Baldivis Grove Artist Selection Process

Artist Selection Process Expression of Interest

Baldivis Grove

7 August 2025

Expression of Interest

1. Introduction

Baldivis Grove, located in Baldivis, Western Australia, is a residential development by Frasers Property Australia that aims to balance natural beauty, cultural significance, and a connected community.

The project commenced in 2014 and is due for completion in 2026. The estate will feature 369 residential lots, surrounded by landscaped open spaces, recreation areas, and community infrastructure.

Frasers Property Australia is a leading diversified property group with a legacy of more than 100 years, delivering residential, commercial, retail, and mixed-use communities across the country. As part of the global Frasers Property Group, we are driven by a deep commitment to sustainability, community connection, and long-term placemaking.

Our projects are built on values of care, respect, and responsibility, and we work collaboratively with local communities, Traditional Owners, and stakeholders to ensure meaningful and lasting impact.

2. Background to the project

On the 24 November 2023, Frasers commissioned an archaeological and ethnographic site identification heritage consultation over areas planned for development.

The Heritage Consultation was carried out by eight Gnaala Karla Booja (GKB) nominated representatives, two Aboriginal Land Services (ALS) consultants, and three Frasers representatives. The nominated GKB participants were selected by GKBAC through the GKB Cultural Advice Committee as the appropriate knowledge holders for the project area and consented to participate in the heritage survey. Upon conclusion of the Ethnographic Survey, it was identified that the Baldivis Grove (estate) is a place of Cultural Value to Aboriginal People. As such, Frasers sought to collaborate with the GKB following the recommendations given in the Ethnographic Survey which include.

• Cultural Awareness Training for all employees and contractors

• Implementation of a CHMP (Aboriginal Cultural Heritage Management Plan)

• Engagement of Cultural Monitors during ground disturbance activities

• Collaboration with the GKB on Design Principles within the Parkland

• Facilitation of a Cultural Opening Ceremony

Provided for reference in the appendices of this document are.

• Appendix 1: Ethnographic Survey

• Appendix 2: Baldivis Grove Landscape Design

3. Plan – Vision, Values

At Baldivis Grove we wish to highlight and celebrate the Cultural Value of the site.

Through a thoughtful Co-Design process, we wish to actively embed Aboriginal Cultural Values and Stories into the design of the Parklands, in collaboration with local Aboriginal Artists.

4. Cultural significance

Frasers Property Australia recognises that the Baldivis Grove site is located on land of Cultural and Spiritual importance to the Noongar people. The area has Ancestral Links, having served as a camping, trading, and gathering site for Noongar families for generations.

Through this Expression of Interest, we aim to honour and reflect these Cultural links by commissioning local Aboriginal Artists to contribute to the understanding of the identity of Baldivis Grove.

5. Art Brief

This Expression of Interest is currently open for Noongar and Bindjareb Noongar Artists in Western Australia The project aims to acknowledge and celebrate the Noongar people's culture and connection to the Baldivis area. The selected artwork will be used for Cultural and community interpretation throughout the parklands.

Proposed Physical Art Integration Opportunities

Frasers Property has identified 2 packages of artistic works A summary of these packages is provided below.

Package 1: Sculptural Package

Design, fabricators and installation to create sculptural artworks, including: -

• Entry node: Significant welcome or placemaking sculpture, of a minimum height of 2.5 metres.

• Play areas:

o Junior play: animal discovery artworks – design up to five small sculptural pieces to be incorporated into children’s pay spaces.

o Senior play: discovery artwork in play towers – design up to two small sculptural pieces to be incorporated into play spaces.

Package 2: Digital Package

Digital artworks that can be incorporated into park elements, including though not limited to: -

• Shelters: perforated metal artwork panels

• Pathways: etching in paving, central paths

• Quiet zones: artwork and/or signage complementing the casuarina planting around yarning circles

• Six Season Nodes: Storytelling signage and/or artwork reflecting the Noongar Six Seasons

• Interpretive signage: Explaining and or illustrating points of Cultural reference as per the Ethnographic Survey.

We are open to additional creative interpretations that speak to the site’s Stories and align with the Values and Traditions of the Noongar people. Artists will work in close consultation with Frasers Property and Cultural Advisors to ensure the final outcomes are respectful, authentic, and enduring.

6. Budget and Scope

Frasers Property Australia has a budget of $125,000 for package 1 and $25,000 for package 2 (ex GST), allocated for the successful Artist or Artists.

Final work includes professional images of work. To deliver the original artwork as well as in digital print-ready formats including pdf/png.

Package 1: Sculptural Package – Budget up to $125,000

Design, fabricate and install sculptural artworks, including.

• 1 major placemaking sculpture (min 2.5m in height)

• Up to 7 smaller sculptures, potentially forming a trail or story element

1. Cultural Consultation and Design

• Attend project briefings, meetings and stakeholder consultations as required.

• Reference the ethnographic survey and other principal supplied sources to inform place-based storytelling.

2. Fabrication and Installation

• Coordinate safe delivery and installation of all elements

• Ensure structural and public safety standards are met and all necessary development approval are obtained.

• Use durable, low-maintenance materials suited for outdoor public display

• Apply appropriate protective coatings (e.g. anti-graffiti, UV)

3. Deliverables

• Approved design package

• Fabricated and installed artworks (1 major + up to 7 minor)

• Maintenance guide and handover documents

• 24-month defect liability coverage

Package 2: Digital Package – Budget up to $25,000

Create a package of digital artworks for translation into architectural and landscape elements including perforated steel panels, concrete etching, and interpretive signage. The designs must reflect the Cultural Values, Stories, and Significance of the site as identified in the Ethnographic Survey and through active consultation with the Gnaala Karla Boodja Aboriginal Corporation.

1. Cultural Engagement, Research and Concept Development

• Attend project briefings, meetings and stakeholder consultations as required.

• Reference and interpret findings from the Ethnographic Survey and other principal provided sources.

• Submit a Concept Design Package for review by the project team and Cultural Authority.

• Revise as needed based on feedback project stakeholders.

2. Digital Artwork Production

• Create final, fabrication-ready digital artworks suitable for:

– Perforated metal panels (vector-based, suitable for CNC/laser cutting)

– Concrete form-liners or etching (linework or relief-ready)

– Interpretive signage (high-resolution images with optional cultural narratives)

• Ensure all files meet the technical specifications provided by fabricators or design consultants.

• Coordinate with the landscape or architectural team for placement, scale, and material constraints.

3. Documentation & Handover

• Submit all final artwork files in appropriate digital formats (e.g. AI, DXF, EPS, PDF).

• Provide a short Cultural Narrative or Artist Statement for use in interpretive materials.

7. EOI Schedule (Indicative Dates)

EOI - Schedule Date

Artist Application Due 02/09/2025

Selection Process occurs with 5 people for voting purposes (2 x GKB, 3 x FPA) 03/09/202508/09/2025

All Artists will be notified of selection. 09/09/2025

Successful Artist to meet the company Rep. 11/09/2025

Artist contract agreed upon. 16/09/2025

Elders Yarning Session 17/09/2025

Delivery of Artwork and Final payment made – Digital Package (Package 2) 21/10/2025

Delivery of Artwork and Final payment made – Sculptural Package (Package 1) 06/01/2026

8. Artist selection process - Selection Committee

The selection committee will comprise of three representatives from Frasers Property Australia and two Elders/Cultural Advisors as approved by the GKB

The selection committee will assess submissions based on the Evaluation Criteria and Submission Requirements provided in Sections 9 and 10.

All selections are final.

9. Evaluation Criteria

10. EOI Submission Requirements

This Baldivis project is Recognised as a Place of Significance. Open callout for all Noongar Artists and Bindjareb Noongar Artists encouraged to apply. Complying Expressions of Interest must include the following

1. Confirmation of project timing and budget requirements as detailed in this document.

2. Project Appreciation – Do you have a connection to Baldivis or the surrounding area? If yes, please provide details.

3. Artist Biography: Please tell us about yourself and your connection to the Noongar Community.

4. Please confirm your willingness to collaborate with other selected artists, specialist fabricators, and GKB Reference Group on the design of your artworks. If possible, provide examples of past collaborative design experiences.

5. Cultural Learning- Please confirm your willingness to collaborate and engage in cultural learning with the Elder Reference Group and Cultural Consultants of GKB. If you have previous experience working with Elders or being involved in cultural learning projects, feel free to provide specific examples.

6. Design and fabrication proposal – sketch [ this is not your final work], including indication of proposed fabrication of the artwork, including (if applicable) considerations regarding longevity, safety and care aspects. You may send in a story or words to support your design idea if you feel it is relevant to the brief and supports your application.

7. Artist CV and Examples of previous work (including references). Up to 5 images.

11. Form of Contract

The required Forms of Contract, which successful Artists will be engaged with, are provided in Appendices 3 and 4 of this document (separate contracts for Digital and Sculptural Artists)

12. Payment Schedule

The agreement can involve progress payments at different stages of the process (specified in the Schedule). The parties can negotiate how the fee will be paid to reflect the particular project. For example, there may be several stages of production, and the Artist may negotiate the instalments in different amounts at particular times to cover materials or subcontractor fees.

13.

Contact Details

Expressions of interest and requests for any further information are to be sent via email to: BaldivisGroveEOI@frasersproperty.com.au

Submissions are open until 4.00pm, Tuesday, 2nd September, 2025

All candidates will be contacted in regard to their submission.

FRASERS PROPERTY AUSTRALIA | BALDIVIS GROVE

SUBDIVISION

Report for an archaeological and ethnographic site identification heritage survey

Project Reference: ALS2319

Prepared for:

FRASERS PROPERTY AUSTRALIA

Prepared by:

ABORIGINAL LAND SERVICES Report January 2024

ACKNOWLEDGEMENT TO COUNTRY

ALS acknowledges the Traditional Custodians of the Country described in this document and to their continuing cultural and spiritual connection to their Country.

We pay our respects to their Elders, past, present, and emerging as leaders, knowledge holders, and teachers of their youth and future leaders.

We honour those who have gone before us, and those who still advocate for the protection of our Aboriginal heritage.

1 DOCUMENT CONTROL

1.1 COPYRIGHT

This document is copyright. As such, no portion of this document may be reproduced or copied in any form, or by any means, without prior written permission from Aboriginal Land Services Pty Ltd, except as permitted under the Copyright Act 1968 (Cwlth). Notwithstanding this, Frasers Property Australia may use this material for the purposes of internal use related to this project.

1.2 DISCLAIMER

The information, opinion, ideas, and recommendations presented in this document are partly based on the experience of the authors (research, and recognised procedures - which are believed to be accurate, but not infallible)

The information provided herein is given in good faith and follows acceptable professional standards and procedures, but is not meant to encourage any activity, practice, or exercise, which may have ceased, changed or have been superseded for any reason without the knowledge of the authors.

The authors assume no responsibility or liability for any loss or damage caused directly or indirectly by the information presented in this document.

1.3 INTELLECTUAL PROPERTY

Traditional and contemporary cultural knowledge and insights described in this document are the intellectual property of the Traditional Owner involved in the survey consultation and as such, may not be shared externally without their permission.

The survey participants involved in this survey work have consented to the use of their information in this report for the purposes of advising Alcoa of Australia on Aboriginal Cultural Heritage site avoidance.

The information shared by them as part of the survey and documented in this report is subject to intellectual property rights and as such, this report cannot be repurposed or shared by Alcoa of Australia outside of this reporting process without Free, Prior and Informed Consent (FPIC) of those people who provided the information.

2 VERSION CONTROL

3 EXECUTIVE SUMMARY

FRASERS PROPERTY AUSTRALIA

Site Identification Heritage Consultation

DATE 24 November 2023

Frasers Property Australia (Frasers) commissioned Aboriginal Land Services Pty Ltd (ALS) to undertake a site identification heritage consultation over areas planned for development within the Gnaala Karla Booja (GKB) Indigenous Land Use Agreement area (ILUA) (WI2015/005). The heritage consultation was undertaken with the endorsement of Gnaala Karla Booja Aboriginal Corporation (GKBAC), who are the representatives for the Gnaala Karla Booja People

The survey was undertaken on 24 November 2023 by eight GKB nominated representatives and two heritage consultants from ALS. Three Frasers representatives were also present to support the survey team.

3.1 SUMMARISED RESULTS

The archaeological and ethnographic site identification heritage consultation over lodged site 39406: Baldivis Grove (estate) (which is situated within the proposed Frasers Baldivis Grove Stage 9 development footprint) has been completed. As part of this consultation, the nominated GKB participants were given the opportunity to view the site area, consider the development proposal, and provide ethnographic input about the significance and importance of 39406: Baldivis Grove (estate). Additional cultural heritage values associated with this site were also documented as part of the consultation process.

4 PREPARATION

4.1 DESKTOP METHOD

REGISTERED SITE

Registered Aboriginal sites are heritage places that have been assessed by the ACMC as constituting sites under sections 5 and 39 of the Act.

OTHER HERITAGE PLACE (OHP)

Other heritage places include places for which data has been lodged with the DPLH but are pending assessment by the ACMC, and places that have already been assessed by the ACMC as not constituting an Aboriginal site under the meaning of the Act (listed as stored data / not a site).

A desktop assessment was completed before the commencement of the field survey to better understand the extent of heritage research undertaken to date within the survey area. This research involved an investigation of the Register of Sites maintained by the DPLH, which is a catalogue of heritage places previously recorded within the area and submitted to the DPLH.

Before commencing field work, the scoped survey areas were entered into the DPLH’s Aboriginal Heritage Inquiry System (AHIS) to establish whether any heritage surveys had previously been conducted, and whether any registered Aboriginal heritage sites, or other heritage places (OHPs), exist in the area.

Once the AHIS search was completed, relevant site files and survey reports were requested from the DPLH for review. These site files were reviewed and summarised to provide the survey team with an understanding of the cultural landscape context of the survey area.

Some of the information held by the DPLH was not publicly accessible due to file restrictions, or due to temporary access suspension because of DPLH administrative processes. In such cases, the inability to access information is noted in the heritage assessment results for the relevant sites.

The results of the desktop research are provided in Section 9 of this report.

5 PROJECT INTRODUCTION

CONSULTATION INFO

Baldivis Grove Subdivision Heritage Survey

DATE

23 November 2023

Frasers Property Australia (Frasers) intend to use land within the Gnaala Karla Booja (GKB) Indigenous Land Use Agreement (ILUA) area (WI2015/005) to commence their Stage 9 development of a residential zone within the Baldivis Grove Subdivision. This new subdivision will combine private residential spaces with open public spaces within the boundary of lodged site 39406: Baldivis Grove (estate; see Figure 1 below). The proposed development area sits adjacent to new and developing residential plots on Amberley Drive and Thornton Street, and is predominantly situated over cleared bushland located 150 m east of Mandurah Road and 450 m east of Lake Walyungup. This section of cleared bushland still retains several large, mature trees native to the area. Frasers current s18 application states that none of these trees identified as bearing potential scars are to be removed

As part of their due diligence assessment process, Frasers commissioned an archaeological and ethnographic site identification heritage consultation over the areas planned for development This consultation serves to provide the GKB nominated representatives with an opportunity to discuss the heritage values within lodged site 39406: Baldivis Grove (estate), as they pertain to the proposed development of the area

The heritage consultation was carried out on 24 November 2023 by eight GKB nominated representatives, two ALS consultants, and three Frasers representatives. The nominated GKB participants were selected by GKBAC through the GKB Cultural Advice Committee as the appropriate knowledge holders for the project area, and consented to participate in the heritage survey

Figure 1: Stage 9 development proposal with the 39496: Baldivis Grove (estate) site boundary superimposed.

5.1 PROJECT METHOD

The archaeological and ethnographic heritage consultation for the Baldivis Grove Subdivision was conducted to a site identification standard in accordance with section 18 (s18) requirements, and to satisfy obligations outlined in the heritage agreement relevant to the project. The aims of a site identification consultation are to:

1. Identify Aboriginal sites (as defined under s5 of the Act) within the requested survey area;

2. Document the heritage values of any identified sites comprehensively enough to provide the Department of Planning, Lands and Heritage (DPLH), and the Aboriginal Cultural Materials Committee (ACMC), with a fair understanding of the site’s importance and significance under s5 and s39 of the Act; and

3. Provide Frasers with relevant and informed heritage management recommendations for heritage values identified within the requested survey area.

5.2 LEGISLATION AND HERITAGE AGREEMENT

Under section 17 (s17) of the Aboriginal Heritage Act 1972, it is an offence to disturb an Aboriginal site without prior written Ministerial consent to do so under s16 or s18 of the Act. This applies regardless of whether an Aboriginal site is registered.

Heritage assessments of proposed development areas are conducted to identify the location and extent of sites so that they can be appropriately managed in accordance with the legislative requirements of the Act.

The heritage consultation undertaken by ALS is a compliance measure under the amended Aboriginal Heritage Act 1972, and serves to facilitate a Section 18 submission for the proposed works by Frasers.

A full copy of the Act can be accessed online.

6 GNAALA KARLA BOODJA REGION

Gnaala Karla Booja Country straddles the coastline running between Kwinana and Capel in Western Australia. This Country is bordered by the Ballardong People to the east, the Wagyl Kaip People to the south, and the Whadjuk People to the north. Gnaala Karla Booja land comprises one territory of the Noongar Peoples located in the southwest of Western Australia and, “refers to the Noongar language or dialectical groups of the Bindjarep / Pinjarup, Wilman, and Ganeang” (Gnaala Karla Booja Aboriginal Corporation 2023).

In terms of rough spatial reference, the northeastern corner of Gnaala Karla Booja territory is located near Corrigin, and travels in a south-westerly direction past the western side of Wagin to Kojonup. The boundary then moves west across Boyup Brook and Greenbushes, then northwest towards Capel. The boundary extends from Capel west out into the ocean, then transitions north along the coast terminating due west of Byford over Kwinana and Garden Island.

As such, Gnaala Karla Booja Country features a large stretch of coastline in the southwest of Western Australia including Yalgorup National Park, as well as large swaths of native forests and woodlands further inland. Gnaala Karla Booja Country is currently administered and managed under an Indigenous Land Use Agreement (ILUA), which was entered into on 17 October 2018 with the Federal Court (WI2015/005).

Previously, Gnaala Karla Booja Country was administered under a Native Title Claim (WC1998/058), granted in 1998 by the Federal Court (WAD 6274/1998 – Federal Court number). This claim was originally lodged on 17 September 1998 by the Noongar Land Council on behalf of Gnaala Kaala Booja applicants (Native Title Tribunal, 2000). This application was amended twice, and passed the registration test under s190A of the Native Title Act 1993 on 3 March 1999 (Native Title Tribunal 2000).

This Native Title Claim was active until 2021, when Gnaala Karla Booja representatives entered into the South West Settlement Claim (WCD2021/010) with other Noongar Nations. The Act of entering this overarching claim rendered the original Native Title Claim established in 1998 void.

The South West Settlement Claim (also known as Bennell v State of Western Australia) affected the following Native Title Claims and Noongar Nations that signed onto the joint agreement:

• Harris Family (WC1996/041)

• Southern Noongar (WC1996/109)

• Yued (WC1997/071)

• Gnaala Karla Booja (WC1998/058)

• Wagyl Kaip (1998/070)

• Ballardong People (WC2000/007)

• Single Noongar Claim (Area 1) (WC2003/006)

• Single Noongar Claim (Area 2) (WC2003/007)

• South West Boojarah #2 (WC2006/004)

• Wagyl Kaip – Dillon Bay (WC2007/001); and

• Whadjuk People (WC2011/009)

In signing onto the joint claim, these respective Noongar Nations with their associated Native Title Claims agreed to extinguish their Native Title rights to their respective Native Title Claim areas (Federal Court of Australia, 2021). As such, the official decision handed down by the Federal Court was that Native Title does not exist in the claim area.

The following excerpts come from the Court Order for the determination decision for the South West Settlement Claim (WCD2021/010) and explain the reasoning behind the extinguishment of Native Title rights:

“Court notes that: (C). Since 2009, the First to Eleventh Applicants, the South West Aboriginal Land and Sea Council and the State of Western Australia have engaged in negotiations for the full and final settlement of all claims by the Noongar people under the Native Title Act 1993 (Cth) (NTA). These negotiations resulted in the authorisation, execution, and registration of six Indigenous Land Use Agreements (Settlement ILUAs) which make up the South

West Native Title Settlement

D. Each Settlement ILUA relates to a separate area (each, an Agreement Area): the Agreement Area is the area defined in Sch 1 of each Settlement ILUA and shown in a map contained in Sch 2 of each Settlement ILUA. Together the six Agreement Areas comprise the Settlement Area. Pursuant to cl 6.2 of each Settlement ILUA, all native title rights and interests in relation to the relevant Agreement Areas were surrendered to the State on 13 April 2021 (i.e. native title was surrendered in respect of the whole of the Settlement Area on that date). Further, cl 6.3 of each Settlement ILUA envisages that consent orders will be made for a determination that native title does not exist in relation to each Agreement Area

I. The parties acknowledge that the effect of the making of the Determination is that native title will not exist in relation to the Determination Area.

Reasons for Judgement (6). The decision to divide the Settlement Areas into six distinct regions, broadly co-extensive with the Underlying Noongar Applications, with one Settlement ILUA for each registered claim area, was undertaken to ensure that the rights of Noongar people to speak for Noongar Country properly respected the many different estates existing within Noongar society and country. The division of the Settlement Area gave assurance to people that a person’s family’s country could not be interfered with by someone with no connection to it: McGlade (No 2)”

(Federal Court of Australia, 2021)

As such, the ILUA that Gnaala Karla Booja hold over their Country (WI2015/005) has superseded their official Native Title Rights, however, it provides Gnaala Karla Booja with additional and ongoing management and community opportunities, as well as greater control over the activities that occur on Gnaala Karla Booja County.

This ILUA (in addition to those of the Noongar Nations mentioned above) binds State Government Departments and certain State Government agencies to, “enter into a Noongar Standard Heritage Agreement (NSHA) when conducting Aboriginal Heritage Surveys in the ILUA areas, unless they have an existing heritage agreement. It is also intended that other State agencies and instrumentalities (resource development) enter into the NSHA when conducting Aboriginal Heritage Surveys in ILUA areas” (DPLH AHIS 2023). The negotiation of a NSHA prior to any ground disturbance works provides the Gnaala Karla Booja People with critical information regarding the nature of these works and therefore allows the Gnaala Karla Booja People to make informed decisions regarding the projects occurring on their Country.

Landscape and waterways

The traditional lands of the Gnaala Karla Booja People are diverse and extend from the coast south of Kwinana approximately 200 km inland towards Wagin. Due to the diversity of the landscape within Gnaala Karla Booja Country, the traditional lands of the Gnaala Karla Booja People cross several of the Interim Biogeographic Regionalisation for Australia (IBRA) bioregions as defined by Thackway and Cresswell (1995). These IBRA bioregions include: SWA02 (Swan Coastal Plain), JAF01 (Northern Jarrah Forest), JAF02 (Southern Jarrah Forest), and AVW02 (Avon Wheatbelt) (TR ArcGIS 2023).

The importance of the landscape and natural resources to the Gnaala Karla Booja People within the relevant IBRA bioregions will be discussed below.

Swan Coastal Plain

The Swan Coastal Plain features a complex series of seasonal wetlands, but is typified by a low-lying landscape covered with woodland. This bioregion covers an area of approximately 15,257 km2 and spreads across a 30 km wide strip adjacent to the Indian Ocean and west of the Darling Scarp, running from the city of Perth to Cape Naturaliste in the south (Chisholm et al. 2016).

The ground surface within the Swan Coastal Plain varies, but includes colluvial and aeolian sands, alluvial river flats, and coastal limestone. The plain rises to the east to duricrusted Mesozoic sediments dominated by Jarrah (Eucalyptus marginata) woodland (Thackway and Cressell 1995). The outwash plains, once dominated by A. obesamarri woodlands and Melaleuca shrublands, are extensive only to the south and Paperbark trees (Melaleuca rhaphiophylla) can typically be found in swampy areas (Thackway and Cresswell 1995). Heathlands and / or Tuart (Eucalyptus gomphocephala) woodlands can be found situated over areas featuring limestone, while various Banksia spp. or Tuart tend to dominate the sandy soils (Thackway and Cresswell 1995).

Prior to European settlement, the Swan Coastal Plain comprised a series of freshwater wetlands, the majority of which have been drained, filled, or cleared since 1832 (Chisholm et al. 2016). Wetlands, estuary systems, and waterways existing in the Swan Coastal Plain and that are of significance to the Gnaala Karla Booja People include: the Serpentine River (DPLH ID 3582), Harvey Estuary / Peel Inlet (DPLH OHP ID 32696), Lake Cliffton, Lake Yalgorup, Lake Preston (DPLH OHP ID 5614), Kooallup Lagoon, the Collie River / Leschenault Inlet (DPLH ID: 16713: Collie River Waugal), as well as the coastline along this stretch of land itself.

Watersources are of a high cultural and spiritual significance to the Gnaala Karla Booja Traditional Owners as they are often associated with specific creation stories. The health of these waterways also often directly reflects the health of these creation spirits, and therefore the health of Country and the Gnaala Karla Booja People as a whole (Barber and Jackson 2011). The following oral history from Joe Northover, a Noongar Traditional Owner, has been taken from the South West Aboriginal Land and Sea Council (SWALSC) website (2023a), and explains the significance of Minningup (the Collie River) to the Gnaala Karla Booja People:

“We come here to this place, Minningup, the Collie River, to share the story of this area or what makes it so special. It is the resting place of the Ngangungudditj walgu, the hairy faced snake. Bardan ngang noyt. He is our spirit and this is where he rests. You have big bearded full moon at night time; you can see him, his spirit there, his beard resting on the water. And we come to this place here today to show respect to him plus also to meet our people because when they pass away, this is where we come to talk to them. Not to the cemetery where they are buried but here because their spirits are in this water. This is where all our spirits will end up here. Karla koorliny, we call it – coming home. Ngany kurt, ngany karla – our heart, our home.”

In addition to the Collie and Serpentine Rivers, one of the primary geographic features of this bioregion is the Swan River (DPLH ID 3536) which drains into the Indian Ocean near Perth. Although not located directly within Gnaala Karla Booja territory, the Swan River is a place of high mythological significance to the Noongar Nations of the southwest of Western Australia. Both the Swan and Canning Rivers are believed to have been created by the Rainbow Serpent or Waugal, a dreamtime being. The Waugal is said to have created the creeklines, waterholes, lakes, and valleys while on its journey to the ocean, and many First Nations People believe that permanent watersources contain a resting Waugal that usually bears the same name as the site it is associated with (as demonstrated by Joe Northover’s words above) (Hughes-Hallet 2010; Kingsford 1982; Shaw and Martin 2011).

As such, watersources continue to play a crucial role in Gnaala Karla Booja culture, not just for their role as a subsistence source, but for being intrinsically tied to the very creation of the world as the Gnaala Karla Booja people know it.

Jarrah Forest

The Northern and Southern Jarrah Forest IBRA bioregions cover an area of approximately 45,063 km2 and are located east of the Swan Coastal Plain and Warren bioregions. The Murray River is found within this bioregion along with the peaks of the Stirling Ranges (Chisholm et al. 2016), although the ranges themselves fall outside of Gnaala Karla Booja Country. The Jarrah forest present within these bioregions exist within a warm Mediterranean environment, meaning they experience hot dry summers and cold wet winters (Thackway and Cresswell 1995). It should be noted that the Noongar Peoples have a much broader understanding of the seasons and the cyclic changes their Country goes through than the basic categories Wadjelas’ (Westerners) apply to three-month block increments of time, and that words such as ‘summer’ and ‘winter’ do not do justice to this wealth of knowledge surrounding seasonal changes.

The ground surface and vegetation present within the Jarrah Forest bioregions has been described by Thackway and Cresswell (1995) as featuring a, “duricrusted plateau of Yilgarn Craton characterised by Jarrah-Marri forest on laterite gravels and, in the eastern part, by Marri-Wandoo woodlands on clayey soils. Eluvial and alluvial deposits support Agonis shrublands. In areas of Mesozoic sediments, Jarrah forests occur in a mosaic with a variety of species-rich shrublands” (Thackway and Cresswell 1995).

The Jarrah and Marri forests have long held a high significance to the Gnaala Karla Booja representatives. Some of the forests located on Gnaala Karla Booja Country include parts of the Jarrahdale State Forest, the Darling Ranges, Serpentine National Park, the Youraling State Forest, the Dwellingup State Forest, the Land Poole Conservation Reserve, the Muja State Forest, the Mumballup State Forest, and the Wilga State Forest, amongst others. These

forested areas provide a wealth of natural resources and materials that have been utilised for the subsistence strategies, cultural prosperity, and lore and spirituality of the Gnaala Karla Booja People both in past times and into the present.

Many of the sites of significance for the Gnaala Karla Booja People within the Jarrah Forest bioregions are located adjacent to or along the waterways that criss-cross the landscape. The importance of waterways and water sources to the Gnaala Kaala Booja People has previously been stated and cannot be underestimated. Several key water sources of significance to the Gnaala Karla Booja People within the Jarrah Forest bioregions include: the Murray River (DPLH ID 3537), Canning River, Serpentine River (DPLH ID 3582), Crossman River, Cell Brook, Bingham River, Harvey River, Harris River (DPLH ID 21905), Collie River (DPLH ID 16713), and Williams River.

The Darling Ranges / Darling Scarp is also a key natural feature situated within the Jarrah Forest bioregion that is of significance to the Gnaala Karla Booja People. Ranges, as well as the peaks of particular mountains or hills, often hold a great deal of significance as they can be a part of Dreamtime or creation stories, or may have been key markers in the landscape that people utilised to navigate in past times. The Darling Scarp itself is believed to represent the body of the Waugal, one of the Dreamtime creation spirits spoken about within Noongar Lore (SWALSC 2023a). Some of the peaks along the Darling Scarp itself also hold great significance to the Gnaala Karla Booja People one such place includes Mt Saddleback (Mokine) (DPLH ID 17214) a mythological site south of Boddington.

Noongar culture and connection to Country

As mentioned, the Gnaala Karla Booja People form one of Noongar Nations of the southwest of Western Australia. These Noongar Nations maintain a strong connection to Country, and each have their own customs, beliefs, and traditional practices still utilised today to ensure knowledge of Country is passed on to the younger generations, and that the overall health of Country is maintained.

Oral histories and lore are one of the key mechanisms utilised to maintain this knowledge. These lore stories speak of the connection between Country and the Noongar Peoples, and of how the Country was originally created by spirit beings. Noel Nannup, a Noongar man, speaks of how Noongar spirituality is intrinsically tied to Country by saying:

“Noongar spirituality lies in the belief of a cultural landscape and the connection between the human and spiritual realms. Everything in our vast landscape has meaning and purpose. Life is a web of inter-relationships where maam and yok (men and women) and nature are partners, and where kura (long ago, the past) is always connected to yey (present). Through our paintings, music, and koroboree/kobori (dance) we are paying respect to our ancestral creators, and at the same time, strengthening our belief systems. Noongar connection with nature and boodja (country) signified a close relationship with spiritual beings associated with the land. We express this through our caring for boodja and observing Noongar lore through an oral traditional of storytelling. Noongar spirituality is one of many kaartdijin (knowledge) systems within Aboriginal Australia, and like other knowledge systems, there is diversity in our Noongar interpretations.”

(Nannup sourced from SWALSC 2023a)

The beliefs, stories, and customs surrounding the Dreamtime are of a high cultural significance to the Gnaala Karla Booja Traditional Owners, and are intrinsic to Noongar spirituality, as Nannup mentioned above. The following excerpts and information regarding Noongar beliefs surround the Dreaming and Dreamtime spirits have been taken directly from SWALSC’s website (2023a) as one of the representative bodies for the Gnaala Karla Booja People.

“The Nyitting or Dreaming means ‘cold,’ ‘cold time’ or ‘ancestral times.’ Noongar people know it as the Creation time. It is the time before time when spirits rose from the earth and descended from the sky to create the land forms and all living things. Nyitting stories laid down the lore for social and moral order and established cultural patterns and customs. Our Noongar Elders have the ability to comprehend the knowledge and to maintain it in an unchanging way. Noongar creation stories can vary from region to region, but they are part of the connection between all living things.”

“Waugal or waug means soul, spirit, or breath. The Waugal is the major spirit for Noongar people and central to our beliefs and customs. Waugal has many different spellings, including Waakal, Wagyl, Wawgal, Waugal, Wogggal, and Waagal. The Waugal is a snake or rainbow serpent recognised by Noongar as the giver of life, maintaining all

fresh water sources. It was the Waugal that made Noongar people custodians of the land. Noongar people believe that the Waugal dominates the earth and the sky and makes the koondarnangor (thunder), babanginy (lightning), and boroong (rain).”

“During the Nyitting, it created the fresh waterways such as the bilya/beelier (river), pinjar (swamps, lakes), and ngamma (waterhole). The Darling Scarp represents the body of the Waugal, which created the curves and contours of the hills and gullies. As the Waugal slithered over the land, its track shaped the sand dunes, its body scoured out the course of the rivers, where it occasionally stopped for a rest, and created bays and lakes. The Waugal rose up from Ga-ra-katta (Mt Eliza at the foot of Kings Park), and formed the Derbarl Yerrigan and the Djarlgarro Beelier (the Swan and Canning Rivers). It also created other waterways and landforms around Perth and the south-west of Western Australia. The Waugal also joins up with wetlands such as Herdsman Lake and Lake Monger, and resides deep beneath underground springs.”

“When the great Waugal created the boodja, he ensured that there was wirrin or spirits to look after the land and all that it encompassed. Some places such as the karda (hills), and ngamar (waterholes), boya (rocks), bilya/beelier (rivers) and boorn (trees) were created as sacred sites and hold wirn (spirits), both wara/mambaritj (bad) and kwop (good).”

“Noongar spiritual obligations to our spirit ancestors are maintained according to the totems that live in our environment. Some examples of Noongar totems are jirda (birds), kwooyar (frogs), gooljak, kooljark, koolyak (swans), yoorn/yoondarn (goannas) and karda/caarda (lizards). Every individual has a spirit totem or an animal which we have a responsibility for and must treat them with respect. We do not eat the animal of our totem. Children are still given totem animals today to look after and preserve. It is part of maintaining our cultural traditions and a connection to all living things.”

As Noel Nannup mentioned, some regional variation exists within these beliefs amongst the different Noongar Nations, however, the importance of Country and the intrinsic connection between Country, spirituality, and the People, is ever present and highly significant.

Culturally significant sites and places

There are many culturally significant sites and places scattered throughout Gnaala Karla Booja Country, and many are situated along major landscape features and permanent water sources such as creeklines, rivers, springs, peaks, and prominent hills. Several places of known significance to the Noongar People, some of which are located on Gnaala Karla Booja Country, include:

“…our katitjin or knowledge about the boodjar and the sacred sites such as Mt Stirling, Mt Caroline, Mt Bakewell, Mt Matilda, Kokerbin Rock, Boyagin Rock, Mandikan, Mundaring, Karta Koomba, Waakal Mia, and the Derbal Yerrigan (Swan Estuary)…”

(Collard 2005)

Sites of particular importance on Gnaala Karla Booja Country include Boyagin Rock (DPLH ID 3225) and Barragup Mungah. The following excerpts stem from the SWALSC (2023b) website and explain the significance of Boyagin Rock and Barragup Mungah to the Gnaala Karla Booja People.

Boyagin Rock is located in the Boyagin Nature Reserve, approximately 15 km southwest of Brookton. Regarding Boyagin Rock, the, “Noongar people have a ‘Back to Boyagin’ day to catch up with moort – family/relations. Our moort bring their chairs and tables, barbeques, cameras, footballs, and walking shoes. We moort sit around and wangkiny – talk and yarn, walk to the top of Boyagin Rock – our Noongar moort have been doing this for years. The kurrlongurr – children play games. Noongars have many stories to tell about our experiences at Boyagin Rock and one thing is for sure, we never stay there after dusk because it is a very wirrin (spiritual) place. Noongar people also believe that this is the last resting or sleeping place of the Waugal” (SWALSC 2023).

Noongar Elder Janet Collard said of the site:

“My husband (Andy Collard) said that in that rock (Boyagin Rock) there is a big Waargle, water snake and when it wound itself round and round it looked like a big tyre. So he’s there and I think it’s sacred, it means water to us. Old Waargle is sacred to us and you must never kill it or

harm it in any way.”

(Collard sourced from SWALSC 2023b)

Barragup Mungah is a fish weir on the Serpentine River in Gnaala Karla Booja Country, and is known as an important meeting point for Noongar Peoples from the Swan, Peel, and Darling Ranges areas.

Regarding the area, Noongar Elder Harry Nannup (SWALSC 2023b) stated:

“This country is our country, not one, not two but all of us that are here today, this is our land, and we can be proud of it. As a child, I wondered all around these waterways with my family, we fished the area, we hunted, we got berries and whatever else – we survived where other people couldn’t. We got used to other people coming here from all other country areas and we fed them with fish because we knew how to catch the fish. We became pretty famous for this, and we still are – we still do it.”

There are countless sites of a high cultural and spiritual significance to the Gnaala Karla Booja People located on their Country these are but a few and operate in a vast web of cultural features, landscape, and connection to Country.

Legacy post-contact

Perth was officially settled in 1829, and the early contact between Aboriginal People and European settlers had mixed outcomes (WAM 1979). Some interactions were positive, with Aboriginal People often assisting Europeans during the early years of settlement, guiding pastoralists and settlers to various watersources and resources (Hughes-Hallet 2010). Certain supplies, such as tea, tobacco, and sugar were used as payment for the assistance of the Noongar Nations (Chisholm et al 2016). Berndt (1979) notes that the practise of paying Aboriginal People with supplies or rations altered traditional lifestyles resulting in increased interaction of both populations and an exchange of knowledge and culture.

Many interactions were not positive. Several conflicts occurred over land seizure and dispossession between southwest Aboriginal populations and European settlers which resulted in extreme violence towards Aboriginal populations, including several massacres. One such massacre occurred at Pinjarra on Gnaala Karla Booja Country on 28 October 1834.

The Pinjarra massacre resulted in the deaths of 15 to 80 Bindjareb People and one British colonist (Harris 2010). The encounter was led by Captain James Stirling who gathered a party of policemen, soldiers, and settlers, and headed out to Pinjarra to quell Bindjareb resistance to the spread of European colonisation in the area (Curthoys and Konishi 2022).

Tensions had been rising in the years previous with several key Elders outlawed and executed including Midgegooroo in May 1833. His son Yagan was outlawed two months later which resulted in his death at the hands of two men enticed by the promise of a bounty (Cuthoys and Konishi 2022). Midgegooroo and Yagan were influential leaders amongst the Whadjuk Noongar, and their loss was felt deeply by the community, and was also exacerbated by the desecration of Yagan’s body (Cuthoys and Konishi 2022).

Stirling used the spearing of a servant near Mandurah in retaliation for these events as an excuse to lead a party of soldiers and police against the Binjareb People amongst fears that the Noongar clans would join together and overwhelm the settlers (Cuthoys and Konishi 2022). This party surrounded a Binjareb camp on three fronts, and proceeded to trap people along a river where they were fired at from both sides (Cuthoys and Konishi 2022).

Various accounts of the massacre estimate that anywhere from 15 to 80 people were killed including men, women, and children (Cuthoys and Konishi 2022). Several other massacres occurred in the southwest of Western Australia but were not as well documented as the one that occurred at Pinjarra in 1834 after backlash from the British Parliament against the actions of Stirling and his men.

As European populations continued to grow, Aboriginal populations were slowly pushed off their traditional lands, and a greater demand for labour saw Traditional Owners often employed at various settlements such as pastoral stations (Berndt 1979). Noongar men often became wage labourers such as station hands and drovers while Noongar women typically performed unpaid or poorly paid domestic tasks within the household or camp (Chisholm

et al. 2016; Hodson 1993).

Additionally, the establishment of various government policies saw a large number of Noongar children forced onto missions such as New Norcia to the north-northeast of Perth (Chisholm et al. 2016). Missions were run in conjunction with government legislation, ensuring the removal of children from their parents and placement in institutions for educational purposes that would ultimately feed viable workers back into the labour market (Chisholm et al. 2016; Kidd 1997). Many of the missions were marred by abuse, still functioning up until the 1960s in some areas (Chisholm et al 2016; Kidd 1997).

Margaret Gentle, a Noongar woman, recalls her experiences of the Wandering Mission:

“There’s a lot of old people who have been through there (Wandering Mission) over the years and their spirits will come back to that place. Sometimes, we will talk about that…we won’t talk about that in the night time though. Yes, it had everything. Wandering has everything and there was sadness there too… Yes, there was that too and there’s those old people who died and who keep coming back to see their children. Their spirits keep coming back. A lot of children were there before I went there [with Joe Walley in the 1970s]… Yeah, God only knows what happened before me and Joe got there.” (SWALSC 2023)

These Acts and policies were designed to remove Noongar People from their culture and traditions, and continue to have far-reaching effects on Noongar identity and society today. Various programs are in place, however, to regenerate cultural and intergenerational learning amongst the Gnaala Karla Booja People. The South West Land and Sea Council is currently working in collaboration with the Association of Independent Schools of WA to develop learning materials to be introduced into the curriculum surrounding Noongar knowledge, stories, culture, and history (SWALSC 2023c).

SWALSC has also been working in collaboration with Noongar Elders to form the Noongar Leadership Business Unit which has five core branches being the Noongar Leadership Directory, Walk with Us – Partnerships, Program Development and Delivery, Accreditation, and Evaluation (SWALSC 2023d). This business unit delivers a range of community programs aimed at transferring knowledge surrounding Noongar culture and traditional practices. These programs also focus on training Noongar People in leadership and specific community-based roles that serve to strengthen the community overall and provide Noongar People with a stronger voice when making decisions about the works and activities that are occurring on their Country

7 PERSONNEL

ARCHAEOLOGICAL AND ETHNOGRAPHIC HERITAGE CONSULTATION

Baldivis Grove Subdivision Heritage Survey

DATE 24 November 2023

Frasers engaged ALS to conduct an archaeological and ethnographic site identification heritage consultation of the area requested in the project scope and to assist in the coordination of the nominated GKB consultation participants.

The nominated GKB participants were selected by the GBK Cultural Advice Committee as the appropriate knowledge holders for the consultation and consented to participate in the heritage survey.

Contact details for the survey participants are provided in Appendix A of this report.

The Baldivis Grove Subdivision Heritage Survey was carried out by the following people on 24 November, 2023

Figure 2: Map of the six regions established under the South West Native Title Settlement (South West Aboriginal Land and Sea Council, 2023).

7.1 GNAALA

KARLA BOOJA

REPRESENTATIVES

CHARN HAYDEN

GERALDINE HAYDEN

LINTON UGLE

LORAINE BARLOTTI

MARIE WALLEY

SHIRLEY VITI

TREVOR WALLEY

7.2

ABORIGINAL LAND SERVICES REPRESENTATIVES

DANIEL MONKS – Archaeologist / Heritage Operation Manager

DAVID ENGLISH – Anthropologist / Heritage Consultant

7.3 FRASER PROPERTY AUSTRALIA REPRESENTATIVES

TOD O’DWYER – General Development Manager

WAYNE BURNS – Development Manager

MICHELLE MRZYGLOCKI – Community Development Manager

7.4 REPORT AUTHORS

DANIEL MONKS – Archaeologist / Heritage Operations Manager

DAVID ENGLISH – Anthropologist / Heritage Consultant

MICHAEL McElligott – Archaeologist / Senior Heritage Consultant

8 SURVEY METHOD

Prior to the survey, the ALS heritage consultants conducted a survey brief to provide the nominated GKB participants with information about the purpose, scope, and proposed method of the heritage consultation. The results of the desktop survey were also provided to the survey team with contextual information on what heritage values are known to exist within the survey area. The proposed method was approved by the Traditional Owners present.

Below: Tod O’Dwyer (Frasers) providing a project brief to the nominated GKB participants

D. English & D. Monks

Below: The nominated GKB participants investigating the site with Frasers representatives

After the initial briefing, the heritage team walked through the bounds of lodged site 39406: Baldivis Grove (estate), stopping at points of interest and to note down specific heritage management recommendations for the area. This time was also utilised to ask questions of the Frasers representatives as to the specifics of the proposed works, which in turn allowed the GKB nominated representatives to make informed decisions about the management of the cultural heritage values of Baldivis Grove.

At the end of the field trip, a debrief was conducted to discuss the results of the heritage survey, and to offer the Traditional Owners an opportunity to provide additional comments on the heritage place investigated (39406: Baldivis Grove (estate)), the effectiveness of the methods used, and their recommendations for the management of the cultural heritage values of the site.

8.1 COORDINATE CAPTURE

All coordinates provided in this report and in the spatial data package accompanying it (Attachment 1) were obtained with a Garmin hand-held GPS and a Samsung Galaxy tablet, using the GDA94 datum. All grid references are projected in MGA Zone 50, unless otherwise stated. Dependent on external conditions, these units afford an optimal spatial accuracy of ± 5 m.

Below: Heritage consultation within lodged site 39406: Baldivis Grove (estate)

9 DESKTOP RESEARCH

As mentioned, desktop research was conducted prior to the commencement of fieldwork to ascertain whether any previous surveys have been conducted over the proposed project footprint, and to gather information associated with the known sites in the area. The results of this desktop research are presented below.

9.1 PREVIOUS REPORTS

As a result of the desktop research, it was identified that two previous surveys have been conducted that intersect with the Baldivis Grove survey area. These previous surveys and their associated reports are summarised below

102670 Baldivis Grove Subdivision

O’Connor, R., Bodney, C. and Little, L., 1985. Preliminary Report on the Survey of Aboriginal Areas of Significance in the Perth Metropolitan and Murray River Regions. Unpublished report for Department of Aboriginal Sites, Perth.

This report was part of a project to produce a management plan concerning Aboriginal sites in the Perth metropolitan region. The project involved an analysis of the existing body of archaeological data by Strawbridge (DIA 104505) and this report, which outlined the ethnographic survey. The ethnographic component discussed significant sites in terms of their importance to Aboriginal groups today and/or their potential contribution to an understanding of Aboriginal culture. The aim of the project was to provide guidelines for development in the belief that aims of development and conservation of Aboriginal sites (archaeological and ethnographic) need not be directly opposed.

103564 Baldivis Grove Subdivision

Polach, L 1971, An Archaeological Survey Project: The Perth Area, Western Australia. Unpublished report for the University of Western Australia.

This report investigates the changing patterns of Aboriginal settlement and land use, as well as the ecological and symbolic ordering of life and landscape in a sample area within the Southwest of Australia, centred on Perth. The survey was based on ethnographic historical sources, field survey, and excavation.

9.2 PREVIOUSLY RECORDED SITES

As mentioned, one lodged heritage place (DPLH OHP ID 39406: Baldivis Grove (estate)) is present within the proposed project footprint and formed the focus of the consultation held on 24 November between nominated GKB participants and Frasers representatives. Detailed information can be found in the survey results section (Section 11.2) of this report.

10 AMENDMENTS TO SCOPE

There were no alterations or changes to the scope of works during this heritage survey.

11 BALDIVIS GROVE SUBDIVISION RESULTS

11.1 DATA

The Baldivis Grove Subdivision Stage 9 project area was archaeologically and ethnographically assessed to site identification standard on 24 November 2023.

The Baldivis Grove Subdivision survey area is located within the City of Rockingham, in the suburb of Baldivis, 520 m south of Safety Bay Road and 290 m east of Mandurah Road.

The results presented below are also provided in the pack (Attachment 1) that accompanies this report.

Attachment 1: ALS2319 Spatial Data v0.1

Table 1: summary of the survey area results

An assessment of the fabric of the site was undertaken and ethnographic discussions undertaken to document the cultural values of the place.

11.2 DPLH OHP ID 39406: Baldivis Grove (estate)

BALDIVIS GROVE (ESTATE) NO RESTRICTIONS

SITE TYPE

Centroid: 386451 mE / 6422130 mN

Size: 19,777.5 m2

HISF receipt no: TBC

11.2.1 LOCATION

DPLH OHP ID 39406 : Baldivis Grove (estate) is a camping ground with culturally modified trees and ethnographic values. It was recorded on 24 November 2023.

Baldivis Grove (estate) resides within an area of property development by Frasers Property Group Australia (Frasers). The site itself was originally recorded to include numerous possible culturally modified trees. These trees are not going to be impacted by the proposed works of Frasers. At the time of recording, no details of the initial site recording are known, such as by whom or when.

DPLH OHP ID 39406: Baldivis Grove (estate) is located in the suburb of Baldivis in the broader Perth metropolitan area of the South West region of Western Australia some 450m south of Safety Bay Road, 250m east of Mandurah road and 370m north of Pike Road. The site is situated on the gentle eastern slope of the large north to south oriented inland dune system to the east of Lake Walyungup The parcel of land containing the site is surrounded by private property, with small acreages to the north, west and south west; along with the current and prior Frasers Baldivis Grove Estate development envelopes to the south and east. This location offers some protection from the prevailing south westerly and westerly winds, and is situated within less that a day’s walk of the present Golden Bay coast line and the wetlands to the west and northwest.

The boundary of the site was created to encompass the 43 potential scarred or modified trees and was created prior to the consultation discussed in this report. No amendments were made to the boundary following the consultation. This conclusion was reached based on their being no further evidence of scarred or modified trees beyond this boundary, and the presence of private property beyond this to which the survey team did not have permissions to access. The GKB nominated participants were satisfied that the existing boundary was sufficient to encompass the values of the place.

D. English & D. Monks

11.2.2 PREVIOUS ASSESSMENTS

At the time of the consultation any previously held recording or documentation of the DPLH OHP ID 39406: Baldivis Grove (estate) site was not available to the heritage consultants

It is understood that the site was reported to the DPLH by a member of the public as containing possible scarred trees.

11.2.3

SITE DESCRIPTION

DPLH OHP ID 39406: Baldivis Grove (estate) is a large area potentially containing 43 culturally modified trees. The site measures approximately 113 m (north-northeast to south-southwest) by 220 m (west-northwest to eastsoutheast). The site slopes upwards to a hill crest on the west side, from which there is a view of nearby Lake Walyungup. Within the site boundary are numerous mature Tuart (Eucalyptus gomphocephala) trees, with several Swamp She-oak (Casuarina obesa) and Marri (Corymbia calophylla) trees.

The Gnaala Karla Booja (GKB) nominated representatives understood the 39406: Baldivis Grove (estate) site represents a camping place where trade likely took place. The site is also understood as a “place of memory”.

The 39406: Baldivis Grove (estate) site is located within a rich cultural landscape with abundant natural resources utilised by Noongar ancestors. Lake Walyungup is located 480 m west, swampland exists 400 m northeast, and the ocean is located 4.6 km west. GKB nominated representative Cheryl Martin stated (pers. comm. 24 November 2023),

“This is a very rich area, because of water sources, food. Our people been coming here for thousands of years.”

GKB nominated representative Trevor Walley (pers. comm. 24 November 2023) also commented on the availability of food;

“All this fresh swamp here – eggs, turtle.”

Traditional knowledge of the food resources surrounding 39406: Baldivis Grove (estate) survives and continues to be valued today. GKB nominated representative Shirley Viti asserted that the elevation provided by the western portion of the site would have been advantageous for the Noongar Ancestors, stating (pers. comm. 24 November 2023):

“They’d camp on the hill so they can watch, see below.”

As a place to look out over Country, and with accessible food and water sources, Shirley Viti concluded (pers. comm. 24 November 2023) that 39406: Baldivis Grove (estate),

“Could’ve been where they [Noongar ancestors] held their barter trading. Ocean’s just there, lake is just there”

Summarily, the location of 39406: Baldivis Grove (estate) in relation to other water and food sources makes it a probably camping and trading place. This assertion is further evidenced by the presence of culturally modified mature Tuart trees, as identified by the GKB nominated representatives

Tuart trees are native tree species which are threatened, in no small part due to historic logging and land clearing throughout the South West. Besides offering critical habitat for native fauna, these trees hold cultural significance to the GKB nominated representatives. After inspecting one scarred Tuart tree within the site, GKB nominated representative Trevor Walley recalled (pers. comm. 24 November 2023) what his elders had told him regarding these trees, and what the scars may mean:

“A lot of elders told me important people are buried under it, or [it shows] “it is my camp site”,

or [it relates to] ceremony. Unless they tell you, you don’t know” (pers. comm. 24 November 2023)

After inspecting the grounds of 39406: Baldivis Grove (estate) and the trees more thoroughly, Trevor Walley surmised that 39406: Baldivis Grove (estate) was a camping area and that the scarring on the trees may have been for memorial, to remember someone.

In conversations following the heritage consultation, Shirley Viti relayed that she understood that her father Dilyan Jack Abraham was born near the area

The scarred or culturally modified trees are scattered throughout the site, but the densities are in the central, western and northern portions. The east and northeast areas have been subject to clearing. Prior to the heritage consultation, surveyors had labelled and numbered the trees and marked in their location spatially. This numbering system was the basis for the identification of individual trees during the assessment. While it was difficult to define or determine scarring or indentation on the inner timber face of most of the potential scars, it was noted that all were at an appropriate height; within the bottom 2 m of the trunk and thus accessible to persons wishing to mark or collect bark. This would also be a height at which stock might cause damage to the tree bark.

In consultation with the GKB nominated representatives it was established that this scarring would not have been for the procurement of bark for tools or utilisation. Rather that this scarring would have been as markers for the individual tree, noting something proximate, or marking the broader area in and around the Tuart trees on the slope as an area of cultural activity. This interpretation would mean that scarring might have been less substantive than that utilised to procure bark for shields or carrying utensils. As such, the scarring may be less prominent and easily decerned as cultural scarring.

As sample of the potential scars were measured and their aspect documented (see table below).

Table 1: Measurements of sample of scars from the 39406: Baldivis Grove (estate) site.

D. English & D. Monks

Below: Tree # 14, Scar 1 (scale = 10 cm)

D. English & D. Monks Site Identification Heritage Consultation – Baldivis Grove Estate Stage 9

Below: Tree # 88, Scar 1 (scale = 10 cm)

Below: View southeast toward the Tuart trees

Below: View east toward the eastern side of the site

D. English & D. Monks Site Identification Heritage Consultation – Baldivis Grove Estate Stage 9

Below: View northwest, up the slope to the crest of the dune in the western portion of the site

11.2.4 SIGNIFICANCE TO TRADITIONAL OWNERS

DPLH OHP ID 39406: Baldivis Grove (estate) is a place of cultural value to the GKB nominated representatives, who maintain traditional rights and interests over the Country on which the place exists. The GKB nominated representatives' interpretation of the site is as a place of connection and memory. It is where their ancestors camped, hunted and communed with other families and groups in the area as they moved through Country, as well as their ancestors. The GKB nominated representatives understand this significance, both indirectly - by observing and assessing the cultural markings on the trees and the terrain and directly – by what they remember from their relations. The scarring on the trees indicates the past use of the area either intensively or seasonally, as a place between places. They asserted that the scarring was most likely a demarking endeavour rather than exploiting of bark for utility. There is associated value in that the site sits between culturally significant areas such as soaks and wetlands to the northeast and northwest, along with the coastal resources to the west. The site links components of a cultural landscape.

Direct family heritage is tied to this place for some GKB nominated representatives, such as Sheryl Viti, who recalled:

“My mother said there was camping, fire all in here”

Adding that:

“My grandfather’s footprints are all over this place because he worked here.”

(pers. comm 24 November 2023)

Several other GKB nominated representatives related stories of their families’ connections to this place or the surrounding area and the traditional and contemporary activities they practised. Trevor Walley expressed a contemporary connection to the area. He and his immediate family lived and worked nearby when he was a child, south of the site toward the old market garden region. During the consultation, he regaled the survey team with stories of his childhood and memories of his time in the area. The contemporary interaction with the area during the consultation allowed Trevor to remember his time on Country and share this with the people present. As such, 39406: Baldivis Grove (estate) demonstrates clear social and historical significance for the GKB nominated

representatives as a tangible place of connection to family ancestors, culture, and history. Disturbance of this site would therefore damage the ability of the GKB nominated representatives to recollect these memories and stories and their capacity to teach others in their community.

During the consultation, the GKB nominated representatives asserted the spiritual importance of the Sheoak trees within 39406: Baldivis Grove (estate). These trees which provide a direct connection to ancestors through the sounds of the rustling leaves in the wind. Trevor Walley explained (pers. comm. 24 November 2023):

“With the Sheoak, you can hear the shhh. That’s the old people [saying] “remember us”.

The soundscape provided by these trees are therefore an integral part of the cultural significance of the site, providing a means of commune with ancestors. Consequently, removal, damage, or restriction of access to this site and to these trees is a denial of opportunity for GKB nominated representatives to connect with and practice a spiritual aspect of their culture.

The spiritual significance of 39406: Baldivis Grove (estate) is not wholly confined to the demarcated boundary of the place. As is typical of places of Aboriginal cultural heritage, the spiritual significance is interconnected to the surrounding landscape, including other known sites. Specifically for 39406: Baldivis Grove (estate) is its connection to Lake Walyungup (1 Km southwest). This lake is visible from the high point at the western edge of 39406: Baldivis Grove (estate). According to GKB nominated representative Trevor Walley, this lake contains eggs from the mythical water serpent, the Wagyl. Trespassing near these eggs can be dangerous, as the Wagyl is known to cause devastation if disturbed or disrespected. Indeed, Trevor Walley (pers, comm. 24 November 2023) recalled being told not to go near these eggs:

“That’s the eggs of the rainbow serpent. We weren’t allowed to swim there. The rainbow serpent will take us down in the ground and come out at Safety Bay in the ocean”

Being upslope and so close to a site associated with the presence of such an important Being, 39406: Baldivis Grove (estate) has the potential disrupt or damage this sacred place, through runoff contamination, litter, and general land disturbance. Such secondary effects should be considered, because as stated by GKB nominated representative Marie Walley (pers comm. 24 November 2023):

“That’s (Lake Walyungup) part of it, that’s all part of it”

Consequently, unmitigated, or inadequate management of either place will adversely affect the other. Evidently, through the Sheoak trees and by association with Lake Walyungup, site 39406: Baldivis Grove (estate) holds high spiritual significance to the GKB nominated representatives

In addition to the strong social, historical, and spiritual significance, 39406: Baldivis Grove (estate) exhibits considerable aesthetic values. Positioned upon an incline rising westward, 39406: Baldivis Grove (estate) provides a vista of the surrounding land, including Lake Walyungup. This elevation was appreciated by the GKB nominated representatives, who cited this as further evidence of why the place was a campground, since:

“They'd (Noongar ancestors) camp on the hill so they can watch, see down below.” (Shirley Viti pers. comm. December 2023).

During the consultation, the GKB nominated representatives walked underneath the canopies of the Marri, She-oak and Tuart trees. They examined and admired not only the scars on the Tuart trees but also the trees themselves. The GKB nominated representatives admired and commented on the maturity of the trees, and their ability to provide habitat for native species including cockatoos and possums. It is in large part, this appreciation of the aesthetics within 39406: Baldivis Grove (estate), which facilitated the GKB nominated representatives agreeance to keep the site a public open space where all can enjoy the natural beauty.

As a significant place of tangible and intangible, present, and historic values, 39406: Baldivis Grove (estate) presents an opportunity to not only preserve significance, but to celebrate and teach it also. GKB nominated representative Geraldine Hayden (pers, comm. 24 November 2023) stated hopefully:

“With this place here, I hope our history is put down for people to learn.”

Summarily, it is the evaluation of the GKB nominated representatives, that 39406: Baldivis Grove (estate) demonstrates social, historical, spiritual, and aesthetic values. This classifies 39406: Baldivis Grove (estate) as a highly significant place of Aboriginal cultural heritage, as per Section 39 of the Act

11.2.5 SITE CONDITION

The site consists of remnant Tuart trees with sparse Sheoak and Marri in the north eastern portion. The area has been the subject of clearing of the understory vegetation and a thinning of the tree density. Several piles of dead and felled trees were noted within the site boundary and adjacent to it. Virtually none of the native understory and ground cover remains and the present groundcover vegetation is seeded pasture.

The modified trees show minimal or no sign of contemporary human interference, save for the occasional pruned limb. The scars themselves are largely intact with some showing signs of termite damage and rot on the internal surface.

11.2.6 KEY HERITAGE CONSIDERATIONS AND PRELIMINARY MANAGEMENT STRATEGIES

• Impact to the 43 potential scarred trees should be avoided

• Cultural monitors should be engaged during any ground disturbance works

• A cultural heritage management plan should be developed with Frasers, the City of Rockingham and GKB representatives to inform the management of heritage values during and after the development.

• A co-design of the proposed park area should be undertaken to factor in the view of the GKB representatives and with respect to the identified values of the site.

12 RECOMMENDATIONS

A list of heritage management recommendations have been provided by ALS below which are based on the results of the archaeological and ethnographic site identification consultation over the Baldivis Grove subdivision project area.

12.1 RECOMMENDATION 1

Frasers is advised to facilitate a cultural opening ceremony upon commencing works for the Baldivis Grove Subdivision Stage 9 Project.

The GKB nominated representatives stated that the culturally appropriate way to open the Stage 9 Baldivis Grove Subdivision would be to hold an Opening Ceremony. This ceremony should include appropriate, prominent GKB representatives, whom should be arranged through GKBAC. Such an opening ceremony would ensure due respect is shown for the longstanding cultural ties of Baldivis Grove, its surrounds, and the GKB representatives

12.2 RECOMMENDATION 2

Frasers is encouraged to facilitate cultural awareness training for all employees and contractors working on the Baldivis Grove Subdivision Stage 9 Project.

An outcome of the heritage survey and consultation was an increased awareness and appreciation for the cultural values associated with the project area. If all employees and contractors working on the project also had this knowledge and appreciation, then the cultural values of the place would be further safeguarded. Hence, it is recommended that Frasers facilitates cultural awareness training through GKBAC for all employees and contractors working on the Baldivis Grove Subdivision Stage 9 Project.

12.3 RECOMMENDATION 3

Frasers is advised to conduct revegetation works within the Baldivis Grove Subdivision Stage 9 project area, with the cooperation of, and input from, GKB, as permissible under the City of Rockingham’s bushfire risk management plan.

Much of the natural native vegetation has been cleared from the Baldivis Grove Subdivision Stage 9 project area but can be found in the immediate surrounds. This vegetation holds ethnobotanical values, and this is particularly true of species such as the Marri (Corymbia calophylla) and Swamp She-oak trees (Casuarina obesa), which offer crucial habitats for native wildlife. The GKB representatives hold intimate knowledge of these botanical species and should be engaged through GKBAC to cooperatively design and implement effective and appropriate revegetation practices. It was also suggested that Frasers could offer lopped branches of these species (if clearing is necessary) to the local Aboriginal community for cultural uses.

12.4 RECOMMENDATION 4

Frasers is advised to collaborate with GKB to develop and implement co-naming principles as part of the co-design process of the Baldivis Grove Subdivision Stage 9 Project.

Incorporating the Noongar names of plants, landscapes, animals, and other features within and relating to the Baldivis Grove Subdivision Stage 9 Project is a way of demonstrating respect for the Indigenous heritage and knowledge that resides within this place. By incorporating such naming conventions, Noongar knowledge can be passed on to the wider community and down generations, ensuring the survival and appreciation of cultural knowledge. These naming conventions should be applied to signage, place names, and features of the Baldivis

Grove Subdivision Stage 9 Project through ongoing consultation with GKBAC

12.5 RECOMMENDATION 5

The GKB representatives support Frasers in cooperatively developing an ACHMP (Aboriginal Cultural Heritage Management Plan) with the City of Rockingham

Because the Baldivis Grove Subdivision Stage 9 project area superimposes lodged site 39406: Baldivis Grove (estate), ongoing works, such as maintenance and upkeep works, would be classified under Regulation 10 of the 1972 Aboriginal Heritage Act. To avoid the need for re-doing Section 18 approval for such works in the future, Frasers is encouraged to develop an ACHMP, in cooperation with the City of Rockingham. This ACHMP can also establish a framework for the mitigation of project impacts upon cultural heritage places throughout Gnaala Karla Booja lands. This ACHMP should include a comprehensive stop-works procedure that addresses the management of subsurface cultural and skeletal material (also see Recommendation 6)

Other preliminary matters for consideration in any future ACHMP, as identified by the GKB representatives during the survey, include:

• the use of cultural Monitors; and

• the implementation of strategies for protection of local flora and fauna

12.6 RECOMMENDATION 6

It is recommended that Frasers develop and implement a stop works procedure for unexpected finds and the discovery of human remains, along with processes for the salvage and relocation of cultural material uncovered as part of the proposed works.

Given the potential for subsurface cultural material and human remains within the littoral and hinterland dune systems of the Swan Coast Plain; it is advised that Frasers develop and implement procedures to manage risks of such finds. These process and procedures should include but are not limited to:

• Aboriginal cultural monitor processes;

• procedures for the salvage and storage of cultural material;

• procedures for the demarcation of Aboriginal cultural heritage; and

• procedures for the discovery of human remains

Such procedures can also form part of the ACHMP to inform process during the works, but also for ongoing site management and maintenance for the City of Rockingham once control of the land transitions to them.

12.7 RECOMMENDATION 7

It is recommended that Frasers engage cultural monitors during ground disturbance activities as part of the Stage 9 Baldivis Grove development works both within and surrounding the boundary of lodged site 39406: Baldivis Grove (estate)

Cultural material may exist subsurface within the Baldivis Grove Subdivision Stage 9 project area. As an area where Gnaala Karla Booja people have resided for thousands of years, lithic material may be present sub-surface. Additionally, GKB nominated representative Trevor Walley described the present Tuart trees as possible places of burial. As such, caution must be exercised when conducting ground disturbance works.

To prevent and/or respond appropriately to accidental disturbance of cultural material, Frasers is advised to employ cultural monitors for all ground disturbance works. The work of the cultural monitors can be guided by the processes and procedures outlined within Recommendation 6 above.

12.8 RECOMMENDATION 8

If Frasers proposes to alter the type of works, or to expand their program of works, either in size or scale, beyond what was subject to the heritage survey, it is advised that further consultation with the GKB representatives should be undertaken prior to the commencement of works.

Frasers is advised that only the areas subjected to heritage assessment are clear for the proposed works to proceed subject to Section 18 approval from the Minister. Should the program of works expand in size or scale, or should Frasers wish to conduct activities that differ to those discussed during field work, the GKB representatives will need to be engaged for further heritage assessment.

13 BIBLIOGRAPHY

Australia ICOMOS 2013, The Burra Charter: The Australia ICOMOS charter for places of cultural significance 2013, viewed 23 November 2023, http://australia.icomos.org/wp-content/uploads/The-Burra-Charter-2013-Adopted31.10.2013.pdf

Commonwealth of Australia 2024, Claimant summary – Gnaala Karla Boodja, viewed 23 November 2023, http://www.nntt.gov.au/searchRegApps/NativeTitleClaims/Pages/details.aspx?NTDA_Fileno=WC1998/058

Department of Planning, Lands and Heritage 2024, Aboriginal Heritage Inquiry System, viewed 23 November 2023, http://maps.dia.wa.gov.au/AHIS2/

Department of Planning, Lands and Heritage 2024, ACH Management Code, viewed 23 November 2023, https://www.wa.gov.au/system/files/2023-06/20230427-ach-management-code.pdf

13.1 LEGISLATION

Aboriginal Cultural Heritage Act 2021, viewed 23 November 2023, https://www.legislation.wa.gov.au/legislation/statutes.nsf/RedirectURL?OpenAgent&query=mrdoc_44477.pdf

Aboriginal Heritage Act 1972 (Western Australia), viewed 23 November 2023, http://www.austlii.edu.au/au/legis/wa/consol_act/aha1972164/

Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Commonwealth of Australia), viewed 23 November 2023, http://www.comlaw.gov.au/Details/C2010C00807

13.2 DPLH HERITAGE REPORTS

O’Connor, R., Bodney, C. and Little, L., 1985. Preliminary Report on the Survey of Aboriginal Areas of Significance in the Perth Metropolitan and Murray River Regions. Unpublished report for Department of Aboriginal Sites, Perth, DPLH Report ID 102670.

Polach, L ,1971, An Archaeological Survey Project: The Perth Area, Western Australia. Unpublished report for the University of Western Australia, DPLH Report ID 103564.

14 APPENDICES

Appendix A – Project contacts

Appendix B – Acronyms and definitions

14.1 APPENDIX A – PROJECT CONTACTS

The contact details of the heritage project stakeholders are provided below. ALS thanks everyone involved with the heritage survey and its organisation.

ABORIGINAL LAND SERVICES PTY LTD

Address Unit 2/17 Albert Street, Busselton, Western Australia 6280 / 45 Wood Street, Fremantle, Western Australia 6160

Email operations@aborignallandservices.com.au

Survey participants DANIEL MONKS

DAVID ENGLISH

Report authors DANIEL MONKS

DAVID ENGLISH

Editors MADELINE ENGLEZOS

DANIEL MONKS

Executive sign-off BILL BENNELL

FRASERS PROPERTY AUSTRALIA

Contact Tod O’Dwyer

Address Level 2/3 De Vlamingh Ave, East Perth WA 6004

Survey participants TOD O’DWYER – General Development Manager

WAYNE BURNS – Development Manager

MICHELLE MRZYGLOCKI – Community Development Manager

GNAALA KARLA BOOJA ABORIGINAL CORPORATION

Contact Bruce Jorgensen

Address 31 Victoria St, Bunbury WA 6230

Survey participants CHARN HAYDEN

GERALDINE HAYDEN

LINTON UGLE

LORAINE BARLOTTI

MARIE WALLEY

SHIRLEY VITI

TREVOR WALLEY

14.2 APPENDIX B – ACRONYMS AND DEFINITIONS

The following terms and acronyms are used in this report. Definitions are provided below for reference.

Term / abbreviation Definition

ACMC

AH Act 1972

ACH Act 2021

AHIS

ALS

DPLH

Frasers

GIS

GKBAC

GKB

Heritage object

Heritage site / Heritage place

Isolated artefacts

Aboriginal Cultural Materials Committee

Aboriginal Heritage Act 1972

Aboriginal Cultural Heritage Act 2021

Aboriginal Heritage Inquiry System

Aboriginal Land Services

Department of Planning, Lands and Heritage

Frasers Property Australia

Geographic information system

Gnaala Karla Booja Aboriginal Corporation

Gnaala Karla Booja

An object to which the Act applies under section 6

Any place which may meet the criteria of an Aboriginal site under s5 of the Aboriginal Heritage Act 1972 (WA).

Cultural material with insufficient density or context to constitute a site.

MGA Map grid of Australia

NNTT

Other Heritage Place

Registered Aboriginal site

SOW

Traditional Owners

National Native Title Tribunal

Other heritage places (OHPs) are heritage places classified by the DPLH as either:

1. A heritage place that has been reported to the DPLH but is pending assessment by the ACMC (status L – lodged; or

2. A heritage place that has been submitted to the DPLH and evaluated by the ACMC to not meet the criteria for inclusion on the Register of Sites (i.e., not a registered Aboriginal site) (status S – stored / not a site).

A heritage place which has been determined as meeting criteria under section 5 of the Aboriginal Heritage Act 1972 (WA) and has been registered by the Registrar of Aboriginal Sites (DPLH status R - registered).

Scope of Works

Gnaala Karla Booja native title claimants (NNTT no WC1998/058) and invited participants

The Act Aboriginal Heritage Act 1972 (WA)

D. English & D. Monks

Document prepared by

ABORIGINAL LAND SERVICES PTY LTD

ABN 33 635 205 980 Unit 2/17 Albert Street Busselton Western Australia 6280

T +61 8 9752 3875

E operations@aboriginallandservices.com.au W aboriginallandservices.com.au

Appendix 2

Baldivis Grove Landscape Design

NATURAL SEATING TO QUIET ZONES UNDER SHEOAK TREES

STORY TELLING OPPORTUNITES ALONG PRIMARY PATH

STORY TELLING OPPORTUNITES ALONG PRIMARY PATH

EDUCATION AND STORY TELLING OPPORTUNITIES ALONG PRIMARY WALKING PATH

NODES

Appendix 3

Contract Template – Sculptural Package

Western Australia

Artwork Delivery Contract

Baldivis Grove: Scuptural Artworks

[Dated]

Australand Industrial No.63 Pty Limited (ABN 61 105 126 672) (“Principal”)

[Insert] (ABN ## ### ### ###) (“Artist ”)

DETAILS

Interpretation – definitions are in clause 28 .1 of the Artwork Delivery Contract Conditions

Parties

Principal and Artist

Principal Name Australand Industrial No.63 Pty Limited

ABN ABN 61 105 126 672

Address Level 2, 1C Homebush Bay Drive, Rhodes NSW 2138

Telephone +61 2 9767 2000

Email [ # ]

Attention [ # ]

Artwork

Commencement of work on site

Delivery Date

Public Liability Insurance Amount

ABN [ # ] Address [ # ] Telephone [ # ]

Email [ # ]

Attention [ # ]

Clause 28.1

Clause 1

means the art to be designed, made and installed by the Artist, as set out in the Scope of Works

Within [ # ] days of Notice to Proceed

Clause 3.9 [insert]

Clause 13.1(c) $20,000,000 (twenty million dollars) Professional

Clause 13.3(a) $[#] ([#]million dollars

Contract Works Insurance Amount

Clause 13.4

An amount equal to the Contract Price, being $[#]

Principal Artist for Work Health and Safety

Date for terminating Contract where Completion is late

Contract Price (GST exclusive)

Milestones

Date for Completion

Clause 17

Will the Artist have management and control of the Works/Site?

 No (if so only Section 1 of clause 17 applies)

 Yes (if so then both Sections 1 and 2 of clause 17 applies)

Will the Artist undertake High Risk Construction Work (as defined under WHS Laws):

 Yes (if so then clauses 17.9, 17.10, 17.12, 17.13 and 17.14 apply)

 No (if so then clauses 17.9, 17.10, 17.12, 17.13 and 17.14 do not apply)

Clause 19.1(c)(viii) [insert]

Clause 28.1 [Insert contract price]

Clause 28.1 [insert]

Clause 28.1 [insert]

Contract Clause 28.1

Means:

(a) the Artwork Delivery Contract; and (c) the Scope of Works.

Date of this Contract

See signing page

ARTWORK DELIVERY CONTRACT CONDITIONS

1 COMMENCEMENT

(a) The Artist:

(i) may not commence any work;

(ii) is not entitled to claim any part of the Contract Price; and

(iii) is not entitled to claim any other payment or compensation in connection with the performance of any work,

until it has received a Notice to Proceed from the Principal in relation to the Artwork

(b) The Artist must commence the Artwork within the number of days stated in the Details of receiving a Notice to Proceed from the Principal.

(c) The Artist acknowledges that:

(i) due to co-ordination and other Project requirements, the Principal may give a Notice to Proceed at a time which is either earlier or later than the time anticipated in any program provided by the Principal prior to the date of this Contract; and

(ii) the period allowed by this clause is sufficient to enable it to mobilise its resources to commence work on site.

2 PROGRESS

2.1 Access and Scheduling

(a) The Artist acknowledges that the performance of the Works may be dependent on the performance of work by other contractors including Separate Contractors.

(b) Subject to the Artist’s compliance with clause 2.9, the Principal will provide the Artist with sufficient access to the site to enable the Artist to commence work on the site as required by clause 1. The Artist acknowledges that such access is nonexclusive, it is required to co-ordinate its work with others and is required to share the site with others including the Principal and its agents, employees, consultants and other contractors including Separate Contractors.

(c) The Principal is entitled to require the Artist (at the Artist’s own cost) from time to time to reschedule the performance of the whole or any part of the Works including returning to the site on not less than 24 hours notice to recommence the Works. The Artist is entitled to an extension of time if completion of the Works is delayed by any such requirement. The Artist acknowledges

that any such requirement by the Principal is not a breach of this Contract and the Principal is not liable for any damages, costs and expenses suffered or incurred by the Artist in complying with the requirement.

(d) The Principal and their employees, consultants, contractors and agents and any of their nominees may at any time have access to any part of the site for any purpose including to inspect or view the Works.

(e) The Artist must provide the Principal and its employees, consultants, contractors and agents and any of their nominees, on reasonable notice, with access to all workshops and places where work is being prepared or done, or from where goods, materials, manufactured articles or machinery are being obtained for the Works.

2.2 Co-Operation, Co-Ordination and Integration

(a) The Artist must at its own expense:

(i) promptly provide all information the Principal requests concerning the Works, including the performance of the Works, the preferred sequence and interface of activities, details of proposed labour resources, goods and materials and all other matters relevant to the ArtworkWorks; and

(ii) comply with changes in the timing for performance of the Works pursuant to clause 2.1(c).

(b) The Artist acknowledges that Separate Contractors may be present on the site while the Artist is carrying out the Works.

(c) The Artist must:

(i) co-operate with any Separate Contractors;

(ii) co-ordinate its work with Separate Contractors’ work to minimise any delays;

(iii) not unreasonably obstruct, delay or interfere with Separate Contractors’ work;

(iv) not damage Separate Contractors’ work; and

(v) comply with all reasonable directions from the Principal for the co-ordination and integration of the Works with the work of Separate Contractors.

(d) The Artist is not entitled to any compensation or extension of time resulting from delay or disruption caused by

Separate Artist s’ work or a direction given under clause 2.2(c)(v).

2.3 Resources

The Artist must employ sufficient suitable resources to carry out and complete the Works expeditiously, in a proper and workmanlike manner and in active co-operation with the Principal, other contractors and Separate Contractors. If the Artist employs insufficient or unsuitable resources to carry out and complete the Works in accordance with this Contract then, without prejudice to any other remedy, the Principal may direct the Artist to employ additional and/or suitable resources and the Artist must comply with the direction at its own expense.

2.4 Directions

(a) The Artist must carry out the Works in accordance with any reasonable directions given by the Principal from time to time. If any direction by the Principal is not given in writing, it must be confirmed in writing as soon as practicable.

(b) If the Principal considers there is an emergency, it may give an oral direction, which must be acted on immediately by the Artist and the oral direction must be confirmed in writing by the Principal within 48 hours.

(c) If the Artist wishes to claim that a direction, although not stated to be a Variation, involves a Variation, it must lodge written notice with the Principal to that effect within 3 days of receipt of the direction otherwise any subsequent claim that the direction involves a Variation is barred absolutely.

(d) Without limiting this clause, the Principal may concede in a particular instance or instances that a Variation is involved without waiving the requirement for such written notice to be given in all other instances.

(e) No comment, review, representation, vetting, inspection, testing or approval by the Principal in respect of the Artist’s obligations under this Contract will lessen or otherwise affect the Artist’s obligations under this Contract.

2.5 Assignment and Subcontracting

(a) The Artist must not assign the whole or any part of this Contract without the prior written approval of the Principal

(b) Subject to clause 2.5(c), the Artist may enter into subcontracts or supply agreements for the vicarious performance of the Works.

(c) Prior to entering into any subcontract or supply agreement for the performance of any part of the Works, the Artist must advise the Principal of the proposed identity of the subcontractor or supplier and the Principal has the right to veto any proposed subcontractor or supplier, such right not to be unreasonably exercised.

(d) Not used.

(e) By entering into this Contract, the Artist consents to the novation of this Contract to a person nominated by the Principal

The novation is effective from the date stated in the Principal’s notification to the Artist of the novation. The novation is on the terms of the Deed of Novation

At the request of the Principal, the Artist will execute the Deed of Novation. Execution is a formality and is not a pre- requisite to the effectiveness of the novation.

2.6 Artist’s Representative and Employees

(a) The Artist must have a competent representative on the site at all times while the Works are executed.

(b) The Artist must ensure that its representative:

(i) supervises the Works;

(ii) gives the Principal such reports and attends such meetings as required by the Principal;

(iii) receives and carries out the Principal’s directions; and

(iv) has authority to bind the Artist in all matters relating to this Contract.

(c) The Artist must ensure that only persons who are careful, skilled and experienced in their respective trades and callings are employed in connection with the Works.

(d) The Principal may direct the Artist to have removed from the site or from any activity, any person employed in connection with the Works and any such person must not be used again without the prior written consent of the Principal

2.7 Cleaning Up

When on site the Artist must clean up and remove all of its rubbish from the site daily or, if so directed by the Principal, from designated areas of the site. Upon completion of the Works, the Artist must leave the parts of the site on which the Works were performed in a clean and tidy condition.

If the Artist fails within 24 hours from the receipt of a written direction by the Principal to clean up or remove such rubbish, the Principal may (without being obliged to do so) arrange for the cleaning up or removal of the rubbish and the cost of doing so is a debt due and owing by the Artist to the Principal The Principal will advise the Artist of any costs incurred under this clause before incurring them

2.8 Erection of signs

The Artist must not paint, erect or fix any sign, notice or advertisement ( sign) to any part of the site or the Works (except for any sign identifying any building to traffic and directional signage), without the prior approval of the Principal

2.9 Use of the site

The Artist must not:

(a) use the site or the Works for any illegal purpose;

(b) cause any nuisance by its carrying out of the Works or use of the site;

(c) (unless otherwise permitted by the Principal) interfere with any drains, water, gas, electrical, plumbing or other services connected to the boundary of the site without the prior consent of the Principal (which must not be unreasonably withheld or delayed); or

(d) interfere with any other work carried out on the site

2.10 Artist’s warranty

The Artist warrants and represents to the Principal that:

(a) the Artist has the requisite skill, judgment, ability, capacity and experience both as a designer (where the performance of the Works involve design) and as builder of projects of the nature and standard of the Works, that it is experienced in the construction of projects similar to the Works and that it will provide the necessary resources, personnel, skill and expertise required in order to comply with all of its obligations in accordance with this Contract and the Artist acknowledges that the Principal is relying upon this representation and warranty in engaging the Artist to undertake the Works;

(b) the Artist will at all times employ personnel fully qualified for their role to perform the Works, including any Works which require special qualifications; and

(c) the Artist will execute and complete the Works in accordance with the requirements of this Contract.

2.11 Not used

3 DESIGN AND DOCUMENTS

3.1

Further Documents

(a) The Artist must give the Principal reasonable advance notice of any information or documents required from the Principal

(b) All documents provided by the Artist to the Principal must be provided in both hard copy and electronic copy.

3.1A Design by Artist

(c) The Artist must ensure that proper professional skill and care is exercised in carrying out design development and ensure that the Works are designed in accordance with this Contract.

(d) The Artist must ensure that the design undertaken by the Artist:

(i) is suitable for the purposes stated in, on or apparent from, this Contract and is prepared with due skill and care;

(ii) fulfils the other requirements of this Contract;

(iii) complies with all Authority Requirements; and

(iv) is such that the construction of the Works will not expose an occupier of the site or the Works to undue

repair, maintenance and/or operating costs.

3.1B Preliminary design review process

[Amendment of clauses 3.3 and 3.4 required to reflect the review process]

(a) In accordance with the Milestones, the Artist must prepare and submit to the Principal for its review a detailed set of drawings of the Artist's proposed concept design of the Artwork (Preliminary Design), which show all critical details of the Artwork through renders, visualization and illustrations, including at least 1 hard copy and 1 electronic copy.

(b) In the 20 business days following the Principal's receipt of the Preliminary Design under clause 3.3(a), or an amended Preliminary Design under clause 3.3(d), the Principal may (in its discretion) request the Artist to:

(i) provide further information or design drawings to assist the Principal to review the Preliminary Design; or

(ii) make amendments to the Preliminary Design

(c) If the Principal requests further information or drawings under clause 3.3(b)(i), the Artist must promptly submit to the Principal the relevant information or drawings requested.

(d) If the Principal requests amendments under clause 3.3(b)(ii), the Artist must:

(i) amend the relevant Preliminary Design as requested; and

(ii) promptly submit the amended Preliminary Design to the Principal for its review (in the format set out in clause 3.3(a)).

(e) If the Principal:

(i) notifies the Artist in writing that it has no comments on a Preliminary Design (or amended Preliminary Design); or

(ii) does not request any amendments, or further information or drawings, within the timeframe set out in clause 3.3(b),

the Artist may proceed to develop the Preliminary Design in accordance with clause 3.4.

3.1C Further design review process

(f) If the Artist may proceed with the development of the Preliminary Design in accordance with clause 3.3(e), the Artist must:

(i) further develop the Preliminary Design to produce a final stage design which is fully detailed, tested and sufficient to produce the Artwork (Further Design); and

(ii) submit to the Principal for its review a detailed set of drawings of the Further Design which show all

critical details of the Artwork through renders, visualization and illustrations, including at least 1 hard copy and 1 electronic copy.

(g) In the [20] business days following the Principal's receipt of the Further Design under clause 3.4(a), or an amended Further Design under clause 3.4(d), the Principal may (in its discretion) request the Artist to:

(i) provide further information or design drawings to assist the Principal to review the Further Design; or

(ii) make amendments to the Further Design .

(h) If the Principal requests further information or drawings under clause 3.4(b)(i), the Artist must promptly submit to the Principal the relevant information or drawings requested.

(i) If the Principal requests amendments under clause 3.4(b)(ii), the Artist must:

(i) amend the relevant Further Design as requested; and

(ii) promptly submit the amended Further Design to the Principal for its review (in the format set out in clause 3.4(a)(ii)).

(j) If the Principal:

(i) notifies the Artist in writing that it has no comments on a Further Design (or amended Further Design); or

(ii) does not request any amendments, or further information or drawings, within the timeframe set out in clause 3.4(b),

the relevant design will be the " Final Design".

(k) The Artist must ensure that the Artwork does not materially depart from the Final Design, without the express written approval of the Principal.

3.2 Design by Artist

(a) The Artist must ensure that proper professional skill and care is exercised in carrying out design development to ensure that the Works are designed in accordance with this Contract.

(b) The Artist must ensure that the design undertaken by the Artist:

(i) is suitable for the purposes stated in, on or apparent from, this Contract and is prepared with due skill and care;

(ii) complies with the Design Intent;

(iii) fulfils the other requirements of this Contract;

(iv) is consistent with current good design and construction practice generally;

(v) complies with all Authority Requirements; and

(vi) is such that the construction of the Works will not expose an occupier of the site or the Works to undue repair, maintenance and/or operating costs.

(c) The Artist will retain ownership of the Cultural and Intellectual Property Rights in the Artist's Created Intellectual Property.

(d) The Artist grants to the Principal an irrevocable, royalty free and non -exclusive licence to use (including to sub-licence to a Related Entity) and reproduce the Artist's Created Intellectual Property , including (without limitation) the right to:

(i) use, reproduce and maintain, the Artwork for the purposes of or in connection with the Project (or in connection with any related business of the Principal);

(ii) retain a digital copy of the Artwork for archival purposes;

(iii) reproduce the Artwork in annual reports, on the Principal’s website, print media or other promotional publications; and

(iv) move the Artwork into storage to the extent necessary to allow the redevelopment or refurbishment of any part of the Site.

(e) The Artist warrants that:

(i) it has the authority to enter into and to perform its obligations under this Contract; and

(ii) the Artwork will be an original work and will not infringe any Intellectual Property Right or Moral Right of any person or corporate entity;

(iii) where the Artwork contains third party material, the Artist has obtained all consents and licenses necessary to permit the lawful inclusion of the material in the Work; and

(iv) it will not license any Intellectual Property Rights or Moral Rights in and to the Artwork and any other parts of the Works to a third party without the Principal's prior written consent.

(f) The Artist will be liable to the Principal for any liability, cost, expense, loss or damage arising out of or in connection with any infringements of the Intellectual Property Rights of any third party by reason of the production the Artwork or the execution of the Works.

(g) This clause 3.5 does not merge on termination of this Contract.

(h) The Principal warrants that it will not: (i) make any three dimensional reproductions of the Artwork; and/ or

(ii) grant any third party sub-licence to exploit the Work commercially (except in respect of a sub-licence to a Related Entity)

(i) The Artist warrants to the Principal that any design, materials, documents and methods of working the Artist provides will not infringe any Cultural and Intellectual Property Rights.

(j) For the design undertaken by or on behalf of the Artist, the Artist:

(i) takes full responsibility for every aspect of that design;

(ii) releases and indemnifies the Principal from and against any claim, loss or liability arising in relation to that design; and

(iii) acknowledges that the preparation or procurement of the preparation of all or part of the design by any other party does not absolve the Artist in any way for any:

(A) design or specification inadequacy;

(B) failure of the Artist to comply with any of its obligations under this Contract; and

(C) breach of any warranty or representation by the Artist under this Contract.

(k) The Artist:

(i) acknowledges that the Principal has made no representations or warranties in relation to the design undertaken by the Artist;

(ii) releases and forever discharges the Principal from any claim or liability in relation to defects or inadequacies in the Design Intent and in relation to the impact such defects or inadequacies may have on the performance of the Works; and

(iii) remains entirely responsible for ensuring that the Works comply with this Contract.

(l) Not used.

3.3 Moral Rights

(a) The Artist must not (and must ensure that its subcontractors (including the Artist) do not), in producing the Artwork and carrying out and executing the Works, infringe any patent, registered design, copyright, Moral Right or other Intellectual Property Right.

(b) The Artist must procure from any person (including each of its relevant employees and relevant employees of its consultants or other contributing parties) who is an author of any Copyright Works (in this clause 3.3 called “the author”) which is assigned or licensed to the Principal under clause 3.2 of this Contract, express agreement that those authors will not enforce any and all Moral Rights that those individuals may have,

presently or in the future, in the Copyright Works, including a written and signed consent allowing the Principal and any other party involved in the Project or with an interest in the site (and their respective successors, assigns and licensees) to:

(i) exercise any and all rights in relation to the Copyright Works, without identifying any person as the individual responsible for creating any particular material comprising the Copyright Works;

(ii) have the Copyright Works bear the name of the Project, the Principal or any other person associated with the Project (including as the author of the Copyright Works);

(iii) communicate, show or exhibit the Copyright Works to the public; and

(iv) modify, alter, adapt, distort or otherwise change any of the Copyright Works as they deem fit in their absolute discretion including:

(A) adaptation or translation into other dimensions, format or media of tho s e Copyright Works; and

(B) changing, relocating, demolishing or destroying any two or three dimensional reproduction of those Copyright Works without notice to or consultation with the author, and the Artist warrants that the Principal and any other party involved in the Project or with an interest in the site (and their respective successors, assigns and licensees) may do any or all of the acts and omissions referred to above at any time.

(c) The Artist must ensure that any agreement or consent is genuinely given and not obtained by duress or by the making of any false or misleading statement.

(d) The Principal may give a written direction to the Artist to provide to the Principal all agreements and consents that are required to be given or have been obtained by the Artist, and the Artist must promptly comply with that direction.

3.4 Not used

3.5 Not used

3.6 Not used 3.7 Not used 3.8 Not used

3.9 Delivery and Ownership of Artwork

(a) The Artist must deliver the Artwork to the site in accordance with the Milestones, and by the Delivery Date.

(b) The Artwork must be delivered to the site in good condition and without damage. The Artist must replace any damaged Artwork

at no additional cost to the Principal within a period specific by the Principal (acting reasonably).

(c) The Artist must give at least 2 Business Days’ notice of the expected Delivery Date and time for each delivery.

(d) Unless agreed otherwise the Contract Price is inclusive of all costs of delivery of the Artwork to the site.

(e) The Principal may, within 2 Business Days of delivery of the Artwork to the site, reject the Artwork by giving written notice to the Artist setting out the reasons for rejection.

(f) Ownership and risk in the Artwork passes to the Principal following issue of a Certificate of Completion of the relevant Artwork and the completion of any commissioning tests to the satisfaction of the Principal (acting reasonably)

3.10 Certainty of supply of artwork

(a) The Artist must use its best endeavours to procure the Artwork which meet the specifications detailed in Attachment 2.

(b) If the Artist is unable or likely to be unable to procure the Artwork in accordance with clause 3.10(a) for reasons beyond the Artist’s control, the Artist must notify the Principal in writing immediately, and in any event within 2 Business Days of becoming aware of its inability or likely inability to comply with clause 3.10(a). The notice must specifythe alternative Artwork which the SubArtist proposes to procure. The alternative Artwork must be of at least equal or greater quality than the Artwork specified in Attachment 2

3.11 Head Contract and conditions of access to site

(a) The Principal will procure that the superintendent under the Head Contract directs the Head Contractor to execute work under the Head Contract concurrently with the Artist executing the Work, subject to and in accordance with the Head Contract.

(b) Despite any other provision of this Contract, the Artist shall:

(i) co-operate with and follow the directions of the Head Contractor to ensure:

(A) the co-ordination of work by the Head Contractor and its Subcontractors with the execution of the Works by the Artist; and

(B) compliance with the timeframes, programs and schedules established for completion of the Works;

(C) delays are minimised

(ii) not obstruct, delay, damage or interfere with the work of the Head Contractor or its Subcontractors;

(iii) not prevent the Head Contractor or its Subcontractors accessing the site;

(iv) not cause any damage to the work of the Head Contactor or its Subcontractors;

(v) comply with the directions and requirements of the Head Contractor in relation to the safety systems and requirements for the Site (which are the responsibility of the Head Contractor).

4 TIME

4.1 Completion

The Artist must :

(a) complete each Milestone by the Milestone Completion Date; and

(b) bring the Works to Completion by the Date for Completion.

4.2 Not used

4.3 Not used

4.4 Extension of Time

(a) The Artist must promptly (and in any event, within 5 days of it becoming aware of or anticipating the relevant delay), give the Principal written notice of any delay anticipated or experienced in carrying out the Works and whether that delay is likely to lead to a delay in completing the Works.

If an Act of Prevention (excluding a Variation) causes the delay, such notice must be given within 24 hours (and no later) after the cause of the delay arose in order to give the Principal the opportunity to remedy the cause of delay.

(b) Such notice must set out the facts of the delay and (if possible) the number of days by which, in the Artist’s opinion, a Milestone Completion Date and/or the Date for Completion should be extended.

If not provided with the notice of claim, the Artist must submit a further written notice to the Principal specifying the number of days by which in its opinion the relevant Milestone Completion Date and/or the Date for Completion should be extended within 5 days of the cessation of the cause of delay.

(c) In order to allow the Principal to manage the Project, the Artist must give the notices referred to in this clause within the specified times as a condition precedent to its entitlement to an extension of time.

(d) The Artist shall only be entitled to an extension of time if it is or will be delayed in reaching Completion by one of the following causes of delay. The sole cause or causes of delay for which the Artist is entitled to an extension of time are:

(i) an Act of Prevention;

(ii) nationwide or state- wide strikes, lockouts or other industrial disputes which are:

(A) not specific to the Artist or its employees, agents, or subcontractors; and

(B) not restricted in their application to the site;

(iii) anything required to be done by the Artist pursuant to subclause 11.4(b)(iii) and (e) (Alternative 1); and

(iv) anything required to be done by the Artist pursuant to subclause 11.4(a) (Alternative 2).

(e) The Artist must take all reasonable steps to minimise and overcome delay to the Works.

(f) If the Principal considers the Artist is entitled to an extension of time, the Principal must notify the Artist of the grant of an extension of time and the amended relevant Milestone Completion Date and/or Date for Completion.

(g) Notwithstanding that the Artist has not claimed or may not be entitled to an extension of time, the Principal may for any reason and at any time at its absolute discretion, by notice in writing to the Artist referring to this clause 4.4(g), extend the relevant Milestone Completion Date and/or the Date for Completion . The Principal has no obligation to grant, or to consider whether it should grant, an extension of time under this clause 4.4(g) and the Principal is not required to exercise this discretion fo r the benefit of the Artist

(h) If more than one event causes concurrent delays and the cause of at least one of those events is not a cause of delay which gives rise to an entitlement to an extension of time under this Contract, to the extent of the concurrency, the Artist will not be entitled to an extension of time.

4.5 Suspension

(a) The Principal may at any time give written notice to the Artist to suspend the execution of all or any part of the Works (including details of the extent to which the Principal requires the Artist to keep its personnel, subcontractors, suppliers and equipment on standby).

(b) If the Artist receives a written notice from the Principal under clause 4.5(a), the Artist must immediately suspend the execution of the Works (or the relevant part).

(c) Subject to clause 4.5(g), the Principal must pay the Artist compensation for the suspension of the execution of the Works (or the relevant part):

(i) on such basis as the Principal and the Artist may agree; or

(ii) failing agreement, as the Principal reasonably determines, during the suspension of any part of the Works to compensate the Artist for:

(iii) keeping its personnel, subontractors and equipment on standby (to the extent stated in the

written notice referred to in clause 4.5(a)); and

(iv) the demobilisation and remobilisation of the Artist’s personnel, subcontractors and equipment.

(d) The Principal must give a written notice to the Artist adjusting the Contract Price to reflect the compensation referred to in clause 4.5(c).

(e) The Principal may at any time give written notice to the Artist to resume the execution of the Works (or the relevant part) which has been suspended.

(f) If the Artist receives a written notice under clause 4.5(e):

(i) the Artist must immediately resume execution of the Works (or the relevant part) which has been suspended; and

(ii) subject to clause 4.4 and clause 4.5(g), the Principal will extend the relevant Milestone Completion Date and/or the Date for Completion.

(g) If the Principal gives a written notice under clause 4.5(a) as a result of a breach by the Artist of its obligations under this Contract, the Artist is not entitled to:

(i) any compensation under clause 4.5(c); or

(ii) any extension of time under clause 4.5(f)(ii).

(h) If the Principal gives a written notice under clause 4.5(a) as a result of a breach by the Artist of its obligations under this Contract and if the breach is:

(i) capable of rectification, the execution of the part of the Works the subject of the written notice may be suspended until the breach is rectified by the Artist; or

(ii) not capable of rectification, the period of suspension must be reasonable.

4.6 Not used

4.7

Provision of Drawings

The Artist must provide to the Principal within 14 days of the Date of Completion:

(a) to the extent relevant, three sets of “as constructed” drawings and one complete set on compact disc in AutoCad 2000 format of all architectural and engineering drawings in respect of the Works;

(b) not used;

(c) not used; and

(d) any other materials required by the Scope of Works.

5 QUALITY

5.1 Materials and Workmanship

The Artist warrants that:

(a) it will carry out and complete the Works in a proper and workmanlike manner;

(b) all Artwork , materials and workmanship will satisfy the requirements of this Contract and will be free of any Defect;

(c) in the absence of a provision in this Contract to the contrary, all Artwork and materials used and standard of workmanship employed will be suitable for its purpose and consistent with the nature and character of the part of the Works for which it is used;

(d) all materials and Artwork when delivered:

(i) are new;

(ii) are not defective;

(iii) are of merchantable quality;

(iv) have been created using good material and workmanship;

(v) comply with the requirements of this Contract;

(vi) comply with all applicable law and Australian standards; and

(vii) are free and clear of any lien, charge, encumbrance, mortgage or guarantee in favour of any third party,

(e) the Artwork when delivered and complete will comply with the Contract and be fit for its intended purpose;

(f) it will exercise at all times a high standard of skill, care and diligence in the execution, completion and d elivery of the Artwork;

(g) it will obtain all permits, approvals and consents necessary to supply and install the Artwork and comply with those permits, approvals and consents;

(h) all payments for royalties, patent rights and governmental fees due or payable for the Artwork have been paid;

(i) the Artwork will not infringe any Australian or foreign patent, copyright, registered design or other protected right; andif required, the Artist will produce evidence that all Artwork and materials used or to be used in the Works comply with this Contract ;

(j) the Works and each part will:

(i) comply with the Design Intent;

(ii) not expose an occupier of the site or the Works to undue repair, maintenance and/or operating costs;

(iii) be fit for their intended purpose;

(iv) be consistent with current good construction practice generally; and

(v) unless otherwise provided, to the extent practical, the Artist must ensure that all goods and materials used in the Works are of Australian manufacture.

5.2 Authority Requirements

The Artist must comply with Authority Requirements at its own expense and must obtain all licences, consents, certificates and permits required for the execution of the Works and pay all applicable fees, levies, duties and taxes.

5.3 Not used

5.4 Not used

5.5

Defects

(a) The Principal may direct the Artist at any time prior to Completion or during a Defects Correction Period to remedy any Defect and any consequential effects on the Works (whether the Works have been handed over to the Principal or not) within the time stated in the notice issued by the Principal, or if no time is stated, within 7 days of receipt of the notice. The remediation of any Defect in the Works must be done by the Artist at a time which will, in the Principal’s opinion, cause minimum interruption to the operation of the business being carried out on the site and the Artist must comply with all security, operational and work health and safety requirements.

(b) If the Artist fails to remedy the Defects and any consequential effects within the required time, without giving any further notice, the Principal may have the Defect (and any consequential effects) remedied by others and the cost will be a debt due and owing by the Artist to the Principal. Any work involved in remedying Defects is deemed to have been performed by the Artist. This clause does not reduce the Artist’s obligations.

(c) If the Defect does not result from work for which the Artist is responsible and the Artist remedies the Defect to the Principal’s satisfaction, the Artist will be paid the cost of remedying the Defect.

(d) Nothing in this Clause 5 limits the Artist’s other obligations under this Contract.

(e) Notwithstanding any other provision of this Contract, at the Principal’s election, the Artist must make good or compensate the Principal for:

(i) any damage to the Works or any other property; or

(ii) any other loss, liability or expense for which the Artist is legally responsible,

caused by the Artist or its employees, agents, or subcontractors in making good any Defects.

5.6 Not used

5.7 Not used

5.8 Cost of Rectification or Compliance

If the Artist fails to comply with any direction from the Principal given under this Contract and, in particular any direction under clauses 2.4, 2.7, 5.3, 5.5, 5.7 and 15.2 then, without giving further notice, the Principal may arrange for compliance

itself by performing the relevant work or by engaging others to do so and the cost of such performance will be a debt due and owing by the Artist to the Principal

6 VARIATIONS

(a) The Artist must not make a Variation except as directed by the Principal in accordance with this clause 6

(b) The Principal reserves the right to direct reasonable Variations, or to cause the Artist to make reasonable Variations.

(c) All Variations must be documented in writing and the Artist will promptly implement any reasonable change requested by the Principal. If the Artist determines, acting reasonably, that the proposed variation is unreasonable or impractical, the Artist must notify the Principal in writing within 5 business days of receipt of the notice of Variation.

(d) The Artist may request any equitable adjustment in price or time for performance resulting from the Variation , provided the Artist does so in writing within 10 business days after receiving notice of the Variation from the Principal.

7 PRICE AND PAYMENT

7.1 Contract Price

(a) In consideration of the provision of Works, the Principal agrees to pay the Artist the Contract Price in accordance with the Milestone Completion Dates and in the amounts as set out in Attachment 1 , provided that all Works relevant to that Milestone have reached Completion.

(b) Subject to clause 7.1(a), the Artist must issue a tax invoice to the Artist for the Contract Price relevant to the Milestone, and the Principal must pay the amount specified in the tax invoice within 20 Business Days after receipt of the relevant tax invoice.

(c) The Contract Price is not subject to adjustment for rise or fall in costs. The Contract Price excludes GST which must be reimbursed separately by the Principal in accordance with clause 7.7.

(d) The Artist acknowledges that the Contract Price allows for all costs and expenses involved in fulfilling its obligations under this Contract, and covers everything necessary to complete the Works and its other obligations under this Contract.

(e) Unless stated otherwise in this Contract, if there is a bill or schedule of rates relating to the Works, it does not form part of this Contract. At its discretion, the Principal may have regard to the bill or schedule of rates or any breakdown of the Contract Price included in this Contract in determining the value of progress claims.

(f) Rates, sums and prices in any bill or schedule of rates are fixed, are not subject to adjustment, irrespective of the difference

between any estimated and actual quantities required by this Contract, and do not include any amount in respect of GST.

7.2 Not used

7.3 Delay Costs

The Artist is not entitled to make any claim in relation to delay, disruption or similar cost and expenses incurred and the Principal is not liable in contract, tort or otherwise for any such costs and expenses and the Artist acknowledges that its sole entitlement for delay and disruption is an extension of time in accordance with this Contract.

7.4 Not used

7.5 Final Payment and Release

(a) The Artist must, on the date which is four business days from the end of the second month after the Date of Completion, provide to the Principal a final payment claim, which must include:

(i) the portion of the Contract Price; and

(ii) any claim the Artist has in respect of the Contract Price, which the Artist claims to be due from the Principal under this Contract.

The final payment claim must be submitted together with any outstanding drawings required to be provided under clause 4.7 or required to be provided under the Scope of Works

(b) All other Artist claims and actions (excluding those which are then the subject of a Notice of Dispute and excluding any Variation directed by the Principal following Completion) which are not included in that final payment claim whether in contract, tort or otherwise are released and forever discharged.

If the Artist does not submit a final payment claim in accordance with clause 7.5(a), then all claims and actions (excluding those which are then the subject of a Notice of Dispute and excluding any Variation directed by the Principal following Completion) whether in contract, tort or otherwise are released and forever discharged.

(c) Within 14 days of receipt of the final payment claim the Principal will make a determination of the amount payable in respect of that final payment claim and will issue to the Artist a final payment certificate under the procedures for a progress claim and certificate in clause 7.2.

If the Artist does not submit a final payment claim in accordance with clause 7.5(a), the Principal may nevertheless issue a final payment certificate in accordance with the procedures for a progress certificate in clause 7.2.

The Artist must give the Principal a Tax Invoice for the amount the subject of the final payment certificate issued by the Principal pursuant to this clause 7.5(c) within 2 business days of receipt of that final payment certificate. The Tax Invoice must be

sent to sscap@frasersproperty.com.au and include the following:

(i) the words “Tax Invoice”;

(ii) the date of the Tax Invoice;

(iii) the Artist’s Australian Business Number; and

(iv) the Principal’s purchase order number.

(d) Where an amount is due for payment to the Artist by the Principal in the final payment certificate, the Principal must pay the Artist the amount due by the latest of:

(i) 15 business days after receipt by the Principal of the final payment claim or, where the Artist does not submit a final payment claim in accordance with clause 7.5(a), 21 days after issue of the final payment certificate by the Principal; and

(ii) 2 business days after receipt by the Principal of the Tax Invoice

(e) Notwithstanding the above and subject to clause 7.6, the Principal must pay the Artist the amount due no later than 15 business days after receipt by the Principal of the final payment claim.

(f) Where an amount is due from the Artist to the Principal in the final payment certificate, the Artist must, within 30 days after receipt of the final payment certificate, pay the Principal the amount stated in the final payment certificate as due from the Artist to the Principal.

7.6 Set-off

The Principal may withhold, deduct or set off from moneys due to the Artist any money due from the Artist to the Principal whether under this Contract, any other contracts between the Principal and the Artist or otherwise

Even if a debt owed by the Artist to the Principal has not been included in a determination by the Principal under clause 7.2, the Principal may separately recover the debt from the Artist

7.7 Goods and Services Tax

(a) If a supply made by the Artist or the Principal (collectively “Supplier”) under this Contract is subject to GST, the other party agrees to pay to the Supplier an additional amount (“Additional Amount”) equal to the Amount of Consideration for the supply multiplied by the prevailing GST rate.

(b) The Additional Amount is payable at the same time as the Amount of Consideration for the supply to which the Additional Amount relates.

(c) The Artist warrants and represents that:

(i) it is able to issue Tax Invoices in respect of supplies it makes to the Principal under this Contract; and

(ii) it is registered for GST purposes and will notify the Principal immediately in writing if it is no longer so registered.

(d) The Principal warrants and represents that:

(i) it is and will continue to be registered for GST purposes and will notify the Artist immediately in writing if it is no longer registered; and

(ii) it will issue Tax Invoices in respect of supplies made under this Contract; and

(iii) it will cease to issue such Tax Invoices if the Artist or the Principal fail to comply with the requirements of the GST Act and the Goods and Services Tax Ruling 2000/10 (or if applicable, its replacement), and the Principal will immediately notify the Artist in writing should it fail to comply with these requirements.

(e) In respect of any supplies made by the Artist under this Contract, the Artist agrees to refund to the Principal any overpayment of GST paid by the Principal promptly after the actual amount of the overpayment is ascertained, and will apply for a refund if requested to do so by the Principal

(f) Amount of Consideration means:

(i) the amount of any payment for a supply; and

(ii) in relation to non- monetary consideration, the GST exclusive market value of that consideration.

7.8 Audit

The Artist must (at the Principal’s cost), if directed by the Principal, engage an independent consultant to carry out an audit of the Artist’s compliance with law, including in relation to insurances, enterprise agreements, contributions to superannuation and redundancy funds and long service leave.

7.9 Recipient created tax invoices

Within the time for payment under clause 7.2(c) or 7.5(d), as the case may be, the Principal shall issue to the Artist a Recipient Created Tax Invoice for the amount certified as payable to the Artist in any certificate issued by the Principal pursuant to clause 7.2(b) or 7.5(c).

11.1 Care of the Work During Construction

Without prejudice to the Artist’s obligations to complete the Works, to remedy any Defect, or to execute a Variation, the Artist is responsible for the care of the Works until the Date of Completion and thereafter for the care of any outstanding work and items to be removed from the site and for any loss or damage caused by the Artist in the course of completing its obligations under this Contract.

If loss or damage occurs to the Works while the Artist is responsible for their care, the Artist must promptly make good the loss or damage.

11.2 Damage to Other Work

Without limiting its other obligations under this Contract, if the Artist or any person for whom it is responsible, damages any materials or work other than the Works:

(a) the Principal may at its option by notice in writing require the Artist to repair or rectify the damage at its own cost and in accordance with the directions of the Principal; or

(b) the Artist must indemnify the Principal against the cost of rectification of the damage and must pay the amount certified by the Principal as the costs of such rectification on demand, failing which, the amount is a debt due and owing by the Artist to the Principal

11.3 Environmental obligations

(a) The Artist must:

(i) comply with all Authority Requirements (including all Environmental Laws) and the requirements of this Contract (and the requirements of any environmental management plan covering the site) concerning the protection of the Environment;

(ii) execute the Works in a manner so as to avoid unlawful pollution of the site and its surroundings; and

(iii) not used

(b) The Artist is responsible for, and must promptly make good, any damage to the Environment caused by the execution of the Works (including any unlawful pollution of the site or its surroundings).

(c) The Artist must:

(i) promptly clean up any unlawful pollution of the site and its surroundings caused in the execution of the Works; and

(ii) comply with all directions of the Principal and any Authority regarding cleaning up that pollution.

(d) The Artist must:

(i) provide to the Principal any information in respect of environmental issues as requested from time to time;

(ii) ensure that all information provided in accordance with this clause 11.3(d) is complete, timely and accurate; and

(iii) advise the Principal of any pertinent matters relating to environmental issues, whether specific to the site or relating to the business of the Artist, whether or not that information has been the

subject of a specific request by the Principal

12 INDEMNITY

The Artist must indemnify the Principal, its employees and officers against all damage, expense (including lawyers’ fees and expenses on an indemnity basis), losses (including financial loss) and liability of any nature suffered or incurred by the Principal arising out of the Artist’s act, omission, negligence or defaul

The Artist’s liability to indemnify the Principal, its employees and officers under this clause 12 will be reduced proportionally to the extent only that a negligent act or omission of the Principal, its employees and officers has contributed to the loss, expense or damage.

13 INSURANCE

13.1 Obligations

(a) The Artist must obtain and maintain:

(i) workers compensation insurance if required by law;

(ii) contract works insurance for at least the Contracts Works Insurance Amount;

(iii) public liability insurance for at least the Public Liability Insurance Amount; and

(iv) professional indemnity insurance for at least the Professional Indemnity Insurance Amount. Professional indemnity insurance must be maintained for a period of 10 years following the completion of the Services.

14 SERVICE AND FACILITIES

Unless otherwise stated in this Contract, the Artist must provide and be responsible for all tools, plant, equipment, telephone communications, facilities and services necessary to execute the Works and to meet the Artist’s obligations under this Contract. The Artist must ensure that its personnel do not use such facilities and services of the Principal.

15 COMPLETION

15.1 Certificate of Completion

(a) The Artist must notify the Principal:

(i) 14 days before the Artist estimates that a Milsetone will reach Completion and 14 days before the Artist estimates the Works will reach Completion; and

(ii) when the Artist considers that a Milseton has reached Completion or the Works have reached Completion.

(b) The Principal and the Artist will jointly inspect the Works within 7 days of the Artist’s notice under clause 15.1(a)(ii), and within a further 7 days of the joint

inspection the Principal must give the Artist:

(i) a Certificate of Milestone Completion or a Certificate of Completion (as applicable) stating the Date of Milestone Completion or the Date of Completion (as the case may be); or

(ii) written notice of matters and things required to be done before Milestone Completion or Completion (as applicable) can be achieved; or

(iii) written notice that the Works are so far from Milestone Completion or Completion (as applicable) that it is not yet practicable to issue a written notice under clause 15.1(b)(ii) and requiring the Artist to continue with the execution of the Works.

(c) If the Principal gives the Artist a written notice under clause 15.1(b)(ii) or 15.1(b)(iii):

(i) the Artist must notify the Principal in writing when the Artist considers it has achieved Milestone Completion or Completion (as applicable);

(ii) the Principal and the Artist must jointly inspect the Works within 7 days of the Artist’s notice under clause 15.1(c)(i); and

(iii) clause 15.1(b) and this clause 15.1(c) will apply again until the Principal issues a Certificate of Milestone Completion or a Certificate of Completion (as the case may be).

(d) Neither Milestone Completion nor Completion will not be deemed to occur because of the Principal’s use or occupation of the site or the Works. The Artist is not entitled to any compensation resulting from delay or disruption caused by the Principal’s use or occupation of the site or the Works.

15.2 Defects Correction Periods

If, during the Defects Correction Period, the Principal directs the Artist to remedy a Defect and/or any consequential effects on the Works in accordance with clause 5, that direction may state that there shall be a separate defects correction period for that rectification (not exceeding 52 weeks and commencing at on the date the rectification is completed)

17.1 Work Health and Safety Management

(a) The Artist must:

(i) comply , and ensure that all persons for whom it is responsible or over whom it is capable of exercising control or influence while executing the Works (including the Artist) comply, with the WHS Legislation and any applicable codes of practice which are relevant to the Works;

(ii) in relation to the Works, not knowingly cause the Principal to be in breach of any WHS Legislation; and

(iii) comply with all reasonable directions of the Principal in relation to the WHS Legislation and any applicable codes of practice.

(b) The Artist acknowledges and agrees that the requirements contained or referred to in this clause or elsewhere in this Contract are in addition to, but are not in substitution for, any requirements under the WHS Legislation and any applicable codes of practice and do not limit the responsibilities of the Artist

17.2 Risk Management

(a) The Artist must manage all risks to health and safety of any person arising as a consequence of the Works including by:

(i) identifying all reasonably foreseeable hazards that could give rise to a risk including both physical and psychosocial hazards and:

(A) eliminating the risk so far as is reasonably practicable; or

(B) if it is not reasonably practicable to eliminate the risk, minimising the risk so far as is reasonably practicable by implementing control mea sures:

(aa) for physical hazards and risks, in accordance with the hierarchy of controls and by implementing all necessary mandatory controls identified in the WHS Regulation; and

(ab) for psychosocial hazards and risks having regard to the matters listed in clause 55D of the WHS Regulation for determining psychosocial hazard risk controls;

(ii) ensure that all work performed under this Contract is conducted in a safe manner that ensures the health and safety of all persons, including:

(A) erecting and maintaining all safeguards necessary for safety and protection (including barriers, fences and railings);

(B) posting danger signs and other warning against hazards and notifying the Principal and other users of any dangerous or hazardous conditions arising out of the performance of the Works; and

(C) having appropriate first aid facilities and first- aid qualified personnel available on the site at all times;

(iii) ensuring that the systems of work implemented for the safe performance of the Works have been developed with the assistance of appropriately qualified personnel;

(iv) ensure that only equipment maintained in accordance with manufacturers’ specifications is to be brought onto the Principal’s site;

(v) ensure that the Principal is notified of all hazardous chemicals to be brought onto the Principal’s site prior to their arrival and provide the Principal with safety data sheets for all such hazardous chemicals;

(vi) ensure that a register of electrical equipment and testing is maintained;

(vii) maintain a clean and tidy work site free of trip hazards;

(viii) maintaining the control measures so they remain effective; and

(ix) reviewing, and if necessary revising, the control measures so as to maintain, so far as is reasonably practicable, a work environment that is without risks to health and safety.

(b) The Artist must prepare its own risk register and incorporate any information provided by the Principal within its own risk assessment as necessary for the safe completion of the Works. Provision of information by the Principal does not relieve the Artist of its obligations under the WHS Legislation to identify hazards and risks and control them effectively

17.3 Information, Training, Instruction and Supervision

(a) The Artist must:

(i) provide relevant information, training, instruction and supervision to protect all persons

from risks to their health and safety arising from the Works. The information, training and instruction must be readily understandable by the person to whom it is provided and be suitable and adequate having regard to:

(A) the nature of work carried out by the person;

(B) the nature of risks associated with the work at the time of the information, training and instruction;

(C) the control measures implemented; and

(ii) ensure that any person under the Artist’s control or influence is appropriately licensed, qualified, experienced or authorised in accordance with the requirements of the WHS Legislation.

(b) The Artist will not be provided with access to the sites to perform the Works until the mandatory site induction process is completed, a site induction certificate is issued, and the Artist has completed all pre- qualifications including:

(i) satisfactory pre- qualification through iPRO (unless advised by the Principal otherwise);

(ii) promptly respond to all iPRO prequalification requests and reporting requirements (including providing necessary documents) as required by the iPRO system or the Principal;

(iii) online induction as directed by the Principal; and

(iv) site specific induction as directed by the Principal,

and the Artist will not be entitled to any extensions of time for any delays in accessing the site due this clause 17

(c) The Artist must maintain iPRO membership until Practical Completion of the Works and if there is a Defects Correction Period, until the end of the Defects Correction Period

17.4 Incident Notification and Investigation

(a) In addition to the requirements under the WHS Legislation, the Artist must also notify the Principal:

(i) immediately, in the case of a Notifiable Incident; and

(ii) as soon as reasonably practicable (and in any event within 2 hours from the time the injury or event occurred), in the case of any other lost time injury, medical treatment injury or significant near miss or near hit event.

(b) In the case of a Notifiable Incident, ensure, so far as reasonably practicable, that the site where the incident occurred is not

disturbed until directed or allowed by the Regulator, unless necessary to:

(i) assist an injured person;

(ii) minimise the risk of a further Notifiable incident; or

(iii) at the direction of the Police.

(c) The Artist must submit to the Principal copies of any documents provided to the Regulator in relation to a Notifiable Incident.

(d) The Artist must also record and, if requested, investigate all incidents, work related illnesses and injuries and their causes in consultation with Personnel and their supervisors. If requested by the Principal, the Artist must submit a written report detailing the investigation and proposed corrective actions within 5 working days of the incident.

17.5 Inspections and Notices

The Artist must:

(a) immediately notify the Principal of any site inspection undertaken by a Regulator and of any improvement, prohibition, investigation or penalty notices issued or other correspondence relating to an alleged breach of WHS Legislation; and

(b) submit to the Principal a copy of such notices together with written details of the corrective action(s) taken to rectify the identified issue(s) and prevent recurrence.

17.6 Consultation

The Artist must:

(a) consult, co-operate and co-ordinate activities with all other persons who have a work health and safety duty in relation to the same matter, including by:

(i) identifying any interfaces between the activities undertaken by the Artist, the Principal and any other contractors and applying risk management requirements under the WHS Legislation to those interfaces;

(ii) updating the Principal on any matters arising from the Works that may affect the Principal or any other contractor’s activities;

(iii) engaging and complying with any consultation mechanisms established by the Principal or other parties, including occupiers of the Site or any workplace environment that is in the vicinity of the Works; and

(b) if requested by the Principal or required by WHS Legislation, promptly produce evidence of any licence, qualification, experience, authorisation or other information relevant to the safe performance of the Works.

17.7 Audit and Surveillance

(a) The Artist must:

(i) on, make available all relevant work health and safety records, including those of subcontractors and suppliers, for the purposes of audit and surveillance; and

(ii) provide all reasonable assistance during such audits, including attendance.

(b) In the event that the audit findings are, in the Principal’s opinion, unsatisfactory, and the Artist fails to satisfy the Principal’s audit requirements, the Principal may instruct the Artist, at the Artist’s expense, to rectify all areas identified in the audit

(c) In each 3 month period, if requested by the Principal, the Artist must at its own cost engage an independent qualified consultant to carry out an audit of the Artist’s compliance with the WHS Legislation and its obligations in clause 17. The Artist must provide the Principal with a copy of the audit results within 20 Business Days after the Principal requests the audit

17.8 Safety Plan Documentation and Record Keeping

(a) The Artist must:

(i) demonstrate that appropriate decisions have been made about controlling risks by documenting the decisions in a safety plan;

(ii) ensure that all of the safety plan material has been submitted to the Principal on the earlier of the date when all iPRO pre- qualifications requests and reporting requirements are due under clause 17.8 or 14 days prior to the commencement of Works, documenting:

(A) the identified hazards, assessed risks and chosen control measures (including any tools such as hazard checklists, risk assessments and safe work method statements used in working through the risk management process);

(B) how and when the control measures are to be implemented, monitored and reviewed;

(C) who was or will be consulted when risk management decisions are made;

(D) all training requirements;

(E) any plans for improvements or changes;

(F) any other specific records, plans, permits or approvals required by the WHS Regulation; and

(G) details of the person(s) responsible for ensuring implementation, monitoring

and compliance with the safety plan;

(iii) adopt a system of both routine and random workplace inspections to consider if the control measures outlined in the safety plan are being implemented;

(iv) regularly review the safety plan; and

(v) keep records that demonstrate compliance with all aspects of the safety plan, including the results of workplace inspections and any actions arising from those inspections.

17.9 Not used

17.10 Not used

17.11

General Construction Induction Training

(a) The Artist must not direct or allow Personnel to carry out Construction Work without providing general construction induction training unless Personnel have successfully completed general construction induction training and, if Personnel have completed the training more than 2 years previously, the Personnel have carried out Construction Work in the preceding 2 years

(b) Personnel must hold and produce when requested:

(i) a general construction induction training card issued under the WHS Legislation; or

(ii) a general construction induction training certification that has been issued on completion of the course within the preceding 60 days, for general construction induction training provided by an organisation listed as a Registered Training Organisation for ge neral construction induction training.

17.12 Not used

17.13 Not used

17.14 Not used

17.15 Suspension

If the Principal considers that the Artist is in breach of the WHS Legislation or its obligations under this clause 17, the Principal may direct the Artist to suspend the carrying out of the whole or part of the Works and should the Artist not remedy such breach within a reasonable time after being required to do so by the Principal, the Principal may do all things necessary to comply with the Artist’s obligation under this clause 17 and such costs and expenses incurred as a result are recoverable from the Artist as debt due and owing to the Principal. In these circumstances, and to the extent permitted by law, the Artist agrees to indemnify the Principal against any loss, expense or damage of any nature, including financial loss and lawyers’ fees and expenses on an indemnity basis, suffered or incurred by the Principal arising out of the direction, undertaking of any activity or the

performance or authorisation of performance of any works or requirements under this clause 17.

17.16 Costs

The Artist acknowledges and agrees that:

(a) all costs incurred by the Artist in complying with the work health and safety requirements in the Contract are deemed to be included in the Contract Price; and

(b) it has no entitlement to any Claim as a consequence of complying with these requirements

18 DISPUTE RESOLUTION

18.1 Notification of claims

18.2 Disputes

(a) All disputes or differences (each one being termed a “ Dispute”) arising out of, relating to or concerning the Works must be decided as follows:

(i) Either the Principal or the Artist must give to the other notice in writing of any dispute or difference (a “Notice of Dispute”) specifying detailed particulars of the Dispute, the contractual basis of the claim and its senior representative with authority to settle.

(ii) The other party must within 7 days of receipt of a Notice of Dispute give written notice designating its senior representative with authority to settle.

(iii) Within 30 days of receipt of a notice pursuant to paragraph (ii) the senior representatives will seek to resolve the Dispute.

(iv) If the Dispute is not resolved within the 30 days referred to in paragraph (iii) (or such time as agreed), either party may commence legal proceedings.

(b) Neither party shall commence legal proceedings in any court or tribunal unless the parties have undertaken the process set out in clauses 18.2(b) and those processes have failed to resolve the dispute. This clause does not prevent either party from seeking urgent interlocutory relief at any time.

19 TERMINATION AND TAKING WORK OVER

19.1 Default, Insolvency or Death

(a) Nothing in this clause prejudices the Principal’s rights to recover damages or to exercise any other right.

(b) In addition to the Principal’s other rights under this clause 19, if the Artist fails to:

(i) pay any money that this Contract requires it to pay to any third party; or

(ii) comply with any of its other obligations under this Contract,

and does not remedy the failure within a reasonable time after being required so to do by written notice from the Principal, the Principal may make the payment or do anything and incur any cost necessary to comply with the Artist’s obligation and the costs and expenses incurred by the Principal are recoverable from the Artist as a debt due to the Principal

(c) If:

(i) the Artist commits a breach of this Contract and the breach, if capable of remedy, is not remedied within 3 days of being required to do so by the Principal in writing; or

(ii) the Artist commits a breach of this Contract which is not capable of remedy; or

(iii) the Artist becomes Insolvent or, being a natural person, bankrupt; or

(iv) the Artist is in breach of clause 13 in failing to comply with its insurance obligations; or

(v) the Artist breaches clause 10 (Industrial Relations) or clause 17 (Work Health and Safety); or

(vi) the Artist shows an intention not to be bound by the terms of this Contract;

(vii) being a natural person, the Artist dies;

(viii) if the Works do not reach Completion by the date referred to in the Details; or

(ix) a Milsetone does not reach Milestone Completion by the relevant date in Attachment 1 , then the Principal may in its absolute discretion:

(x) take out of the hands of the Artist the whole or any part or parts of the Works remaining to be completed; or

(xi) terminate this Contract by written notice.

(d) If the Principal takes such action then:

(i) if the Principal takes any work out of the hands of the Artist or otherwise takes steps to complete the work or the Works following termination of the Contract, the Artist is not entitled to any further payment under the Contract until it becomes due and owing pursuant to this subclause 19.1 and the Principal may deduct the costs, losses, expenses and damages incurred by the Principal in completing the work or the Works as applicable and performing the Artist’s obligations from the Contract Price and any balance remaining to be paid will be a debt

due and owing to the Principal from the Artist;

(ii) the Principal may claim, set off or deduct from moneys owing to the Artist all costs, losses, expenses and damages which the Principal suffers or incurs in completing the work or the Works as applicable and all costs, losses and expenses incurred by the Principal as a result of claims, actions or proceedings including compromises of disputed claims, which arise out of or in connection with the take over or termination, and all such amounts will be a debt due and owing to the Principal from the Artist;

(iii) the Principal may use or engage others to use the Artist’s plant, equipment, temporary buildings, materials and other things on the site to complete the work or the Works as applicable and the Principal may direct the Artist to remove any such items from the site;

(iv) the Principal is hereby authorised by the Artist to obtain and arrange for the use of materials to complete the work or the Works which are off-site and which were intended for use in the Works;

(v) if the Principal has no reasonable alternative, for industrial relations or commercial reasons, the Principal may, in its absolute discretion, make payment to workers engaged at any time on the Works or to the Artist’s subArtist s or suppliers, even if amounts were included in a progress payment to the Artist but which have not been paid by the Artist, and the Principal may set-off or otherwise recover as a debt due and owing from the Artist the amounts so paid; and

(vi) when the relevant work or Works as applicable have been completed by the Principal, the Principal shall assess the amounts the Principal is entitled to deduct pursuant to this subclause 19.1 and shall certify as moneys due and payable the difference betwee n the sum of those amounts and the amount which would otherwise have been paid to the Artist if the relevant work or Works as applicable had been completed by the Artist

19.2 Termination for Convenience

(a) The Principal may at any time for any reason and in its absolute discretion, terminate this Contract by written notice to the Artist

(b) Without prejudice to the Principal’s rights under this Contract, upon such termination for convenience the Principal must pay the Artist:

(i) for work executed prior to the date of termination, the amount which would have been payable if this Contract had not been terminated and the Artist had made a progress claim on the date of termination;

(ii) the cost of materials reasonably ordered by the Artist for the Works, which the Artist is legally liable to accept but only if the materials become the property of the Principal upon payment;

(iii) costs reasonably incurred by the Artist in the expectation of completing the whole of the Works and not included in any payment by the Principal, except where the Artist is in default in which case this paragraph does not apply;

(iv) not used; and

(v) not used,

but otherwise the Principal is not liable to the Artist for any other costs, losses, expenses or damages whatsoever or howsoever arising as a result of termination of this Contract.

Subject to claims by the Principal, the Principal must return all unconditional bank undertakings within 14 days of termination under this clause 19.2.

19.3 Termination Generally

(a) If this Contract is terminated pursuant to clause 19.1, the parties’ remedies, rights and liabilities shall be the same as they would have been under the law governing this Contract had the Artist repudiated this Contract and the Principal elected to treat this Contract as at an end and recover damages.

(b) If the Principal repudiates this Contract and the Artist accepts that repudiation, thereby terminating this Contract, the Artist is entitled to damages but is not entitled to any other compensation (including compensation for any benefit conferred or unjust enrichment, in the nature of restitution or calculated on a quantum meruit).

20 CONFIDENTIALITY

20.1 Confidential Information

The terms of this Contract (“Confidential Information”) are confidential.

20.2 No disclosure

The Artist must not:

(a) disclose any of the Confidential Information directly; or

(b) indirectly use, deal with (whether for the Artist’s own benefit or otherwise) or disclose any of the Confidential Information to any person, except with the consent of the Principal

20.3 Exceptions

This clause does not apply where disclosure is:

(a) required by law or any stock exchange;

(b) on a confidential basis to that parties’ professional consultants, provided that a deed containing a similar obligation of confidentiality is entered into by those parties before any disclosure is made to them; or

(c) necessary for any legal proceedings concerning this Contract.

PERSONAL PROPERTY SECURITIES

(a) Words and phrases used in this clause 24 that have defined meanings in the Personal Property Securities Act 2009 (Cth) (“PPSA”) have the same meaning as in the PPSA unless the context otherwise indicates.

(b) If the Principal (“Secured Party”) determines that this Contract (or a transaction in connection with it) is or contains a security interest for the purposes of the PPSA, the Artist (“Grantor”) agrees to do anything (including obtaining consents, signing and producing documents, getting documents completed and signed and supplying information) which the Secured Party asks and considers necessary for the purposes of:

(i) ensuring that the security interest is enforceable, perfected and otherwise effective; and/or

(ii) enabling the Secured Party to apply for any registration, complete any financing statement or give any notification, in connection with the security interest; and/or

(iii) enabling the Secured Party to exercise rights in connection with the security interest.

(c) The Grantor will not disclose information of the kind mentioned in section 275(1) of the PPSA that is not publicly available and the Grantor will not authorise, and will ensure that none of its officers, employees, agents, contractors or subcontractors au thorises the disclosure of such information.

(d) This clause 24 does not prevent disclosure where such disclosure is required to be made under section 275(7)(b), (c), (d) or (e) of the PPSA, provided that the Grantor gives all available notice to the Secured Party to allow the Secured Party to legally challenge the disclosure and takes all available steps (whether required by the Secured Party or not) to maintain such PPSA information in confidence.

(e) Further, nothing in this clause 24 prevents disclosure:

(i) to any person in connection with an exercise of rights or a dealing with

rights or obligations under this Contract;

(ii) to officers, employees, legal and other advisers of the Grantor;

(iii) to any related entity of the Grantor, provided the recipient agrees to act consistently with clauses 24(c) – (e); or

(iv) the Grantor reasonably believes it is required by law or a stock exchange (except that this paragraph does not permit disclosure of any information under section 275(4) of the PPSA unless clause 24(d) is also satisfied).

(f) The Secured Party consents to disclosures made in accordance with clause 24(e).

25 NOT USED

26 NOT USED

27 NOT USED

27A NOT USED

27B NOT USED

28 INTERPRETATION

28.1 Definitions

In this Contract:

“Act of Prevention” means any of the following:

(a) a breach of this Contract by the Principal;

(b) a Variation directed by the Principal pursuant to clause 6 , except where such Variation is at the request of or caused by an act or omission of the Artist;

(c) delay by the Principal in giving the Artist access to the site in accordance with clause 2.1 following the giving of a Notice to Proceed;

(d) a requirement by the Principal to reschedule the performance of the Works under clause 2.1; and

(e) any other act or omission of the Principal

“Artist” has the meaning given in the Details

“Artwork” has the meaning given in the Details

“Authority” is any:

(f) government department;

(g) local government council;

(h) municipal, government, statutory or nonstatutory authority; or

(i) other person, body or corporation under a law,

which has a right to impose a requirement, or whose consent is required, with respect to the Works.

“Authority Requirements ” means the requirements of all Acts, Ordinances, regulations, by-laws, orders and proclamations made or given

under Acts and Ordinances by public or other Authorities which in any way relate to or affect the Works and the work of the Artist’s subcontractors or suppliers and include the requirements of service providers to whose services the site is or is to be connected.

“business day” means any day other than:

(a) a Saturday, Sunday or public holiday; or

(b) 27, 28, 29, 30 or 31 December.

"Certificate of Completion" means a certificate issued in accordance with clause 15.1 stating the Date of Completion

"Certificate of Milsetone Completion" means a certificate issued in accordance with clause 15.1 stating the date that Milestone Completion was achieved.

“Completion” means that stage in the execution of the Works when:

(a) the Works are completed except for minor Defects:

(i) which do not prevent the Works from being reasonably capable of being used for their stated purpose;

(ii) which the Principal determines the Artist has reasonable grounds for not promptly rectifying; and

(iii) the rectification of which will not prejudice the convenient use of the Works;

(b) the Artwork is fit for lawful use and its intended purpose;

(c) the site and the Works are free from any hazard caused by the Artist which makes the site or the Works unsafe for use;

(d) the Artist has commissioned the Artwork to the satisfaction of the Principal (acting reasonably) and provided relevant supporting evidence;

(e) the Artist has provided to the Principal a handover pack containing all Warranties and details of the Artwork installed,

and all other things which are required by this Contract to be performed by the Artist before Completion, have been performed.

“Construction Work” has the same meaning as construction work under the WHS Regulation.

“Contract ” means those documents listed in the Details, together with all annexures, schedules, attachments and other documents incorporated herein as part of the agreement between the parties.

“Artist’s Created Intellectual Property ” means all Cultural and Intellectual Property Rights, including Copyright Works and Moral Rights, in the Works (including in the Artwork).

“Contract Price” means the lump sum stated in the Details, as adjusted by the Principal in accordance with this Contract. The Contract Price is GST exclusive

“Copyright Works” are any copyright work forming part of the Design Documentation or any

documentation which the Artist is required to provide to the Principal under this Contract.

“Corporations Act” is the Corporations Act 2001 (Cth).

“Cultural and Intellectual Property Rights” means all current and future registered and unregistered rights in respect of copyright, designs, circuit layouts, trade marks, know-how, confidential information, patents, inventions and discoveries and all other intellectual property as defined in article 1 of the Convention Establishing the World Intellectual Property Organisation 1967 (as amended and revised from time to time).

“Date for Completion” means:

(a) the day that is the last day of the period of working days as specified in the Details as the time for Completion (as adjusted in accordance with this Contract), such period being taken to commence from the date of the Notice to Proceed; or

(b) the date for Completion as specified in the Details (as adjusted in accordance with this Contract).

“Date of Completion” means the date certified by the Principal to be the date upon which the Works reached Completion.

“day” means a calendar day.

“Deed of Novation” means the deed in the form of Attachment 31 to this Contract.

“Defect” means any defect, error, omission, shrinkage or other fault in respect of the Works.

“Defects Correction Period” means:

(a) the period which commences on the Date of Completion and ends 52 weeks after the Date of Completion; and

(b) any further Defects Correction Period created under clause 15.2

“Delivery Date” means the date by which the Artwork must be delivered, as specified in the Details

“Design Documentation” is all design documentation (including specifications, drawings, calculations and other technical information) prepared by the Artist pursuant to clause 3.2 and required for the proper completion of the Works.

“Design Intent” is the design principles (including performance and building standards and specifications), shapes, forms, outlines, colours, quality and types of materials and finishes, systems, concepts and standards and relationships between all and any of them), which:

(a) are shown in, or evidenced by, this Contract;

(b) are contemplated by this Contract;

(c) may be inferred from this Contract; or

(d) are shown in, evidenced by, contemplated by or may be inferred from other material provided by the Principal to the Artist

“Details” is the section of this Contract entitled “Details”.

“Design Documentation” is all design documentation (including specifications, drawings,

calculations and other technical information) prepared by the Artist and required for the proper completion of the Works.

“direction” includes any notice, document, transmittal, specification, drawing or instruction.

“Environment ” means the physical factors of the surroundings of human beings including the land, waters, atmosphere, climate, sound, odours, tastes, the biological factors of animals and plants and the social factor of aesthetics.

“Environmental Law” means a law relating to the Environment or the health or safety of persons, including, without limitation a law relating to:

(a) land use, planning, heritage, air water or noise pollution, soil or groundwater contamination, hazardous substances, waste, dangerous goods, any aspect of protection of the Environment, or the enforcement or administration of any of those laws (whether that law arises under statute or pursuant to any statutory instrument, regulation, ordinance, permit, notice, decree, order or directive of any government agency or otherwise); and

(b) a cause of action at common law in nuisance, negligence, trespass or otherwise or which gives rise or may give rise to equitable relief or which results or may result in an award of damages, costs or compensation, where any aspect of the cause of action co ncerns directly or indirectly the Environment or the health or safety of persons.

"Final Design" has the meaning given to that term in clause 3.4(e).

"Further Design " has the meaning given to that term in clause 3.4(a)(i)

“GST” has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

“GST Act” means A New Tax System (Goods and Services Tax) Act 1999 (Cth).

“Head Contract” means [insert].

“Head Contractor ” means [insert] being the builder appointed by the Principal under the Head Contract.

“Insolvent” means with respect to a party, that:

(a) it is, or states that it is, insolvent, as defined in the Corporations Act;

(b) it has a controller appointed to any part of its property;

(c) it is in receivership, in receivership and management, in liquidation, in provisional liquidation, under administration or wound up or has had a receiver appointed to any part of its property;

(d) it is subject to any arrangement, assignment, moratorium or composition, protected from creditors under any statute or dissolved, other than to carry out a reconstruction or amalgamation while solvent on terms approved by the other party;

(e) an application or order has been made (and, in the case of an application, it is not stayed,

withdrawn or dismissed within 30 days), a resolution passed, a proposal put forward or any other action taken, in each case in connection with that party, which is preparatory to, or could result in, any of paragraphs (a), (b), (c) or (d) above;

(f) it is taken, under section 459(F)(1) of the Corporations Act, to have failed to comply with a statutory demand;

(g) it is the subject of an event described in section 459(C)(2)(b) or section 585 of the Corporations Act or it makes a statement from which the other party reasonably deduces it is so subject;

(h) it is otherwise unable to pay its debts when they fall due; or

(i) something having a substantially similar effect to paragraphs (a) to (h) above happens in connection with that party under the law of any jurisdiction.

“Cultural and Intellectual Property Rights” means all current and future registered and unregistered rights in respect of copyright, designs, circuit layouts, trade marks, know-how, confidential information, patents, inventions and discoveries and all other intellectual property as defined in article 1 of the Convention Establishing the World Intellectual Property Organisation 1967 (as amended and revised from time to time).

“iPro” means iPRO Group Pty Ltd ABN 90 160 608 195 or another compliance management process or software determined by the Principal and notified to the Artist from time to time

“materials” includes plant, equipment and each component part of the Works.

“Milsetone” means those parts of the Works stated in the Details to be a milestone

" Milestone Completion " means the stage in the execution of a Milestone when:

(a) the Milestone is completed except for minor Defects:

(i) which do not prevent the Milestone from being reasonably capable of being used for its stated purpose;

(ii) which the Principal determines the Artist has reasonable grounds for not promptly rectifying; and

(iii) the rectification of which will not prejudice the convenient use of the Milestone; and

(b) all requirements for Milestone Completion are satisfied.

“Milestone Completion Date” means, in respect of a Milestone, the date set out in Attachment 1, as adjusted in accordance with this Agreement.

“Moral Rights” means any moral rights including the rights described in Article 6bis of the Berne Convention for the Protection of Literary and Artistic Works 1886 (as amended and revised from time to time), being “droit moral” or other analogous rights arising under any statute (including the Copyright Act 1968 (Cth)) or any other law (including any law outside Australia), that exists, or that may come to exist, anywhere in the world, and

also includes (without limitation) the rights of the creator or originator of a work of art:

(a) to be identified and named as such;

(b) not to have one or more third parties falsely identified or named as the creator or originator of the work of art; and

(c) to prevent it from being the subject of derogatory treatment which harms or is likely to harm the honour and reputation of the creator or originator.

“Notice of Dispute” means a notice in writing referred to in clause 18.2(b)(i).

“Notice to Proceed” means a notice in writing from the Principal to the Artist informing the Artist that the Artist may commence the Artwork

“Notifiable Incidents” means incidents that are required to be notified under the WHS Legislation.

“person” includes a firm or body corporate or unincorporate as well as an individual.

“Personnel” means subcontractors, consultants, suppliers, workers, employees, agents and other persons engaged by the Artist

"Preliminary Design " has the meaning given to that term in clause 3.3(a)

“Project” means the overall project of which the Works forms part.

“Recipient Created Tax Invoice” has the meaning given to that term in the GST Act

“Related Entity” has the same meaning as in the Corporations Act 2001 (Cth) except in clause 25 (“National Code of Practice”) where it has the meaning in the applicable Australian Government Implementation Guidelines for the National Code of Practice for the Construction Industry as amended and replaced from time to time

“Scope of Works” means the document attached at Attachment 2 to this Contract.

“Security” means the unconditional undertakings given by a bank or insurance company approved by the Principal or retention monies in the amount set out in the Details

“Separate Contractors” are contractors, other than the Artist, engaged by the Principal to do any work, or perform any services, whatever at or in the vicinity of the site.

“site” means the lands, space or other locations made available or to be made available to the Artist for the purpose of this Contract.

“Statutory Audit Statement” means a statement prepared under and pursuant to an applicable Environmental Law stating that the site is suitable for the use to which it will be, or is proposed to be, put following completion of the Works.

“subcontractor” is any person engaged by the Artist, its subcontractors and suppliers and any other person to carry out work which forms part of the Works , including the Artist

“Tax Invoice” is an invoice which complies with GST law relating to the production and form of tax invoices for GST purposes.

“Variations” means any of the following as instructed by the Principal under clause 6:

(a) an increase, decrease or omission in any part of the Works;

(b) a change in the character or quality of any material or work;

(c) a change in the levels, lines, positions or dimensions of any part of the Works;

(d) additional work; and

(e) the demolition or removal of material or work required by the Principal (other than in accordance with another provision of this Contract).

“WHS Act” means the current applicable Work Health and Safety Act in the State or Territory in which the Works are being carried out

“WHS Legislation” means the WHS Act and the WHS Regulation and any other health and safety related legislation applicable to the Works.

“WHS Performance Report” means a written report including the following information and any other work health and safety information reasonably required by the Principal, including:

(a) details of all safety issues (including first aid, lost time injuries and high potential near hit events) that have occurred on the site over the previous month including information about what the issue was and what was done to address it. The report will delineate those issues that :

(i) have been closed out previously, stating the close out action and the date completed; and

(ii) are still open, stating what has been done to date, what is still to be done and the target date for completion;

(b) details of any WHS Notice received by the Artist over the previous month and actions taken by the Artist in response to the WHS Notice;

(c) details of the number of personnel on site and the total number of hours worked over the previous month;

(d) details of work health and safety inspections and audits carried out over the previous month and the results of those inspections and audits ;

(e) details of the number of site inductions carried out over the previous month; and

(f) if a work health and safety audit of the Artist was carried out in the previous month, the results of and actions taken in response to that audit.

“WHS Regulation” means the Regulations under the WHS Act. “week” means a period of 7 consecutive calendar days.

“working day” means any day other than:

(a) a Sunday;

(b) a public holiday in the place where the site is located; and

(c) any rostered day off noted on the published CFMEU EBA RDO Calendar or other calendar provided by the Artist and approved

by the Principal on or before the date of the Contract.

“Works ” means the whole of the design and the Artwork to be executed in accordance with this Contract, including Variations and including any design development required by this Contract to be undertaken by the Artist to give effect and to properly detail the design intent of this Contract.

28.2 Interpretation

In this Contract, unless the context otherwise requires:

(a) a reference to this Contract includes all attachments, annexures and schedules to this Contract;

(b) a reference to including, includes, or include must be read as if it is followed by ( without limitation);

(c) wherever the imperative form of a verb is used alone, without it being prefaced by the words “The Artist must”, those words must be read to be included as prefacing that verb; and

(d) not used

28.3 Operation of Contract

(a) This Contract is governed by the laws of New South Wales. However, the Artist and the Principal agree that the United Nations Convention on Contracts for the International Sale of Goods (adopted at Vienna on 10 April 1980) does not apply in any respect to this Contract.

(b) This Contract applies from the earliest of the following dates:

(i) the Principal’s written acceptance of the Artist’s tender or offer; or

(ii) commencement of the Works; or

(iii) the date of this Contract.

(c) None of the terms of this Contract will be amended, waived, discharged or released at law or in equity except with the prior written consent of the Principal in each instance.

(d) This Contract must not be construed to the disadvantage of a party by reason that the party put forward the whole or any part of this Contract.

(e) This Contract contains the entire agreement between the parties and wholly replaces and excludes any prior dealing, correspondence or agreements between the parties. Any terms or conditions that may have been attached or embodied in the Artist’s tender or quotation are deemed to have been withdrawn in favour of the terms and conditions incorporated in this Contract.

(f) If a provision of this Contract is found to be invalid, illegal or unenforceable in any respect, that provision must be severed and the validity, legality and enforceability of the remaining provisions of this Contract must not be affected.

28.4 Directions and Notices

(a) Directions and notices must be in written form in English.

(b) A notice is deemed to have been given when it is received by the person to whom it is transmitted or addressed, or it is delivered to that person’s address (last communicated to the person giving the notice), whichever is the earlier.

28.5 Assignment

(a) The Artist must not assign any right under this Contract without the Principal’s written approval.

(b) The Artist acknowledges that the Principal may assign this Contract to any Related Entity or financier for the Project at any time.

EXECUTED as a deed.

SIGNING PAGE

Date of the Artwork Delivery Contract _________________

SIGNED, SEALED AND DELIVERED by #NAME# as attorney for AUSTRALAND INDUSTRIAL NO.63 PTY LIMITED under power of attorney dated 7 February 2025 in the presence of:

Signature of witness

Name of witness (block letters)

By executing this deed the attorney states that the attorney has received no notice of revocation of the power of attorney

EXECUTED by #ARTIST# in accordance with section 127(1) of the Corporations Act 2001 (Cwlth) by authority of its directors:

Signature of director

Name of director (block letters)

SIGNED SEALED AND DELIVERD BY by #ARTIST# in the presence of:

Signature of director/company secretary*

*delete whichever is not applicable

Name of director/company secretary* (block letters)

*delete whichever is not applicable

Signature of witness

Name of witness (block letters)

Signature of #insert name #

ATTACHMENT 1 - MILESTONES

1. [insert] [insert] [insert]

2. [insert] [insert] [insert]

3. [insert] [insert] [insert] 4. [insert] [insert] [insert] 5. [insert] [insert] [insert]

ATTACHMENT 2 – SCOPE OF WORKS

Design, fabricate and install sculptural artworks, including.

• 1 major placemaking sculpture (minimum 2.5m tall)

• Up to 7 smaller sculptures (fist-sized), potentially forming a trail or story element

1. Cultural Consultation & Design

• Attend project briefings, meetings and stakeholder consultations as required.

• Collaborate with Gnala Kala Boodja to guide cultural themes and design intent

• Reference the ethnographic survey to inform place -based storytelling

2. Fabrication

• Use durable, low-maintenance materials suited for outdoor public display

• Apply appropriate protective coatings (e.g. anti-graffiti, UV)

3. Installation

• Coordinate safe delivery and installation of all elements

• Ensure structural and public safety standards are met

5. Deliverables

• Approved design package

• Fabricated and installed artworks (1 major + up to 7 minor)

• Maintenance guide and handover documents

• 24-month defect liability coverage

ATTACHMENT 3 - DEED OF NOVATION

Details

Interpretation – definitions are at the end of the General terms

Parties Company, Artist and the Principal

Company Name Full Name of Company

ABN/ACN/ARBN ABN #

Address Address

Telephone Telephone

Attention Attention (Position)

Artist Name Full Name of Artist

ABN/ACN/ARBN ABN #

Address Address

Telephone Telephone

Attention Attention (Position)

Principal Name Full name of the FPA Principal

ABN/ACN/ARBN ABN #

Address Address

Telephone Telephone

Attention Attention (Position)

Recitals A The Principal and the Artist are parties to an agreement (“Contract”) for the performance of certain works.

C The parties to this Deed have agreed to novate the Contract from the Principal to the Company on the terms of this Deed.

Governing law Western Australia

Date of agreement See Signing page

General terms

1 Novation

The Company is substituted for the Principal as if the Company had originally been a party to the Contract instead of the Principal with effect from the Novation Date.

The Company is bound by the Contract as it relates to the Principal and is to enjoy all the rights and benefits conferred on the Principal under the Contract with effect from the Novation Date.

Each reference in the Contract to the Principal is to be read as if it were a reference to the Company with effect from the Novation Date.

2 Releases

2.1 Release of the Principal

The Artist releases the Principal from its obligations under the Contract and all liability which the Principal may have had to the Artist connected with the Contract and arising in respect of acts or events occurring on or after the Novation Date.

2.2 Adoption of liabilities by the Company

The Company agrees to adopt and assume all existing and future liabilities of the Principal under the Contract and duly perform and observe the obligations to be performed and the terms to be observed by the Principal under the Contract.

3 Warranties

The Artist represents and warrants to the other parties that:

(a) no event has occurred and no circumstances exist which would entitle the other party to terminate the Contract; and

(b) there is no dispute and there are no grounds for a future dispute between the Principal and the Artist

4

Replacement of Representative

The parties agree that the appointment of the Principal’s Representative (if any) is terminated as and from the Novation Date.

5 Payment

The Principal must pay the Artist for work carried out by the Artist up to the Novation Date the amount to which the Artist would have been entitled under the Contract.

6 Consequential Amendments

The Contract is to be amended with effect from the Novation Date as follows:

(a) all notices to be given to the Principal or the Principal’s Representative must be given to the Company at the address stipulated in this Deed;

(b) all security to be provided by the Artist under the Contract shall name the Company as a beneficiary.

7 Costs of Novation

Each party must bear its own costs, charges and expenses (including, without limitation, legal expenses) in entering into this Deed except that the Principal agrees to pay or reimburse the other parties for all stamp duties, fees, taxes and charges that are payable in connection with the novation of the Contract.

8 Governing law

This Deed is governed by the law of the State specified in the Details.

The parties submit to the exclusive jurisdiction of the courts of that State and any courts which may hear appeals from those courts in respect of any proceedings in connection with this Deed.

9 Definitions

The following words have these meanings in this Deed unless the contrary intention appears:

Deed means this deed of novation.

Novation Date means the date when the Company and Artist executes this Deed.

9.1 In this Deed unless the contrary intention appears:

(a) terms used in this Deed have the same meaning as in the Contract;

(b) a reference to this Deed or other instrument includes any variation or replacement of either of them;

(c) a reference to a recital, clause, paragraph or schedule is a reference to a recital, clause, paragraph or schedule to this Deed;

(d) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and any consolidations, amendments, re- enactments or replacements of any of them;

(e) the singular includes the plural and vice versa;

(f) a reference to persons or partners includes a firm, body corporate, an unincorporated association or any organisation having legal capacity;

(g) a reference to a person includes a reference to the person’s executors, administrators, successors, substitutes (including, but not limited to, persons taking by novation) and assigns;

(h) a reference to one gender includes all genders;

(i) 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;

(j) a reference to a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later;

(k) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning.

9.2 Headings

Headings are inserted for convenience only and do not affect the interpretation of this Deed.

EXECUTED as a deed.

Signing page

Date of the Deed of Novation

EXECUTED by #COMPANY# in accordance with section 127(1) of the Corporations Act 2001 (Cwlth) by authority of its directors:

Signature of director

Name of director (block letters)

Signature of director/company secretary*

*delete whichever is not applicable

Name of director/company secretary* (block letters)

*delete whichever is not applicable

EXECUTED by #ARTIST# in accordance with section 127(1) of the Corporations Act 2001 (Cwlth) by authority of its directors:

Signature of director

Name of director (block letters)

Signature of director/company secretary*

*delete whichever is not applicable

Name of director/company secretary* (block letters)

*delete whichever is not applicable

EXECUTED by #FPA P RINCIPAL# in accordance with section 127(1) of the Corporations Act 2001 (Cwlth) by authority of its directors:

Signature of director

Name of director (block letters)

Signature of director/company secretary*

*delete whichever is not applicable

Name of director/company secretary* (block letters)

*delete whichever is not applicable

PARTIES

ARTWORK

Name: Australand Industrial No. 63 Pty Limited

ABN: 61 105 126 672

Address: Level 2, 1C Homebush Bay Drive Rhodes NSW 2138 (Principal)

AND

Name: [insert]

ABN :[insert]

Address: [insert] (Artist)

means the art to be designed and made by the Artist, as set out in the Scope of Works.

SCOPE OF WORKS Refer to Annexure A

DATE FOR COMPLETION [insert the Date for Completion]

KEY DATES [Insert the Key Dates, which will be the key dates for the delivery of the Artwork.]

FEE

PROFESSIONAL INDEMNITY

INSURANCE AMOUNT

GOVERNING LAW

[A lump sum of [$insert], plus GST, with monthly payments OR

The amount calculated in accordance with the following rates, plus GST, with monthly payments: [insert rates]]

$[#] million

Western Australia

DATE OF AGREEMENT [insert date once executed by all parties]

Executed as an agreement

By the Artist

(If a company)

EXECUTED by #COMPANY NAME (UPPERCASE)# in accordance with section 127(1) of the Corporations Act 2001 (Cwlth) by authority of its directors:

Signature of director

Name of director (block letters)

Signature of director/company secretary*

*delete whichever is not applicable

(if a natural person)

SIGNED SEALED AND DELIVERED by #INSERT NAME in the presence of

Name of director/company secretary* (block letters)

*delete whichever is not applicable

Signature of witness

Name of witness (block letters)

Signature of #Insert name

By the Principal

EXECUTED by as authorised representative for AUSTRALAND INDUSTRIAL NO. 63 PTY

LIMITED in the presence of:

Signature of witness

Name of witness (block letters)

By executing this agreement the signatory warrants that the signatory is duly authorised to execute this agreement on behalf of AUSTRALAND INDUSTRIAL NO. 63 PTY LIMITED

THIS AGREEMENT IS SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS

This document constitutes the agreement between the parties (Agreement) The Agreement does not include any other terms or other documents, unless they have been expressly agreed to in writing by the parties

1. SERVICES

1.1 The Artist will deliver the Artwork and carry out other services reasonably required for the completion of the Artwork by the Date for Completion and any Key Dates (as applicable)

1.2 This Agreement applies to all work performed by the Artist, whether performed before, on or after the date of the Agreement and irrespective of whether performed for the Principal or a third party.

1.3 The Artist must:

(a) use the high degree of skill, care and diligence as would be expected of a professional Artist experienced in providing services for projects similar to this project;

(b) ensure that the Artwork and all reports and other documents and work produced as part of the Artwork complies with this Agreement, all laws (including all statutory requirements) and will in each case be suitable and adequate for their respective functions and purposes, including the intended purpose;

(c) comply with any reasonable direction, instruction, brief, schedule or budget provided by the Principal and notify the Principal immediately if the Artist becomes aware that any such schedule or budget may not be met; and

(d) not subcontract any part of the Artwork.

2. FEE AND PAYMENT

2.1 In consideration for the provision of the Artwork, the Principal will pay the Artist the Fee.

2.2 The Fee is inclusive of all costs, taxes (other than GST), disbursements, document printing and distribution, meeting and travel times and expenses incurred by the Artist in fulfilling and complying with the Agreement and in providing the Artwork

2.3 The Artist may submit, on the last business day of each month, a payment claim, showing the value of the services performed by the Artist to the end of the previous month. If required by the Principal, each payment claim must be accompanied by a duly completed signed written subcontractor’s statement in the form prescribed by law.

2.4 Within 14 days of receipt, the Principal will determine the amount payable by the Principal to the Artist or and notify the Artist of that determination. After being notified of the determination, the Artist will issue a tax invoice. The amount notified as payable by the Principal must be paid by 42 days after receipt of the Artist’s payment claim.

3. INSURANCE, INDEMNITY AND LIABILITY

3.1 The Artist must obtain and maintain:

(a) workers compensation insurance if required by law; and

(b) professional indemnity insurance for at least the Professional Indemnity Insurance Amount Professional indemnity insurance must be maintained for a period of 10 years following the completion of the Services.

3.2 The Artist will indemnify the Principal against any loss or damage the Principal may sustain as a result of any breach, act or omission by the Artist, including any loss or damage arising out

of or referable to any infringement of any intellectual property rights by the Artist, provided the Artist’s liability to indemnify the Principal will be reduced proportionally to the extent that the Principal’s negligent act or omission has contributed to the Principal’s loss or damage.

4. INTELLECTUAL PROPERTY RIGHTS AND MORAL RIGHTS

4.1 The Artist will retain ownership of the Cultural and Intellectual Property Rights in the Artist’s Created Intellectual Property.

4.2 The Artist grants to the Principal an irrevocable, royalty free and non-exclusive licence to use (including to sub-licence to a related entity) and reproduce the Contractor's Created Intellectual Property, including (without limitation) the right to:

(a) use, reproduce and maintain, the Artwork:

(i) for the purposes of the Principal’s business; and

(ii) in connection with any business of the Principal’s related entities;

(b) retain a digital copy of the Artwork for archival purposes; and

(c) reproduce the Artwork in annual reports, on the Principal’s website, print media or other promotional publications

4.3 The Artist warrants that:

(a) the Artwork will be an original work and will not infringe any Cultural and Intellectual Property Rights or Moral Rights of any person or corporate entity;

(b) where the Artwork contains third party material, the Artist has obtained all consents and licenses necessary to permit the lawful inclusion of the material in the Artwork; and

(c) it will not license any Intellectual Property Rights or Moral Rights in and to the Artwork to a third party without the Principal's prior written consent.

4.4 The Artist will be liable to the Principal for any liability, cost, expense, loss or damage arising out of or in connection with any infringements of the Intellectual Property Rights of any third party by reason of the production or execution of the Artwork.

4.5 The Principal warrants that it will not:

(a) make any three dimensional reproductions of the Artwork; or

(b) grant any third party sub-licence to exploit the Artwork commercially (except in respect of a sub-licence to a related entity).

4.6 The Artist warrants to the Principal that any design, materials, documents and methods of working the Artist provides will not infringe any Cultural and Intellectual Property Rights.

4.7 For the design undertaken by or on behalf of the Artist, the Artist:

(a) takes full responsibility for every aspect of that design;

(b) releases and indemnifies the Principal from and against any claim, loss or liability arising in relation to that design; and

(c) acknowledges that the preparation or procurement of the preparation of all or part of the design by any other party does not absolve the Artist in any way for any:

(i) design or specification inadequacy;

(ii) failure of the Artist to comply with any of its obligations under the Agreement; and

(iii) breach of any warranty or representation by the Artist under the Agreement

4.8 The Artist:

(a) acknowledges that the Principal has made no representations or warranties in relation to the design undertaken by the Artist;

(b) releases and forever discharges the Principal from any claim or liability in relation to defects or inadequacies in the design intent and in relation to the impact such defects or inadequacies may have on the performance of the Artworks; and

(c) remains entirely responsible for ensuring that the Artwork complies with the Agreement.

4.9 The Artist must procure from each author express agreement that they will not enforce any moral rights that they may have presently or in the future, in any such documents, including by executing any moral rights’ consents required by the Principal.

4.10 This clause 4 does not merge on termination of the Agreement

4.11 In this clause 4:

(a) Contractor’s Created Intellectual Property means all Cultural and Intellectual Property Rights, including Copyright Works and Moral Rights, in the Artwork

(b) Cultural and Intellectual Property Rights means all current and future registered and unregistered rights in respect of copyright, designs, circuit layouts, trade marks, know-how, confidential information, patents, inventions and discoveries and all other intellectual property as defined in article 1 of the Convention Establishing the World Intellectual Property Organisation 1967 (as amended and revised from time to time);

(c) Moral Rights means any moral rights including the rights described in Article 6bis of the Berne Convention for the Protection of Literary and Artistic Works 1886 (as amended and revised from time to time), being “droit moral” or other analogous rights arising under any statute (including the Copyright Act 1968 (Cth)) or any other law (including any law outside Australia), that exists, or that may come to exist, anywhere in the world, and also includes (without limitation) the rights of the creator or originator of a work of art:

(i) to be identified and named as such;

(ii) not to have one or more third parties falsely identified or named as the creator or originator of the work of art; and

(iii) to prevent it from being the subject of derogatory treatment which harms or is likely to harm the honour and reputation of the creator or originator.

5. VARIATIONS

5.1 The Artist must not vary the Scope of Works or the Artwork except as directed by the Principal in accordance with this clause 5.

5.1 The Principal reserves the right to:

(a) direct reasonable changes, or to cause the Artist to make reasonable changes, to the Scope of Works and/or the Artwork; and

(b) to otherwise make reasonable changes to the Scope of Works and/ or the Artwork

5.2 All changes must be documented in writing and the Artist will promptly implement any reasonable change requested by the Principal. If the Artist determines, acting reasonably, that the proposed variation is unreasonable or impractical, the Artist must notify the Principal in writing within 5 business days of receipt of the notice of variation.

5.3 The Artist may request any equitable adjustment in price or time for performance resulting from the change, provided the Artist does so in writing within 10 business days after receiving notice of the change from the Principal.

6. MISCELLANEOUS

6.1 The Artist must not use any documents or information provided by the Principal, its employees, agents or its subcontractors relating to the provision of the Services or any documents or information which arises during the course of the performance of the Services (Confidential Information) for any purpose other than the Services and must not disclose or permit the disclosure of any Confidential Information to any third parson not involved in the provision of the Services without the prior written consent of the Principal.

6.2 The Artist warrants that prior to the date of this Agreement, neither it nor any of its related entities, officers, employees, shareholders, representatives and agents have directly or indirectly, either in private business dealings or in dealings with the public sector or government officials, offered, given or agreed to offer or give any payment, gift or other advantage which would violate any anti-corruption laws or regulations applicable to them or the Principal (Corrupt Act). The Artist acknowledges and agrees that it will comply with all relevant anti-corruption laws and regulations and not engage in any Corrupt Act, whether with respect to matters the subject of this Agreement or otherwise and will procure that its related entities, officers, employees, shareholders, representatives and agents comply with this obligation.

6.3 By entering into the Agreement, the Artist consents to the novation of the Agreement to the Principal’s main contractor for this project, the Principal’s financier or its nominee (if required by the Principal), or any other person, upon the Principal’s request.

6.4 The Artist acknowledges receipt of a work health and safety plan and agrees to comply with that plan.

6.5 The Principal may terminate the Agreement at any time and in its absolute discretion. If the Principal does this, the Principal must pay the Artist’s reasonable costs incurred directly as a result of the termination and such payment will be the Artist’s sole remedy (Termination Payment). Notwithstanding this obligation, where the Agreement has been terminated, the Artist shall not be entitled to any Termination Payment if the Artist has breached the Agreement and has not remedied such a breach within 7 days of the receipt of a written notice from the Principal requiring the Artist to remedy that breach, or if the Artist has evinced an intention not to be bound by the Agreement. Any termination does not prejudice any of the Principal’s accrued rights.

6.6 This Agreement may only be varied by the parties in writing.

7. MODERN SLAVERY

7.1 For the purposes of this clause 7, the following words have the following meaning: Modern Slavery means any conduct which constitutes modern slavery under applicable law, and includes slavery, human trafficking, servitude, forced labour and any conditions or practices similar to those prohibited under Modern Slavery Laws.

Modern Slavery Declaration means a supplier declaration in the form required by the applicable Modern Slavery Laws.

Modern Slavery Laws means all anti-slavery and human trafficking laws, statutes, regulations and codes from time to time in force including, without limitation, the Modern Slavery Act 2018 (Cth).

7.2 The Artist warrants that it will:

(a) comply with applicable Modern Slavery Laws;

(b) take reasonable steps to satisfy itself that its supply chains do not involve Modern Slavery practices or Modern Slavery risks;

(c) provide a Modern Slavery Declaration in relation to its supply chain promptly following any request from the Principal, where such Modern Slavery Declaration is required by Modern Slavery Laws;

(d) notify the Principal immediately upon becoming aware of any incident, complaint or allegation of Modern Slavery or any breach of Modern Slavery Laws by the Artist or any entity in its supply chain; and

(e) if requested, report to the Principal on its compliance with this clause and give such assistance and access to documents as the Principal may reasonably require to verify compliance.

7.3 The Principal may undertake the following assessment:

(a) If requested by the Principal, the Artist must complete a questionnaire and /or provide information to a Artist engaged by the Principal to allow the Modern Slavery risks within the Artist’s business and supply chain to be assessed.

(b) Following review of the response provided, the Principal may issue the Artist with a corrective action plan recommending ways to reduce any identified Modern Slavery risks.

(c) If requested by the Principal, the Artist must provide the Principal with an implementation plan describing the steps taken or proposed to address the Modern Slavery risks identified in the corrective action plan.

(d) The Principal may request that the Artist report on its progress with the implementation plan.

ANNEXURE A – SCOPE OF WORKS

Create a package of digital artworks for translation into architectural and landscape elements including perforated steel panels, concrete etching, and interpretive signage. The designs must reflect the cultural values, stories, and significance of the site as identified in the ethnographic survey and through active consultation with the Gnala Kala Boodja Aboriginal Corporation.

1. Cultural Engagement & Research

• Attend project briefings, meetings and stakeholder consultations as required.

• Collaborate with Gnala Kala Boodja Aboriginal Corporation to guide the cultural content, narrative, and visual language of the artwork.

• Reference and interpret findings from the ethnographic survey.

2. Concept Development

• Develop initial design directions including mood boards, draft motifs, or story-based visual elements.

• Submit a Concept Design Package for review by the project team and cultural authority.

• Revise as needed based on feedback from Gnala Kala Boodja and project stakeholders.

3. Digital Artwork Production

• Create final, fabrication-ready digital artworks suitable for:

o Perforated metal panels (vector-based, suitable for CNC/laser cutting)

o Concrete form-liners or etching (linework or relief-ready)

o Interpretive signage (high-resolution images with optional cultural narratives)

• Ensure all files meet the technical specifications provided by fabricators or design consultants.

• Coordinate with the landscape or architectural team for placement, scale, and material constraints.

4. Documentation & Handover

• Submit all final artwork files in appropriate digital formats (e.g. AI, DXF, EPS, PDF).

• Provide a short cultural narrative or artist statement for use in interpretive materials (pending approval by Gnala Kala Boodja).