Engineering procurement and construction contract

Engineering procurement and

construction contract – Details

Contract Name/No. [insert contract name or number]

Owner (‘We/Us’) [insert name]

[address]

ABN [insert]

Tel: [insert]

Contractor (‘You’) [insert name]

[address]

ABN [insert]

Tel: [insert]

Scope of Works You are responsible for:

• performing the design and engineering of;

• procuring the Equipment to be supplied for; and

• executing the work, services and activities to be performed for the

construction of,

the Facility (including execution of the contractually agreed warranty

obligations) and associated infrastructure in accordance with, and as more

fully described in, the Specification (see Schedule 1 (Specification))

including any Variation (Works).

Price The Price is: [insert price in Australian dollars].

See Schedule 3 (Price and Schedule of Rates) for breakdown

of Price.

Commencement Date

(GC 2.1)

The Commencement Date is [insert date] or [insert days] days from

the date of signing this Contract.

If nothing stated, then the Commencement Date is the date of

signing the Contract.

Date for Commercial

Operation

(GC 2.4)

The Date for Commercial Operation is [insert date].

Your Representative

(GC 5.1)

Your Representative is:

[insert name and details]

Our Representative:

(GC 5.2)

Our Representative is:

[insert name and details]

PwC 1

Security

(GCs 6.6and 6.7)

Bank guarantee required: Yes/No

Delete whichever is not applicable.

Percentage of Price: [5% or 10%]

Defects Liability

Period

(GC 8)

The Defects Liability Period is [insert months] from the Commercial

Operation Date.

If nothing stated, it is 24 months.

Additional grounds

for extensions of

time

(GC 16.3(e))

[Insert additional grounds for extensions of time, eg. those

which are project specific such as site conditions but not

inclement weather.]

If none stated, then no additional grounds.

Liquidated damages

(GCs 17 and 14)

Delay Liquidated Damages and Performance Liquidated Damages are set

out in Schedule 5 (Performance Tests, Performance Guarantees and

Performance Liquidated Damages) and 7 (Delay Liquidated Damages).

If none stated in Schedule 5 and Schedule 7, then general

damages at law apply.

Insurance

(GC 21)

[Drafting note: the below should be reviewed and discussed

with project insurers, including in light of any project-wide

insurance strategy]

Public liability: [insert amount] per occurrence and

[insert amount] in the aggregate.

Contractor’s works: [insert amount] per occurrence and

[insert amount] in the aggregate.

Workers Compensation: [insert amount] per occurrence.

Professional liability: [insert amount] per occurrence and

[insert amount] in the aggregate.

Other insurance: [insert type/amount]

Aggregate limit

(‘cap’) on uninsured

liability

(GCs 22.5 and 22.6)

[Drafting note: Insert limit of uninsured liability. Consider

carefully for each project and the works to be performed by the

Contractor. Some projects may, in fact, justify a cap of higher

than 100% of the Price.]

If nothing stated it is 100% of the Price.

Address for Service

of Notices

(GC 30)

[insert name of Contractor]

Attention: [insert name]

Address: [insert address]

Email address: [insert address]

[Insert name of Contractor]

Attention: [insert name]

Address: [insert address]

Email address: [insert address]

Commercial

Operation

(GC 39 paragraph

39.1(e) of the

definition)

[insert additional pre-conditions to Commercial Operation]

If none stated, then no additional grounds.

Date of this Contract / /

The parties agree to the performance of the Works on the terms and conditions set out in this Contract.

PwC 2

Executed as a deed

[Drafting note: execution blocks to be confirmed]

Signed and delivered by [insert] in accordance

with section 127 of the Corporations Act 2001 (Cth)

and by:

Signature of director Signature of director/secretary

Name of director (print)

Name of director/secretary (print)

Signed and delivered by [insert] in accordance

with section 127 of the Corporations Act 2001

(Cth) and by:

Signature of director Signature of director/secretary

Name of director (print)

Name of director/secretary (print)

PwC 3

General Conditions

1 Conditions Precedent

1.1 The obligations of the parties under

this Contract are conditional upon:

(a) us notifying you that the ARENA

Funding has been received;

(b) the Power Purchase Agreement

becoming unconditional;

than the requirement that this

Contract has become

unconditional in accordance

with its terms), as evidenced in

a notice delivered by us to you

with supporting documentation

confirming such;

(d) you providing us evidence that

the insurance under GC 21 has

been effected; and

(e) you providing us with the bank

guarantee in the form of

Schedule 8(Form of Bank

Guarantee) if we request you to

do so under GC 6.6.

1.2 As soon as reasonably practicable

following the Commencement Date,

you must use reasonable

endeavours to procure the

satisfaction of the conditions

precedent listed in GC 1.1.

1.3 We may waive the satisfaction of

any Condition Precedent by notice

to you. Where a Condition

Precedent is waived, you must

satisfy the waived Condition

Precedent as soon as reasonably

practicable.

1.4 We will notify you after we are

satisfied that each of the conditions

precedent listed in GC 1.1 have

been met.

2 Performance of the Works

2.1 You must commence the

performance of the Works on the

Commencement Date.

2.2 You must perform the whole of the

Works required for the

development, design, engineering,

fabrication, procurement,

construction, installation,

commissioning, testing, delivery,

completion and rectification of all

defects in the Facility such that the

Facility, once completed,

complies with:

(a) the Specification;

(b) the Performance Guarantees;

Government Authority

Approvals, Standards and Good

Solar Industry Practices; and

(d) the other requirements of this

Contract.

2.3 You must perform the Works:

(a) exercising due care, skill and

judgment and using reasonable

endeavours;

(b) in an efficient, professional, cost

effective and environmentally-

responsible manner;

Laws, Government Authority

Approvals, Standards and Good

Solar Industry Practices; and

(d) in accordance with this Contract

and all guidelines, procedures

and directions made by us

under this Contract.

2.4 You must regularly and diligently

progress the performance of the

Works and ensure that Commercial

Operation of the Facility is achieved

by the Date for Commercial

Operation.

2.5 You must ensure that the Works

must connect to, and fully interface

with, the Auxiliary Works specified

in Schedule 1 (Specification). The

fact that the Auxiliary Works are not

performed by you in no way

excuses you from any of your

undertakings, warranties,

obligations or liabilities under or in

connection with this Contract.

2.6 We are engaging you as principal

contractor and authorise you to

have management and control over

those parts of the Site on which the

Works are performed and to

discharge the duties imposed on

you as a principal contractor under

the [insert relevant occupational

health and safety legislation].

2.7 You must comply with all applicable

Laws and the requirements of any

relevant Government Authority. You

must ensure that you obtain and

maintain all relevant Government

Authority Approvals required to

perform the Works, unless

otherwise specified in Schedule 1

(Specification).

2.8 Without limiting GC 2.6, you must

comply with:

(a) all applicable occupational

health, safety and

environmental laws, guidelines

and codes of practice including,

without limitation, the [insert

relevant occupational health

and safety legislation];

(b) all occupational health, safety

and environmental guidelines,

rules and procedures provided

to you by us; and

relation to the Site notified

by us.

2.9 Subject to the exclusions specified

in the Fair Work (Building Industry –

Accreditation Scheme) Regulations

2005 (Cth), you must maintain, and

comply with all conditions of,

accreditation under the accreditation

scheme established by the Fair

Work (Building Industry) Act 2012

(Cth) while building work (as defined

in section 5 of the Fair Work

(Building Industry) Act 2012 (Cth)) is

carried out.

[Drafting note: this clause should

be used where the Contract

relates to building work (as

defined in the FWBI Act – note,

this definition is broad and

includes such things as

installation of fittings such as

security and communication

systems) that is funded by the

Commonwealth or a

Commonwealth Authority. If there

is no Commonwealth funding for

this project, delete this GC]

2.10 You must, in a form acceptable to

us, provide us with regular reports,

or more frequently on request from

us, in relation to the Works and any

occupational, health and safety

issues in relation to the Works and

any other documents you are

required to prepare or maintain

under any Laws concerning

occupational health, safety and the

environment.

2.11 We may, at any time, require you to

provide us with evidence of your

compliance with your obligations

under GCs 2.6 to 2.9.

2.12 The description of the Works set out

in Schedule 1 (Specification)

represents the parties’ best efforts

to define the technical information

and tasks necessary for

performance of the Works.

However, you acknowledge that

your obligations include the

provision of all Equipment and

materials and the performance of all

works and services necessary for

the execution of the Works in

accordance with this Contract.

2.13 You must immediately notify us on

becoming aware of any Industrial

Matter and you must meet with us,

as soon as practicable after that

notification, for the purpose of

discussing and agreeing on any

necessary or appropriate action to

be taken to resolve the Industrial

Matter.

2.14 You must assist us to perform our

training obligations, including the

preparation of a training manual, if

required, in accordance with and to

the standards and timing set out in

Schedule 1(Specification).

2.15 You must prepare:

(a) an operation and maintenance

manual; and

(b) a written commissioning

schedule for the Facility (which

includes the target date of

completion of Commissioning of

the Facility and the target date

for Commercial Operation)

within 30 Business Days after

the Commencement Date,

in accordance with and to the

standards and timing set out in

Schedule 1 (Specification).

2.16 You must establish, implement and

maintain a quality assurance and

control program which is subject to

our approval.

3 Provision of Equipment,

materials, Spare Parts and

consumables

3.1 You must supply and make

available, at your own cost, all

utilities, consumables (including

lubricants, chemicals, catalysts and

other materials) and facilities

necessary to properly perform the

PwC 4

Works, unless otherwise specified in

Schedule 1 (Specification).

3.2 You must provide, at your own cost,

all Equipment and materials

necessary to execute the Works

specified in Schedule 1

(Specification), unless otherwise

specified in Schedule 1

(Specification). You must procure

and transport the Equipment and

the materials, at your own risk and

expense to the Site, in an

expeditious and orderly manner.

3.3 You must, at your own expense,

handle all imported Equipment at

the point(s) of import (if any) and

any formalities for customs

clearance. If any applicable Laws

require any application or act to be

made by or in our name, we must

take all necessary steps to comply

with all applicable laws. You must

assist us in complying with

those Laws.

3.4 You must provide the Spare Parts

required up to the expiry of the

Defects Liability Period. You must:

(a) provide us with a parts numbers

list for the operation and

maintenance of the

Equipment; and

(b) immediately replace at your cost

any Spare Part used:

(i) at any time prior to the

Commercial Operation

Date; and

(ii) during the Defects

Liability Period.

4 Our obligations

4.1 We agree to pay you the Price for

the Works in accordance with GC 6.

4.2 We must provide you with

possession of and access to the

Site and all other areas reasonably

required for the proper performance

of the Works on and from the

Commencement Date. You

acknowledge that you may not be

given exclusive possession of, or

exclusive access to, the Site.

4.3 We must provide personnel to assist

you to properly carry out the Tests

and the Performance Tests. Prior to

the Commercial Operation Date,

any act or omission of any

personnel provided by us is

(provided those personnel are

acting in accordance with your

instructions, directions, procedures

or manuals) deemed to be an act or

omission by you and you are not

relieved of your obligations under

this Contract and you will not have

any claim against us by reason of

any act or omission.

5 Representatives

5.1 The person nominated by you in the

Details will be your Representative.

Your Representative has authority

to issue notices to us and receive

notices from us. You may change

your Representative at any time by

notice to us. You are responsible for

all acts and omissions of your

Representative.

5.2 The person nominated by us in the

Details is our Representative. Our

Representative has authority to

issue directions, notices and

certificates to you and receive

notices from you. We may change

our Representative at any time by

notice to you. We are responsible

for all acts and omissions of our

Representative.

6 Invoicing, payment and security

6.1 You must submit an invoice to us in

accordance with Schedule 4

(Payment Schedule).

6.2 Each invoice submitted by you must

be in a form approved by us and

must include details of the value of

the work performed by you and may

include details of other moneys then

due to you under this Contract.

6.3 [Drafting note: Insert jurisdiction-

specific clause 6.3].

6.4 Subject to your compliance with

GCs 6.1to 6.3, we will pay you the

amount set out in the invoice

submitted by you under GC 6.1

within 15 Business Days of receipt

of that invoice, except where we:

(a) exercise our right to withhold,

retain or set off part of the Price

under GC6.8; or

(b) dispute the invoice, in which

case:

(i) we will pay the undisputed

part of the invoice (if any)

and withhold the balance

pending resolution of the

dispute in accordance with

GC 29; and

(ii) if the resolution of the

dispute determines that we

are to pay an amount to

you, we will pay that

amount upon resolution of

the dispute.

6.5 No interest will be payable by us in

respect of any invoice rendered to

us by you under GC 6.1 which

remains due and unpaid (including

any amounts withheld as a result of

a dispute).

6.6 If we request you to provide a bank

guarantee in accordance with the

Details, the bank guarantee to be

provided by you must be:

(a) from a financial institution that is

acceptable to us;

(b) an irrevocable, unconditional

and enforceable undertaking

that is payable on demand;

Details;

(d) in the form set out in Schedule 6

(Form of Bank Guarantee); and

(e) delivered to us prior to

commencement of Works at the

Site.

6.7 Any bank guarantee provided to us

under GC 6.6 must be valid until

Commercial Operation when it will

reduce by 50% of its face value.

The remaining 50% of its face value

will then be valid until the end of the

Defects Liability Period, or the final

resolution of any dispute between

us under or in connection with this

Contract, whichever is the later.

6.8 [Drafting note: Insert jurisdiction-

specific clause 6.8].

6.9 We have the right to conduct an

audit of the basis of your invoices

using your records. This right

continues for 12 months after we

pay the relevant invoice. If we

exercise this right, you must make

available to us all relevant records

and documentation.

6.10 [Drafting note: Insert jurisdiction-

specific clause 6.10].

6.11 A provisional sum included in this

Contract will not be payable by us

unless we direct you to perform the

work or item to which the provisional

sum relates. If we direct you to

perform that work, the work or item

will be priced by us (acting

reasonably), and the difference will

be added to or deducted from the

Price.

7 Variations

7.1 You must not vary the Works except

as directed by us.

7.2 We may by written notice expressed

as a “Variation Notice” direct you

to alter, amend, omit, add to or

otherwise vary the Works and you

must carry out and be bound by any

such variations.

7.3 Within 5 Business Days of receipt of

the notice referred to in GC 7.2, and

before you carry out the variation,

you must provide to us a detailed

breakdown of the increase or

decrease in the Price as a result of

the variation.

7.4 No variation issued in accordance

with this Contract will vitiate or

invalidate this Contract.

7.5 A variation may involve the

omission of any part or parts of the

Works and you agree that we may

engage others to perform that part

or parts so omitted. You

acknowledge that the omission of

one or more parts of the Works will

not constitute a basis to allege that

we have repudiated this Contract

notwithstanding the extent or timing

of the omission.

7.6 The rate or price for each variation

must be determined by agreement

between the parties, or in the

absence of agreement, a valuation

will be made by us on the basis of

the rates and prices set out in

Schedule 3 (Price and Schedule of

Rates), or if there are no applicable

rates and prices set out in Schedule

3 (Price and Schedule of Rates),

PwC 5

then a fair and reasonable valuation

of the variation must be made by us.

7.7 You are not entitled to any payment

(pursuant to this Contract or

otherwise at common law, equity,

statute or code) in relation to any

variation unless:

(a) you have been directed to carry

out the variation pursuant to GC

7.2; and

(b) the increase or decrease in the

Price has been determined in

accordance with GCs 7.3 to 7.6.

8 Defects Liability Period

8.1 You must, at your own cost, repair,

replace or otherwise make good any

defects in the Works or Equipment

notified by us to you during the

Defects Liability Period.

8.2 You must bear all incidental costs,

including any costs of removal

associated with the repair,

replacement or making good of the

defects in accordance with GC8.1.

8.3 The timing of the rectification work

described in GC8.1 must be agreed

with us, or failing agreement, must

be reasonably specified by us,

before commencing the work.

8.4 If you fail to rectify the defect within

the time agreed or specified by us

under GC8.3, we may do so or

engage another party to do so at

your risk and expense.

8.5 Any cost incurred by us under GC

8.4 will be a debt due from you

to us.

8.6 The Defects Liability Period will

recommence (and restart from the

beginning) from the date of the

repair, replacement or making good,

but only in respect of that part of the

Works or Equipment repaired,

replaced or made good.

9 Warranted Component Parts

9.1 You must provide warranties for

Warranted Component Parts for the

duration of the Warranted

Component Part Period that are

fully assignable to us.

9.2 The warranties provided under

GC 9.1 must be from both the

manufacturers, agents and

suppliers of a Warranted

Component Part and the installer of

any Warranted Component Part.

The warranties must also name

both you and us as warrantee and

warrants for the Warranted

Component Part Defect Period that

the Warranted Component Parts will

comply with all the requirements of

this Contract.

10 Serial Defects

10.1 You must notify us within 10 days of

becoming aware of any Serial

Defect, with details of such Serial

Defect.

10.2 If a Serial Defect is identified by you

or by us at any time prior to the

expiry of the Defects Liability Period

in a batch of modules or inverters, if

a particular module or inverter is

from the same batch of modules or

inverters (as relevant) in which the

Serial Defect is identified, that

particular module or inverter will be

deemed to have the same defect.

We may by notice in writing at any

time prior to the expiry of the

Defects Liability Period, direct you

to replace that particular module,

inverter and/or batch of modules or

inverters in accordance with

GC 10.3.

10.3 Upon receipt of a notice from us

under GC 10.2, except to the extent

you can demonstrate that the

particular module or inverter is from

a different batch to the modules or

inverters in which the Serial Defect

is identified, you must:

(a) promptly, at your cost, replace

the relevant modules or

inverters identified;

(b) undertake such replacement at

times reasonably approved by

us and in a manner that causes

as little disruption as reasonably

possible to the performance of

the Work and/or the operation of

the Facility; and

(including any costs of removal)

associated with the replacement

of the relevant modules or

inverters.

10.4 Following replacement of the

relevant modules or inverters under

GC 10.3, we may require you to

carry out additional tests at your

cost, to demonstrate that the

relevant modules, inverters and/or

the entire Facility comply with the

requirements of this Contract. If the

relevant modules, inverters and/or

the entire Facility fail the tests, you

must at your cost carry out further

replacement until the relevant

modules, inverters and/or the entire

Facility passes the tests. The tests

must be agreed between us.

10.5 If you fail to replace the relevant

modules, inverters and/or retest the

relevant modules, inverters and/or

the entire Facility in accordance with

GCs 10.3 and 10.4, we may

proceed to do the work or engage

another party to do the work, and

the reasonable costs incurred by us

as a result will be a debt due and

payable to us on demand and may

be deducted from any payments

otherwise due from us to you.

11 Inspection and testing

11.1 You must at your own expense

carry out at the place of

manufacture and/or on the Site all

Tests and/or inspections of the

Works and/or the Facility (including

any component part of the Works

and Facility) required by this

Contract and any applicable Laws

or Government Authority Approvals.

You must bear the cost of all tests

(including the Tests) and

inspections required under this

Contract (including re-tests) other

than tests and inspections that are

expressly stated to be at our cost.

11.2 You must give us at least 5

Business Days’ notice in writing of

your intention to perform any Test,

including details of the Test to be

performed and the proposed date

and location of the Test.

11.3 We may attend and witness any

Test. We must use all reasonable

endeavours not to interrupt or

impede you in the performance of

any Test.

11.4 Within 7 days after completion of

any Test, you must give us a report

in respect of the Test, including the

Test results and inspection items.

11.5 If you fail to pass any Tests (or any

repetition thereof in the event of

prior failure) or if any Test is

stopped before its completion, the

Test must, subject to 24 hours’ prior

notice having been given by you to

us, be repeated as soon as

practicable. All appropriate

adjustments and modifications are

to be made by you with all

reasonable speed and at your own

expense before the repetition of

any Test.

11.6 You agree that neither the

performance of a Test nor the

passing of a Test releases you from

any of your responsibilities,

obligations or liabilities (including

repair or replacement or both of any

part of the Works damaged during

the performance of any Tests)

under this Contract.

11.7 You must provide, install, calibrate,

operate, maintain, and be

responsible for the accuracy of all

test instrumentation and equipment

required for the Tests. You must

remove all of this instrumentation

and equipment after the successful

completion of the Tests.

11.8 We may request you to perform any

test and/or inspection not described

in this Contract and which would not

have otherwise been carried out by

you and you must arrange those

tests and/or inspections as soon as

practicable. Your extra costs

necessarily incurred, which may

include an allowance for off-Site

overheads and profit, in the carrying

out of those tests and/or inspections

will be added to the Price only if the

test or inspection shows that the

relevant Works conform with the

requirements of this Contract, but

are otherwise to be borne by you.

11.9 You acknowledge and agree that

we are entitled to all products,

revenues and other benefits that

may be generated or derived from

the Facility during the

precommissioning, commissioning

and the Performance Tests.

12 Precommissioning and

Commissioning

12.1 You must perform

precommissioning of the Facility in

accordance with the requirements

and procedures in Schedule 1

(Specification).

12.2 After the completion of

precommissioning under GC 12.1

you must notify us that the Facility

are ready for Commissioning.

PwC 6

12.3 As soon as reasonably practicable

after receipt of a notice under GC

12.2, we will issue a notice to you

specifying the date for

commencement of Commissioning

and you must commence

Commissioning of the Facility on the

date specified in the notice in

accordance with the requirements

and procedures in Schedule 1

(Specification).

[Drafting Note: GC 3.4 of the

Power Purchase Agreement

allows for an option to be

included affording the Owner an

opportunity to generate

electricity prior to Commercial

Operation. Owner to confirm

whether this will be appropriate,

and if so, an additional GC must

be inserted to this effect.]

13 Commercial Operation

Performance Tests and Post-COD

Performance Tests

13.1 After completion of Commissioning,

you must give us at least 5

Business Days’ prior written notice

of when you intend to carry out the

Commercial Operation Performance

Tests at the times and in

accordance with the requirements

set out in Schedule 5 (Performance

Tests, Performance Guarantees

and Performance Liquidated

Damages).

13.2 As soon as reasonably practicable

after receipt of a notice under GC

13.1, we will issue a notice to you

specifying the date for

commencement of the Commercial

Operation Performance Tests at the

times and in accordance with the

requirements set out in Schedule 5

(Performance Tests, Performance

Guarantees and Performance

Liquidated Damages).

13.3 After Commercial Operation, you

must give us at least 10 Business

Days’ prior written notice of when

you intend to carry out the Post-

COD Performance Tests at the

times and in accordance with the

requirements set out in Schedule 5

(Performance Tests, Performance

Guarantees and Performance

Liquidated Damages).

13.4 As soon as reasonably practicable

after receipt of a notice under GC

13.3, we will issue a notice to you

specifying the date for

commencement of the Post-COD

Performance Tests at the times and

in accordance with the requirements

set out in Schedule 5 (Performance

Tests, Performance Guarantees

and Performance Liquidated

Damages).

14 Performance Guarantees and

Performance Liquidated

Damages

14.1 You guarantee that the Facility and

all component parts will meet the

Performance Guarantees specified

in Schedule 5 (Performance Tests,

Performance Guarantees and

Performance Liquidated Damages),

including the Commercial Operation

Performance Guarantees and the

Post COD Performance

Guarantees.

14.2 If, following the completion of the

Commercial Operation Performance

Tests, the Minimum Commercial

Operation Performance Guarantees

are not met, you must at your cost

and expense make changes,

modifications or additions to the

Facility, or any part of the Facility,

as may be necessary for the Facility

to achieve the Minimum

Commercial Operation Performance

Guarantees. You must notify us

upon completion of the necessary

changes, modifications or additions

and must, subject to our rights

under GC 14.3, continue to repeat

the Commercial Operation

Performance Tests until the

Minimum Commercial Operation

Performance Guarantees are met.

Subject to GC 14.3, nothing in this

GC 14.2 derogates from your

obligation to meet the Performance

Guarantees.

14.3 If, for reasons not attributable to us,

the Minimum Commercial Operation

Performance Guarantees are not

met by the Longstop Date, we may

terminate this Contract under GC

28.1(g) and we may also reject the

Facility under GC 14.4.

14.4 If we reject the Facility or any part of

the Facility under GC 14.3, we will

be entitled to recover all sums paid

by us in respect of such part(s) of

the Facility and you must, at your

cost, dismantle and remove the

Facility (or the rejected part of the

Facility) from the Site and restore

the Site to its original condition.

14.5 If, after carrying out the Commercial

Operation Performance Tests, the

Commercial Operation Performance

Guarantees specified in Schedule 5

(Performance Tests, Performance

Guarantees and Performance

Liquidated Damages) are not met

either in whole or in part, you must

at your cost make the modifications

and/or additions to the Works or any

part of the Works as may be

necessary to meet at least the

Commercial Operation Performance

Guarantees. You must notify us

upon completion of the necessary

changes, modifications and/or

additions and repeat the

Commercial Operation Performance

Tests until the Commercial

Operation Performance Guarantees

have been met.

14.6 Notwithstanding that any of the

other Commercial Operation

Performance Guarantees have not

been met, but provided that all of

the other requirements for

Commercial Operation have been

met or waived in writing by us, we

may (in our absolute and unfettered

discretion) issue a Certificate of

Commercial Operation under GC

15.6. If we issue a Certificate of

Commercial Operation under this

GC 14.6, you must do all things

reasonably necessary to assist us to

ensure that the other requirements

for the issue of a Certificate of

Commercial Operation in relation to

the Facility are met.

14.7 Despite this GC 14 or any other

provision of this Contract, if you

have not met any of the Commercial

Operation Performance Guarantees

at the earliest of:

(a) the Longstop Date;

(b) when you are liable for Delay

Liquidated Damages up to the

aggregate liability set out in the

Details; or

deeming Commercial Operation

to have been achieved

(notwithstanding that any of the

other Commercial Operation

Performance Guarantees have

not been met) under GC 14.6,

you must pay to us the Price

Reduction Payment in accordance

with Schedule 5 (Performance

Tests, Performance Guarantees

and Performance Liquidated

Damages).

[Drafting note: we have currently

provided for the Owner’s

compensation for failure to

achieve Commercial Operation

Performance Guarantees to be a

reduction in the Price. This is

included on the basis that the

Owner considers that it has not

been provided with the Facility

that it has paid for, and as such

the Price should be reduced.

Another option is for

Performance Liquidated

Damages to be payable in respect

of the Commercial Operation

Performance Guarantees as well

as the Post-COD Performance

Guarantees.]

14.8 Despite this GC 14 or any other

provision of this Contract, if you

have not met any of the Post-COD

Performance Guarantees in

accordance with Schedule 5

(Performance Tests, Performance

Guarantees and Performance

Liquidated Damages), you must pay

the Performance Liquidated

Damages to us in the amounts and

at the times specified in Schedule 5

(Performance Tests, Performance

Guarantees and Performance

Liquidated Damages).

14.9 Our entitlement to a Price Reduction

Payment under GC 14.7 and the

payment of Performance Liquidated

Damages under GC 14.8 will be in

satisfaction of the relevant

Performance Guarantees.

14.10 The payment of a Price Reduction

Payment or Performance Liquidated

Damages does not in any way

relieve you from any of your

obligations to complete the Works

or from any of your other obligations

and liabilities under this Contract.

14.11 The Performance Liquidated

Damages claimed by us must not

exceed the maximum liability for

Performance Liquidated Damages

set out in Schedule 5 (Performance

PwC 7

Tests, Performance Guarantees

and Performance Liquidated

Damages).

14.12 Without limiting any other rights we

may have, we may deduct any

Performance Liquidated Damages

from any amounts payable by us to

you under this Contract.

14.13 If we are entitled to be paid a price

reduction payment or Performance

Liquidated Damages under this GC

14, this does not limit our right to

enforce any other remedy we may

have against you. However, nothing

under this Contract entitles us to

claim duplicate damages under this

Contract and under law regarding

your failure to meet the

Performance Guarantees.

14.14 The parties agree that the price

reduction payment and

Performance Liquidated Damages

are a fair and reasonable pre-

estimate of the damages likely to be

sustained by us as a result of your

failure to meet the Performance

Guarantees.

14.15 If this GC 14 (or any part) is found

for any reason to be void, invalid or

otherwise inoperative so as to

disentitle us from claiming

Performance Liquidated Damages,

we are entitled to claim against you

for damages at law for your failure

to achieve any or all of the

Performance Guarantees. These

general damages must not exceed

the maximum liability for

Performance Liquidated Damages

set out in Schedule 5 (Performance

Tests, Performance Guarantees

and Performance Liquidated

Damages).

15 Commercial Operation

15.1 As soon as the Facility has, in your

opinion, satisfied each of the

preconditions for achieving

Commercial Operation, you must

give notice to us to that effect.

15.2 Within 10 Business Days of our

receipt of your notice under GC

15.1, we will:

(a) issue a Certificate of

Commercial Operation stating

that the Facility has reached

Commercial Operation and the

date on which the Facility

reached Commercial Operation

(b) notify you that the Facility has

not achieved Commercial

Operation and indicate any

defects or deficiencies in the

Facility or the Works.

15.3 If we notify you there are defects or

deficiencies in the Facility or the

Works, you must correct the defects

or deficiencies and the procedures

in this GC 15.2 and GC 15.3 must

be repeated until we issue a

Certificate of Commercial

Operation.

15.4 You acknowledge and agree that no

payment and no partial or entire use

or occupancy of the Site, the Works

or the Facility by us in any way

constitutes an acknowledgement by

us that Commercial Operation has

occurred, nor does it operate to

release you from any of your

warranties, obligations or liabilities

under this Contract.

15.5 You must hand over care, custody

and control of the Facility to us upon

the issue of the Certificate of

Commercial Operation.

15.6 Notwithstanding that all the

requirements for the issuing of a

Certificate of Commercial Operation

have not been met, we may at any

time, in our absolute discretion,

issue a Certificate of Commercial

Operation. The issue of a Certificate

of Commercial Operation under GC

15.2 will not operate as an

admission that all the requirements

of Commercial Operation have been

met, and does not prejudice any of

our rights, including our right to

require you to satisfy all these

requirements.

16 Extension of time

16.1 As soon as you become aware of

an incident or an event of

whatsoever nature affecting or likely

to affect the progress of the Works

you must give us a written notice to

that effect.

16.2 Within 3 Business Days of it

becoming reasonably evident that

the Works are delayed or are likely

to be delayed beyond the Date for

Commercial Operation, you must

give written notice to us expressed

as an “Extension of Time Notice”

and setting out full details of the

cause of the delay with supporting

documents and stating a reasonable

period by which you believe the

Date for Commercial Operation

should be extended.

16.3 Subject to the other provisions of

this GC 16, you are only entitled to

an extension of time to the Date for

Commercial Operation where a

delay to the Date for Commercial

Operation is caused by any of the

following events, whether occurring

before, on or after the Date for

Commercial Operation:

(a) any act, omission or breach by

us, our employees, agents or

contractors;

(b) the execution of a variation

under GC 7, except where that

variation is caused by your act,

omission or breach;

(d) a suspension under GC 27,

except where that suspension is

caused by your act, omission or

breach; or

(e) the occurrence of any event

specified in the Details.

16.4 As soon as practicable after receipt

of the notice in GC 16.2, we will

notify you of the period, if any, by

which the Date for Commercial

Operation will be extended.

16.5 Despite any other provisions of this

GC 16, we may, in our absolute

discretion and at any time, make an

extension to the Date for

Commercial Operation. We have no

obligation to grant or to consider

whether we should grant an

extension of time and we are not

required to exercise this discretion

for your benefit.

16.6 Where more than one event causes

concurrent delays and the cause of

at least one of those events, but not

all of them, is not an event which

entitles you to an extension of time,

then to the extent that the delays

are concurrent, you are not entitled

to an extension of time to the Date

for Commercial Operation.

16.7 It is a condition precedent to your

entitlement to an extension of time

under GC 16.7 that you submit the

notice strictly within the time and as

required under GC 16.2.

16.8 Any principle of law or equity

(including those which might

otherwise entitle you to relief and

“the prevention principle”) which

might otherwise cause the Date for

Commercial Operation to be set at

large and render the liquidated

damages unenforceable, will

not apply.

16.9 A delay by us or the failure by us to

grant a reasonable extension of

time or to grant an extension of time

will not cause the Date for

Commercial Operation to be set

at large.

16.10 An extension of time granted under

this GC 16 is your sole entitlement

to compensation for delay to Works.

16.11 We are not liable for any costs,

losses or damages suffered or

incurred by you arising out of or in

connection with delays to the

Works. You expressly acknowledge

that you have made an allowance in

the Price for the risk of bearing all

costs, losses and damages which

you may suffer or incur arising out

of or in connection with delays to

the Works and that you have no

entitlement to bring any claim

against us in respect of any such

costs, losses or damages.

17 Delay Liquidated Damages

17.1 If you fail to achieve Commercial

Operation by the Date for

Commercial Operation you must

pay us Delay Liquidated Damages

at the rate stated in Schedule 7

(Delay Liquidated Damages) for

each day after the Date for

Commercial Operation up to and

including the Commercial Operation

Date or the date this Contract is

terminated, whichever occurs first.

17.2 Your aggregate liability for Delay

Liquidated Damages under GC 17.1

will not exceed the amount specified

in Schedule 7 (Delay Liquidated

Damages).

17.3 The parties agree that the Delay

Liquidated Damages are a fair and

reasonable pre-estimate of the

damages likely to be sustained by

us if you fail to achieve Commercial

Operation by the Date for

Commercial Operation.

PwC 8

17.4 If we are entitled to be paid Delay

Liquidated Damages under GC

17.1, this does not limit our right to

enforce any other remedy we may

have against you. The payment of

Delay Liquidated Damages by you

does not relieve you from any of

your obligations to achieve

Commercial Operation or from any

of your other warranties, obligations

or liabilities under or in connection

with this Contract.

17.5 If this GC 17(or any part) is found

for any reason to be void, invalid or

otherwise inoperative so as to

disentitle us from claiming Delay

Liquidated Damages, we are

entitled to claim against you for

damages at law for your failure to

achieve Commercial Operation by

the Date for Commercial Operation.

These general damages must not

exceed the maximum liability for

Delay Liquidated Damages set out

in Schedule 7 (Delay Liquidated

Damages).

18 Final Completion

18.1 You must notify us at least 20

Business Days before the whole of

the Works and Facility will, in your

opinion, reach the stage of Final

Completion.

18.2 You must notify us as soon as the

whole of the Works and Facility

have, in your opinion, satisfied each

of the preconditions for achieving

Final Completion.

18.3 Not later than 10 Business Days

after receipt of your notice under

GC 18.2, we will either:

(a) issue a Certificate of Final

Completion stating that the

Facility has reached Final

Completion and the date on

which the Facility reached Final

Completion; or

(b) notify you that the Facility has

not achieved Final Completion

and indicate any defects and/or

deficiencies.

18.4 If we notify you of any defects

and/or deficiencies, you must then

correct those defects and/or

deficiencies and the procedures

described in GCs 18.2 and 18.3

must be repeated until the

Certificate of Final Completion

is issued.

18.5 The Certificate of Final Completion

will be evidence of accord and

satisfaction, and in discharge of

each party's obligations in

connection with this Contract

except for:

(a) obligations in relation to Spare

Parts and Warranted

Component Parts;

(b) indemnities;

(d) Wilful Misconduct relating to the

Works and Facility or any part

thereof;

(e) any defects or omissions in the

Works and Facility or any part

thereof which were not apparent

at the end of the Defects

Liability Period, or which would

not have been disclosed upon

reasonable inspection at the

time of the issue of the

Certificate of Final Completion;

and

(f) unresolved issues the subject of

any Dispute for which written

notice under GC 29 is given

either prior to, or within 5

Business Days after, the issue

of the Certificate of Final

Completion.

18.6 Despite any other provision of this

Contract, no partial or entire use or

occupancy of the Project Site, the

Works or the Facility by us, whether

during the Post COD Performance

Tests or otherwise, in any way

constitutes an acknowledgment by

us that Final Completion has

occurred, nor does it operate to

release you from any of your

warranties, obligations or liabilities

under or in connection with this

Contract.

19 Independent contractor

19.1 The parties acknowledge that you

are our contractor and not our

employee or agent.

20 Warranties

20.1 You warrant that:

(a) the Works will be performed

with all the skill and care to be

expected of appropriately

qualified and experienced

contractors with experience in

performing works of a similar

size, type, nature and

complexity to the Works;

(b) the Works will be performed in a

timely and professional manner

in accordance with this

Contract;

deemed to have, done

everything that would be

expected of a prudent,

competent and experienced

contractor in:

(i) assessing the risks which

you are assuming under

this Contract; and

(ii) ensuring that the Price

contains allowances to

protect you against any of

these risks eventuating,

and you will not make a claim

for an increase in the Price if

any of those risks eventuate;

(d) the Equipment must be new and

unused, fit for the purpose and

of a quality reasonably expected

in the process and

manufacturing industries, free

from material defects and

deficiencies of any kind, and

free from any encumbrance or

lien and must conform to the

requirements set out in

Schedule 1(Specification);

(e) the Works will be performed in

accordance with Schedule 1

(Specification), for the Price and

by the Date for Commercial

Operation;

(f) the Facility will meet the

requirements specified in this

Contract, including the

Performance Guarantees; and

(g) the Works will be performed

with the highest regard for

safety and protection of the

environment and so that the

Facility is capable of being

operated and utilised in

accordance with all applicable

Laws, Government Authority

Approvals and this Contract.

20.2 We do not warrant, guarantee or

make any representation about the

accuracy or adequacy of any

information, data or documents

made available to you as to the

existing conditions at the Site. Such

information, data or documents do

not form part of this Contract.

21 Insurance

21.1 You must take out and maintain

during the period of this Contract:

(a) a comprehensive public liability

policy to cover all sums which

you may become legally liable

to pay consequent upon:

(i) death of, or bodily injury

(including disease or

illness) to, any person; and

(ii) loss of, or damage to,

property (including loss of

use),

in connection with the

performance of the Works;

(b) insurance in respect of all

claims and liabilities arising,

whether at general law or under

statute relating to workers

compensation or employer’s

liability, from death of, or bodily

injury (including disease or

illness) to any person employed

by you in connection with this

Contract and you must ensure

that all subcontractors are

similarly insured in respect of

their employees;

any and all liability, loss and

damage of any kind whatsoever

to the Works; and

(d) other insurances specified in the

Details, required by law, or

otherwise reasonably required

by us.

The limit of liability provided by each

policy must not be less than the

amount specified in the Details.

21.2 You must ensure that all policies of

insurance required to be taken out

by you under this Contract include

us as a named co-insured and you

must do anything we reasonably

request to protect us as an insured.

However, if the relevant insurer

refuses to include us as a named

co-insured, you must ensure that

the policy notes our interest under

this Contract.

21.3 You must notify us immediately of

any cancellation of a relevant

PwC 9

insurance policy and of any change

to the policy which affects our

interests.

21.4 Without limiting our rights under any

insurance policy taken out by you in

accordance with this Contract

(whether as co-insured or

otherwise), if an event occurs or a

circumstance arises which may

affect our interests and which may

give rise to a claim under any

insurance policy to be taken out by

you under this Contract, you must:

(a) notify us within 10 Business

Days of that event;

(b) actively make a claim under the

relevant policy and remit to us

any insurance proceeds

recovered by you in respect of

our rights and interests under or

in connection with this Contract

or any liability to third parties;

and

informed of any subsequent

actions and developments

concerning the relevant claim.

21.5 At our request, you must promptly

produce evidence acceptable to us

that you are maintaining the

insurances required by this GC 21.

21.6 We have the right to take out and

maintain any policy of insurance

required by this GC 21 if you fail to

do so.

21.7 You agree to reimburse us for any

expenses we incur in taking out and

maintaining any policy of insurance

taken out by us under GC 21.6.

22 Liability and indemnities

22.1 You will be liable for and you must

indemnify us against any liability

and any loss or damage of any kind

whatsoever arising out of your acts

or omissions whether or not the acts

or omissions are in tort (including

negligence), breach of contract or

otherwise in relation to this

Contract, except to the extent that

liability or loss or damage arises out

of the negligent acts or omissions

of us.

22.2 Each indemnity in this Contract is a

continuing obligation separate and

independent from your other

obligations and survives termination

of this Contract.

22.3 It is not necessary for us to incur

expense or make payment before

enforcing a right of indemnity

conferred by this Contract.

22.4 Without prejudice to our right to

recover Delay Liquidated Damages

under GC 17 or a Price Reduction

Payment or Performance Liquidated

Damages under GC 14, neither

party will be liable to the other party

in any circumstances for any

Indirect Loss or damage.

22.5 Your total liability to us under this

Contract which is not subject to

insurance taken out under GC 21

will not exceed the amount of the

aggregate limit of uninsured liability

set out in the Details.

22.6 If:

(a) you fail to take out and maintain

insurance under GC 21 and we

do not take out the insurance

under GC 21.6; or

(b) you take out insurance under

GC 21 but fail to comply with

your obligations under GC 21,

or through any act or omission

prejudice the insurance cover,

then the amount of your aggregate

limit of uninsured liability set out in

the Details is deemed to increase by

the amount of insurance that would

have been available if you had

taken out and maintained the

insurance or had not prejudiced the

insurance (as the case may be).

22.7 GCs 22.4 and 22.5 do not limit your

liability:

(a) under GCs 2.6, 2.8, 14.4 and

23.6;

(b) under GC 22.1, in respect of

any claim or loss in relation to

personal injury, disease, illness

or death;

this Contract which expressly

impose a greater liability;

(d) in cases of fraud, wilful

misconduct or illegal or unlawful

acts; or

(e) in cases of your acts or

omissions which are contrary to

the most elementary rules of

diligence which a conscientious

contractor would have followed

in similar circumstances.

22.8 [Insert jurisdiction-specific

clause 22.8].

22.9 You further agree that the rights,

obligations and liabilities of the

parties (including those relating to

proportionate liability) are as

specified in this Contract and not

otherwise whether such rights,

obligations and liabilities are sought

to be enforced as a breach of

contract or claim in tort (including

negligence), in equity, under statute

or otherwise at law

23 Intellectual property

23.1 We retain the Intellectual Property

Rights in the Owner Background IP.

23.2 We give you a licence to reproduce

and use the Owner Background IP

as necessary for the sole purpose of

you complying with your obligations

under this Contract. You must not

reproduce, use or otherwise deal

with the Owner Background IP, or

allow any other person to do the

same, for any other purpose. We

have the right to revoke this licence

at any time by notice in writing to

you.

23.3 You retain the Intellectual Property

Rights in the Contractor Background

IP.

23.4 You give us a licence to reproduce

and use the Contractor Background

IP to own, operate, repair and

maintain the Works.

23.5 You agree and acknowledge that all

Project IP will be vested in and

owned by us.

23.6 You warrant that performance of the

Works in accordance with this

Contract will not infringe the

Intellectual Property Rights of any

third party.

23.7 You agree to notify us as soon as

you become aware of any

suspected, threatened or actual

infringement of any Intellectual

Property Rights in the:

(a) Owner Background IP;

(b) Contractor Background IP; or

23.8 You agree to provide all reasonable

assistance we may request to

protect the Intellectual Property

Rights in the:

(a) Owner Background IP; and

(b) Project IP.

24 Confidential information

24.1 Each party undertakes that it will

not, either during the term of this

Contract or at any time thereafter

(except to the extent necessary to

comply with its obligations under

this Contract) disclose to any

person any information of or relating

to the other party of which it has

come to possess as a result of this

Contract or the negotiations

preceding this Contract including

the terms of this Contract, including

all information and documentation

supplied by you or us or information

to which you or we have access in

the performance of this Contract.

24.2 You must not publish alone or in

conjunction with any other party or

organisation any information,

drawing or photograph concerning

this Contract except with our written

consent and subject to such

conditions as we may prescribe.

24.3 Nothing in this Contract prohibits

disclosure of information which:

(a) is in the public domain

otherwise than as a result of a

breach of this GC 24;

(b) is received from a third party

provided that it was not

acquired directly or indirectly by

that third party as a result of a

breach of this GC 24;

Law or any Government

Authority having authority over a

party; or

(d) is for the purposes of obtaining

legal advice.

25 Taxes

25.1 Should any Taxes be levied on, in

respect of, or in relation to, the

performance of the Works these will

be to your account. You will be

responsible for payment of those

Taxes and will immediately provide

us with documentary evidence of

payment if payment is made by you

on our behalf.

25.2 Except where expressly stated

otherwise, all amounts referred to in

PwC 10

this Contract are exclusive of GST.

Where any supply occurs under or

in connection with this Contract or

for the performance of the Works,

the party making the supply

(Supplier) is entitled to increase the

amount payable for the supply by

the amount of any applicable GST.

25.3 Where under this Contract you are

entitled to any adjustment to the

Price, and such adjustment is based

on the reasonable or actual cost to

you of performing any work, any

input tax credits available to you, or

your representative member, in

relation to performing such work will

be deemed to reduce the cost of

such work.

25.4 Where the amount payable to the

Supplier (as that term is defined in

the GST Legislation) for a supply

under or in connection with this

Contract or the Works is based on

the actual or reasonable costs

incurred by the Supplier, the amount

which the Supplier is entitled to be

paid will be reduced by any input tax

credits available to the Supplier, or

its representative member, in

respect of such costs.

25.5 A party will not be obliged to pay

any amount in respect of GST on a

supply to the other party unless and

until a tax invoice that complies with

the GST Legislation has been

issued in respect of that supply.

Each party agrees to do all things

including providing invoices or other

documentation, that may be

necessary or desirable to enable or

assist the other party to claim input

tax credits to the maximum extent

possible or itself claim all input tax

credits that might be available to it

in order to reduce the amount

recoverable from the other party

under this Contract.

25.6 You acknowledge and agree that if

a Law requires us to deduct an

amount in respect of withholding tax

from a payment under this Contract

such that you would not actually

receive on the due date the full

amount provided for under this

Contract then on the due date:

(a) we must deduct the amount for

the withholding tax;

(b) we must pay an amount equal

to the amount deducted to the

relevant Government Authority

in accordance with applicable

Law and give the original receipt

to you; and

equal to the difference between

the payment and the amount

deducted.

26 Force Majeure

26.1 If, as a result of an Event of Force

Majeure, a party becomes unable,

wholly or in part, to perform any of

its obligations under this Contract or

is delayed in performing those

obligations:

(a) the affected party must

immediately give notice to the

other party setting out full

details of the Event of Force

Majeure and the reasons for the

Event of Force Majeure

preventing that party from, or

delaying that party from,

performing the affected

obligations under this Contract;

(b) the affected obligations

identified in the notice referred

to in GC (a), will be suspended

but only so far as, and for so

long as, the performance of

those obligations is affected by

the Event of Force Majeure; and

best endeavours to overcome or

remove the effects of the Event

of Force Majeure as quickly as

possible.

26.2 Upon completion of the Event of

Force Majeure, the affected party

must as soon as reasonably

practicable recommence the

performance of the affected

obligations.

26.3 You have no entitlement and we

have no liability for:

(a) any costs, losses, expenses,

damages or the payment of any

part of the Price during an Event

of Force Majeure; and

(b) any delay costs in any way

incurred by you due to an Event

of Force Majeure.

26.4 An Event of Force Majeure does not

relieve a party from liability for an

obligation which arose before the

occurrence of that event, nor does

that event affect the obligation to

pay money in a timely manner

where the obligation matured prior

to the occurrence of that event.

27 Suspension

27.1 We have the right, at any time and

for any reason, to suspend

performance of your obligations

under this Contract by giving you

notice.

27.2 When you receive a notice of

suspension from us in accordance

with GC 27.1, you must suspend

performance of the relevant

obligations until such time as we

direct you to resume performance of

those obligations by notice in

writing. At such time, you must

promptly recommence the

performance of those obligations in

accordance with this Contract.

27.3 You are only entitled to an

extension of time to the Date for

Commercial Operation and

compensation for delay under GC

16 where the suspension is not

caused by your act, omission or

breach.

28 Termination

28.1 We may, by notice to you,

immediately terminate this

Contract if:

(a) you commit or suffer an

Insolvency Event;

(b) you are in breach of GC 30;

for Delay Liquidated Damages

up to the aggregate liability

specified in Schedule 7 (Delay

Liquidated Damages);

(d) you have incurred and are liable

for Performance Liquidated

Damages up to the aggregate

liability specified in Schedule

5(Performance Tests,

Performance Guarantees and

Performance Liquidated

Damages);

(e) you have abandoned the Works

and/or repudiated this Contract;

(f) you have failed to achieve

Commercial Operation by the

Longstop Date;

(g) you have failed to achieve the

Minimum Commercial Operation

Performance Guarantees by the

Longstop Date; or

(h) the Power Purchase Agreement

is terminated.

The rights given by this GC 28 are

in addition to any other rights that

may be exercised by us under this

Contract or at law.

28.2 You may only terminate this

Contract by notice to us if:

(a) we commit or suffer an

Insolvency Event; or

(b) we have failed to make a

payment in breach of GC 6, and

you have provided us with a

notice requiring payment within

20 Business Days of the expiry

of the period in GC 6.4, except

with respect to any payment or

portion that we dispute under

GC 29.

28.3 If you receive a notice of termination

from us, or you terminate by notice

to us, you must:

(a) stop work (except to the extent

specified in the notice from us);

(b) take such action as necessary

or as we direct, for the transfer,

protection and preservation of

our property; and

costs of termination to us.

28.4 If this Contract is terminated in

accordance with GC 28.2, we will

only be liable for the payment for

the Works performed to the date of

termination and for extra costs

necessarily and reasonably incurred

by you as a result of termination

subject to our rights of set off.

28.5 Any expiry or termination of this

Contract does not affect any rights

of the parties which may have

accrued before the date of expiry or

termination.

29 Dispute Resolution

29.1 If a Dispute arises, the Parties must,

prior to the initiation of any legal

proceedings, use their best

endeavours in good faith to reach a

reasonable and equitable resolution

of the Dispute.

29.2 If a Dispute arises, the Dispute must

be referred to the Representatives

for resolution by written notice

specifying that it is a notice given

PwC 11

under this GC 29 and giving full

particulars of the nature and extent

of the Dispute.

29.3 If the Dispute is not resolved within

10 Business Days of a referral in

accordance with GC 29.2, the

Dispute must be referred to:

(a) determination by an Expert

under GC 29.4, where a Dispute

relates to the application of any

industry or technical standard or

any rules, practices or customs

of any trade or profession, or

whenever the Parties agree that

a point of difference between

them will be resolved by an

Expert; or

(b) resolution by a Panel under GC

29.5 for all other Disputes.

29.4 Where a Dispute is referred for

determination by an Expert under

GC 29.3(a), the following process

and procedure will apply:

(a) The Party wishing to appoint an

Expert must notify the other

Party in writing and give details

of the matter that it proposes to

be resolved by the Expert

(Expert Determination

Notice). The Parties must

endeavour to agree on a single

Expert (independent of the

Parties and with qualifications

and experience appropriate to

the matter in Dispute). If, within

10 Business Days of receipt of

the Expert Determination

Notice, the Parties have not

agreed a single Expert to

appoint, the Parties will request

the President of the Institute of

Engineers Australia to appoint

the Expert.

(b) The Expert will be instructed to

determine the Dispute within the

shortest practicable time and

deliver a report setting out the

Expert’s opinion with respect to

the matters in dispute setting

out the reasons for the decision.

procedure for the conduct of the

process in order to resolve the

Dispute and must provide each

Party with a fair opportunity to

make submissions in relation to

the matter in issue.

(d) Any process or determination of

the Dispute by the Expert shall

be made as an expert and not

as an arbitrator. The

determination of the Expert will

be final and binding on the

Parties without appeal so far as

the Law allows and except in

the case of a manifest error or

where either Party has not been

provided with a fair opportunity

to make submissions in relation

to the matter in issue as

required under GC 29.4(c).

(e) Each Party must bear its own

costs of and incidental to any

proceedings under this GC

29.4. The costs of the Expert

will be borne and paid by the

Party who gives the notice

under GC (a) unless the Parties

agree otherwise.

29.5 Where a Dispute is referred to a

Panel under GC 29.3(b), the

following process and procedure will

apply:

(a) Each Party must nominate a

senior representative for the

Panel within 3 Business Days of

the referral to the Panel in

accordance with GC 29.3(b).

(b) The Panel will determine its own

procedures for the resolution of

a Dispute. Unless otherwise

agreed by the Parties, all

discussions involving the Panel

will be conducted on a without

prejudice basis.

be made by unanimous

agreement of the members of

the Panel.

(d) Any decision of the Panel which

is recorded in writing and signed

by each member of the Panel is

binding on the Parties.

(e) Subject to GC 29.6, if the

Dispute is not resolved by the

Panel within 20 Business Days

of the referral under GC 29.3(b),

either Party may commence

legal proceedings.

29.6 Neither party may commence legal

proceedings unless the parties have

undertaken the processes set out in

GCs 29.1 to 29.5 and those

processes have failed to resolve the

Dispute or one of the Parties has

attempted to follow these processes

and the other Party has failed to

participate.

29.7 Nothing in this GC 29 prevents a

Party seeking urgent injunctive relief

or similar interim relief from a court.

29.8 Despite the existence of a Dispute,

the Parties must continue to perform

their respective obligations under

this Agreement.

30 Assignment and subcontracting

30.1 You may not assign or novate your

rights and obligations under this

Contract without our prior written

consent.

30.2 We have the right to assign or

novate any or all of our rights and

obligations under this Contract.

30.3 You may not subcontract any of

your obligations under this Contract

without our prior written consent.

31 Notices

31.1 Any notice, approval, consent or

other communication in relation to

this Contract must be:

(a) in writing;

(b) marked to the attention of the

relevant Representative; and

(i) left at the address set out in

the Details;

(ii) sent by prepaid ordinary

post (airmail if appropriate)

to the address set out in the

Details; or

(iii) sent by email to the email

address of the addressee

set out in the Details,

however, if the addressee has

notified a change of postal address

or email address, then the

communication must be to that

address.

31.2 A notice, approval, consent or other

communication takes effect from the

time it is received unless a later time

is specified in it.

31.3 A letter or facsimile is deemed to be

received:

(a) in the case of a posted letter, on

the fifth day after posting

(seventh in the case of a letter

sent by airmail); and

(b) in the case of a facsimile, on

production of a transmission

report by the machine from

which the facsimile was sent

which indicates that the

facsimile was sent in its entirety

to the facsimile number of the

recipient.

32 Availability of information

32.1 During the period of this Contract,

and for a further 2 years, our

authorised representatives are

entitled to access any relevant

personnel, accounts, records

(including data stored in computer

files), vouchers, receipts and

documents of any description which

belong to you, or any of your

employees, agents, contractors

and/or subcontractors, for the

purposes of ensuring that the terms

and conditions of this Contract have

been complied with and that all

applications for payment have been

and are being made in accordance

with this Contract.

32.2 All accounts must be maintained by

you.

32.3 Our duly authorised representatives

have the right to reproduce any

relevant documents accessed under

this GC 32.

33 Business ethics

33.1 Neither you, nor any of your

employees, agents, contractors

and/or subcontractors, are

expected, permitted or authorised to

take any action on our behalf,

including any action which could

violate any Laws.

33.2 All financial statements, reports and

applications for payment which are

rendered by you under this Contract

must completely and accurately

reflect the facts about all the

relevant activities, transactions and

circumstances handled for the

account of us.

33.3 You must immediately notify us in

writing of any and all violations of

this GC 33 upon becoming aware of

such violations.

34 Conflict of interest

34.1 You must exercise reasonable care

and diligence to prevent any actions

or conditions which could result in a

conflict with our best interests.

PwC 12

34.2 Your obligations under this GC 34

apply to the activities of your

employees, agents, contractors

and/or subcontractors in their

relations with our employees,

agents, contractors, subcontractors

and/or any third parties associated

with this Contract (as well as their

families).

34.3 Your obligations under this GC 34

include, but are not limited to,

establishing precautions to prevent

your employees, agents, contractors

and/or subcontractors from making,

receiving, providing or offering gifts,

payments, loans, substantial

entertainment or other

considerations for the purpose of

influencing individuals to act

contrary to our best interests.

34.4 You must immediately notify us in

writing of any and all violations of

this GC 34 upon becoming aware of

those violations.

35 Transfer of ownership and care of

works

35.1 The ownership of the Equipment

transfers to us on the earlier of:

(a) when the relevant Equipment is

identified as being intended

solely for incorporation, use or

consumption in the Works;

(b) where that Equipment cannot

reasonably be so identified, at

the time when the relevant

Equipment is incorporated, used

or consumed in the Works; or

invoice the value of which

includes the Equipment.

35.2 The ownership of any Equipment in

excess of the requirements for the

Works reverts to you at the end of

the Defects Liability Period or at any

earlier time when we agree with you

that the Equipment in question is no

longer required for the Works.

35.3 Despite the transfer of ownership of

the Equipment, the responsibility for

care and custody of the Facility and

the Works, including the Equipment,

together with the risk of loss or

damage to the Facility and the

Works, including the Equipment,

remains with you until the

Commercial Operation Date.

35.4 You are responsible for the care

and custody of the Works, including

the Equipment, until the Commercial

Operation Date and must make

good at your own cost any loss or

damage that may occur to the

Works, including the Equipment,

from any cause whatsoever prior to

that date. You are also responsible

for any loss or damage to the

Works, including the Equipment,

caused by you or your suppliers in

the course of any work.

36 Entire agreement

36.1 This Contract constitutes the entire

agreement between the parties and

sets out a full statement of the

contractual rights and liabilities of

the parties in relation to the

performance of the Works and no

negotiations between them nor any

document agreed or signed by them

prior to the date of this Contract in

relation to the Works is of any

effect.

37 Other matters

37.1 Any of our rights under this Contract

may only be waived by us in writing

signed by a duly authorised

representative of us.

37.2 This Contract may not be varied

except in writing signed by a duly

authorised representative of each of

the parties.

37.3 We may exercise a right, remedy or

power in any way we consider

appropriate.

37.4 If we do not exercise a right, remedy

or power at any time, this does not

mean that we cannot exercise it

later.

37.5 To the extent of any inconsistency

between the Details and the

General Conditions, then the

General Conditions will prevail.

37.6 To the extent of any inconsistency

between the General Conditions

and any schedules (including any

documents referred to in the

schedules), then the General

Conditions will prevail.

37.7 To the extent of any inconsistency

between the Details and any

schedules (including any documents

referred to in the schedules), then

the Details will prevail.

37.8 The rights, remedies and powers of

the parties under this Contract are

in addition to any rights, remedies

and powers provided by law.

37.9 This Contract may consist of a

number of copies each signed by

one or more parties to this Contract.

When taken together, the signed

copies are treated as making up the

one document.

38 Governing law

38.1 This Contract is governed by the

laws of [insert jurisdiction]

excluding the Vienna Convention on

Contracts for the International Sale

of Goods and the [insert relevant

sale of goods legislation].

38.2 The parties agree to submit to the

exclusive jurisdiction of the courts of

[insert jurisdiction]. Each party

waives any right it has to object to

an action being brought in those

courts including by claiming that

action has been brought in an

inconvenient forum or that those

courts do not have jurisdiction.

39 Definitions and Interpretation

39.1 In this Contract unless the contrary

intention appears:

ARENA Funding means the

funding from ARENA applied for by

us [Drafting note: further details

to be provided]

Auxiliary Works means those

works performed by third parties in

connecting the Facility to the grid

under the Power Purchase

Agreement, and includes the

installation of metering equipment,

as specified in Schedule 1

(Specification).

Business Day means a day when

the banks in [insert capital city of

jurisdiction] are open for business

excluding a Saturday, Sunday or

public holiday.

Certificate of Commercial

Operation means the certificate

issued by us in accordance with GC

15.2(a)

Commencement Date means the

date of commencement of the

Works as set out in the Details.

Commercial Operation means that

stage of the Works when the

following has occurred:

(a) the Facility is complete in all

respects in accordance with this

ContrSRFact except for minor

defects which would not affect

the performance of the Facility

or the ability of the Facility to

operate legally, safely, reliably

and efficiently;

(b) all Tests to be satisfactorily

performed before Commercial

Operation occurs, including the

Commercial Operation

Performance Tests in respect of

the Facility, have been passed,

and the Commercial Operation

Performance Guarantees have

been met, or a reduction in the

Price has been determined and

any resulting amounts due have

been paid by you;

operated safely under all

anticipated or likely operational

conditions and is in a condition

which allows us to comply with

all Laws relating to its operation;

(d) all documents and other

information, including the

technical materials, required

under this Contract have been

supplied to us in accordance

with this Contract or as directed

by us from time to time; and

(e) any other preconditions to

Commercial Operation set out in

the Details have been met.

Commercial Operation Date

means the date certified by us as

the date on which Commercial

Operation occurred.

Commercial Operation

Performance Guarantee means

the performance guarantees set out

in Schedule 5 (Performance Tests,

Performance Guarantees and

Performance Liquidated Damages),

to be met by you in order to achieve

Commercial Operation.

Commercial Operation

Performance Tests means the

performance and other tests set out

in Schedule 5 (Performance Tests,

Performance Guarantees and

Performance Liquidated Damages),

to be satisfactorily performed and

PwC 13

completed by you in order to

achieve Commercial Operation, at

the times and in accordance with

the requirements of Schedule 5

(Performance Tests, Performance

Guarantees and Performance

Liquidated Damages).

Contract means this engineering

procurement and construction

contract comprising the Details, the

General Conditions, the schedules

and any other documents referred

to in the Details and the Schedules.

Contractor Background IP means

Intellectual Property Rights owned

by or licensed to you (including

know how and technical

information) which exists prior to the

date of this Contract but does not

include Owner Background IP or

Project IP.

Date for Commercial Operation

means the date by which

Commercial Operation must be

achieved as set out in the Details,

which may be extended or reduced

in accordance with GC16.3.

Defects Liability Period means the

period set out in the Details.

Delay Liquidated Damages means

the liquidated damages for delay

specified in the Details.

Details means the section of this

Contract headed “Details”.

Equipment means the equipment

to be supplied by you and

incorporated into the Works to form

part of the Facility, as set out in the

Specification.

Event of Force Majeure means an

event or circumstance which is

beyond the control and without the

fault or negligence of the party

affected and which by the exercise

of reasonable diligence the party

affected was unable to prevent

provided that event or circumstance

is limited to the following:

(a) riot, war, invasion, act of foreign

enemies, hostilities (whether war

be declared or not), acts of

terrorism, civil war, rebellion,

revolution, insurrection of

military or usurped power,

requisition or compulsory

acquisition by any governmental

or competent authority;

(b) earthquakes, flood, lightning or

other physical natural disaster,

but excluding weather

conditions regardless of

severity; and

industrial disputes at a national

level, or strikes or industrial

disputes by labour not

employed by the affected party,

its subcontractors or its

suppliers but excluding any

industrial dispute which is

specific to the Site or you or the

performance of this Contract.

Expert Determination Notice has

the meaning given in GC29.4

Facility means the [insert] MW

photovoltaic power station located

at [insert ] and all associated

infrastructure to be designed,

engineered, procured, fabricated,

constructed, installed,

commissioned and tested in

accordance with the terms of this

Contract.

General Conditions means these

general conditions comprising GCs

1 to 39.

Good Solar Industry Practices

means the practices followed when

work is undertaken in accordance

with all of the following:

(a) in a sound and workmanlike

manner;

(b) with due care and skill;

unnecessary or unreasonable

delays;

(d) in a manner which allows for

this Contract to be efficiently

performed;

(e) using materials of acceptable

quality and merchantable

quality which are fit for the

purposes reasonably

ascertainable from this

Contract;

(f) in accordance with the Law and

any Government Authority

Approval; and

(g) consistent with best practice for

an experienced, prudent and

competent solar project

contractor of the highest skill

and quality.

Government Authority Approval

means any authorisation,

assessment, consent, approval,

licence, lease, determination, ruling,

permit, accreditation, registration,

exemption, filing, variance, order,

judgment, decree, publication,

notice to, declaration of or with, or

regulation by or with any

Government Authority or under any

Law relating to the performance of

the Works or otherwise in

connection with the Works

(including the use of the Works), the

Site or the Project.

Government Authority means any

national, state, local, regional,

territorial or municipal government,

ministry, governmental department,

commission, board, bureau, agency,

instrumentality, executive,

legislative, judicial or administrative

body, having jurisdiction over the

Works, the Site or the Project.

GST Legislation means the A New

Tax System (Goods and Services

Tax) Act 1999 (Cth) and any related

Act imposing such tax or legislation

that is enacted to validate, recapture

or recoup such tax.

GST means the tax payable on

Taxable Supplies under the GST

Legislation.

Industrial Matter means industrial

action of any sort, whether

threatened or actual, involving your

employees working at or in

connection with the Site.

Insolvency Event means in respect

of a party:

(h) the board of the party passes a

resolution under section 436A of

the Corporations

Act 2001 (Cth);

(i) the party is placed into

administration pursuant to Part

5.3A of the Corporations

Act 2001 (Cth);

(j) a deed of company

arrangement is entered in

respect of the party;

(k) an application is made to a

court for the winding up of the

party;

(l) the party resolves that it be

wound up voluntarily;

(m) a winding up order is made in

respect of the party;

(n) a receiver or receiver and

manager are appointed to any

substantial assets of the party;

(o) a court orders that there be a

meeting of creditors or

members of the party for any

purpose related to Part 5.1 of

the Corporations

Act 2001 (Cth);

(p) a mortgagee takes possession

of any substantial assets of the

party; or

(q) the party informs the other party

or any creditor of the party, in

writing, that it is insolvent.

Intellectual Property Rights

includes the protected rights

attaching to inventions, patents,

registered designs, trademarks,

confidential information.

Law means any statute, ordinance,

code, law, decree, circular, rule or

regulation by any Government

Authority.

Longstop Date means [insert].

[Drafting note: this will be the

‘sunset date’ by which the

Commercial Operation must be

achieved and will be set on a

project by project basis

depending on the requirements

of the PPA.]

Minimum Commercial Operation

Performance Guarantee means

the minimum performance

guarantees set out in Schedule 5

(Performance Tests, Performance

Guarantees and Performance

Liquidated Damages) required to be

met by you.

Owner Background IP means

Intellectual Property Rights owned

by or licensed to Owner (including

PwC 14

know-how and technical

information) which exists prior to the

date of this Contract but does not

include Contractor Background IP or

Project IP.

Panel means the panel established

in accordance with GC 29.3.

parties means you and us.

party means you or us.

Performance Guarantees means

all of the Performance Guarantees

specified in Schedule 5

(Performance Tests, Performance

Guarantees and Performance

Liquidated Damages), and includes

the Commercial Operation

Performance Guarantees and the

Post-COD Performance

Guarantees.

Performance Liquidated

Damages means the liquidated

damages for underperformance

specified in the Details.

Performance Tests means the

tests as specified in Schedule

5(Performance Tests, Performance

Guarantees and Performance

Liquidated Damages) in order to

ascertain whether the Facility or a

specified part is able to obtain the

Performance Guarantees.

Post COD Performance Tests

means the performance and other

tests set out in Schedule 5

(Performance Tests, Performance

Guarantees and Performance

Liquidated Damages), to be

satisfactorily performed and

completed by you before Final

Completion is achieved, and at the

times and in accordance with the

requirements of Schedule 5

(Performance Tests, Performance

Guarantees and Performance

Liquidated Damages).

Post-COD Performance

Guarantee means the performance

guarantee set out in Schedule 5

(Performance Tests, Performance

Guarantees and Performance

Liquidated Damages) to be met by

you on a date that is more than 24

months after Commercial Operation

has been certified under this

Contract but before Final

Completion is achieved.

Power Purchase Agreement

means the power purchase

agreement in respect of the Facility

between us and [insert Seller],

dated on or about the date of this

Contract.

Price means the price specified in

the Details and Schedule 3 (Price

and Schedule of Rates), subject to

any increases or decreases as may

be made in accordance with this

Contract.

Project IP means Intellectual

Property Rights discovered or

coming into existence as a result of,

for the purposes of or in connection

with the performance of the Works

in accordance with this Contract but

does not include Contractor

Background IP or Owner

Background IP.

Project means the [insert wattage]

MW solar PV power station located

at [insert location].

Representative means the

authorised representative

nominated by each party in the

Details or any other person

appointed by the relevant party and

notified to the other party from time

to time in accordance with GC 5.

Schedule of Rates means the

schedule of rates set out in

Schedule 3 (Price and Schedule of

Rates).

Serial Defect means substantially

the same defect having the same

root cause has been identified in:

(a) 5% of a factory batch of the

modules; and

(b) 5% of a factory batch of the

inverters,

delivered, or ready to be shipped, to

the Site for incorporation into the

Facility.

Site Arrangements means the site

arrangements set out in Schedule 2

(Site).

Site has the meaning given to it in

Schedule 2 (Site).

Spare Parts means the spare parts

specified in Schedule 1

(Specification).

Specification means the

specification for the Facility, as set

out at Schedule 1(Specification).

Standards means all industry

standards and government

regulations applicable to the Works.

Taxes means any and all present

and future sales, use, personal,

property, real property, value added,

goods and services, turnover,

stamp, documentary, interest

equalisation, business, occupation,

excise, income, corporation, profits,

gains, gross receipts, or other taxes,

fees, withholdings, imposts, levies,

duties or other charges of any

nature whatsoever or whensoever

imposed (other than taxes on our

net income) by any government,

governmental, semi-governmental

or other relevant authority, together

with any penalties, fines or interest

thereon or similar additions,

imposed, levied or assessed or

otherwise payable.

Technical Materials includes plans,

designs, drawings, engineering

information, data, specifications,

reports, accounts and any other

material specified in this Contract.

Variation means any modification,

addition, omission, or other variation

to, in or from the Works in

accordance with GC 7.

Warranted Component Part

Defect means any defect in design,

workmanship, materials or

installation of a single or series of

Warranted Component Part not

reasonably capable of being

discovered by the Owner prior to the

expiry of the Warranted Component

Part Defect Period in the course of

normal operation and maintenance

of the Facility and which materially

impacts on the performance of the

Facility or the rate at which the

Spare Parts are being or are likely

to be consumed.

Warranted Component Part

Defect Period means the period

listed for any specific single or

series of Warranted Component

Parts in Schedule 6 (Warranted

Component Parts) starting from the

Commercial Operation Date.

Warranted Component Part

means any Equipment or Spare

Part identified in Schedule 6

(Warranted Component Parts).

we and us and our means the

person named in the Details as the

Owner.

Wilful Misconduct means,

regarding the Contractor:

(a) any fraud, fraudulent

concealment or dishonesty by

you or your personnel;

(b) any conduct, act or omission by

you or your personnel having

substantially harmful

consequences, done or omitted

to be done intentionally and with

conscious or indifference to, or

disregard for, the rights or

welfare of those who are or may

be thereby affected; or

omission of you or your

personnel.

Works means the works to be

performed by you in accordance

with this Contract as specified in the

Details and Schedule 1

(Specification).

you and your means the person

named in the Details as the

contractor.

39.2 In this Contract unless the contrary

appears:

(a) a reference to this Contract or

another instrument includes any

variation or replacement of

either of them;

(b) the singular includes the plural

and vice versa;

a body corporate, an

unincorporated association or

an authority;

(d) a reference to a person includes

a reference to the person’s

executors, administrators,

successors, substitutes

(including persons taking by

novation) and assigns;

PwC 15

(e) if a period of time is specified

and dates from a given day or

the day of an actual event, it is

to be calculated exclusive of

that day;

(f) a reference to a GC or schedule

is a reference to a GC or

schedule in this Contract; and

(g) the words “including” and

“include” are a reference to

“including, but not limited to”.

39.3 Headings are inserted for

convenience only and do not affect

the interpretation of this Contract.

PwC 16

Schedule 1 Specification

Note:

This Schedule must set out a detailed description of the Facility and the Works to be performed under this Contract.

The detailed description of the Facility and the Works to be supplied must be as clear as possible and must be broken

into a series of subheadings including:

(a) any relevant background and a general description of the Works;

(b) detailed description of the Works to be performed, including the Equipment and Spare Parts to be supplied,

including detailed technical requirements;

(d) any specific standards which the Contractor is expressly required to comply with;

(e) any specific timing, milestones and program which the Contractor is expressly required to comply with;

(f) any project or control co-ordination procedures;

(g) any equipment or materials that the Owner has agreed to supply;

(h) the documentation that the Contractor is required to provide (eg. manuals, technical material, outage reports);

and

(i) any spare parts that the Contractor is required to provide.

Any abbreviations must be defined and technical terms must be explained.

For example, this Schedule could be set out in the following manner:

1. Background and general description of the Works

[This section should include all relevant background information about the equipment, site or

conditions that relate to the Works. It should also include general (1-2 line) descriptions of the

Works and Equipment to be supplied]

2. Works to be performed including technical requirements

[insert detailed description of the Works, Equipment and the Owner’s technical requirements and

drawings and other relevant materials where applicable. This section should contain detailed

specifications for the Works and Equipment to be supplied (including panels and inverters and any

other Warranted Component Parts). You must clearly identify the activities the Contractor has to

perform in order to carry out the Works and supply the Equipment.

Consider:

• the order in which activities must be carried out;

• who is responsible for delivery and unloading of materials and where to;

• are there any activities that the Owner will be performing during the contract term;

• what are the technical specifications that the Works and Equipment must meet?

3. Standards and procedures

You must comply with the following standards:

[List any Australian Standards or other recognised standards or site standards with which must be

complied while carrying out the Works. Quality assurance requirements should be included in this

section]

You must comply with the following procedures:

[List any procedures]

4. Testing

[It is extremely important to incorporate accurate testing requirements as part of this Contract.

Achieving acceptable test results is one of the conditions to practical completion, which determines

when the Owner will have to pay the Contractor. It is preferable that the Owner be required to pay

the Contractor when the Owner is satisfied that the Works carried out and Equipment supplied by

the Contractor will achieve the results needed by the Owner.

PwC 17

The type of tests and the type of results that will be acceptable to the Owner should be clearly

described in this Contract. Sometimes, the best way to represent this will be in tabular form. If

referring to an Australian Standard, extra care must be taken to ensure that the results referred to

in the standard are appropriate. The results should be described in the table or reference should be

made to the section in the Australian Standard that sets out the type of results that will be

acceptable to the Owner.

For example:

Description of test Required result

In the presence of us, you must carry out the tests

set out in AS 1228-1997 on each weld.

100% of the welds must achieve 100%

compliance with AS 1228-1997.

5. Documentation

[insert relevant documentation]

6. Timing, Milestones and Program

You must comply with the following timing requirements: [List the Owner timing requirements (if any)]

You must achieve the following milestones: [List milestones to be achieved (if any)]

You must comply with the following program: [List the program to be complied with (if any)]

If there is too much information to be physically included in this Schedule, you can incorporate the appropriate

documents by reference. If this is done, you must clearly identify the documents by author, title, date and revision

number. Take care not to include parts of documents that do not relate to the Works.

In preparing this Schedule, you should take extreme care to ensure that all of the Works which the owner wants the

Contractor to perform and supply are included in order to reduce the likelihood of disputes at a later date, and to

reduce the likelihood that Contractors may seek to profit from variations in the future.

PwC 18

Schedule 2 Site

Note:

This Schedule must set out a detailed description of the Site on which the Works will be performed.

For example, this Schedule could be set out in the following manner:

1. Description of the Site

[Insert site details including address and include or refer to drawing numbers or maps of the Site]

2. Other sites

[Insert details of other sites, if any, about which the Contractor needs information in order to

perform the Works]

3. Access to the Site

[Insert details of access and any conditions which may impact on access of which the Contractor

should be aware]

PwC 19

Schedule 3 Price and schedule of rates

Note:

This Schedule must set out the Price and a detailed breakdown of the Price.

If there are any provisional sums they must be described in detail in this Schedule.

This Schedule must also set out under a separate heading “Schedule of Rates”, any schedule of rates. If rates and

prices are included only for the purpose of valuing variations, this must be made clear. If there are no rates and

prices, you should insert “Not applicable” under the heading “Schedule of Rates”.

For example:

1. Price

[Insert the clearest breakdown of the Price that you can obtain. This may be in tabular form]

2. Schedule of Rates

[Insert any applicable schedule of rates]

3. Provisional sums

[Provide clear details of any provisional sums that may apply to the contract and the activities to

which those sums relate]

PwC 20

Schedule 4 Payment schedule

Note:

Various payment options are listed below - delete whichever option is not appropriate.

Option 1 - Monthly Progress Payments

On the [insert date] of each month (or as otherwise agreed by us) you must submit an invoice to us.

Option 2 - Milestone Payments

Within [insert days] of completion of each milestone set out in the milestone payment schedule below, you must

submit an invoice to us for the relevant amount payable on achievement of the milestone.

[insert milestone payment schedule]

Option 3 - Lump Sum Payment

Within [insert days] of completion of the Works, you must submit an invoice to us for the relevant amount payable

on completion.

[You may wish to back end the payment in the Payment Schedule and include an amount which will

be paid x days after Commercial Operation or on the expiry of the Defects Liability Period]

PwC 21

Schedule 5 Performance tests, performance guarantees and

performance liquidated damages

Note:

This Schedule must set out the Performance Tests, Performance Guarantees, and Performance Liquidated Damages

payable by the Contractor if the Facility fails to achieve the Performance Guarantees based upon the performance

ratios tested.

With respect to the Performance Liquidated Damages, to ensure there is no risk in a court interpreting GC 13 as a

penalty and invalidating it or reading it down, it is important that the reasoning and specific facts known to the

parties which support their conclusion given at GC 13.14 that the price reduction payment or liquidated damages

amount is a fair and reasonable pre-estimate of the damages flowing from not achieving the Performance

Guarantee.

Another option is to base the damages on a formula or set separate amounts for various breaches or triggering

events, and select an amount that reflects the seriousness of each breach or event. Where appropriate, a scale of

graduated amounts of liquidated damages may be used to reflect the increasing financial consequences in

circumstances such as repeated instances of non-compliance with the Performance Guarantee.

1. Performance Tests

a. Commercial Operation Performance Tests

[Generally, the Performance Tests on Commercial Operation would test the nameplate

capacity of the Facility, the output capacity of the Facility and the performance ratio of the

facility. You should develop the testing framework in conjunction with your technical

advisers to match the requirements of the PPA (if any) and to align with the technology to be

utilised]

b. Post-Commercial Operation Performance Tests

[Generally, the Performance Tests after Commercial Operation would test the performance

ratio of the Facility. You should develop the testing framework, including the number of tests

and their timing (eg. 1 or 2 years post Commercial Operation) in conjunction with your

technical advisers to match the requirements of the PPA (if any) and to align with the

technology to be utilised]

2. Performance Guarantees

a. Commercial Operation Performance Guarantees

[The level at which the Commercial Operation Performance Guarantees and Post-COD

Performance Guarantees are set will vary based on factors such as the financial model for

the project (ie. required IRR and other measures) and any requirements under the PPA. This

will need to be worked through with your technical and financial advisers]

b. Minimum Commercial Operation Performance Guarantees

[The level at which the Minimum Commercial Operation Performance Guarantees will be

based on the minimum revenue to be generated by the Facility in order for it to be

sustainable. This will need to be worked through with your technical and financial advisers]

c. Post-COD Performance Guarantees

[As above. Note that if the Commercial Operation Performance Guarantees are not met and a

Price Reduction Payment is made, the level of the Post-COD Performance Guarantees will

need to be adjusted to reflect this and to ensure that the Owner is not compensated twice for

the same loss]

3. Price Reduction Payment and Performance Liquidated Damages

a. Price Reduction Payment

[The purpose of the Price Reduction Payment is to ensure that the Owner is compensated for

the loss of the anticipated future revenues from the Facility for failure to meet the

Commercial Operation Performance Guarantees, calculated on an NPV basis. As noted

above, the level at which this is set will need to be worked through with your technical and

financial advisers to reflect the financial model and technical aspects of the project. The Price

Reduction Payment will be a lump sum amount, generally calculated by reference to a

formula]

PwC 22

b. Performance Liquidated Damages

[As above. Performance Liquidated Damages will be specified as a daily amount payable]

Your aggregate liability for Performance Liquidated Damages will not exceed [insert]% of the Price.

PwC 23

Schedule 6 Warranted component parts

Note:

This Schedule must set out the key items of equipment for which warranties are available. For a solar PV Facility

this would generally include the panels, inverters, transformers and (if used) trackers as a minimum, and ideally

would also include additional equipment such as cabling and mounts. Again, this will be a point to be negotiated

with the Contractor.

Warranted Component Parts Warranted Component Part Periods

[insert] [insert]

PwC 24

Schedule 7 Delay liquidated damages

Note:

This Schedule must set out the Delay Liquidated Damages to be paid per day. Consider the Owner’s exposure

financing costs, internal costs and existing pre-commitments. To ensure there is no risk in a court interpreting GC 17

as a penalty and invalidating it or reading it down, it is important that the reasoning and specific facts known to the

parties which support their conclusion given at GC 17.3 that the delay liquidated damages amount is a fair and

reasonable pre-estimate of the damages flowing from the delay.

An example Delay Liquidated Damages regime is set out below:

Delay Liquidated Damages

You must pay us Delay Liquidated Damages in the amount of [insert amount] per day from the Date for

Commercial Operation the earlier of the Commercial Operation Date and the date this Contract is terminated.

Your aggregate liability for Delay Liquidated Damages will not exceed [insert]% of the Price.

Cap on Delay Liquidated Damages and Performance Liquidated Damages

Despite the aggregate liability for Performance Liquidated Damages specified in Schedule (Performance Tests,

Performance Guarantees, and Performance Liquidated Damages), your aggregate liability for Delay Liquidated

Damages and Performance Liquidated Damages will not exceed [insert]% of the Price.

PwC 25

Schedule 8 Form of Bank Guarantee

BANK GUARANTEE

[On the letterhead of the Bank]

Date: [insert]

To: [insert name and address of the Owner]

Dear [insert]

[insert Project] Operation and Maintenance Contract - Bank Guarantee

You entered into a contract dated [insert date] with [insert] (Contractor) titled [insert] for certain works and

services (Works) to be undertaken by the Contractor (Contract).

We, [insert Bank], irrevocably and unconditionally undertake with you that whenever you give written notice to us

demanding payment, we will:

(a) without any right of set-off or counterclaim;

(b) without reference to the Contractor, any other person or the Contract;

(d) without reference to the correctness or validity of the written demand; and

(e) despite any notice by the Contractor or any other person not to pay the whole or any part of the Guaranteed

Sum,

immediately pay to you or as you may direct such an amount as you may in that notice require not exceeding

(when aggregated with any amount(s) previously so paid) the sum equivalent to [5% (or 10% of the Price, reducing by

50% after Commercial Operation under the Contract)] of the Total Yearly Fee (Bank Guarantee).

This Bank Guarantee is valid from the date of this letter in its full amount of [insert]. Our liability under this Bank

Guarantee will be a continuing liability and continues to be fully valid with respect to any written notice to us referred

to above until the earlier of:

(f) us receiving written notification from you that this Bank Guarantee is no longer required by you;

(g) until this Bank Guarantee being returned to us; or

(h) until payment to you by us of the whole sum of [insert].

We may at any time without being required to do so pay you the sum of [insert] less any amount or amounts which

we have previously paid under this Bank Guarantee.

Any payment by us in accordance with this Guarantee will be in immediately available and freely transferable

Australian Dollars free and clear of and without any deduction for or on account of any present or future Taxes, levies,

imposts, duties, charges, fees, set off, counterclaims, deductions or withholdings of any nature whatsoever and by

whomever imposed.

Our obligations under this Guarantee constitute direct primary, irrevocable and unconditional obligations. Our

obligations will not require any previous notice to or Claim against the Contractor and will not be discharged or

otherwise prejudiced or adversely affected by any:

(a) waiver, time, lenience or tolerance which you may grant to the Contractor, or the discharge or release of any

person;

(b) breach or breaches of the Contract by the Contractor or you;

Contract (with or without or knowledge or consent);

(d) intermediate payment or other fulfilment made by us;

(e) change in the constitution or organisation of the Contractor; or

(f) other matter or thing which in the absence of this provision would or might have that effect.

PwC 26

This Bank Guarantee may not be assigned by you to any person, firm or company, without our prior written consent,

which must not be unreasonably withheld. We hereby consent to:

(a) you assigning this Bank Guarantee to your lenders or to the Security Trustee appointed by your lenders and we

undertake that we will acknowledge such assignment; and

(b) the grant of security by you to [insert].

You must notify us in writing of any assignment, after which we must make any payment claimed under this

Guarantee to the person, firm or company specified in the notice which will constitute a full and valid release by us in

relation to that payment.

Any notice required by this Guarantee is deemed to be given when delivered (in the case of personal delivery) or 96

hours after being despatched by prepaid registered post or recorded delivery (in the case of letter) or as otherwise

advised by and between the parties.

This Guarantee is governed by and construed in accordance with the laws of [insert jurisfiction] and we agree to

submit to the exclusive jurisdiction of the courts of [insert jurisdiction], Australia and any courts that may hear

appeals from these courts regarding any proceedings under or in connection with this deed.

This Guarantee is executed by us.

IN WITNESS of which the [insert Bank] has duly executed this Guarantee on the date stated above.

PwC 27

Executed.

[Drafting note: execution blocks to be confirmed]

Signed and delivered by [insert] in accordance with

section 127 of the Corporations Act 2001 (Cth) and by:

Signature of director Signature of director/secretary

Name of director (print) Name of director/secretary (print)

Address for notices: [Insert address]

PwC 28

PwC 29