23.1
Subject to Machinery of Government changes, neither party may assign, sell or transfer its interest under this Agreement without the other party's prior written consent, such consent not to be unreasonably withheld and not to be withheld at all if:
Confidentiality 23.2
(a) The parties each agree not to disclose any Confidential Information to the other party disclosed pursuant to this Agreement without the prior written consent of the other party except where such information is:
(i) publicly available other than through a breach of this Agreement;
(ii) lawfully known to the party to which it is disclosed;
(iii) approved for release in writing by an authorised representative of the party owning the information;
(iv) disclosed only to a party's employees, board members, auditors, insurers, lawyers, lenders or other persons having a legitimate reason to know such information;
(v) required by law to be disclosed; or
(vi) for the purposes of prosecuting or defending any legal proceeding.
(b) ESCO acknowledges that the Customer may disclose Confidential Information:
(i) to Parliament, the Governor, Cabinet or a Parliamentary or Cabinet committee or subcommittee;
(ii) to any agency, authority, instrumentality, Minister or Officer of the State of South Australia to whom it is customary for the Customer to disclose information such
as the Confidential Information (whether or not the Customer is legally obliged to do so.
(c) The Customer may disclose this Agreement and/or information in relation to this Agreement in either printed or electronic form and either generally to the public or to a particular person as a result of a specific request.
(d) Nothing in this clause derogates from:
(i) the Customer’s obligations under any provisions of this Agreement; or
(ii) the provisions of the Freedom of Information Act 1991 (SA).
(e) The Customer acknowledges and consents to the use by the ESCO of any data and information relating to the energy consumption at the premises, whether provided by the Customer or obtained by the ESCO, for the purposes of benchmarking and compilation of a national data base or for the purposes of use by the ESCO as a reference or for any internal purpose agreed to by the Customer, but does not consent to the publication of any of this data or information for any purpose.
(f) Nothing in this Agreement derogates from the powers of the Auditor-General under the Public Finance and Audit Act 1987 (SA).
(g) The obligations set out in this Clause 23.2 will survive the completion or earlier termination of this Agreement.
Equal Opportunity 23.3
The ESCO must, if it is a relevant employer within the meaning of the Equal Opportunity for Women in the Workplace Act 1999 (Cth) comply with its obligations under that Act, and use its best endeavours to ensure that any sub-contractor, consultant or supplier who is a relevant employer complies with its obligations under that Act.
Counterparts 23.4
The parties may execute this Agreement in two or more counterparts and all counterparts together constitute one instrument.
Entire agreement 23.5
This Agreement, constituted by this document and the DFS, contains the entire agreement between the parties hereto. Each party acknowledges that, except as expressly stated in this Agreement, that party has not relied on any representation, warranty or undertaking of any kind made by or on behalf of the other party in relation to the subject matter of this Agreement.
Further Assurances 23.6
Each party, at its own expense and within a reasonable time of being requested by the other party to do so, must do all things and execute all documents which are reasonably necessary to give full effect to this Agreement.
Governing law and jurisdiction 23.7
This Agreement is governed by and must be construed in accordance with the laws applying in the State of South Australia.
The parties submit to the non-exclusive jurisdiction of the Courts of South Australia and the Commonwealth of Australia in respect of all matters or things arising out of this Agreement.
Legal costs 23.8
Each party must pay its own legal costs of and incidental to the preparation and completion of this Agreement.
No merger 23.9
A term or condition of, or act done in connection with, this Agreement does not operate as a merger of any of the rights or remedies of the parties under this Agreement and those rights and remedies continue unchanged. Each term of this Agreement that has not been carried into effect at the termination of this Agreement survives the termination.
No variation 23.10
This Agreement may not be modified, amended, added to or otherwise varied except by a document in writing signed by each of the parties.
No waiver 23.11
Failure by either party to insist upon the performance by the other party of any one or more of the terms and conditions hereof or to exercise any power or right conferred on that party by this Agreement shall not be deemed to be a waiver of any rights or remedies that a party may have and shall not be deemed a waiver of any prior or subsequent breach or default.
No provision of this Agreement shall be deemed to have been waived unless such waiver shall be in writing and signed by the person being or purporting to be a director, manager, secretary or other officer or authorised person of the party giving notice on that party's behalf.
Notices 23.12
(a) Any notice or other communication to or by a party to this Agreement:
(i) may be given by personal service, post, facsimile or email;
(ii) must be in writing, legible and in English addressed in accordance with Schedule 1;
(iii) or to any other address last notified by the party to the sender by notice given in accordance with this clause;
(iv) in the case of a corporation, must be signed by an officer or under the common seal of the sender;
(v) is deemed to be given by the sender and received by the addressee:
(A) if delivered in person, at the time of delivery to the addressee;
(B) if posted, two (2) Business Days (or six (6) Business Days, if addressed outside Australia) after the date of posting to the addressee whether delivered or not; or
(C) if sent by facsimile transmission, at the time shown on the transmission report by the machine from which the facsimile was sent which indicates that the facsimile was sent in its entirety and in legible form to the facsimile
number of the addressee notified for the purposes of this clause,
(vi) if sent by email at the time shown on the email as received by computer system of the addressee.
(vii) but if the delivery or receipt is on a day which is not a Business Day or is after 5.00 PM (addressee's time) it is deemed to have been received at 9.00 am on the next Business Day.
Relationship between the parties 23.13
The relationship between the parties to this Agreement is one of independent contractors and nothing in this Agreement or any arrangement made between the parties shall constitute either party as an employee, agent or partner of the other party nor shall either party represent that it has any power, right or authority to bind the other party to any obligation or liability or to assume or create any obligation or liability on behalf of the other party.
Stamp duty 23.14
All stamp duty (including fines and penalties, if any) payable in respect of this Agreement or any instrument created in connection with it must be borne by the Customer, except where the ESCO is at fault. The Customer undertakes to keep the ESCO indemnified against all liability relating to the stamp duty, fines and penalties.
Compliance with Law 23.15
The parties shall at all times comply with the statutory requirements. Without limitation to the foregoing, the ESCO must comply with the provisions set out in Schedule 6.
Severability 23.16
In the event of any clause or part of a clause of this Agreement being invalid, illegal, unlawful or otherwise being incapable of enforcement pursuant to any law, that clause or part of a clause shall be deemed to be severed from this Agreement and shall be of no force and effect but all other clauses and parts of clauses of this Agreement shall nevertheless remain in full force and effect and no clause or part of a clause of this Agreement shall be construed to be dependent upon any other clause or part of a clause unless so expressed herein.
Goods and Services Tax (GST) 23.17
(a) All prices and fees stated in this Agreement or provided under this Agreement must include GST which may be applicable.
(b) Every invoice issued must be in the form of a valid GST tax invoice, or be accompanied by a valid GST tax invoice. No amount is payable under this Agreement until a valid GST tax invoice for the amount is received.
(c) If there is any abolition or reduction of any tax, duty, excise or statutory charge associated with the GST, or any change in the GST, the consideration payable for the taxable supply must be varied so that the ESCO’s net dollar margin in respect of the supply remains the same.
(d) If the Customer is required to reimburse the ESCO for any costs or other amount, despite any other provision of this Agreement, the Customer
does not have to pay to the ESCO any sum included in that amount for which the ESCO can claim an input tax credit or other like offset.
(e) For the purposes of this clause GST means the goods and services tax under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and the terms tax invoice, taxable supply and input tax credit have the meaning under the said Act.
Set-Off 23.18
If either party claims a sum to be properly payable under this Agreement, it may withhold, deduct or set off the sum claimed against any sum to which the other party is entitled under this Agreement.
Parties representatives 23.19
The Customer may from time to time appoint individuals to exercise delegated Customer’s functions, provided that:
(a) no aspect of any function shall at any one time be the subject of delegation to more than one Customer’s representative;
(b) delegation shall not prevent the Customer exercising any function; and (c) the Customer forthwith gives the ESCO written notice of respectively the
appointment, including the Customer’s representative’s name and delegated functions; and the termination of ach appointment.
The ESCO shall manage the installation of the EPC Solutions personally or by a competent representative. In that regard:
(d) matters within an ESCO’s representative’s knowledge (including directions received) shall be deemed to be within the ESCO’s knowledge.
(e) the ESCO shall forthwith give the Customer written notice of the representative’s name and any subsequent changes.
(f) if the Customer makes a reasonable objection to the appointment of a representative, the ESCO shall terminate the appointment and appoint another representative.
Customer records 23.20
The ESCO agrees that in performing its obligations under this Agreement it will act in a manner that ensures that the Customer is able to comply with the Contracting and Official Records Standard.
Ownership of carbon credits 23.21
Any carbon credits, carbon offsets or renewable energy certificates that may accrue pursuant to the Commonwealth Government’s carbon pollution reduction scheme or similar emissions trading scheme or any Commonwealth or State renewable energy target scheme as a result of the EPC Solutions works or in connection with the EPC Solutions works and any subsequent measurement and verification process will be wholly owned by the Customer and the ESCO must take all steps necessary to give effect to this result (including signing all necessary documents).
Construction Industry Training Fund 23.22
For construction contracts over $15,000, the Construction Industry Training Fund
works in South Australia from 1 September 1993. Payment of this levy shall be the responsibility of the ESCO. Proof of payment of the levy may be required prior to the first or any progress payment being made under the Agreement.
Workforce Participation and Skills Development 23.23
(a) General
(i) This clause 23.23 applies where the EPC Solutions works contract sum is more than $150,000.
(ii) An objective of this Agreement is to increase the employment and training of Apprentices and Trainees, Cadets, Aboriginal people and Local Persons with Barriers to Employment (the ‘Target Group’) and to Upskill people engaged directly in connection with the performance of the Agreement.
(iii) The ESCO formally declares its intent to work in conjunction with the South Australian Government to meet the South Australian Government’s policy targets by employing and training people from the Target Group, including through on-site work by subcontractors and Upskilling people engaged directly in connection with the performance of the Agreement.
(iv) Without limiting other remedies available to the Customer, the ESCO acknowledges that failure to comply in part or in whole with the requirements of this clause may be a factor that will be taken into account in the award of future contracts by the South Australian Government.
(b) Targets
(i) If this Agreement is a Tier 1 Contract or a Tier 2 Contract, the ESCO must, subject to this clause 23.23, ensure that:
(A) the number of On-site Hours performed by people in the Target Group (engaged by either the ESCO or its subcontractors) (the ‘Target Group Component’) is no less than 11% of the Total Contract Hours; and
(B) the sum of:
(I) the Target Group Component; and
(II) the number of hours of Upskilling provided to people engaged directly in connection with the performance of the Contract (engaged by either the ESCO or its subcontractors) (the ‘Upskilling Component’),
is no less than 15% of the Total Contract Hours (the ‘Target Hours’); and
the On-site Hours performed by Aboriginal people is equivalent to up to 2% of the Total Contract Hours.
(c)
In reporting performance against this clause, and in calculating whether the ESCO has met the targets in clause 23.23(b) the following provisions apply:
(A) ¾ hours cannot be double counted;
(B) ¾ On-site Hours performed by Aboriginal people must be reported separately but also contribute to the Target Group Component;
(C) ¾ Upskilling provided up to 6 months prior to the commencement date and during the Term can be included in the Upskilling Component;
(D) ¾ on-Site Upskilling provided to people in the Target Group should be included in the Target Group Component, rather than in the Upskilling Component. On-Site Upskilling provided to all other categories of worker engaged directly in connection with the performance of the Agreement can be included in the Upskilling Component; and
(E) ¾ off-Site Upskilling hours provided to all categories of worker (other than Cadets) engaged directly in connection with the performance of the Agreement can be included in the Upskilling Component.
(d) The ESCO will seek, but is not obliged, to achieve performance by Apprentices, Trainees and Cadets of On-site Hours equivalent to 10% of the Total Contract Hours or more.
(e) Reporting
(i) If this Agreement is a Tier 1 Contract or a Tier 2 Contract, the ESCO:
(A) must submit to the Customer:
(I) for Tier 1 Contracts - a Workforce and Skills Development Plan before it commences any on-EPC Solutions work under the Agreement;
(II) for Tier 2 Contracts - a Workforce and Skills Development Strategy no later than 15 Business Days before it commences any on EPC Solutions work under the Agreement,
each of which must contain the information required by and be in the form set out in the Workforce Participation in Government Construction Procurement Implementation Guidelines For Contractors and Contracting Agencies from time to time which can be accessed at www.dpti.sa.gov.au/wpgcp (the ‘Implementation Guidelines’) (unless the Customer has approved in writing another form);
(III) must submit to the Principal:
(B) a Workforce Participation and Skills Development Interim Report no later than 10 Business Days after the end of each quarter (with the first quarter commencing on the date the Contractor commences on-Site work under the Contract); and
(C) a Workforce Participation and Skills Development Final Report no later than 20 Business Days after completion, each of which must contain the information required by and be generated using the Workforce Participation Reporting System (WPRS) (unless the Customer
has, in writing, either approved another form or agreed to generate the report itself);
(II) must (and must ensure that its subcontractors) regularly update the WPRS with:
(D) details of the On-site Hours worked by people in each category of the Target Group;
(E) the total labour hours for all workers;
(F) the total On-site Hours for all workers;
(G) details of the Upskilling provided to people engaged directly in connection with the performance of the Contract, including the hours undertaken, the name and date of the course and the name of the training organisation; and (H) any other information required by the WPRS for the reports
described in clause 23.23(e);
and the ESCO must ensure that for each reporting period described in clause 23.23(e), the WPRS is updated with all such information before the report for that period is generated (or where the Customer has agreed to generate the report, before the expiration of the period for lodgement of the relevant report described in clause 23.23(e);
(I) must report in accordance with the Implementation Guidelines; and
(J) must (and must ensure that its subcontractors) keep records of compliance with this clause 23.23(e) and provide the Customer with such assistance, including the provision of information, as it may reasonably require in connection with it carrying out an audit of the ESCO’s compliance with this clause.
(f) Additional requirements for Tier 2 Contracts
(i) If this Agreement is a Tier 2 Contract, the ESCO must:
(I) appoint a person to be responsible for coordination of the Workforce and Skills Development Strategy; and (II) seek to use Aboriginal owned and/or managed
enterprises where possible.
(g) Other
(i) The ESCO must not (and must ensure that its subcontractors do not) contravene the Privacy Act 1988 (Cth). This may require the ESCO (or its subcontractor) to obtain a person’s consent prior to disclosing that person’s personal information in connection with this clause.
(ii) Where the EPC Solutions works contract sum is more than $150,000, but is not a Tier 1 Contract or a Tier 2 Contract, the ESCO is encouraged (but is not required) to meet the obligations set out in clauses 23.23(e)..
(h) Definitions
For the purpose of this clause:
(i) ‘Aboriginal person’ means a person who identifies as being Aboriginal and/or is considered by members of his or her community as being Aboriginal. This definition includes Torres Strait Islander people;
(j) ‘Apprentice/Trainee’ means a person (who may be either an apprentice or a trainee) undertaking training in a trade or declared vocation under a training contract as provided for in the Training and Skills Development Act 2008 (SA) whether on a full-time or part-time basis;
(k) ‘Building Contract’ means a contract for construction of residential, commercial, industrial or institutional facilities;
(l) ‘Building Work’ means any work required to be done by the Contractor under the Contract in connection with the construction of residential, commercial, industrial or institutional facilities;
(m) ‘Business Day’ means any day other than a Saturday, Sunday or public holiday in South Australia;
(n) ‘Cadet’ means a person undertaking tertiary or post-graduate study linked to paid employment with the Contractor (or its subcontractor), provided that both the person’s employment and study are linked to the building and civil construction industry (for example, employment and training in civil engineering, structural engineering, mechanic engineering, architecture, surveying or construction management);
(n) ‘Cadet’ means a person undertaking tertiary or post-graduate study linked to paid employment with the Contractor (or its subcontractor), provided that both the person’s employment and study are linked to the building and civil construction industry (for example, employment and training in civil engineering, structural engineering, mechanic engineering, architecture, surveying or construction management);