Term

Meaning

Aboriginal Heritage

a place, object, remain or any other thing that is of significance to Aboriginal persons in accordance with their practices, observances, customs, traditions, beliefs or history and includes any place or object or thing that is subject to protection under the Environment Protection and Biodiversity Conservation Act 1999 (Cth), the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) or the Aboriginal Heritage Act 2006 (Vic).

Act of Parliament

all Acts of the Parliament of the Commonwealth, and of the State of Victoria and includes any ordinance, rule, regulation, by-law, local law, order, code of practice, guideline, instruction and proclamation made or issued under any such Act now in existence or which comes into existence during the Term.

Actual Outturn Costs or AOC

the total verified sum of:

1 all Reimbursable Costs reasonably and actually incurred by the NOPs in performing the Works;

2 all Reimbursable Costs reasonably and actually incurred by the Project Owner (whether as the client or the Owner Participant) in performing the Works or in connection with this Agreement (including any costs incurred by the Project Owner which are expressly stated by this Agreement to be Reimbursable Costs for the purposes of calculating the AOC); and

3 all Corporate Overhead and Profit paid by the Project Owner to the NOPs under this Agreement,

until the Final Completion Date, but not including amounts specifically excluded under this Agreement.

Adjudicator

the independent person appointed under clause 2 of Schedule 12.

Adjustment Event

any of the following acts, events or circumstances:

1 a Scope Variation;

2 a change to a Statutory Requirement after the date of this Agreement which substantially and materially affects the Works;

3 any suspension by the Project Owner of all or part of the Works under clause 22 (other than as a result of a breach of this Agreement by a NOP, where the suspension is necessary to ensure that the Works comply with the requirements of this Agreement or in the circumstances set out in clause 22.5); and

4 any event or circumstance identified in the Adjustment Event Guidelines as an Adjustment Event.

Adjustment Event Guidelines

the adjustment event guidelines developed by the Participants and approved by the Project Owner under the Alliance Development Agreement as set out in the Project Proposal.

Agreement

this agreement.

Alliance Charter

the alliance charter (including the Alliance Principles, Alliance Purpose and Alliance Objectives) developed by the Participants for the performance of the Works as set out in Schedule 2 which, together with the other terms of this Agreement, governs the relationship between the Participants under this Agreement.

Alliance Development Agreement

the alliance development agreement for the Project entered into between the Project Owner and the NOPs under which the Project Proposal was developed for the approval (or otherwise) of the Project Owner.

Alliance Development Phase (AD Phase)

the phase of the procurement process for the Project as described in the Request for Proposals under which the NOPs develop the Project Proposal for the approval (or otherwise) of the Project Owner in accordance with the terms of the Alliance Development Agreement.

Alliance Leadership Team or ALT

the alliance leadership team established under clause 6.1.

Alliance Management Team or AMT

the alliance management team to be established under clause 7.2.

Alliance Manager

the person specified in clause 7.1 or any other person appointed by the ALT as the alliance manager for the purposes of this Agreement from time to time.

Alliance Objectives

are set out in Schedule 2.

Alliance Principles

are set out in Schedule 2.

Alliance Project Team or APT

the alliance project team to be established under clause 7.4.

Alliance Purpose

is set out in Schedule 2.

Alliance Risk and Opportunity Report

the alliance risk and opportunity report developed by the Participants as set out in the Project Proposal and approved by the Project Owner under the Alliance Development Agreement.

Authorisation

any consent, registration, filing, agreement, notarisation, certificate, licence, approval, permit, authority or exemption from, by or with a Government Agency or a Third Party.

Best For Project

an approach, determination, decision, method, solution, interpretation, outcome or resolution that is consistent with the Project Owner's VFM Statement and the Alliance Charter.

Business Day

a day on which banks are open for business in [insert relevant capital city, State], excluding a Saturday, Sunday or public holiday in [insert relevant capital city, State].

Certificate of Practical Completion

is defined in clause 10.2(c).

Change in Control

if, in relation to any person (the first mentioned person):

1 there is a change in the person that controls the first mentioned person (other than if the Ultimate Holding Company of the first mentioned person remains the same following the change);

2 a person that controls the first mentioned person ceases to control that person (other than if the Ultimate Holding Company of the first mentioned person remains the same following the change); or

3 if the first mentioned person is not controlled, another person acquires control of the first mentioned person.

For the purposes of this definition, the term 'control' (including the term 'controlled' ) has the same meaning as in section 50AA of the Corporations Act.

Code

the National Code of Practice for the Construction Industry 1997, a copy of which is available at http://www.deewr.gov.au/building.

Consequential Loss

loss of production, loss of revenue, loss of profit or anticipated profit or loss of business reputation, but does not include any entitlement of a NOP under this Agreement to Corporate Overhead and Profit or any loss expressly stated under clause 10.6(b).

Construction Plant

apparatus, facilities, plant, equipment, materials, products, processes, temporary works, machinery and other things used in performing the Works but not forming part of the completed Works.

Contracting Strategy

the contracting strategy developed by the Participants as set out in the Project Management System in the Project Proposal and approved by the Project Owner under the Alliance Development Agreement.

Corporate Overhead and Profit

the NOPs' corporate overhead and profit calculated in accordance with Schedule 6.

Corporations Act

the Corporations Act 2001 (Cth).

Date for Practical Completion

is defined in Schedule 1.

Date of Practical Completion

the date of Practical Completion stated in the Certificate of Practical Completion.

Default

is defined in clause 24.1.

Defaulting Participant

is defined in clause 24.1.

Defect

any error, omission, defect, non-conformity, deficiency or discrepancy in any part of the Works or any other matter that is not in accordance with this Agreement.

Defects Correction Period

is defined in Schedule 1.

Design Development Report

the design development report for the Works developed by the Participants, set out in the Project Proposal and approved by the Project Owner under the Alliance Development Agreement.

Diligence

the exercise of the degree of skill, care, expertise, diligence and foresight which would from time to time be expected of skilled and experienced professional persons engaged in undertakings of a similar type as the Works.

Documentation

is defined in clause 9.2.

Enhancements

is defined in clause 27.2(a).

Environment

has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

Environmental Credits

includes the legal, commercial, marketing or other benefit (whether present or future) of any:

1 reduction or offset of greenhouse gas emissions (whether by total greenhouse gas emissions or efficiencies or offset abatement projects);

2 use of renewable energy or generation of energy; or

3 reduction or offset of any Environmental impact including credits derived from native vegetation offsets.

Excluded Amounts

any:

1 Reimbursable Costs reimbursable under clause 16.1;

2 Corporate Overhead and Profit payable under clause 16.1;

3 Gainshare Amount or Painshare Amount (if any and as the case may be) or Performance Reward Amount or Performance Liability Amount (if any and as the case may be) payable under clause 16.1 and Schedule 7;

4 amount required to be paid by the Project Owner to the NOPs or the NOPs to the Project Owner (as the case may be) under clauses 16.5 and 23.2 and Schedule 12; and

5 amount required to be paid by a NOP to the Project Owner under clause 19.10.

Final Certificate

is defined in clause 11.1.

Final Completion Date

the final completion date of the Works specified in the Final Certificate.

Gainshare Amount

the payment (if any) to be made by the Project Owner to the NOPs which will be calculated as at the Final Completion Date in accordance with the Risk or Reward Regime and paid in accordance with clause 3(e) of Schedule 8.

Gainshare Retention Amount

the amount of any Interim Gainshare Amount retained by the Project Owner in accordance with clause 3(c) of Schedule 8

Good Faith

in the context of this Agreement means:

1 acting in accordance with the Alliance Principles, Alliance Purpose and Alliance Objectives both in a literal sense and with their intent;

2 undertaking, adopting and implementing all things reasonably necessary to ensure a Best For Project outcome; and

3 being fair, honest and reasonable and acting with integrity at all times.

Governance Plan

the governance plan for the Project developed by the Participants and approved by the Project Owner under the Alliance Development Agreement, as set out in the Project Proposal.

Government Agency

any government, parliament or governmental, semi-governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, government minister, agency or entity.

GST Exclusive Consideration

is defined in clause 16.10.

Guidelines

the Australian Government Implementation Guidelines for the National Code of Practice for the Construction Industry, August 2009, a copy of which is available at http://www.deewr.gov.au/building.

Industrial Relations Principles

the Code of Practice for the Building and Construction Industry - Victoria Industrial Relations Principles, a copy of which is available at http://www.buildingcommission.com.au.

Insolvency Event

where a Participant:

1 informs another Participant or creditors generally that it is insolvent;

2 has a meeting of its creditors called with a view to entering a scheme of arrangement or composition with creditors;

3 enters a scheme of arrangement or composition with creditors;

4 has a controller (as that term is defined in the Corporations Act) of its property or part of its property appointed;

5 is the subject of an application to a court for its winding up, which application is not stayed within 10 Business Days;

6 has a winding up order made in respect of it;

7 has an administrator appointed under section 436A, 436B or 436C of the Corporations Act;

8 enters into voluntary liquidation;

9 fails to comply with a statutory demand issued under section 459E of the Corporations Act, unless the demand is set aside by a court within 10 Business Days; or

10 has execution levied against it by creditors, debenture holders or trustees or under a floating charge.

Intellectual Property

all intellectual property rights existing worldwide and the subject matter of those rights including any patent, design (whether registered or not), copyright, trade mark, protected circuit layout (or similar right), trade secret or other right whether existing under a Statutory Requirement, at common law or in equity.

Interim Gainshare Amount

the interim Gainshare Amount which will be calculated as at the Date of Practical Completion in accordance with the Risk or Reward Regime and paid by the Project Owner to the NOPs in accordance with clause 3(c) of Schedule 8..

Interim Painshare Amount

the interim Painshare Amount which will be calculated as at the Date of Practical Completion in accordance with the Risk or Reward Regime and paid by the NOPs to the Project Owner in accordance with clause 3(c) of Schedule 8.

Intellectual Property Assets

are defined in clause 27.3(a).

IP Documents

are defined in clause 27.3(a).

Key Result Areas or KRAs

are defined in Schedule 7.

Latent Conditions

the physical conditions on a Site including the soil and rock conditions, surface water, groundwater, geotechnical conditions, contamination, Pollution and artificial things.

Materials

materials, plant, machinery, equipment and products for incorporation into the Works.

MCOS Performance

the minimum conditions of satisfaction or benchmark level of performance for each KRA, as set out in the Project Proposal.

Month

calendar month.

Native Title Laws

the Native Title Act 1993 (Cth), the Land Titles Validation Act 1994 (Vic) and the Aboriginal & Torres Strait Islander Heritage Protection Act 1984 (Cth) and any secondary legislation under those Acts.

Nominated Subcontractor

in respect of a NOP, any person:

1 nominated as part of the Proposal as a person the NOP intended to engage as a Subcontractor for the performance of the Works under this Agreement; and

2 engaged by the NOP as a Subcontractor under this Agreement.

NOPs or NOPs

Non-Owner Participant 1 and Non-Owner Participant 2.

Non-Owner Participant or NOP

Non-Owner Participant 1 or Non-Owner Participant 2, as the context requires.

Notice

is defined in clause 28.

Officer

has the meaning given to that term in the Corporations Act 2001 (Cth).

Owner Participant

the Project Owner, in its capacity as a Participant in the alliance for the performance of the Works.

Painshare Amount

the payment (if any) to be made by the NOPs to the Project Owner which will be calculated as at the Final Completion Date in accordance with the Risk or Reward Regime and paid in accordance with clause 3(d) of Schedule 8.

Participant

either the Owner Participant, Non-Owner Participant 1 or Non-Owner Participant 2, as the context requires.

Participants

the Owner Participant and the NOPs.

Performance Liability Amount

the payment (if any) to be made by the NOPs to the Project Owner for Poor Performance in the KRAs which will be calculated in accordance with the Risk or Reward Regime.

Performance Modifiers

the performance modifiers for the Project set out in the Risk or Reward Regime.

Performance Reward Amount

the payment (if any) to be made to the NOPs by the Project Owner for Stretch Performance in the KRAs which will be calculated in accordance with the Risk or Reward Regime.

Pollution

a solid, liquid, gas, odour, heat, sound, vibration, radiation or substance of any kind which makes or may make any segment of the Environment:

1 unsafe, unfit or harmful for habitation, use or occupation by any person or animal;

2 degraded in any way; or

3 not comply with any Statutory Requirements.

Poor Performance

the level of poor performance for each KRA, being worse than MCOS Performance, as set out in the Project Proposal.

Practical Completion

the stage in the performance of the Works when:

1 the Works are complete except for minor Defects

• which do not prevent the Works from being reasonably capable of being used for their intended purpose as set out, identified, or referred to in, or as may reasonably be inferred from, the Project Proposal;

• which the Participants have reasonable grounds for not promptly rectifying; and

• rectification of which will not prejudice the immediate and convenient use of the Works for their intended purpose as set out, identified or referred to in, or as may reasonably be inferred from, the Project Proposal;

2 the requirements of all relevant certifying authorities and insurance surveyors have been met; and

3 the Project Owner has received all documents and information about the design and construction of the Works including all design documentation, surveys and as constructed information and drawings and any other documentation reasonably required by the Project Owner with respect to the Works.

Pre-existing Intellectual Property Materials

is defined in clause 27.1.

Project

is defined in paragraph 1 of the Background of this Agreement.

Project Management System

the project management system for the Project developed by the Participants and approved by the Project Owner under the Alliance Development Agreement, which incorporates the following systems and plans:

1 an environmental management system and plan;

2 a Third Party certified occupational safety & health management system, including an occupational safety & health quality plan;

3 the Contracting Strategy;

4 a community and stakeholder management plan;

5 an industrial relations management plan;

6 an emergency response plan;

7 a sustainability plan;

8 a training and skills development plan;

9 an industry participation plan; and

10 an Aboriginal Heritage management plan,

as set out in the Project Proposal.

Project Office

the office provided by the Participants for the purpose of performing the Works in accordance with clause 7.6.

Project Owner

is defined in Schedule 1.

Project Owner's Reserved Powers

the Project Owner's reserved powers under this Agreement as set out in clause 6.10(a).

Project Owner's VFM Statement

the Project Owner's value for money proposition for the Project set out in Schedule 4.

Project Proposal

the proposal for the Project developed by the Participants and approved by the Project Owner under the Alliance Development Agreement as set out in Schedule 10, which comprises:

1 the Design Development Report;

2 the Scope of Works;

3 the TOC Validation Report (which will include the TOC);

4 all details and matters relevant to the Risk or Reward Regime;

5 the Scope Variation Benchmarking Guidelines;

6 the Alliance Risk and Opportunity Report;

7 the Adjustment Event Guidelines;

8 the Governance Plan; and

9 the Project Management System.

Proposal

the written response submitted by the NOPs in respect of the Project in response to the Request for Proposals.

Reimbursable Costs

is defined in Schedule 5.

Related Body Corporate

has the meaning given to that term in the Corporations Act.

Relevant Period

the period commencing on the date of this Agreement and ending on:

1 a date agreed by the ALT; or

2 failing agreement, the date necessary to ensure that all Participants comply with any Statutory Requirement relating to record keeping.

Request for Proposals

is defined in Schedule 1.

Responsibilities Matrix

the responsibilities matrix designating roles and responsibilities under this Agreement to the ALT, the AMT and the APT, as set out in Schedule 3.

Risk or Reward Regime

the risk or reward regime for the Project under which:

1 a Gainshare Amount may be payable by the Project Owner to the NOPs or a Painshare Amount may be payable by the NOPs to the Project Owner (if any and as the case may be); and

2 a Performance Reward Amount may be payable by the Project Owner to the NOPs or a Performance Liability Amount may be payable by the NOPs to the Project Owner (if any and as the case may be), each as set out in Schedule 7 and further detailed in the Project Proposal.

Risk & Contingency Provisions

the provision for all possible Reimbursable Costs associated with risks and contingencies that may arise in performing the Works that have been set out in the Alliance Risk and Opportunity Report and included in estimating the TOC, but excluding any Adjustment Events.

Scope of Works

the scope of works for the Project developed by the Participants and approved by the Project Owner under the Alliance Development Agreement, as set out in the Project Proposal.

Scope Variation

is defined in clause 13.2(a).

Scope Variation Benchmarking Guidelines

the Scope Variation benchmarking guidelines developed by the Participants and approved by the Project Owner under the Alliance Development Agreement which set out indicative examples of when a direction by the Project Owner in accordance with clause 13.1 is also a Scope Variation, as set out in the Project Proposal.

Scope Variation Report

is defined in clause 13.2(d).

Sensitive Information

is defined in clause 15.12(c).

Separable Portion

is defined in clause 6.9.

Site

any land, or any part of land, where the Works are to be performed.

SoP Act

the Building and Construction Industry Security of Payment Act 2002 (Vic).

Statutory Requirements

1 Acts of Parliament;

2 Authorisations;

3 directions given under a statute that affect the performance of the Works; and

4 all other laws, regulations, conventions, orders, directions, guidelines and policies given by or on behalf of any Government Agency which may apply to the Works including the Code and Guidelines, the Victorian Code and the Industrial Relations Principles.

Stipulation

is defined in clause 24.2(a).

Stretch Performance

the level of stretch performance for each KRA, being better than MCOS Performance, as set out in the Project Proposal.

Subcontract

any contract or purchase order, or arrangement made in respect of the Works between a Participant and a Subcontractor.

Subcontractor

any person engaged by a Participant to perform any part of the Works and includes, where it is not inconsistent with the context, that person's employees, agents and consultants.

Supplier

is defined in clause 16.10(d).

Target Outturn Cost or TOC

the specific sum identified as the TOC in the Project Proposal, being the estimate of all Reimbursable Costs, Corporate Overhead and Profit and Risk & Contingency Provisions required to achieve MCOS Performance, perform the Works and bring the Works to a stage where the Final Certificate can be issued in accordance with this Agreement.

Term

is described in clause 8.

Third Party

a person who is not a Participant or a director, officer or employee of a Participant or a Related Body Corporate of a Participant.

TOC Validation Report

the TOC validation report (which will include the TOC) developed by the Participants and approved by the Project Owner under the Alliance Development Agreement, as set out in the Project Proposal.

Victorian Code

the Code of Practice for the Building and Construction Industry, a copy of which is available at http://www.buildingcommission.com.au.

Wilful Default

1 a deliberate and purposeful act or omission carried out, or real and substantial evidence of a deliberate and purposeful act or omission carried out, with a reckless disregard or calculated regard for the consequences of the act or omission by a Participant, its Officers, or any representative of the Participant on the ALT or AMT or, in the case of a NOP only, any Nominated Subcontractor of the NOP, which is a breach of a duty, obligation or Stipulation arising out of this Agreement, or which is a breach of a duty or obligation owed to another Participant however arising (which includes a breach of the Alliance Charter);

2 a fraudulent act or omission by a Participant, any director, officer, employee or agent of the Participant, any representative of the Participant on the ALT or AMT or, in the case of a NOP only, any Nominated Subcontractor of the NOP;

3 a repudiation of this Agreement by a Participant; or

4 any act or omission by an officer, representative or employee of a Participant that:

• would, if done by an Officer, constitute a Wilful Default;

• has come to the attention of an Officer of that Participant, or any representative of that Participant appointed to the ALT or AMT; and

• the relevant Officer or representative appointed to the ALT or AMT has not taken reasonable action to address.

but does not include

5 any error of judgment, mistake, act or omission, whether negligent or not, which is made in Good Faith by that Participant or by any director, officer, employee or agent of that Participant, any representative of the Participant on the ALT, AMT or APT or, in the case of a NOP only, any Nominated Subcontractor of the NOP.

Works

the whole of the works and services to be performed by the Participants from time to time under this Agreement and includes:

1 any direction by the Project Owner in accordance with clause 13.1 or Scope Variations;

2 the Construction Plant; and

3 rectification work necessary to make good any Defects arising before and during the Defects Correction Period,

but excluding any works or services performed by the Participants which are not directly referable to the Owner's VFM Statement, the Scope of Works and the assumptions adopted by the Participants in developing the TOC.