water Mains >DN 280 [Covers supply and installation, testing and commissioning of distribution water mains > DN280, associated components and structures]

SC1 - Reticulation/Branch Sewer ≤ DN 280 or ≤ 5m in depth [Covers supply and installation, testing and commissioning of reticulation/branch sewers ≤ DN280 or reticulation/branch sewers ≤5m in depth including associated components and structures]

SC2 - Branch/Main Sewers >DN 280 or Sewer Reticulation >5m in depth [Covers supply and installation, testing and commissioning of sewer branch or sewer mains > DN280 or Sewer Reticulation >5m in depth, including associated components and structures]

SC3 - Pressure Sewer Systems [Covers supply and installation, testing and commissioning of pressure sewer systems, including reticulation pressure sewer P/Ls and laterals up to and including DN 300, discharge lines, collection pump units and other appurtenances]

SC4 – Sewer Pump Station and Sewer Rising Mains

[Covers construction of sewage pumping stations including the supply, installation, testing and commissioning of all civil, mechanical and electrical components and storage]


SCHEDULE 3

Key Personnel

Accredited Contractor Key Personnel include personnel, subcontractors or agents engaged as the development works construction site supervisor or equivalent who have the training, skills, qualifications and permits necessary to carry out specified key roles of the Accredited Contractor undertaking land development works or services as defined within Schedule 2. The Accredited Contractor Key Personnel minimum qualifications and competencies are defined as follows – Key Personnel

Qualifications (Minimum requirements)

− Relevant TAFE/Tertiary Qualification with industry experience orequivalent extensive relevant industry experience

− OHS Industry Induction (Red Card)

− Pipelaying Accreditation

− Confined Space Awareness (water supply only)

− Confined Space Entry Certificate (Sewerage Works only)

− Trench Safety Awareness

− Mobile Plant Operator, and/orExtensive demonstrated relevant experience working with mobile plant and mobile plant riskassessment.

Key Personnel Competencies (Minimum requirements)

− Evidence of relevant construction experience for the categories of work requestedList of previous relevant works (Min 3)

− Successful completion of WW new Contractor Induction Questionnaire(not currently available at this stage; will be required when available)


SCHEDULE 4

Development Contractor Accreditation Deed Signing Page

EXECUTED as a deed. WW

SIGNED SEALED AND DELIVERED for and on behalf of, and with the authority of, WESTERN REGION WATER CORPORATION, by its authorised delegate in the exercise of a power conferred by an Instrument of Delegation in the presence of:

Signature Date

In the presence of:

Signature of witness Date

Name


CONTRACTOR

EXECUTED by (insert Company Name)

[select applicable signing method, delete others] Company – 2 Directors

EXECUTED by [insert Contractor's name] in accordance with section 127(1) of the Corporations Act 2001 (Cth) by being signed by authorised persons:

Signature of director Signature of director/secretary* *Delete whichever is inapplicable

Name Name

Usual address Usual address


OR Company - Sole Director

EXECUTED by [insert Contractor’s name] in accordance with section 127(1) of the Corporations Act 2001 (Cth) by being signed by the authorised person:

Signature of sole company secretary

Name

Usual address

OR Company – Under Power of Attorney

(Note – a certified copy of the Power of Attorney must be provided)

SIGNED SEALED AND DELIVERED by [insert Contractor’s name] by [its/his/her] duly appointed attorney [insert name of attorney] who certifies that [he/she] is authorised to execute this document under power of attorney dated [insert date] and at the date of execution [he/she] has received no notice of revocation of the power of attorney in the presence of:

Signature of attorney

Signature of witness Name

Name

Documents

Western Water Development Contractor Accreditation · PDF fileWestern Water Development Contractor Accreditation Deed . ... prototypes, samples, ... (ii) a recital,