Original clause 41 repealed by Act of 1915, 6 Geo. 5 No. 28, s. 24; present clause inserted by Act of 1959, 8 Eliz. 2 No. 56, s. 39 (k).
42. Altering, etc., by-Jaws. Altering or repealing by-laws.
43. Witnesses' expenses. Prescribing a scale of allowances to be paid to any witness summoned under this Act for his travelling expenses and maintenance while absent from his usual place of abode.
44. Generally. Generally regulating the travelling upon or using and working of the railways and the maintenance of good order, and regulating the conduct· of employees, and providing for the due management of the affairs under charge of the Commissioner, and the protection of the railways and other works from trespass and injury.
44A. Respecting powers, etc., of Commissioner. Prescribing any matter or thing not inconsistent with this Act which is necessary or convenient to be prescribed to give effect to any power, duty or authority of the Commissioner under this Act.
Inserted by Act of 1959, 8 Eliz. 2 No. 56, s. 39 (!).
THIRD SCHEDULE Inserted by Act of 1959, 8 Eliz. 2 No. 56, s. 40.
PART I--COPY OF AGREEMENT DATED 22ND SEPTEMBER, 1959
72 Sch.3 RAILWAYS ACT 1914-1971
(b) Review construction progress at least annually in the light of the funds currently available, or to be made available during the ensuing year, for the Work under the budget established by Government and report to Government any changes which must be made in the overall time schedule for, or scope of, the Work in consequence thereof.
(c) Advise upon the character of, and upon the qualificatiom of the personnel and the number required for, a distinct unit of staff to be set up by the Railways Department, herein called the Unit, which will perforn1 the details of the engineering, design and supervision of construction functions necessary for the successful completion of the Work under the direct charge of a Project Manager assigned by the Railways Department.
(d) Establish the design criteria and the general specifications for the engineering design of the Work by the Unit.
(e) Specify the surveys, investigations -and inspections to be made in preparation for and during the construction phases of the Work.
(f) Establish the methods and procedures to be followed by the Unit in carrying out all engineering, design and supervision of construction phases of the Work.
(g) Report promptly to Government, through its designated represen.ative, the Minister for Transport, herein called Minister, so that it can take the necessary corrective action upon any failure of the Unit to adhere to criteria, specifications, methods, procedures and the like established by Engineer, as described in this Part A--Advisory Services- of Section i of this Agreement, as well as any failure of the Unit to follow the advice or • act upon the suggestions of Engineer upon the matters described below in Part B--Siupervisory Service~:-of Section 1 of · this Agreement.
(h) Advise and consult with Minister, as he may request or as Engineer may deem necessary, upon any matters directly affecting or connected with the Work.
B-SUPERVISORY SERVICES
(a) Supervise the Unit in the making of the soil investigations and surveys required in connection with the Work.
(b) Supervise the preparation by the Unit of preliminary plans, specifications and estimates of construction costs a..'1d, upon their completion, review and approve them. Upon Minister's approval thereof, supervise the preparation by the Unit of detailed designs, specifications, bills of material and working drawings for construction of the Work and, upon their completion, review and approve them.
(c) Supervise the Unit in setting up a time schedule for construction, including a construction material delivery schedule and a schedule of estimated cash flow requirements for construction, and review and approve such reports as may be issued by the Unit to keep Minister advised of construction progress.
(d) Supervise the preparation by the Unit of invitations for tenders on long lead-time items which must be ordered in advance of the awarding of construction contracts and review and approve all invitations before issuance thereof. Supervise the analysis by the Unit of tenders received, and approve the Unit's recommendations upon placement of orders by Minister for all such items to assure delivery consistent with the construction schedule.
(e) Supervise the preparation by the Unit of construction contract documents, consisting of the Agreement, General Terms and Conditions, Specifications and Drawings, and approve the issuance therewith of invitations to prospective construction contractors.
(f) Supervise the analysis of tenders from prospective construction contractors and approve the Unit's recommendations to Minister as to the award of contracts.
(g) Approve the Unit's recommendations to Minister upon the purchase of those items of material and equipment which will not be supplied as part of construction contracts.
(h) Supervise the Unit in expediting materials purchased to the end that they shall be delivered at the points where and when needed for scheduled progress of the Work, and in checking such materials as received and delivered to the contractors.
(i) After contracts have been awarded for construction, review and approve the supervision of contractors and the inspection of the entire construction by the Unit to the end that it shall be done in a good, proper and workmanlike manner, in accordance with the specifications and provisions of the contracts, and in accordance with all statutory provisions and requirements and all regulations made pursuant thereto. Make such personal spotcheck inspections as may be necessary to determine that construction is being so done.
(j) Supervise the checking and certification of construction contractors' and vendors' invoices by the Unit. Records and books of account showing cost of all expenditures made in connection with the Work will be kept by Minister or the Unit, as mutually agreed on by them.
If kept by Minister, they will be in a form accepted by and, at all times, will be immediately accessible to the Unit and Engineer; and, if kept by the Unit, they will be subject to review and approval of Minister and Engineer, and in all cases will be subject to audit by Government. Minister and Engineer shall, at all times, have prompt access to the Unit's premises, books, records, correspondence, instructions, plans, drawings and receipts pertaining to the Work.
SECTION 2-CONSIDERATION
For the Engineering Services, as outlined under Section 1 of this Agreement, Government will pay Engineer a Fixed Fee of $U.S.200.000, which is approximately 1% (one per cent.) of the estimated £A.8,000,000 to £A.l0,000,000 cost of the Work. Government will pay Engineer this Fixed Fee in monthly instalments of $U.S.3,333 each, the first of which will be paid Engineer by Government on or prior to the 15th day of the first month following the month during which Engineer commences to perform the Engineering Services, as outlined under Section 1 of this Agreement, and the succeeding instalments will be paid on or prior to the 15th day of each succeeding month. If such instalments reach the total of the entire Fixed Fee prior to completion of the Work, no further instal- ments shall be made and, if the total of such monthly instalments does not equal the Fixed Fee upon completion of the Work, the balance, if any, shall be paid within 15 days after the completion of the Engineering Services as outlined under Section 1 of this Agreement.
D
74 Sch.3 RAILWAYS ACT 1914-1971
In addition to paying the Fixed Fee, Government will reimburse Engineer currently for all costs incurred by Engineer in connection with the performance of services hereunder, including, but not limited to, the following:-
1. Costs of materials, supplies, equipment, labour, transportation, office and clerical facilities, communication and other direct costs necessary to perform the services hereunder.
2. Costs of salaries or wages paid by Engineer to its employees directly engaged on the services to be perf9rmed under this Agreement.
(Cost of such salaries or wages of employees on Engineer's United States payroll shall include Engineer's regular additional overseas allowance of 20 per cent. for those employees working outside of the ·United States, allowances for vacations and holidays and- other charges under welfare and employee relations policies on the basis maintained throughout Engineer's organisation, or such as are incurred pursuant to an agreement made as a result of collective bargaining with the representatives of employees.) If the full time of any such employee is not devoted to the services hereunder, the salaries or wages of such employees shall be included in Engineer's costs only in proportion to the actual time applied thereto.
3. An amount equal to 75 per cent. of the cost of salaries or wages, as determined aforesaid but excluding the additional overseas allowance, of employees on Engineer's United States payroll directly engaged on the services under this Agreement, to reimburse Engineer for its general over- head.
4. Payments made by Engineer for any applicable United States or Australian Federal, State, or local taxes, fees or charges, which Engineer may be required to pay on account of this Agreement, including any gross receipts tax or other tax based on gross receipts or expenditures. Excluded, however, is any tax imposed by the United States or a State or local govern- ment thereof, based on Engineer's fee, Engineer's net income, and similar taxes and taxes (not measured by gross receipts or expenditures) imposed by the United States or any State or local government thereof, on the privilege or license of Engineer to do business.
5. Travel and livin_g expenses of Engineer's employees as may be incurred in connection
w ..
!l the performance of the services hereunder.6. Premiums on bonds and insurance and fees for permits and licenses required to be obtained by Engineer in connection with the performance of the services hereunder.
7. Losses, liabilities or expenses, not compensated by insurance or otherwise, sustained by Engineer in connection with the services hereunder.
8. Such other proper costs as are not expressly mentioned herein and which are incurred by Engineer in performing the services outlined in Section 1 hereof.
SECTION 3-CuRRENCY
Government will pay Engineer the Fixed Fee, the cost of salaries or wage!! of employees on Engineer's United States payroll, and the overhead percentage, as described under Section 2--Consideration-of this Agree- ment, in United States dollars in New York funds. Government will reimburse Engineer for all other costs incurred by Engineer, as described
in Section 2-Consideration-of this Agreement in United States dollars .or in the currency in which the costs are incurred and actual disburse- ments are made by Engineer, as Government may elect.
SECTION 4--INVOICES
Engineer will submit to Government each month an invoice, in a form mutually agreed upon by Government and Engineer, covering reimbursement of all costs incurred by Engineer during the preceding month in connection with the performance of services hereunder.
Payment of Engineer's monthly invoices for reimbursement of costs and Fixed Fee instalments shall be made by Government in such manner and upon such conditions as are mutually agreed upon by Government and Engineer.
SECTION 5-GENERAL CoNDITIONs
Changes. Government may at any time, by written notice to Engineer, require changes in the Project or in Engineer's services under this Agree- ment. If such changes result in (a) an increase or decrease in the scope of the Work, as described on page 1 hereof, which results in a change in excess of 10% (ten per cent.) of the currently estimated average
£A.9,000,000 cost of the Work, (b) a change in the scope or character of Engineer's service, as described in Section 1 hereof, or (c) a delay of more than 90 calendar days after 30th June, 1964, in the completion of the Work, an equitable adjustment of the Fixed Fee will be negotiated.
Access. Government will arrange prompt access for Engineer to the premises and to all necessary records pertaining to the Work and will give Engineer full and prompt co-operation.
Permits, etc. Government will obtain all necessary permits, easements and rights-of-way.
Representatives. Government will designate the Minister for Trans- port as its responsible representative, under whose general direction Engineer will function. Engineer will assign to the Work a Project Super- visor who will act as Engineer's representative on all Engineer's activities in connection with the Work.
Titles. As between Government and Engineer, the title to the Work, materials and supplies will be in Government, providing the cost of purchase thereof is chargeable to the Work. Upon request Engineer will be furnished a copy of all drawings, designs, specifications and other documents related to the Work approved by Engineer.
Insurance. Engineer will provide and maintain, with respect to the services to be performed by it hereunder, workmen's compensation insurance (including employer's liability and occupational disease coverage) and such other insurance as may be deemed necessary by Engineer or required by Government; all in such amounts and for such period or periods as are deemed necessary by Engineer, but in no event for shorter periods or in lesser amounts than Government shall require. The cost of this insurance will be reimbursed to Engineer.
Termination. This Agreement will terminate upon completion by Engineer of the Engineering Services as outlined under Section 1 hereof, and upon payment by Government of the Consideration, as outlined under Section 2 hereof, unless sooner terminated, as outlined below in this Termination clause.
76 Sch.3 RAILWAYS ACT 1914-1971
However, this Agreement may be terminated by Government at any time, by written notice to Engineer, specifying the manner of termination.
Upon such termination, Government will assume and become, liable for all obligations and commitments that Engineer shall have theretofore in good faith undertaken or incurred in connection with its services and will reimburse Engineer for all costs incurred hereunder and not previously paid and for further costs after date of termination necessary to expeditiously wind up the services of Engineer in accordance with Govern- ment's instructions and to return Engineer's employees to their home offices.
If termination shall be due to the abandonment or indefinite suspension of the Work by Government, Government will pay Engineer that proportion of the Fixed Fee which Engineer's services actually completed at the date of termination (plus required services thereafter, if any) bears to the entire services of Engineer under this Agreement (less fee payments previously made).
Except where Engineer's services are terminated pursuant to the following paragraph of this Termination clause, if termination shall be for any reason other than abandonment or indefinite suspension of the Work by Government, Government will pay Engineer the entire unpaid balance of the Fixed Fee.
If Engineer's services are terminated because of failure on the part of Engineer to perform the duties and obligations imposed on Engineer by this Agreement, no part of the balance of the Fixed Fee shall be payable by Government to Engineer.
Notices. Any notice or order provided for in this Agreement will be considered as having been given to Government if delivered personally to its designated representative, or to Engineer if delivered personally to its designated representative.
Assignment. All provisions of this Agreement will apply to and bind Government and its successors and assigns and Engineer and its successors, but Engineer, will not assign this Agreement without prior written consent of Government.
In witness whereof the parties hereto have caused this Agreement to be executed by their respective representatives thereunto duly authorised, as of the day and year first above written.
GOVERNMENT OF QUEENSLAND, By (Sgd.) FRANK NICKLIN,
Premier.
FORD, BACON & DAVIS, INCORPORATED, By (Sgd.) L. H. PooR.
PART II-COPY OF AGREEMEN1 DATED 18TH NOVEMBER, 1959