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Attachment 1 - Tender Consideration Plan - Community Battery Grant
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Tender Consideration Plan
Noosaville Community Battery
Contract No: CN00386
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Contents
Page No.
1. DEFINITIONS AND INTERPRETATION ........................................................................................1
2. OBJECTIVE OF THE TENDER CONSIDERATION PLAN............................................................2
3. HOW THE OBJECTIVE IS TO BE ACHIEVED..............................................................................2
4. HOW THE ACHIEVEMENT OF THE OBJECTIVE WILL BE MEASURED ...................................2
5. ALTERNATIVE WAYS OF ACHIEVING THE OBJECTIVE...........................................................3
6. PROPOSED TERMS OF THE CONTRACT...................................................................................4
7. RISK ANALYSIS OF THE MARKET..............................................................................................4
SCHEDULE 1 PROPOSED CONTRACT TERMS.............................................................................1
Tender Consideration Plan
Issue: 1.0
Effective Date: July 2019 Page | 1
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Background:
Noosa Council applied for grant funding under the Federal Government’s Community Batteries for
Household Solar - Delivery of Election Commitments Stream 1, in partnership with Zero Emissions
Noosa Inc (ZEN Inc.) and Yarra Energy Foundation (YEF) for the installation of community battery in
Noosaville. Applications for the grant were open from 30th January until 24th February 2023.
The grant application required the battery technology and proposed project partners to be specified.
Subsequently, Council obtained assistance with its grant application from YEF and identified YEF in
the grant application as a proposed partner for their expertise in the implementation of batteries for
community benefit.
This project is a pilot to consider how a community battery could potentially operate within the Noosa
LGA and provide benefit to the community.
Noosa Council was advised they were successful in their grant application on May 15, 2023 and,
subject to the acceptance of the grant agreement, will be awarded $500,000 for the completion of the
project.
Community batteries are relatively new infrastructure in moving energy transition to renewable supply.
Further to this grant round, The Australian Renewable Energy Agency (ARENA) has recently opened
Expressions of Interest for the remaining 342 batteries under the Federal Government’s commitment
with applications for this closing June 30th 2023. This recently awarded funding for the community
battery in Noosaville will provide a template for further opportunities for Council, or other stakeholders,
in future grant funding rounds or other sources of investment.
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Tender Consideration Plan, unless inconsistent with the context or subject matter:
(a) Act means the Local Government Act 2009;
(b) Council means Noosa Shire Council;
(c) YEF means Yarra Energy Foundation
(d) Objectives means the objective set out in Clause 2 of this Tender Consideration
Plan;
(e) Regulation means the Local Government Regulation 2012;
(f) Tender Consideration Plan means this tender consideration plan, which Council has
prepared and adopted pursuant to section 230 of the Regulation.
(g) Grant funding means the Community Batteries for Household Solar - Delivery of
Election Commitments Stream 1 “the grant”
1.2 Interpretation
In this Tender Consideration Plan, unless inconsistent with the context or subject matter:
(a) a reference to a person includes any other legal entity;
(b) a reference to a legal entity includes a person;
(c) words importing the singular number include the plural number;
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(d) words importing the plural number include the singular number;
(e) headings are for reference purposes only and must not be used in interpretation;
(f) where any word or phrase is given a defined meaning any other part of speech or
other grammatical form concerning the word or phrase has a corresponding meaning;
(g) a reference to a statute includes all regulations and subordinate legislation and
amendments; and
(h) references to writing include any mode of representing or reproducing words in
tangible and permanently visible form and includes e-mail and fax.
2. OBJECTIVES OF THE TENDER CONSIDERATION PLAN
2.1 The objective of this Tender Consideration Plan is to document a procurement strategy that
will enable Council to effectively:
(a) deliver a community battery in Noosaville in accordance with the conditions of the
grant agreement;
(b) utilise the pilot to learn lessons and gain knowledge which can assist Council to
deliver subsequent projects with potentially less reliance on project partners.
(c) Utilise the pilot to assess the community benefit provided by the battery in terms of
emission reduction, and revenue that could be utilised for further community emission
reduction initiatives.
(d) utilise the pilot to determine the emission reduction potential of community batteries
for Noosa Shire.
3. HOW THE OBJECTIVES ARE TO BE ACHIEVED
3.1 The Objectives will be achieved by directly engaging YEF as follows:
(a) for the delivery of the community battery in Noosaville in accordance with the
milestones set out in the grant application and agreement, and;
(b) for the operation and maintenance of the community battery for an initial 5 years;
(c) for the execution of the battery operations into the National Energy Market to
generate a revenue source in accordance with the relevant rules and conditions of the
Australian Energy Market Operations and Energex as the Distributed Network Service
Provider (DNSP).
(d) YEF will develop a project plan for the manufacture, installation and commissioning of
the community battery in Noosaville in accordance with the Milestones stated in the
grant application and the agreement. This will include all relevant approvals required
from Energex, Council and other relevant authorities.
(e) YEF will procure the stated technology for the battery, in consultation with Council, in
accordance with the proposal and budget set out in the grant application and
agreement.
(f) YEF will develop a community engagement plan. to ensure community understanding
and acceptance of the community battery in the proposed location
(g) YEF will develop a management plan for the operation and maintenance of the
community battery to achieve the greatest benefit to the community in terms of
emission reduction and return on investment. This will include the establishment of a
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community benefit fund to use any profit from the community battery operation for
further emission reduction initiatives in the Noosa LGA.
4. HOW THE ACHIEVEMENT OF THE OBJECTIVES WILL BE MEASURED
4.1 The Objectives will be measured as follows:
(a) Council will measure the achievement of the Objective in clause 3.1(a) by assessing
whether the milestones in the grant application and agreement have been
consistently met and the community battery has been successfully delivered.
(b) Additionally, Council will measure the achievement of the Objective in clause 3.1(a)
by developing a lessons learned and future options report at the conclusion of the
process and assessing whether Council is in a better position to deliver subsequent
projects with less reliance on project partner.
(c) Council will measure the achievements of Objective in clause 3.1(b) and (g) through
the implementation of an Operations contract/agreement with YEF. As part of this
YEF will provide regular reports on the operational metrics of the battery including
emissions reduction.
(d) Council will measure the achievements of Objectives in clauses 3.1(c), (d), (e)
through the assignment of a Council Project Manager who will monitor the
performance of YEF under the agreed contract/agreement for this pilot.
(e) Council, in partnership with ZEN Inc., and supported by YEF as required, will
measure Community satisfaction during this pilot utilising appropriate metrics.
5. ALTERNATIVE WAYS OF ACHIEVING THE OBJECTIVES
5.1 Alternative ways of achieving the Objectives
(a) Council could conduct one or more open requests for tender pursuant to section 228 of
the Regulation for the engagement of one or more suitable contractors to undertake
the manufacture, design, installation and/or operation and maintenance of the
community battery.
5.2 Why the alternative ways were not adopted
(a) An open request for tender process was not undertaken because:
(i) Council does not have adequate knowledge or expertise in this industry to
make the grant application or properly scope and assess tenders and is
heavily reliant on YEF to provide the necessary expertise;
(ii) this is a pilot project for a very new piece of infrastructure that will benefit the
community and assist in meeting Council’s Environment Strategy 2019 and
Climate Change Response Plan 2021 for Noosa LGA to achieve net zero
emissions by 2026;
(iii) as can be seen from the risk analysis in clause 7:
A. whilst there are other providers of “in front of the meter batteries”
operating to soak up excess solar, other providers such as
Distribution Network Service Providers (DNSP) or for profit
companies operate the batteries to meet their own objectives such as
grid stabilisation and/or profit.
B. to our current knoweledge YEF is the only organisation that is not for
profit and has successfully installed and operated an “in front of the
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meter battery” with the sole purpose of community benefit and
emission reduction;
C. YEF successfully installed the first community battery not owned by a
DNSP in Fitzroy North, Victoria through the Victorian Government’s
Neighbourhood Battery Initiative (NBI) and are progressing a second
implementation project through the second round of the NBI. The
experience from these projects gives Noosa Council strong
confidence in YEF’s project management capabilities, resourcing,
procurement processes, and stakeholder and community
engagement strategies.
D. ZEN Inc has undertaken considerable community engagement in the
limited time that was available within the identified area of the
proposed battery location
(iv) it is more likely that the Objectives will be achieved if Council partners with a
not-for-profit organisation which has market leading expertise and a
willingness to share its knowledge and expertise with Council rather than a for
profit company with objectives that are likely not aligned with Council’s net
zero emission targets.
6. PROPOSED TERMS OF THE CONTRACT
6.1 The proposed terms of the Contract are contained in Schedule 1.
7. RISK ANALYSIS OF THE MARKET
(a) Community batteries are a very recent piece of infrastructure and are currently
expensive and complicated. There are several trials being conducted throughout
Australia utilising different participation models. Noosa Council conducted a risk
analysis of the market through publicly available information on the web, discussions
with community groups, industry experts and universities. Council provided funding
for ZEN Inc to commission a report to investigate the issues and potential for a
Battery Storage System located on the local Energex Network in Noosa (2021).
Council has also considered the ANU Knowledge Hub of Battery Storage and Grid
Integration and the City of Melbourne Power Melbourne Project, as well as
discussions with Energex and industry expertise. The operating models of community
batteries is still being explored and understood. As of 2022, there was around 20
community batteries installed in Eastern Australia. https://bsgip.com/knowledge-
hub/neighbourhood-battery-trials-programs-in-australia/).
Neighbourhood batteries are predominantly being installed in front of the meter by
Distribution Network Service Providers (DNSPs). DNSPs are primarily interested in
community batteries for grid support, frequency stability and reducing the need to
replace inadequate infrastructure to support the emerging two-way electricity system,
The DNSP focus is not necessarily on emissions reduction. There are a number of
different models for participation in community batteries. Some trial battery programs
require participating residents to subscribe to use the battery to deposit solar during
the day and utilise in the evening (Powerbank WA). Other programs such as the
Ausgrid Battery Trial reward the solar participants individually for depositing solar into
the battery, however this widens the solar divide and rewards those who can afford
solar. City of Melbourne (CoM) is currently developing the Power Melbourne Program
to provide residents and small business with access to affordable renewable
electricity in line with the CoM’s commitments to emission reduction across the LGA.
City of Melbourne recently issued an Expression of Interest to potential solution
providers to test the market to deliver, install and operate the community batteries and
retail the electricity to interested participants on behalf of City of Melbourne. This
process commenced in December 2022 and has not yet concluded.
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YEF successfully installed the first community battery not owned by a DNSP in Fitzroy
North, Victoria through the Victorian Government’s Neighbourhood Battery Initiative
(NBI) and are progressing a second implementation project through the second round
of the NBI. The experience from these projects gives Noosa Council strong
confidence in YEF’s project management capabilities, resourcing, procurement
processes, and stakeholder and community engagement strategies. YEF has also
developed a strong understanding of, and ensured compliance with, relevant laws
and standards. The YEF community battery operational model was the simplest in
terms of community participation. ZEN Inc has undertaken considerable community
engagement in the limited time that was available within the identified area of the
proposed battery location.
(b) YEF has successfully installed and currently operating Victoria’s first in fromt of the
meter community battery. https://www.yef.org.au/community-batteries/ As part of this
process they undertook significant market analysis to identify the battery technology
and management systems. YEF rigorously tested the market by engaging with two
dozen battery manufacturers to meet the environmental requirement (least embodied
carbon emissions, noise emissions safety and recyclability) and commercial
considerations. YEF utilises the Pixii PowerShaper Battery Technology.
(c) Pad Mounted community batteries less than 15m2 are not considered assessable
development under Schedule 6 Queensland Planning Regulation. YEF also
recognised that despite the planning exemption, community acceptance is crucial to
the success of the installation of a community battery. YEF and ZEN Inc have
significant experience in community engagement for the placement of the community
battery and have developed an extensive community engagement plan for the
selection of the battery site and bringing the community on board with understanding
and acceptance of the community battery.
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Schedule 1 Proposed Contract Terms
Noosa Shire Council Community Battery Project
Development Agreement Key Terms
Background and purpose
The terms sheet below summarises the key terms and positions proposed by Council in relation to a Development Agreement (Agreement) for the proposed
installation, operation and maintenance of a community battery in Noosaville for the provision of energy to local households and into the grid (Project). This is not an
offer from Council to any other party or vice versa. A legally binding agreement will not exist until a written contract is formally executed by the parties.
Project generally
Item Issue Term
1. Purpose of these This project is a pilot project to consider how a community battery could operate within the Noosa Local Government Area and
contractual provide benefit to the community.
arrangements
We think the contracting structure should be kept as simple as possible, given the nature of the Project.
2. Structure of contractual This document assumes that there will only be one contract i.e. a Development Agreement that will:
arrangements
• establish a contractual relationship between the Council and YEF;
• cover supply and installation of the community battery by YEF; and
• cover operation and maintenance by YEF for five years.
Regarding other stakeholders under the Development Agreement:
• ZEN will be a subcontractor directly engaged by YEF as the Public Relations Consultant;
• Acacia Energy will be directly engaged by YEF as the Energy Retailer
The proposed key terms of the Development Agreement are set out below.
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Development Agreement – Proposed Key Terms
Item Issue Term
3. Parties Noosa Shire Council (Council)
Yarra Energy Foundation (YEF)
4. Cooperation The Parties are committed to working together in a cooperative and collaborative manner with a view to:
Commitment
(a) encouraging cooperation and innovation;
(b) establishing and maintaining an environment which encourages honest, open and timely sharing of information; and
(c) sharing and transferring such behavioural aspects to all persons associated with the Project to achieve a successful
outcome in all respects.
The parties warrant that they shall perform all duties and act in good faith.
Acting in good faith includes:
(a) being fair, reasonable and honest;
(b) doing all things reasonably expected by the other party and by the Agreement; and
(c) not impeding or restricting the other party's performance.
5. Documents comprising The Agreement will comprise agreed documents, likely:
Development
Agreement • Bespoke Development Agreement terms and conditions
• Any Existing Design (Technical Specifications and Drawings)
• Specification
• Price Schedule (including milestone payment schedule if used)
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Item Issue Term
• Program
• Reliance information (Principal Supplied Information upon which the Contractor can rely, if any)
This can be adjusted to reflect the relevant documents required for this project.
6. Project Objectives The objectives of the Project are to:
(a) deliver a community battery in Noosaville in accordance with the conditions of the Grant Agreement;
(b) utilise this pilot Project to learn lessons and gain knowledge which can assist Council to deliver subsequent projects
more efficiently and where possible, with less reliance on project partners;
(c) utilise the pilot to assess the community benefit provided by the battery in terms of emission reduction, and revenue
utilised for further community emission reduction initiatives;
(d) utilise the pilot to determine the emission reduction potential of community batteries for Noosa Shire.
The Agreement will contain clear obligations on each of the parties but it is intended that risk will lie where it is best able to be
managed and neutral risks will be shared.
7. Project Group (PG) Each Party will have a Representative who will manage the day to day running of the Project
Composition of PG has been established by ZEN.
PG to be chaired by Council Representative
Scope of role and functions of PG to be agreed
8. Key definitions Act means the Local Government Act 2009
Agreement
Approvals
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Item Issue Term
Australian Energy Market Operator (AEMO)
Community Benefit Fund
Construction Completion (ie when the battery is on site on its pad)
• Mechanical Completion (ie when the battery is plugged in to the grid and operating)
• Practical Completion (ie when the battery has passed all tests and is working to the standards expected)
• Final Completion (ie after the DLP has expired)
Construction Period
Council means Noosa Shire Council
Council Representative is [Anne Nolan]
Defects
Deliverables
Design life
Distributed Network Service Provider or DNSP means Energex
Electricity Distribution Network means the electricity distribution network owned by Energex
Electricity Retailer means Acacia Energy, the nominated electrical retailer and aggregator of electricity sold in the
electricity market.
Equipment means the community battery and all related components, including items needed for Grid Connection
Fees means the fees payable to YEF for operation and maintenance of the Equipment during the O&M Period
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Item Issue Term
Grant Agreement means the agreement arising from the successful application prepared by ZEN on behalf of the
Council for grant funding under the Federal Government’s Community Batteries for Household Solar - Delivery
of Election Commitments Stream 1
Grid Connection
Grid Connection Approval means Energex Connection Approval
Good industry practice means:
• utilizing those practices, methods, techniques and acts that, as at the date of the Agreement; and
• exercising that degree of skill, diligence, prudence and foresight,
that would reasonably be expected of experienced and competent contractors experienced in the design, engineering,
supply, construction, testing, commissioning, and operation and maintenance of facilities similar to the facility and
complying with all law;
Law
Liability limit
Manufacturers’ warranties
Milestone
National Energy Grid
Objectives means the objectives for the Project set out in Item 6 above
O&M Period
Party
Performance guarantees means the performance guarantees identified in the specification
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Item Issue Term
Performance guarantee tests means the tests set out in the specification to determine whether the performance
guarantees have been achieved.
Price means amount(s) payable to YEF for supply and installation of the Equipment
Principal supplied information
Project Group
Project Plan
Public Relation Consultant means ZEN Energy
Regulation means the Local Government Regulation 2012
Representative
Services
Site
Superintendent TBC
Warranty period means warranty period for a particular item of equipment as stated in the specification, or where there
is no applicable warranty period stated in the specification, means 12 months from the date of [practical completion].
WHS Laws
WUC
the Works
9. Boilerplate There will be standard boilerplate provisions relating to interpretation including:
• Governing Law - Queensland
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Item Issue Term
• Notices
• No assignment or Change of Control
• No waiver
• Counterparts
• Electronic execution
10. Confidentiality Subject to reasonable exceptions (including Council’s statutory disclosure obligations) each Party shall keep the other Party’s
information confidential.
11. Performance and Supply and installation under the Agreement will be a lump sum Price.
Payment
The Agreement will clarify items that have been allowed for in the Price.
The Agreement will contain reasonable mechanisms for the adjustment of the Price for circumstances beyond the control of
YEF, such as variations, changes in law, delays caused by Council etc.
During the O&M Period, Council will pay YEF Fees for operation and maintenance of the Equipment.
Rise and Fall items subject to the Grant Agreement.
12. Battery Site Selection The preferred site is Jack Morgan Park. Final site selection process to be identified .
13. Customers YEF is responsible for engagement and management. Similar to the FN1 Project model.
14. YEF’s Obligations YEF will:
a) deliver and install the community battery (Equipment) in Noosaville in accordance with the Milestones set out in the
Grant Agreement and this Agreement;
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Item Issue Term
(b) operate and maintain the community battery (Equipment) for an initial suggest 5 years
(c) connect the Equipment into the National Energy Grid to generate a revenue source in accordance with the relevant
rules and conditions of the Australian Energy Market Operator (AEMO) and Energex as the Distributed Network Service
Provider (DNSP)
(d) YEF will develop Project Plans for the manufacture, installation and commissioning of the community battery in
Noosaville in accordance with the Milestones stated in the Grant Agreement. This will include all relevant approvals required
from Energex, Council and other relevant authorities
(e) YEF will procure the stated technology for the battery, in consultation with Council, in accordance with the proposal
and budget set out in the Grant Agreement.
(f) YEF will develop a Community Engagement Plan to be implemented by ZEN to ensure community understanding and
acceptance of the community battery in the proposed location
(g) YEF will develop a Management Plan for the operation and maintenance of the Works to achieve the greatest benefit
to the community in terms of emission reduction and return on investment. This will include the establishment of a community
benefit fund to use any profit from operation of the Works for further emission reduction initiatives in the Noosa Local
Government Area.
15. Warranties The Agreement will include appropriate warranties in respect of:
• YEF’s design obligations;
• YEF’s obligations to carry out the work under the Contract and to engineer, supply, install, test and commission the Works
(including the Equipment);
• the documents provided by YEF (such as management plans, O&M manuals etc)
• the Works when completed, including in relation to:
o design life and rate of deterioration;
o the works being structurally and mechanically sound and complying with legislative requirements;
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Item Issue Term
• timing, including adherence to the program and the date for practical completion;
• the equipment to be supplied, including as to compliance with the contract, fitness for purpose and installation, calibration
and configuration (with a corresponding agreed warranty period);
• the expertise, qualifications, licences etc of YEF and YEF’s key personnel.
The warranties will include an obligation to utilise Good Industry Practice.
16. Principal Supplied The Agreement will clarify which information provided by Council can be relied upon by YEF and which information must
Information be independently verified by YEF.
17. Security YEF is a not-for-profit organisation.
YEF to provide Security for defects and general performance (reduced at practical completion, balance released at end of
DLP or resolution of disputes).
18. Compensable The Agreement will provide clarity as to when a direction in respect of an error in a document forming part of the Agreement
directions will entitle YEF to additional costs.
19. Existing design YEF is required to warrant and represent that any existing design documents / specifications prepared by or on behalf of YEF
are suitable, adequate and appropriate.
YEF will not be permitted to alter anything in the existing design except to the extent necessary to overcome any buildability
issues, and subject to certain appropriate restrictions around the permissible impact of those changes on the design.
20. Construction records YEF will have to:
• keep a complete record of work under the contract (and compliance against funding body requirements);
• allow Council and Superintendent to access such records;
• provide a copy of such records to the Superintendent as a requirement of practical completion and (updated records at the
end of the defects liability period).
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Item Issue Term
21. Project Plans YEF will be required to prepare, obtain approval of and comply with appropriate Project Plans.
22. Manuals YEF to prepare O&M Plan in accordance with the Agreement (YEF will be required to comply with it).
23. Manufacturer and YEF must provide manufacturers’ warranties for relevant equipment and warranties commonly provided by its subcontractors.
subcontractor
warranties
For certain key equipment identified in the Agreement, YEF may be required to arrange for the manufacturer to attend the site
to inspect the and certify that the Equipment has been installed, configured and calibrated in accordance with the
manufacturer's recommendations.
YEF will do everything reasonably necessary to ensure that Equipment warranties will not be or become void during the
warranty period. YEF to be liable for any act or omissions (including any of its subcontractors) that would void any Equipment
warranty.
24. Intellectual property Each Party keeps own Background IP, licences it to the other party
rights
Project IP is owned by YEF, licenced to Council
Any IP developed during the Project vests with the party that managed the development of it
Standard warranty and indemnity for IP infringement
Potential obligations on YEF to “cure” or “remedy” a breach by YEF of the intellectual property rights of a third party
Moral rights clause
25. Law The Agreement will clearly define each party’s responsibility for obtaining approvals
YEF must comply with all Law and Approvals (eg licences, permits etc).
YEF will be required to comply with relevant requirements imposed by State Government funding deeds (Local Government
Grants and Subsidies program and the Building Our Regions program) including the Grant Agreement and which may also
include compliance with certain State Government policies
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Item Issue Term
YEF will be entitled to claim an adjustment of the Price (and an extension of time) for certain changes in law occurring after
the date of the Agreement. Notice requirements will apply.
Specific obligations will be included (if applicable) in relation to the Building Industry Fairness (Security of Payment) Act 2017
(Qld) (including Queensland Building and Construction Commission Act, Heavy Vehicle National Law, labour hire licensing,
environmental management.
YEF will be required to indemnify Council in respect of breaches by YEF of Laws.
26. Work Health and During the Construction Period, YEF will be appointed as the ‘principal contractor’ for the Site, if one is required.
Safety
YEF must:
• comply with its obligations under WHS Law including its obligations as principal contractor;
• prepare and adopt a WHS plan (as part of the Project Plans) and other documentation which addresses all WHS hazards
and issues relevant to YEF’s obligations under the Agreement
• provide information to Council
• comply with Council’s directions relating to health and safety
27. Care of the work and YEF will be responsible for the care and protection of WUC and will be required to effect insurance of the Works from
reinstatement of the date of commencement of WUC on the Site until 4:00pm on the date of Practical Completion.
damage
YEF must rectify loss or damage that occurs to WUC (other than loss or damage caused by certain agreed excepted
risks) during the period of YEF’s care.
28. Title Title of the Equipment passes to the Council upon payment for the Equipment by the Council.
YEF must warrant that title in the Equipment, when it passes to the Council will be free and clear of any and all liens,
restrictions, reservations, security interests and encumbrances.
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Item Issue Term
29. Liability and YEF to indemnify Council against loss or damage Council incurs, with a carve out for loss or damage caused or contributed to
indemnity by Council
Each party’s liability will be limited to an agreed limit.
None of the Parties will be liable for specified consequential losses.
Limit of liability and exclusion of consequential loss will be subject to certain standard carve outs
30. Insurances During the Construction Period, [YEF] to effect and maintain the following insurances:
• Insurance of the Works
• Public liability
• Professional indemnity
• Workcover
• (possibly) industrial special risks
During the O&M Period, [YEF] to effect and maintain the following insurances:
• Public liability
• Professional indemnity
• Workcover
• (possibly) industrial special risks
Evidence of insurance to be provided prior to accessing the site and otherwise as requested by Council.
Failure to insure will allow Council to effect insurances and deduct premiums from payments to Contractor
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Item Issue Term
Council to be named as an insured or as an interested party (as appropriate)
31. Superintendent Council must appoint a Superintendent and ensure that when acting as certifier, valuer or assessor, the Superintendent fulfils
all aspects of the role and functions honestly, independently, and in accordance with the Contract.
32. Key Personnel YEF must provide the nominated key personnel and back up key personnel identified in the Agreement for the duration of the
Agreement
33. Site Council to allow YEF possession of and non-exclusive access to the Site
YEF to allow Council access to any place where it is performing WUC
YEF to allow access to the Site to the Superintendent, Council and Council’s personnel after reasonable written notice for any
purpose.
34. Latent Conditions YEF will be entitled to an extension of time and costs in connection with a latent condition. Notice requirements will
apply.
35. Defective work Defective work and services to be rectified by YEF in the usual manner, including removal, demolishing, redesigning,
reconstructing, replacing or correcting the work, or re-performing the services.
Council will be entitled to rectify the work or services itself if YEF fails to comply with a reasonable direction in relation
to defective work or services.
36. Testing The Agreement will detail required tests, who conducts, conditions under which the tests will be undertaken who bears
the cost. The Superintendent may direct further tests.
37. Working hours Working days and hours will be agreed and documented in the Agreement.
38. Program YEF will be required to provide a program in the form agreed with Council
YEF must update the program at agreed times and when reasonably directed by the Superintendent.
39. Suspension The Superintendent may suspend WUC during the Construction Period. If the suspension is not the fault of YEF, YEF
will be entitled to an adjustment of the Price and an extension of time.
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Item Issue Term
40. Time and progress WUC may be divided into stages of completion to accommodate:
• return of security for unfixed plant and material (if applicable);
• commissioning;
• any performance testing, including all pre-commissioning tests;
• completion of all of YEF’s obligations (Practical Completion).
YEF will be required to complete the relevant stage by the date stated in the Agreement (as extended under the Agreement).
YEF shall be entitled to claim an extension of time for a standard list of qualifying causes of delay.
YEF shall be entitled to claim costs in certain situations if it is delayed by Council or Council’s personnel.
YEF will be liable for liquidated damages if it does not reach practical completion by the date for practical completion (as
extended under the Agreement). Liquidated damages to be capped at an agreed amount
The parties may agree on a provision for acceleration of the work.
Notice requirements will apply.
41. Performance TBC
Guarantees
42. Defects liability There will be a 12-month defects liability period commencing on Practical Completion.
Defects identified in the works during the defects liability period must be rectified [at YEF’s expense??].
YEF and Council may agree on a defects liability plan which provides for the processes, procedures and timeframes for the
rectification of defects.
43. Services YEF to perform Services during O&M Phase in accordance with:
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Item Issue Term
• this Agreement
• Law and Approvals (expressly including Licence)
• Good Operating Practice
• Project Plans, including O&M Plan [and any relevant Asset Management Plan if Council is to own Equipment]
• Key Performance Indicator
44. Scheduled Maintenance YEF to maintain Equipment in accordance with:
• O&M Manual
• O&M Plan
• Asset Management Plan (if any)
45. Force Majeure Notice
Parties to meet
Affected obligations are suspended during FM Event
Payment obligation for O&M Fee is not suspended for Services that can still be performed, but is otherwise suspended
Parties to recommence performance as soon as possible once FM Event is ended
Termination by either party after [6 months] continuous suspension. To be linked to payment on termination clause
46. Variations The Superintendent may direct variations and may request an estimate or a quote for variations.
Variations will be valued by agreement or failing agreement in accordance with an agreed order of precedence. YEF may
claim an extension of time for delay caused by variations.
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Notice requirements will apply.
YEF may request a variation for its convenience.
47. Progress claims Payment may be claimed at the times stated in the Agreement (either clearly agreed milestones or monthly progress
payments, but consistent with the drawdown provisions in the Grant Agreement (if any)).
Payment for unfixed plant may be permitted subject to agreement on appropriate form of security for Council.
The Agreement shall clearly identify amounts which may be claimed and amounts which may be deducted from payments.
The Superintendent shall certify the amount payable in respect of a claim within an agreed timeframe.
A final construction payment claim may be made by YEF and a final certificate issued by the Superintendent at the end of the
defects liability period.
48. Default and termination A standard default and termination provision will be included which allows an appropriate time for a party to show cause.
Substantial breaches will be the standard breaches.
If YEF does not show cause (or YEF becomes insolvent), Council will have the right to take work out of YEF’s hands or
terminate.
Council will have a right to terminate for convenience on the giving of written notice, subject to certain payments being made
to YEF.
Council will have a general step-in right in respect of a failure by YEF to comply with an obligation under the Agreement.
The Agreement will contain a standard provision regarding frustration of contract.
49. Notification of claims Certain notices must be given by YEF within time limits under the Agreement to ensure that Council receives prompt notice of
potential claims so that Council can manage those potential claims. All notice requirements will be clear, reasonable and
achievable. There will be a time limit on disputing directions of the Superintendent, so that potential disagreements are
identified early.
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50. Dispute resolution Disputes to be initially resolved at Project level.
Parties to negotiate for specified period
If cannot agree within time, dispute referred to Project Group for second stage of commercial discussions
If still no resolution, dispute will be referred to expert determination
Expert decision is final and binding
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