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STANDARD CONSULTANCY AGREEMENT

Project File No: [## insert]

Project ID: [## insert]

Engagement ID: [## insert]

Document ID: [## insert]

[## Insert Project Name] – [## insert description of consultancy services (e.g. architectural services)]

Consultancy Agreement

Secretary to the Department of Health and Human ServicesABN: 74 410 330 756

and

[## Insert legal name of Consultant]ACN: [## insert ACN]ABN: [## insert ABN]

Consultancy Agreement

Department of Health and Human Services, Victorian Health and Human Services Building Authority50 Lonsdale Street, MELBOURNE VIC 3000

ContentsExecution Page 5Schedule 1 Details of Agreement 9Schedule 2 Fee Structure 11Part A: Time for Submission of Payment Claims 11Part B: Fee Payable 11Part C: Provisional Sums 12Part D: Expenses 12Part E: Hourly and Daily Rates 12

Schedule 3 Consultant’s Key Personnel 13Schedule 4 Terms and Conditions 141 Definitions and Interpretation 142 Period of this Agreement 203 Consultant’s Obligations 234 Payment 265 Provisional Sums 306 Consultant’s Personnel 307 Supervising Officer 318 Confidentiality, Privacy and Records Management 329 Intellectual Property 3410 Status of Consultant 3511 Variations 3512 Liability and Indemnity 3613 Insurance 3714 Failure to Perform 3815 Termination and Suspension 3816 Resources 4117 Dispute Resolution 4118 Notices 4219 Governing Law 4220 Severability 4221 Entire Agreement 4322 Novation, Assignment and Subcontracting 4323 Variation of Agreement 4324 Joint and Several Liability 4325 Consultant as Trustee 4426 Conflict of Interest 4427 Waiver 4428 Employment Policy 4429 Force Majeure 4530 Victorian Industry Participation Policy 4531 Counterparts 4632 Consultant Statement 4633 Auditing 46

Schedule 5 Confidentiality Undertaking 48Schedule 6 Consultancy Brief and other Technical Documents 49Section 1 – Consultancy Brief 49

2 Consultancy Agreement

Section 2 – Proposal 49Section 3 – Other Relevant Documents 49

Schedule 7 Letter of Acceptance 50Schedule 8 Statutory Declaration 51Statutory Declaration – Progress Payment 51

Schedule 9 Deed of Novation 52Parties 52Background 521 Deed of Novation 522 Novation 533 Payment Sum 534 Releases 535 Consultant Statement and Pre-existing Claims 546 Consultancy Agreement confirmed 547 GST 548 Notices 559 Governing Law 5510 Interpretation 5511 General 56Signing Page 57

Schedule 10 Consultant Statement 61Schedule 11 VIPP 621 Definitions and Interpretation 622 Local Jobs First – Victorian Industry Participation Policy 623 Reporting 624 Verification of Consultant’s compliance with VIPP Plan or other commitments 635 Use of VIPP information 63Attachment 1 – VIPP Plan 65Attachment 2 – VIPP Monitoring Table 66Attachment 3 – Statutory Declaration 67

Consultancy Agreement 3

Parties: Secretary to the Department of Health and Human Services (ABN 74 410 330 756) being a body corporate established under section 16 of the Public Health and Wellbeing Act 2008 of 50 Lonsdale Street, Melbourne, Vic, 3000 (Department)andthe Consultant being the person referred to in Item 1 (Consultant)

Recitals: A. The Department has requested the Consultant to perform the Services.B. The Consultant has agreed to perform the Services for the Department in

accordance with the terms and conditions specified in this Agreement.


Execution PageExecuted as an agreement

SIGNED by:

Name:

Title

of the Department of Health and Human Services, as authorised representative for the SECRETARY TO THE DEPARTMENT OF HEALTH AND HUMAN SERVICES (ABN 74 410 330 756), a body corporate established under the Public Health and Wellbeing Act 2008.

Signature: Date:

By executing this Agreement the signatory warrants that the signatory is duly authorised to execute this Agreement on behalf of the Department.

in the presence of:

Signature of witness:

Name of witness: (block letters) Date:

[Legal Branch Note: Appropriate execution clause should be nominated by the consultant and the remaining clauses should be deleted]

THE COMMON SEAL of:

Company name:

ACN:

was affixed in accordance with its constitution and section 127 of the Corporations Act 2001 (Cth):

in the presence of:

Signature of Director:

Name of Director:(block letters) Date:

Signature of Director/Company Secretary:

Name of Director/Company Secretary: (block letters)

Date:


EXECUTED by:

Company name:

ACN:

in accordance with section 127 of the Corporations Act 2001 (Cth)


By executing this Agreement the signatory warrants that the signatory is a director of the Consultant



By executing this Agreement the signatory warrants that the signatory is a director/company secretary of the Consultant


Date:

SIGNED for and on behalf of:

Consultant’s name:

by its authorised representative:

Signature of authorised representative Date:

By executing this Agreement the signatory warrants that the signatory is duly authorised to execute this Agreement on behalf of the Consultant

in the presence of:


Name of witness: (block letters)



Partnership name:

by: (Name of partner signing)

Signature of Partner: Date:


in the presence of:



EXECUTED by:

Company name:

ACN:

as trustee for the:

Name of trust:

ABN:

in accordance with section 127 of the Corporations Act 2001 (Cth):







Date:


THE COMMON SEAL of:

Name of Incorporated association:

was affixed by the authority of its committee:

in the presence of:

Signature of authorised person:

Office held:

Name of authorised person: (block letters) Date:


Office held:


SIGNED by:

Name:

as authorised representative pursuant to the constitution for:


Signature of authorised representative: Date:


in the presence of:

Signature of witness


SIGNED by:

Name:

Signature of Consultant: Date:

in the presence of:




Schedule 1 Details of AgreementItem Details

Item 1 Consultant: [##Insert name of Consultant](ACN [##insert if a corporation])(ABN [##insert])

Item 2 Project: [##insert name of project]

Item 3 Brief description of Services: The provision of [##insert brief description of services e.g. architectural services], as more particularly described in the Consultancy Brief set out in Schedule 6.

Item 4 Commencement Date:(clause 1.1)

means [## insert date] or, if no date is stated, the earlier of:

(a) the date on which the Consultant commenced performance of the Services; and

(b) the date this Agreement was executed by both parties.

Item 5 Date for Completion:(clause 1.1)

[##insert date/time period – this date or time period should allow for the duration of any defects liability period] or as set out in Schedule 2.

Item 6 Do clauses 4.5 and 4.6 (Estimated Total Construction Cost) apply?

[YES / NO]

Item 7 Reconciliation Date (clause 4.5) [## insert either 'Not applicable' (where clauses 4.5 and Schedule 44.6 do not apply) OR insert date (where clauses 4.5 and Schedule 44.6 apply)]

Item 8 Consultant's Principal Officer:(clause 6.1)

Name: [##insert]Position: [##insert]

Item 9 Department's Supervising Officer:(clause 7.1)

Name: [##insert]Position: [##insert]

Item 10 Department to own Project Intellectual Property? (clause 9.2)

[##YES / NO]

Item 11 Insurance requirements:

(a) Amount of public liability insurance: (clause 13.2)

$[##insert: usually $10,000,000]for any one claim

(b) Amount of professional indemnity insurance: (clause 13.3)

$[##insert: usually $10,000,000] for any one claim and [##insert: usually $20,000,000]in the annual aggregate

(c) Maintenance of cover period:(clause 13.3)

10 years

(d) Amount of Professional Indemnity Insurance for Sub-consultants:(clause 13.5)

$[##insert] for any one claim and $[##insert] million in the annual aggregate


Item Details

(e) Maintenance of cover period for Sub-consultants:(clause 13.5)

10 years

Item 12 Program requirements applicable (clauses 2.5 to 2.8)

[##YES / NO]

Item 13 Address of Consultant:(clause 18.1)

[##insert address][##insert email address]

Item 14 Address of the Department:(clause 18.1)

[##insert address: NB as specific an address as possible should be inserted to ensure notices are received promptly.][##insert email address: include a project email address rather than a personal one if available.]

Item 15 Reporting times (clause 3.8)

[##insert frequency]

Item 16 Design requirements applicable? (clauses 3.5 to 3.7)

[##YES / NO]

Item 17 Budget requirements applicable?(clauses 3.12 and 3.13)

[##YES / NO]

Item 18 Consultant Statement(clause 32)

(a) Are inspections required? [##YES / NO]

(b) Intervals during which Consultant Statements must be submitted:

[## insert period of time, for example, monthly or insert 'not applicable' if the Consultant is not required to conduct inspections]

Item 19 Authorised Nominating Authorities (clause 4.28)

The Resolution Institute;Rialto Adjudications Pty Ltd; andRoyal Institute of Chartered Surveyors (RICS) Dispute Resolution Service.

Item 20 VIPP(clause 30)

(a) Do clauses 30.2 to 30.11 apply?

[##YES / NO] [“Yes” if the consultancy involves design but is below VIPP thresholds. “No” if no design work involved or Fees are over VIPP thresholds.]

(b) Does Schedule 11 apply? [##YES / NO] [“Yes” if the design consultancy Fees exceed VIPP thresholds, “No” if not. If “No”, delete Schedule 11.]


Schedule 2 Fee Structure

Part A: Time for Submission of Payment ClaimsIn accordance with clause 4.2 of Schedule 4, the Consultant may submit a Payment Claim to the Department for payment of the Fee and any Expenses (if applicable) each month for the relevant part of the Services provided by the Consultant in the previous month.

Part B: Fee Payable

Option 1: Lump sum fee

The Fee is the fixed lump sum amount of: (GST exclusive) $

Option 2: Combination of fixed and percentage based Fee payable by reference to the following Milestones:

Milestones

Included in Project YES/NO

Fixed fee or percentage based?

Percentage of Estimated Total Construction Cost

Milestone Date

Phase 1: Master Plan Fixed Sum N/A

Phase 2: Feasibility Study

Fixed Sum N/A

Phase 3: Schematic Design

Percentage based %

Phase 4: Design Development

Percentage based %

Phase 5: Contract Documentation

Percentage based %

Phase 6: Contract Administration

Percentage based %

Phase 7: Defects Liability Period

Fixed Sum N/A

Phase 8: Post Occupancy Evaluation

Fixed Sum N/A

Date for Completion N/A N/A

The Estimated Total Construction Cost is: (GST exclusive) $


Part C: Provisional SumsProvisional Sum Item Provisional Sum

e.g. Land Surveying, Geo Tech, Fire risk assessment, Independent Structural Certification (example)

Part D: ExpensesExpense Type Description of Expense Maximum per item

Travel $

[##Insert description of other] $

Part E: Hourly and Daily RatesName or designation Hourly rate Daily rates

e.g. Director, Associate Director, Architect, Quantity Surveyor


Schedule 3 Consultant’s Key PersonnelThe following are the Consultant's Key Persons pursuant to clause 6 of Schedule 4:

Key Person Position Responsibilities


Schedule 4 Terms and Conditions

1 Definitions and Interpretation

Definitions1.1 For the purposes of this Agreement:

Agreement means this agreement between the Department and the Consultant, including the Schedules.

Author has the meaning given to that term in the Copyright Act 1968 (Cth).

Background Intellectual Property means Intellectual Property in any Materials prepared or developed prior to the Commencement Date, and includes improvements to such Intellectual Property developed during the period of this Agreement but excludes Project Intellectual Property.

Business Day means a day which is not a Saturday, Sunday or public holiday appointed under the Public Holidays Act 1993 (Vic).

Claim includes all claims, demands, rights, actions, suits or proceedings of any kind, including any claim for an extension of time to the Date for Completion or a Milestone Date or for the payment of any money, including an increase to the Fee.

Claim Period has the meaning given to that term in clause 4.3(a).

Code of Conduct means the Code of Conduct for Victorian Public Sector Employees (No 1) 2007 (as amended from time to time) issued by the Public Sector Standards Commissioner pursuant to section 63 of the Public Administration Act 2004 (Vic).

Commencement Date means the date stated in Item 4.

Competent Consultant means a qualified, competent, professional consultant experienced in performing services of a similar size, nature and complexity to the Services similar to the Project.

Completion means that stage when the Services (or with respect to a Milestone, that part of the Services required to have been performed as part of that Milestone) have been completed in accordance with this Agreement and which will be deemed to include that any compliance certificates, certificates of electrical safety, occupancy permits or any other certificates, permits or statements relevant to the Services have been obtained.

Confidential Information means any information or data (including Personal Information or Health Information, whether or not in a material form) which is confidential to a party, including information which is created, acquired, collected or developed for the purpose of the Project or obtained during the term of this Agreement, but does not include information that is already in the public domain otherwise than as a result of a breach of this Agreement.

Consultancy Brief means the brief for the Project set out in section 1 of Schedule 6.

Consultant’s Principal Officer means the person stated in Item 8.

Consultant Statement means a written statement in the terms set out in Schedule 10.

Contracts Publishing Policy means the policy of the Victorian government for publication of details of contracts entered into by Victorian government departments or any successor policy (including variations).

Date for Completion means the date stated in Item 5, as that date may be extended by the Department in accordance with clause 2.12 or 2.13.


Deliverables means any materials, drawings, sketches, designs, advices, plans, specifications, data, models, samples, patterns, calculations, computations, reports, photographs, statements, diagrams, software or information and the like which:

(a) the Consultant is required to provide under this Agreement; or

(b) are necessary for the Consultant to prepare in order to perform the Services in accordance with this Agreement.

Department means the Secretary to the Department of Health and Human Services, a body corporate established under section 16 of the Public Health and Wellbeing Act 2008 (Vic) and includes the Secretary’s officers, agents and employees.

Design Error means:

(a) any non-compliance with this Agreement or applicable Laws; or

(b) any:

(i) error or omission in; or

(ii) Discrepancy, incompleteness, lack of integration, lack of co-ordination or lack of detail within or between,

any one or more of the Deliverables.

Discrepancy includes any omission, discrepancy, ambiguity, fault or inconsistency.

Dispute has the meaning given to that term in clause 17.1.

Expenses means the out of pocket expenses, if any, nominated in part D of Schedule 2 which will be paid pursuant to clause 4.

Estimated Total Construction Cost means the amount, if any, set out in part B of Schedule 2, which amount will be deemed to exclude any costs associated with property acquisition, consultants' fees, furniture and equipment, specialist ICT, relocation costs, administration and agency commissioning costs).

Extension Event means:

(a) a breach of this Agreement by the Department;

(b) a Variation to the Services directed by the Department in accordance with this Agreement; or

(c) any other act or omission of the Department, its employees, contractors or consultants (except to the extent that such an act or omission is permitted or authorised under this Agreement).

Fee means the fee specified in part B of Schedule 2 (including any Provisional Sums and Expenses) which, subject to this Agreement, is to be paid by the Department to the Consultant, as adjusted in accordance with any express provisions of this Agreement.

Force Majeure Event means any event or cause:

(a) beyond the reasonable control of the party claiming the force majeure (Affected Party);

(b) against which the Affected Party has taken all proper precautions, due care and reasonable alternative measures to prevent the event from affecting its ability to perform its obligations under this Agreement;

(c) which is not the direct or indirect result of the Affected Party’s failure to perform any of its obligations under this Agreement; and


(d) which is an act of God, war, riot or industrial action (provided it is not directed only at the Affected Party).

GST means GST within the meaning of the GST Act.

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

GST Law has the meaning given to that term in the GST Act.

Health Information has the meaning set out in section 3 of the Health Records Act 2001 (Vic).

Industry Capability Network (ICN) means Industry Capability Network (Victoria) Ltd (ACN 007 058 120) (ABN 20 007 058 120).

Insolvency Event means:

(a) the Consultant assigns any of its property for the benefit of creditors or any class of them;

(b) the Consultant's interest in or under this Agreement or in the subject matter of this Agreement becomes attached or taken in execution or under any legal process;

(c) an encumbrancee takes any step towards taking possession or takes possession of any assets of the Consultant or exercises any power of sale;

(d) the Consultant ceases, suspends or threatens to cease or suspend the conduct of a majority of its business, or disposes of or threatens to dispose of its assets, except for the purposes of a solvent reconstruction or amalgamation previously approved by the Department;

(e) any security interest (as defined in s 51A of the Corporations Act 2001 (Cth)) becomes enforceable or is enforced against the Consultant;

(f) a distress, attachment or other execution is levied or enforced against the Consultant in excess of $10,000.00;

(g) the Consultant has a judgment or order given against it in an amount exceeding $10,000.00 (or the equivalent in another currency) and that judgment or order is not satisfied or quashed or stayed within 20 Business Days after being given;

(h) the Consultant takes any step to obtain protection or is granted protection from its creditors under any applicable legislation;

(i) a resolution is passed by the Consultant to appoint an administrator or an administrator of the Consultant is appointed;

(j) an order is made that the Consultant be wound up;

(k) an order is made appointing a liquidator or a provisional liquidator of the Consultant;

(l) the Consultant resolves to wind itself up or otherwise dissolve itself, or gives notice of its intention to do so, except for the purposes of a solvent reconstruction or amalgamation previously approved by the Department , or is otherwise wound up or dissolved;

(m) an order is made or a resolution is passed for the Consultant to enter into any arrangement, compromise or composition with or assignment for the benefit of its creditors or any class of them, except for the purposes of a solvent reconstruction or amalgamation previously approved by the Department;

(n) the Consultant is, or states that it is, or under applicable legislation is taken to be, unable to pay its debts (other than as a result of a failure to pay a debt or claim the subject of a dispute in good faith) or stops or suspends or threatens to stop or suspend payment of all or a class of its debts;


(o) a receiver, receiver and manager, administrator, controller or similar officer of any of the assets or the whole or any part of the undertaking of the Consultant is appointed;

(p) the Consultant is or makes a statement from which it may be reasonably deduced by the Department that the Consultant is the subject of an event described in s 459C(2) of the Corporations Act 2001 (Cth);

(q) any event that is analogous or having a substantially similar effect to any of the events specified in this definition; or

(r) the Consultant, being an individual, commits an act of bankruptcy or becomes insolvent.

Intellectual Property means trademarks, patents, circuit layouts, copyrights, domain names, inventions, models, trade secrets, know-how and all other rights (whether registered or unregistered) and rights in respect of such Intellectual Property and includes all statutory and other proprietary rights.

Interaction Reference Number (IRN) means the number issued by ICN to the Consultant.

IRN Form means the form submitted by the Consultant to ICN via the VMC in accordance with clause 30.3.

Item means an item in Schedule 1.

Key Person means each person listed in Schedule 3.

Laws means:

(a) the law in force in Victoria, including common law, legislation and subordinate legislation;

(b) ordinances, regulations and by-laws of relevant government or local authorities; and

(c) all other lawful requirements of public bodies and other competent authorities in any way affecting or applicable to the Services or the Project (including any codes of practice, codes of conduct or similar requirements that would apply due to the particular type of Services or Project).

Materials means any computer software, data, documentation, designs, drawings, reports, notes, calculations, specifications, photographs, audio-visual materials, recordings, manuals, tools and any other information which is in a material form (which, for the avoidance of doubt, includes information stored in an electronic form).

Milestone means any milestone set out in Schedule 2.

Milestone Date means the date by which Completion of each Milestone (if any) must be reached by, as set out in Schedule 2, as extended by the Department from time to time in accordance with clause 2.12 or 2.13.

Moral Rights has the meaning given to that term in the Copyright Act 1968 (Cth).

Other Consultant means any consultant or other person (excluding the Consultant) engaged by the Department to provide design or other consultancy services for the Project

Other Deliverables means any materials, drawings, sketches, designs, advices, plans, specifications, data, models, samples, patterns, calculations, computations, reports, photographs, statements, diagrams, software or information and the like that any Other Consultant provides or is to provide to the Department in the performance of the Other Services.

Other Services means design or other consultancy services provided by any Other Consultant to the Department for the Project.

Outstanding Items List has the meaning given to that term in sub-clause 2.15(b)(ii).


Payment Claim means a claim for payment of the Fee and Expenses (if any) submitted in accordance with clause 4.3.

Payment Date has the meaning given to that term in clause 4.2.

Personal Information has the meaning set out in section 3 of the Privacy and Data Protection Act 2014.

Prior Services has the meaning given to that term in clause 2.2.

Program means a program to be provided by the Consultant, if required, in accordance with clause 2.5.

Project means the project to be undertaken as described in Item 2 in respect of which the Services are to be provided.

Project Intellectual Property means Intellectual Property in any Material created, discovered, brought into existence, modified or otherwise acquired as a result of, for the purposes of, or in connection with the Project, the Services or this Agreement.

Proposal means the submission, or (where relevant) those parts of the submission, prepared by the Consultant in relation to the Project (if any), which are set out in section 2 of Schedule 6.

Provisional Sum means the monetary sum, contingency sum or prime cost allowances set out in part C of Schedule 2 for the performance of each Provisional Sum Item.

Provisional Sum Item means the services, activities, works or items described in part C of Schedule 2.

Public Sector Employee has the same meaning as set out in section 4 of the Public Administration Act 2004 (Vic).

Reconciliation Date means the date stated in Item 7.

Reference Letter means the letter provided by ICN to the Consultant after the Consultant has consulted with ICN regarding opportunities for local industry for the Project.

Required Purpose means that the Services meet and, if applicable, enable the Works when completed to meet all:

(a) applicable requirements under Law;

(b) purposes stated in or which can be reasonably inferred from any of the documents set out or described in Schedule 6; and

(c) the requirements of the Department of which the Consultant was aware, or of which a Competent Consultant would have been aware, on the Commencement Date.

Responsible Minister means the Minister with responsibility for administering the Victorian Industry Participation Policy Act 2003.

Revised Estimated Total Construction Cost means the revised cost which the Department notifies the Consultant in writing that it (acting reasonably) anticipates that it will incur in undertaking the Project excluding any costs associated with property acquisition, consultants' fees, furniture and equipment, specialist ICT, relocation costs, administration and agency commissioning costs.

Schedule means a schedule to this Agreement.

Security of Payment Act means the Building and Construction Industry Security of Payment Act 2002 (Vic).


Services means the services to be provided by the Consultant as set out in brief in Item 3 and more fully described in the documents set out or described in Schedule 6 and includes the delivery of any Deliverables.

Specified Purpose means any purpose associated with the Works and the Project including the use or subsequent repairs to, maintenance or servicing of (including the supply of replacement parts), or additions, modifications or alterations to, the Works.

Sub-consultant means a consultant or contractor engaged by the Consultant to perform part of the Services.

Supervising Officer means the person nominated in accordance with clause 7.1.

Suspension Notice has the meaning given to that term in clause 15.15.

Third Party Intellectual Property means all Intellectual Property owned by a third party.

Variation means a variation to the Services, including any increase, addition, decrease, omission or change in the Consultancy Brief.

Variation Claim has the meaning given to that term in clause 11.7.

Variation Direction has the meaning given to that term in clause 11.5.

Variation Request has the meaning given to that term in clause 11.3.

Variation Response has the meaning given to that term in clause 11.4.

VIPP means the Victorian Industry Participation Policy made pursuant to s 4 of the Victorian Industry Participation Policy Act 2003.

VIPP Commitments means the commitments of the Consultant, if any, as set out in the Reference Letter.

VIPP Management Centre (VMC) means the online system developed to manage the application of VIPP by suppliers and Government agencies.

Works means the building works, if any, to which the Services relate.

Interpretation1.2 Unless the context requires otherwise:

(a) words importing any gender include each other gender;

(b) the plural includes the singular and vice versa;

(c) a reference to a person includes any other entity recognised by law and vice versa;

(d) a reference to a Law includes subordinate legislation, consolidations, amendments, re-enactments, and replacements of it;

(e) terms used in the Consultancy Brief and in the Proposal have the same meaning when used in this Agreement;

(f) where a term is defined, the definition includes all other grammatical forms of that term;

(g) headings and notes in square brackets are for reference only and do not affect the interpretation of this Agreement;

(h) a reference to a clause or schedule is to a clause or schedule in or to this Agreement;

(i) the word 'include' in any form is not a word of limitation; and

(j) no rule of construction applies to the disadvantage of the Department on the basis that it prepared or put forward this document or any part of it.


1.3 Despite anything contained in this Agreement, the obligations in clauses 8.1, 8.2, 8.3, 8.4, 8.5, 8.8, 8.10, 8.11, 8.12, 8.13, 8.14, 9, 12, 13, 14, 15, 17, 25, 30 and 33 are continuing obligations and will not cease on the completion, expiry or termination of this Agreement or any other discharge of this Agreement.

Discrepancies1.4 The documents constituting this Agreement are to be taken as mutually explanatory of one

another. If the Consultant discovers any Discrepancy in or between any such documents, the Consultant must promptly notify the Supervising Officer in writing of the Discrepancy. In the event of a Discrepancy being discovered and brought to the attention of the Supervising Officer, or discovered by the Supervising Officer, the Supervising Officer must direct the Consultant as to the interpretation to be followed by the Consultant in performing the Services and in so directing may apply the following rules in descending order of precedence:

(a) the higher or greater requirement, level, standard or quality prevails; and

(b) to the extent that sub-clause above does not resolve the Discrepancy, the documents constituting this Agreement must be construed according to the following order of precedence:

(i) Schedule 1;

(ii) Schedule 7;

(iii) Schedule 4;

(iv) Schedule 2;

(v) Schedule 6 (excluding the Proposal);

(vi) any other Schedules in numerical order (excluding the Proposal); and

(vii) the Proposal.

1.5 Where the Supervising Officer considers, acting reasonably, that a Discrepancy cannot be resolved in accordance with the order of precedence specified in clause 1.4, the Supervising Officer must give a written direction to the Consultant as to how the Discrepancy is to be resolved.

1.6 The Consultant is not entitled to make any Claim arising out of or in connection with the resolution of a Discrepancy.

2 Period of this Agreement

Commencement2.1 This Agreement commences on the Commencement Date.

2.2 Where the Consultant has performed any part of the Services prior to the Commencement Date (Prior Services):

(a) those Prior Services are subject to the terms of this Agreement;

(b) payments made by the Department to the Consultant in connection with the Prior Services are deemed to have been payments made by the Department under this Agreement; and

(c) any contract between the parties in relation to the Prior Services is deemed to have been terminated upon the Commencement Date.


General2.3 The Consultant must:

(a) promptly commence and thereafter perform the Services in a proactive, diligent and expeditious manner;

(b) achieve Completion of the Services by the Date for Completion; and

(c) achieve Completion of each Milestone, if any, by the relevant Milestone Date.

2.4 The Consultant must not suspend the Services unless:

(a) it is given a written direction by the Department to do so in accordance with this Agreement; or

(b) it is entitled to do so pursuant to the Security of Payment Act.

Program2.5 If these clauses 2.5 to 2.8 are stated to apply in Item 12, the Consultant must:

(a) within 5 Business Days after receipt of a written request by the Department to do so submit to the Department a detailed program for the performance of the Services in accordance with this Agreement;

(b) include in the Program:

(i) all Milestones and Milestone Dates (if any);

(ii) the Date for Completion;

(iii) appropriate and reasonable allowances for the Department to review Deliverables and, if relevant, comply with its obligations to cooperate and coordinate with Other Consultants in accordance with this Agreement; and

(iv) other details as required by this Agreement or which the Department otherwise directs are to be included in the Program.

2.6 The Department may within 10 Business Days after receipt of a Program give notice to the Consultant of its rejection of, or its required amendments to, the Program. The Consultant must amend and resubmit the Program until such time as the Department advises that it does not reject, or has no comment on, the Program.

2.7 The Consultant must:

(a) regularly and when directed by the Department to do so, update the Program to reflect the actual progress of the Services and the impact of any delays and extensions of time, and submit such updated Programs to the Department; and

(b) not depart from a Program without reasonable cause.

2.8 A Program (including any updated versions) does not form part of this Agreement or relieve the Consultant of any of its obligations or liabilities arising out of this Agreement.

Order of Services2.9 The Department may direct the Consultant in what order and what time the Services are to be

performed and the Consultant must comply with such direction.

2.10 If compliance with a direction by the Department under clause 2.9 causes the Consultant to be delayed, the Consultant may, subject to clause 2.11, be entitled to claim an extension of time but the Consultant is not entitled to make any other Claim.


Extension of time2.11 If:

(a) the Consultant is or will be delayed in the performance of the Services by an Extension Event; and

(b) it wishes to claim an extension of time;

then it must within 10 Business Days after the date on which it first becomes aware, or a Competent Consultant would have become aware (whichever is earlier), of the delay caused by the Extension Event, give a written notice to the Department which:

(c) identifies and provides details of the Extension Event; and

(d) states the duration of the extension of time claimed by the Consultant.

2.12 If the Consultant has complied with clause 2.11 and, as a result of the Extension Event, it is or will be delayed in achieving Completion of the Services by the Date for Completion or of a Milestone by the relevant Milestone Date (as the context requires), the Department must, within a reasonable time grant a reasonable extension of time to the Consultant.

2.13 The Department may, at any time and from time to time by written notice to the Consultant grant an extension of time for any reason.

2.14 The Consultant acknowledges and agrees that an extension of time under clause 2.12 constitutes the Consultant's sole and exclusive remedy in the event of delay and that it is not entitled to make any other Claim arising out of or in connection with any delay, disruption or prolongation in the performance of the Services.

Completion2.15 The:

(a) Consultant must, when it considers that it has achieved Completion of a Milestone or Completion of the Services, give written notice to that effect to the Department;

(b) Department may, within 20 Business Days after receipt of a notice from the Consultant under sub-clause above, either:

(i) issue a written notice to the Consultant stating (as applicable) that the Milestone has or the Services have achieved Completion; or

(ii) give written notice to the Consultant of any items that in its opinion remain to be completed in order for Completion to be achieved (Outstanding Items List).

2.16 Where the Department issues an Outstanding Items List, the Consultant must promptly attend to any items notified therein.

2.17 Neither a:

(a) failure by the Department to issue an Outstanding Items List (in accordance with sub-clause 2.15(b)(ii) or at all) or to include any item in such a list; nor

(b) payment by the Department in accordance with this Agreement,

constitutes evidence that Completion has been achieved or prejudices a subsequent claim by the Department that it has not in fact been achieved.


Milestones2.18 With the exception of the first Milestone stated in Schedule 2, the Consultant must not

commence performing any part of the Services which relate to any other Milestone unless and until the previous Milestone has achieved Completion unless:

(a) this Agreement otherwise provides; or

(b) the Department has given prior written consent (which consent may be given or withheld at the Department’s sole discretion and may be given on conditions).

3 Consultant’s Obligations

Duties3.1 The Consultant must perform and complete the Services in accordance with this Agreement to

the reasonable satisfaction of the Department.

3.2 In performing its obligations under this Agreement, the Consultant must:

(a) exercise due care, skill and judgement and at all times act in accordance with the highest professional principles and standards applicable in the field of endeavour to which the Services relate;

(b) ensure that any person employed or engaged by the Consultant to perform any work under this Agreement possesses adequate levels of skill and experience to perform that work to the satisfaction of the Department;

(c) observe and comply with all Laws;

(d) prepare and progressively submit the Deliverables to the Department by the times specified in this Agreement or, if no times are specified, within such times as are reasonably directed by the Department;

(e) undertake all activities and tasks necessary so that the Services:

(i) achieve the Required Purpose;

(ii) comply with the Consultancy Brief and Proposal;

(iii) are co-ordinated, consistent and interfaced with each other;

(iv) do not infringe on any Intellectual Property;

(v) are performed by persons with appropriate professional qualifications and experience; and

(vi) enable the Department to procure the carrying out of the Works for the Estimated Total Construction Cost or any Revised Estimated Total Construction Cost.

(f) perform the Services within the time stipulated in this Agreement or Program (if applicable) or if no time is stipulated, such reasonable time as may be stipulated by the Supervising Officer and otherwise in a timely manner;

(g) perform the Services in accordance with any directions issued by the Supervising Officer in accordance with this Agreement;

(h) comply, and ensure any person employed or engaged by the Consultant complies, with the Department’s lawful directions, policies, procedures and guidelines;

(i) co-ordinate and co-operate with any Other Consultants, contractors and workers employed or engaged by the Department in connection with the Project to optimise its management and minimise the risk of mutual disruption;


(j) prepare and submit to the Supervising Officer within such reasonable time as may be stipulated by the Supervising Officer, progress reports or other material prepared in accordance with this Agreement; and

(k) keep the Department informed of all matters of which it ought reasonably to be made aware.

3.3 The Consultant must not in any manner publicise or advertise that it provides Services to the Department, without the express written approval of the Department.

Non-compliance and Design Errors3.4 Clauses 3.5 to 3.7 only apply if so indicated in Item 16.

3.5 If the Consultant discovers or is notified by the Department of any Design Error (including any non-compliance with this Agreement) it must promptly take whatever action the Department considers necessary to correct the Design Error and resubmit the relevant document to the Department for review until such time as the Department advises the Consultant that it has no further objection to its use.

3.6 The Consultant:

(a) accepts the risk of and is not entitled to make any Claim arising out of or in connection with any Design Errors; and

(b) must comply with any direction given by the Department to resolve a Design Error at its cost.

Co-operation and coordination3.7 To the extent of any interdependencies or interface between the Services and any Other

Services, the Consultant must regularly consult and fully co-operate with the Other Consultants to the extent necessary to:

(a) integrate and coordinate the Services with the Other Services;

(b) facilitate the performance of the Other Services; and

(c) perform the Services so as to avoid interfering with, disrupting or delaying the performance by the Other Consultants of the Other Services.

Meetings and reporting3.8 The Consultant must:

(a) meet with the Department and any other person nominated by the Department regarding the performance of the Services and the Project at the places and at the times stated in the Consultancy Brief or as directed by the Department from time to time;

(b) bring to the meetings referred to in above such persons (including employees and Sub-consultants) and Materials (including Deliverables, written reports and the like) as are stated in the Consultancy Brief or required by the Department from time to time; and

(c) at the times stated in Item 15 or in the Consultancy Brief or as otherwise directed by the Department, submit reports to the Department detailing the status of the Services and containing such other information as may be required by the Department.

Quality assurance system3.9 In the performance of the Services, the Consultant must establish and maintain a quality

assurance system that:


(a) complies with the requirements of this Agreement relating to quality assurance (if any); and

(b) is reasonably acceptable to the Department.

3.10 The Consultant:

(a) must comply with any such quality assurance system; and

(b) will not be relieved of any of its obligations or liabilities arising out of or in connection with this Agreement by reason of its establishing, maintaining or otherwise using a quality assurance system.

Budget for the Project3.11 Clauses 3.12 and 3.13 only apply if so indicated in Item 17.

3.12 The Consultant must, (without limiting clause 3.2):

(a) liaise with the Department to periodically assess and monitor the anticipated cost of the Project as progressively documented by the Consultant and its Sub-consultants and any Other Consultants; and

(b) if at any time during the carrying out of the Works the Consultant considers that the Estimated Total Construction Cost or any Revised Estimated Total Construction Cost will be or is likely to be exceeded, promptly notify the Department in writing and recommend remedial action for the purpose of avoiding or minimising such excess (which remedial action may include amending Deliverables).

Budget Excess3.13 If:

(a) the lowest tender for a building contract for the Works which is acceptable to the Department contains a proposed contract sum which is in excess of the Estimated Total Construction Cost or any Revised Estimated Total Construction Cost;

(b) the Consultant gives a notice under clause 3.12(b); or

(c) the Department at any time considers that the Estimated Total Construction Cost will be or is likely to be exceeded,

then the Department may notify the Consultant in writing of a change to the Estimated Total Construction Cost or any Revised Estimated Total Construction Cost or otherwise give written directions to the Consultant in relation to the excess, including a direction:

(d) to change all or any part of the Services; or

(e) that the Department accepts any or all of the Consultant's recommendations under clause 3.12(b) (with or without amendment).

The Consultant is entitled to an adjustment to the Fee in accordance with clause 11.12 in respect of any additional costs the Consultant incurs as a result of complying with a direction of the Department under this clause 3.13, except to the extent that the Estimated Total Construction Cost or any Revised Estimated Total Construction Cost excess was caused or contributed to by the default of the Consultant or the negligent act or omission of the Consultant or its Sub-Consultants.


4 Payment

Security4.1 If the Fee exceeds $25,000, the Department may withhold 5% of any amount to be paid to the

Consultant until the Services have been completed to the reasonable satisfaction of the Department.

Payment Claims4.2 Subject to this Agreement, the Consultant is entitled to submit a claim for payment of the Fee

(including any Expenses) progressively throughout the provision of the Services at monthly intervals (each a Payment Date).

4.3 Each Payment Claim must include:

(a) a reasonable description of that part of the Services performed (including, where relevant, any Variations performed and any Milestones achieved) by the Consultant during the period to which the Payment Claim relates (Claim Period);

(b) the amount claimed by the Consultant on account of the Fee and the basis on which it has been calculated;

(c) a statutory declaration in the form contained in Schedule 8 stating that all Sub-consultants and workers (if any) have been paid all moneys due and payable to them in relation to the provision of the Services; and

(d) any other information reasonably requested in writing by the Department.

Estimated Total Construction Cost4.4 Clauses 4.5 and 4.6 only apply if so indicated in Item 6.

4.5 The parties acknowledge and agree that:

(a) as at the Commencement Date, the Fee comprises some amounts which are fixed lump sums and some amounts which are percentage-based sums;

(b) from the Commencement Date until the Payment Claim due immediately before the Reconciliation Date, the percentage based sums will be calculated based on the Estimated Total Construction Cost;

(c) promptly after the Reconciliation Date the Department must notify the Consultant in writing of what:

(i) amount constitutes the Revised Estimated Total Construction Cost; and

(ii) single fixed lump sum amount constitutes the Fee (as determined in accordance with clause 4.6);

(d) in the Payment Claim submitted immediately after the Reconciliation Date, any previous payments made on account of the Fee are to be reconciled so that any overpayment or underpayment of the Fee due to payments being made calculated on the basis of the Estimated Total Construction Cost is addressed.

4.6 The Department must determine what amount constitutes the single fixed lump sum Fee under sub-clause 4.5(c)(ii) by:

(a) for each of those Milestones which are stated in option 2 of part B to Schedule 2 to be 'Percentage based', multiplying the relevant percentage stated in the fourth column to the


table contained in option 2 of part B to Schedule 2 by the Revised Estimated Total Construction Cost;

(b) adding the amounts referred to in sub-clause above together; and

(c) adding the amount determined under sub-clause above to each of those amounts which are stated in option 2 of part B to Schedule 2 to be a 'Fixed Sum'.

Payment Schedules4.7 Within 10 Business Days after receipt of a Payment Claim submitted in accordance with

clauses 4.2 and 4.3, the Department may issue a payment schedule.

4.8 Where the Department elects to issue a payment schedule, the payment schedule must:

(a) if it is in response to the submission of a Payment Claim, identify the Payment Claim and invoice to which it relates;

(b) indicate the amount of the payment, if any, which in the reasonable opinion of the Department, is to be made by the Department to the Consultant or by the Consultant to the Department (Scheduled Amount); and

(c) if the Scheduled Amount is less than the amount claimed in the Payment Claim, indicate why the Scheduled Amount is less (including deductions made pursuant to clause 4.21 or 4.22). If the Scheduled Amount is less because the Department is withholding payment for any reason, the Department's reason for withholding payment must be indicated.

4.9 If the Department issues a payment schedule under this clause 4:

(a) the amount (if any) set out in a payment schedule as the amount of payment which the Department proposes to make to the Consultant is, for the purposes of sections 9, 10, 11 and 12 of the Security of Payment Act, the amount of the 'progress payment' (as defined in the Security of Payment Act) calculated in accordance with this Agreement which the Consultant is entitled to be paid under this Agreement; and

(b) failure by the Department to set out in a payment schedule an amount which the Department is entitled to retain, deduct, withhold or set-off (whether under this Agreement or otherwise) from the amount which would otherwise be payable to the Consultant by the Department will not prejudice the Department's right subsequently to exercise that right to retain, deduct, withhold or set-off any amount.

4.10 Subject to the provisions of this Agreement, within 44 days after receipt by the Department of the relevant Payment Claim or, where a payment schedule has been issued by the Department, within 30 days after the date of such issuance (whichever is the earlier), the Department must pay to the Consultant or the Consultant must pay to the Department, as the case may be, the Scheduled Amount (or, if no payment schedule was issued, the amount stated in the Payment Claim).

4.11 Any payment of moneys under this clause 4 is not:

(a) evidence of the value of the Services or that the Services have been satisfactorily carried out in accordance with this Agreement;

(b) any admission of liability; or

(c) approval by the Department of the Consultant's performance and compliance with this Agreement,

but is only to be taken as payment on account.


Expenses4.12 The Consultant may only claim reimbursement of Expenses that are specified in part D of

Schedule 2 and have actually been incurred, as evidenced to the satisfaction of the Supervising Officer. Reimbursement of Expenses is not claimable in excess of the maximum amount for each Expense type set out in part D of Schedule 2 unless the Supervising Officer has agreed in writing before the Expense is incurred.

Other costs and out of pocket expenses4.13 Except for any Expenses that are able to be claimed under clause 4.12, all other costs and out

of pocket expenses incurred by the Consultant in connection with this Agreement are deemed to have been included and allowed for in the Fee and may not be separately claimed by the Consultant.

GST4.14 In clauses 4.15 to 4.20 words and expressions that are not defined in this Agreement but which

have a defined meaning in the GST Law have the same meaning as in the GST Law.

4.15 The Department and the Consultant have and must maintain registration for the purpose of receiving and supplying taxable supplies under the GST Act.

4.16 Unless otherwise stated, all consideration payable under this Deed in relation to any supply is exclusive of GST.

4.17 If GST is payable in respect of any supply made by a supplier under this Agreement (GST Amount), the recipient must pay to the supplier an amount equal to the GST payable on the supply. Subject to clause 4.18, the recipient must pay the GST Amount at the same time and in the same manner as the consideration for the supply is to be provided under this Agreement in full and without deduction, set off, withholding or counterclaim (unless otherwise provided in this Agreement).

4.18 The supplier must provide a tax invoice to the recipient before the supplier will be entitled to payment of the GST Amount under clause 4.17.

4.19 If this Agreement requires a party to pay, reimburse or contribute to any expense, loss or outgoing suffered or incurred by another party, the amount which the first party must pay, reimburse or contribute is the sum of:

(a) the amount of the payment, reimbursement or contribution, less any input tax credit in respect of the payment, reimbursement or contribution to which the other party is entitled; and

(b) if the payment, reimbursement or contribution is subject to GST, an amount equal to that GST.

4.20 If an adjustment event occurs in relation to a taxable supply under this Agreement:

(a) the supplier must issue an adjustment note to the recipient within 7 days after becoming aware of the adjustment; and

(b) any payment necessary to give effect to that adjustment must be made within 7 days after the date of receipt of the adjustment note.

Right of set off4.21 The Department may deduct from moneys otherwise due to the Consultant:


(a) otherwise than under this Agreement, any debt due from the Consultant to the Department; and

(b) under this Agreement, or otherwise at law relating to the Services:

(i) any debt due from the Consultant to the Department; and

(ii) any claim to money which the Department may have against the Consultant whether for damages or otherwise.

4.22 If the amount due to the Department under clause 4.21 is not ascertainable at the time that payment would otherwise be due to the Consultant under this clause 4, the Department may retain such amount as the Department reasonably estimates will become due to it until the actual amount has been determined.

4.23 For the avoidance of doubt, any amount deducted from moneys otherwise due to the Consultant under clause 4.21 must, in accordance with clause 4.8, be set out in the applicable payment schedule.

Security of Payment Act4.24 In relation to Sub-consultants engaged by the Consultant in the performance of the Services,

the Consultant must:

(a) immediately give the Department a copy of any notice the Consultant receives from a Sub-consultant under the Security of Payment Act;

(b) ensure that each Sub-consultant immediately gives the Department a copy of any notice that the Sub-consultant receives from another party under the Security of Payment Act (including the Consultant); and

(c) immediately notify the Department if it becomes aware that a Sub-consultant is entitled to or intends to suspend work or services under a sub-contract pursuant to the Security of Payment Act or exercise a statutory lien over unfixed plant or materials.

4.25 If the Department becomes aware that a Sub-consultant is entitled to suspend work or services pursuant to the Security of Payment Act, the Department may pay the Sub-consultant such money as is or may be owing to the Sub-consultant in respect of that work or services, and any amount paid by the Department will be a debt due from the Consultant to the Department. To the extent reasonably practicable, the Department must notify the Consultant prior to making any payment referred to in this clause 4.25.

4.26 To the maximum extent permitted by Law, the Consultant indemnifies the Department against all damage, loss, cost (including legal costs on a full indemnity basis) or liability suffered or incurred by the Department arising out of:

(a) a suspension pursuant to the Security of Payment Act by a Sub-consultant of work or services which forms part of the Services;

(b) a failure by the Consultant to comply with clause 4.24;

(c) any lien claimed over unfixed plant or materials forming part of the Services under section 12A of the Security of Payment Act by a Sub-consultant; and

(d) a notice or claim under the Security of Payment Act being served on the Department by a Sub-consultant exercising a lien or charge over any part of the Services.

4.27 The Consultant’s liability under clause 4.26 must be reduced proportionately to the extent that liability is caused or contributed to by the negligent or unlawful act or omission of the Department.

4.28 For the purposes of the Security of Payment Act:


(a) the Supervising Officer is the Department's authorised agent to receive payment claims and adjudication applications and issue payment schedules and adjudication responses;

(b) the Consultant must, if serving a payment claim or adjudication application (or any other form or notice under the Security of Payment Act) on the Department, at the same time provide a copy to the Supervising Officer;

(c) sections 18(3) and 18(4), the authorised nominating authorities are those stated in Item 19; and

(d) section 23(2)(b), the adjudicator must, to the extent permitted by law, in determining the adjudicated amount, consider any set-offs the Department may be able to make against the amount of the progress payment (if any) to be paid by the Department to the Consultant including, without limitation, any amount due from the Consultant to the Department arising out of or in connection with this Agreement.

5 Provisional Sums

Provisional Sum Items5.1 For each Provisional Sum Item, the Supervising Officer must give the Consultant a direction

either:

(a) requiring the Consultant to perform the relevant Provisional Sum Item; or

(b) deleting it from this Agreement.

5.2 If the Supervising Officer has not given the Consultant a direction in respect of a Provisional Sum Item under clause 5.1 by the Date for Completion, then the Provisional Sum Item will be deemed to be deleted from the Services.

Provisional Sum Adjustments5.3 A Provisional Sum included in this Agreement is not itself payable by the Department but

where, at the direction of the Supervising Officer under sub-clause 5.1(a), a Provisional Sum Item is performed or supplied by the Consultant, then the Fee must be adjusted by the deletion of the Provisional Sum to which the Provisional Sum Item relates and then by the addition of an amount agreed by the parties or, where not so agreed, as valued under clause 11.12.

Provisional Sum Deletions5.4 If, at the direction of the Supervising Officer under sub-clause 5.1(b) or by reason of the

operation of clause 5.2, a Provisional Sum Item is deleted from the Services, the Fee must be reduced by the Provisional Sum corresponding to that Provisional Sum Item.

6 Consultant’s Personnel

Principal Officer6.1 The Services must be carried out by the Consultant under the direction and supervision of the

Consultant's Principal Officer and no other person, unless the Department consents in writing.

6.2 The Consultant's Principal Officer must act as the representative of the Consultant under this Agreement and:

(a) must be available at all reasonable times for consultation with the Department or the Supervising Officer;


(b) is deemed to be the agent of the Consultant in respect of any decision made or information given to or received by the Consultant (including any direction made by the Department which if communicated to the Consultant’s Principal Officer, will be deemed to have been given to the Consultant);

(c) has full authority to bind the Consultant; and

(d) matters within the knowledge of the Consultant’s Principal Officer are deemed to be within the knowledge of the Consultant.

Key Personnel6.3 Subject to clause 6.4, the Consultant agrees that the Key Persons are to be engaged

throughout the provision of the Services in the positions set out in Schedule 3.

6.4 A Key Person may only be replaced or moved from their position if:

(a) an instruction is given by the Supervising Officer to replace a Key Person or the prior written approval of the Supervising Officer is given to replace a Key Person; or

(b) any Key Person dies, becomes seriously ill, retires or resigns, in which case that Key Person must be replaced by a person of at least equivalent experience, ability and expertise approved in writing by the Supervising Officer.

6.5 The Consultant must fill any Key Person vacancy created in accordance with clause 6.4 promptly with a person approved by the Supervising Officer.

6.6 The Department may direct the Consultant to remove from any activity in connection with the Services any person (including the Key Person) who, in the reasonable opinion of the Department, is incompetent, negligent, guilty of misconduct or is otherwise unduly interfering with the Project.

Compliance with Code of Conduct6.7 Where, in the course of providing the Services or working on the Project, the Consultant, or its

officers, employees or Sub-consultants:

(a) supervise Public Sector Employees;

(b) undertake work that is of a similar nature to the work undertaken by Public Sector Employees at premises or a location generally regarded as a public sector workplace; or

(c) use or have access to public sector resources or information that are not normally accessible or available to the public,

the Consultant must comply, and must ensure that its officers, employees and Sub-consultants comply, with the Code of Conduct.

7 Supervising Officer

Supervision7.1 The Department must nominate a person to act as the Supervising Officer to supervise

performance of this Agreement (which will initially be the person set out in Item 9) and must notify the Consultant in writing if the identity of the Supervising Officer changes during the carrying out of the Services.

7.2 The Supervising Officer, in connection with any matter arising under this Agreement:

(a) represents the Department and must be available at all reasonable times for consultation with the Consultant's Principal Officer; and


(b) is deemed to be the agent of the Department in respect of any decision made or information given to or received by the Supervising Officer unless stated otherwise in this Agreement.

8 Confidentiality, Privacy and Records Management

Mutual undertaking8.1 Each party must keep all Confidential Information of the other party absolutely confidential and

each party warrants to the other that it will not communicate, publish or release, or permit the communication, publication or release of any Confidential Information except:

(a) as is necessary for the parties to perform their obligations under this Agreement;

(b) as required by Law;

(c) to their legal advisors, for the purpose of obtaining legal advice about this Agreement; or

(d) as is permitted under this Agreement or otherwise agreed in writing by the parties.

Privacy8.2 Clauses 8.3 to 8.6 apply only where the Consultant deals with Personal Information or Health

Information when, and for the purpose of, providing the Services under this Agreement.

8.3 The Consultant acknowledges that it will be bound by the Privacy and Data Protection Act 2014 (Vic) with respect to any act done or practice engaged in by the Consultant under or in connection with this Agreement in the same way and to the same extent as the Department would have been bound had the act or practice been directly done or engaged in by the Department

8.4 The Consultant acknowledges that it is an ‘organisation’ within the meaning of the Health Records Act 2001 (Vic) and undertakes to comply with that Act in respect of any act done or practice engaged in by the Consultant under or in connection with this Agreement.

8.5 The Consultant must immediately notify the Department if the Consultant becomes aware of a breach or possible breach of the obligations referred to in clauses 8.3 or 8.4 by the Consultant or any Sub-consultant.

8.6 The Consultant agrees to ensure that any sub-contract entered into for the purpose of fulfilling its obligations under this Agreement contains provisions to ensure that the Sub-consultant has the same obligations as the Consultant under clauses 8.3 to 8.5.

Undertaking by employees, agents and Sub-consultants of the Consultant8.7 If, in the reasonable opinion of the Department, the Department's Confidential Information is of

an extremely sensitive nature then the Department may, at any time, request in writing that the Consultant obtain an undertaking in the form set out in Schedule 5 in favour of the Department from any person employed or engaged by it that may have access to the Confidential Information. The Consultant must comply with a written request under this clause 8.7 and must deliver a copy of the undertaking to the Supervising Officer prior to allowing access to the Confidential Information.

Surrender of Materials8.8 Subject to clauses 8.9 and 8.10, on or before the Date for Completion (or earlier termination of

this Agreement) the Consultant must:


(a) deliver to the Department or, at the Department’s option, destroy all Confidential Information and Materials received from or through the Department under this Agreement;

(b) after providing all Confidential Information and other material to the Department and subject to the Public Records Act 1973 (Vic), irretrievably delete, destroy and render irrecoverable any form of electronic or optical record containing any Confidential Information or Materials received from or through the Department under this Agreement; and

(c) if the Department owns the Project Intellectual Property, irretrievably delete, destroy and render irrecoverable any form of electronic or optical record of the final report or any draft or copy thereof.

8.9 If the Supervising Officer gives the Consultant written permission to retain certain specific Confidential Information or Materials, the Consultant need not comply with the provisions of clause 8.8 in respect of the relevant Confidential Information or Materials.

8.10 Unless the Department otherwise directs in writing, the Consultant may retain one hard copy (which may be scanned and stored by electronic means) of the Materials or Confidential Information for its own internal quality control, business continuity, auditing, compliance, insurance, document retention policy and dispute resolution purposes.

8.11 In respect of any Materials or Confidential Information retained by the Consultant in accordance with clause 8.10, the Consultant agrees that it:

(a) will continue to comply with this clause 8;

(b) will not allow anyone to access the retained Confidential Information other than for the purpose for which it was retained, or as required by Law; and

(c) if it is required by Law to disclose the Confidential Information, it will advise the Department in writing of that fact as soon as practicable, and in any event prior to disclosing the Confidential Information.

8.12 The Department may, at any time and in its sole discretion, notify the Consultant in writing that the Consultant may no longer retain Materials or Confidential Information retained by the Consultant in accordance with clause 8.10. Within 5 Business Days after receiving such notice, the Consultant must return to the Department all copies of the Materials or Confidential Information specified in the notice that are in the possession or control of the Consultant.

Security of materials8.13 Each party must take all reasonable measures to ensure the security of the Confidential

Information provided, created or acquired by either party under this Agreement, for so long as that Confidential Information is within its custody or control, and in so doing must ensure that the Confidential Information is protected at all times from access, use or misuse, damage or destruction, by any person not authorised by this Agreement to have access to it.

Permitted disclosure8.14 Despite anything else in this Agreement:

(a) the Department may disclose the terms of this Agreement to the public (including as required in order for the Department to comply with the Contracts Publishing Policy), provided such disclosure does not involve disclosure of trade secrets or proprietary information of a party where disclosure would result in a significant commercial disadvantage to the Consultant;


(b) if requested by the Auditor-General or the Ombudsman of the State of Victoria in the course of performing their statutory duties, Confidential Information and the terms of this Agreement may be disclosed to the Auditor-General or the Ombudsman by the Department as the case may be; and

(c) Confidential Information and the terms of this Agreement may be disclosed by the Department to the Minister, and that Minister’s staff, responsible for the portfolio under which the Services and this Agreement operate.

9 Intellectual Property9.1 The Background Intellectual Property of each party remains the property of that party.

9.2 The Consultant owns all Project Intellectual Property unless Item 10 states that the Department owns Project Intellectual Property.

9.3 If Item 10 states that the Department owns Project Intellectual Property, exclusive ownership of all Project Intellectual Property vests in the Department immediately upon its creation and on or before the expiry or termination of this Agreement the Consultant must deliver the Project Intellectual Property to the Department.

9.4 The Consultant grants, and the Department accepts, a non-exclusive, irrevocable, perpetual, world-wide, royalty-free licence (including a right to sub-license) to use, reproduce, publish, communicate to the public, modify, adapt, exploit and sub-license:

(a) the Project Intellectual Property, if not owned by the Department in accordance with clause 9.3;

(b) the Consultant’s Background Intellectual Property; and

(c) any Third Party Intellectual Property,

to the extent necessary to enable the Department to enjoy the full benefit of the Services, the Project (including for the Specified Purpose) and this Agreement.

9.5 On or before the expiry or termination of this Agreement, the Consultant must deliver to the Department a copy of all Materials in which Intellectual Property has been licensed to the Department under clause 9.4 in a way that allows the Department to exercise its rights under the licence.

9.6 The Consultant warrants that it has the right to grant the licenses referred to in clause 9.4.

Moral Rights9.7 By submitting a Deliverable to the Department pursuant to this Agreement the Consultant

represents and is deemed to represent to the Department that:

(a) the use, disclosure, reproduction, transmission, exhibition, communication, adaptation, publication or otherwise the exercise of rights in relation to the Deliverable anywhere in the world in whatever form by or on behalf of the Department:

(i) will not infringe the Moral Rights of any Author; and

(ii) is consented to by all relevant Authors; and

(b) each Author possessed of Moral Rights arising in relation to or in connection with the relevant Deliverable agrees that its Moral Rights are not and will not be infringed by, and consents to, acts or omissions of the Department which would otherwise constitute an infringement under Part IX of the Copyright Act 1968 (Cth) (including where identification of the relevant Author is not made).


10 Status of Consultant10.1 The Consultant is engaged as an independent contractor. Nothing in this Agreement creates

any agency or employment relationship between the Consultant and the State of Victoria or the Department. The Consultant has no authority to incur and must not incur any obligation or make any representation on behalf of the State of Victoria or of the Department unless expressly agreed in writing by the Department.

11 Variations

General11.1 The Consultant must not perform a Variation unless the Department has given a written:

(a) Variation Direction in accordance with clause 11.5 or 11.8(a); or

(b) approval pursuant to clause 11.10.

11.2 The Consultant agrees that:

(a) if a Variation omits or decreases any part of the Services, the Department may perform the part of the Services either itself or by engaging another person to do so; and

(b) no Variation, individually or in aggregate with other Variations, will invalidate or constitute a repudiation of this Agreement.

Variation proposal11.3 The Department may at any time before the Completion of the Services give a written notice

(Variation Request) to the Consultant requesting it to provide:

(a) a quotation for the cost of performing a proposed Variation; and

(b) details of any impact a proposed Variation will have on the Services, the Date for Completion, Milestone Dates or the Program.

11.4 The Consultant must give a written notice to the Department (Variation Response) containing the information required by clause 11.3 no later than 5 Business Days after receipt of the Variation Request.

Variation Directions11.5 Whether or not the Department has issued a Variation Request, the Department may, by

written notice expressly given pursuant to this clause 11.5 at any time before Completion of the Services direct the Consultant to perform a Variation (Variation Direction). In the Variation Direction, the Department may state one of the following:

(a) the proposed adjustment to the Fee as set out in the Variation Response is agreed, in which case the Fee must be adjusted accordingly; or

(b) any adjustment to the Fee will be determined under clause 11.12.

11.6 The Consultant must comply with all Variation Directions.

Alleged Variations11.7 If the Consultant considers that a direction of the Department under this Agreement, whilst not

a Variation Direction, requires the performance of a Variation then the Consultant must, within 5 Business Days after receipt of (and in any event before implementing) the direction in issue, give written notice to the Department (Variation Claim):


(a) identifying the relevant direction and providing particulars as to why the Consultant considers it requires the performance of a Variation; and

(b) providing the information required by clause 11.3 in respect of the alleged Variation.

11.8 As soon as practicable after receipt of a Variation Claim the Department must either:

(a) issue a Variation Direction;

(b) withdraw the direction in issue by written notice to the Consultant; or

(c) advise the Consultant in writing that it does not consider that the direction in issue requires the performance of a Variation in which case the Consultant must comply with the direction but, subject to having strictly complied with the requirements of this clause 11, may refer the issue for dispute resolution.

11.9 Subject to clause 11.8(c), the Consultant is not entitled to make any Claim to the effect that a direction (other than a Variation Direction) requires the performance of a Variation.

Variations for Consultant’s convenience11.10 Should the Consultant wish to perform a Variation to the Services, it must give written notice to

the Department providing details of, and stating why it wishes to implement the Variation. The Department may approve such Variation by written notice to the Consultant, which approval may be conditional.

11.11 The Consultant will not be entitled to any adjustment to the Fee or to make any Claim arising out of or in connection with a Variation requested by the Consultant in accordance with clause 11.10 unless the Department otherwise directs in its notice approving the Variation.

Valuing variations11.12 If a Variation Direction or any other provision of this Agreement requires that an adjustment to

the Fee or a valuation made pursuant to this clause 11.12, the amount of the adjustment or valuation will be:

(a) as agreed between the parties in writing; or

(b) if not so agreed, such reasonable amount as is determined by the Department.

Records11.13 For the purpose of determining a valuation or adjustment pursuant to clause 11.12(b), if

requested by the Department to do so, the Consultant must provide the Department with documentation evidencing the relevant costs or expenses incurred by the Consultant. The Consultant must provide such information to the Department no later than 5 Business Days after receipt of such request.

12 Liability and Indemnity12.1 In clause 12.2, “Liability” includes any judgments, orders, costs (including legal costs on a full

indemnity basis), expenses, losses, damages, compensation, amounts paid on advice of legal advisers to compromise or settle a claim, taxes, outgoings or other payments.

12.2 The Consultant must indemnify the Department on demand from and against all Liability which may be suffered or incurred by the Department arising out of or in connection with:

(a) a breach of this Agreement by the Consultant;

(b) negligence by the Consultant or its officers, employees, agents or Sub-consultants in the performance or purported performance of this Agreement;


(c) the fraud of the Consultant or its officers, employees, agents or Sub-consultants; or

(d) a breach by the Consultant or its officers, employees, agents or Sub-consultants of any Laws.

12.3 The Consultant's liability:

(a) in respect of Services provided under this Agreement that are the subject of a scheme approved under the Professional Standards Act 2003 (Vic) (Scheme) is limited in accordance with the Scheme to the extent that the Scheme applies; and

(b) under clause 12.2 will be reduced proportionately to the extent that liability is caused or contributed to by the negligent or unlawful act or omission of the Department.

12.4 The indemnities in this clause 12 are continuing obligations, separate and independent from other obligations of the parties, and survive the expiry or termination of this Agreement.

12.5 It is not necessary for the Department to incur expense or make payment before enforcing a right of indemnity under this clause 12.

13 Insurance

Approved Insurer13.1 In this clause 13, Approved Insurer means an insurer that

(a) is authorised under the Insurance Act 1973 (Cth);

(b) operates with an exemption to the Insurance Act 1973 (Cth); or

(c) is otherwise approved in writing by the Department prior to the Commencement Date.

Public Liability Insurance13.2 On and from the Commencement Date, the Consultant must obtain and maintain public liability

insurance coverage with an Approved Insurer for an amount not less than the amount set out in Item 11(a) for any one occurrence. The Consultant must maintain such insurance coverage from the Commencement Date to the date of Completion of the Services.

Professional Indemnity Insurance13.3 On and from the Commencement Date, the Consultant must obtain and maintain professional

indemnity insurance coverage with an Approved Insurer for an amount not less than the amount set out in Item 11(b). The Consultant must maintain such insurance coverage for the period stated in Item 11(c), after the date of Completion of the Services.

13.4 The Consultant must provide certificates of currency or other documentary evidence to the satisfaction of the Department with respect to the currency and the details of insurances it is required to effect under this Agreement if the Supervising Officer requests it in writing.

13.5 Unless otherwise approved in writing by the Department the Consultant must ensure that each of its Sub-consultants has in force and maintains:

(a) any insurance the Sub-consultant is required to effect under any Law, including workers' compensation and employee indemnity insurance; and

(b) professional indemnity insurance coverage with an Approved Insurer for an amount not less than the amount set out in Item 11(d) and for the period stated in Item 11(e), after the date of Completion of the Services.


14 Failure to Perform14.1 If the Consultant fails to comply with any of its obligations under this Agreement, the

Department may, by notice in writing to the Consultant, require the Consultant to remedy any default at the Consultant’s own expense within the time specified in the notice (which must be reasonable having regard to the nature of the Services, and in any event not less than 5 Business Days).

14.2 The Department will not be required to pay for those Services that are the subject of a notice under clause 14.1 unless and until they are remedied by the Consultant in accordance with this Agreement and to the reasonable satisfaction of the Department.

14.3 If the Consultant does not remedy the default by the time specified in the notice provided by the Department in accordance with clause 14.1 and the Department:

(a) remedies that default or re-performs the Services itself; or

(b) has the Services remedied or re-performed by a third party,

the Consultant must pay the costs incurred by the Department in doing so.

14.4 The provisions of this clause 14 are in addition to the Department’s other rights under this Agreement and do not limit the Department’s right to exercise any other remedy available to it under this Agreement or otherwise at law.

15 Termination and Suspension

Termination for convenience15.1 The Department may terminate this Agreement at any time and in its sole discretion by giving

28 days’ prior written notice to the Consultant.

Termination by the Department15.2 The Department may, by written notice to the Consultant, immediately terminate this

Agreement if:

(a) the Consultant fails to remedy a default identified in a notice given under clause 14.1 within the time specified in that notice;

(b) the Consultant commits a breach of this Agreement which, in the opinion of the Department cannot be remedied;

(c) an Insolvency Event occurs in relation to the Consultant; or

(d) the Consultant engages in any conduct which, as a consequence the Department considers, in its sole discretion, that its continued association with the Consultant may be detrimental to the reputation of the Department.

15.3 The remedies under clause 15.2 are in addition to the Department’s other rights under this Agreement and do not limit the Department’s right to exercise any other remedy available to it under this Agreement or otherwise at law.

Termination by the Consultant15.4 If the Department fails to make any payment within the time required by clause 4 and the

Department has not disputed its obligation to make that payment:

(a) the Consultant may notify the Department in writing that the payment is overdue, and serve on the Department notice of its intention to terminate this Agreement under this clause; and


(b) if the unpaid amount is not paid for a further thirty (30) days following receipt by the Department of a notice under sub-clause above and the Department does not dispute that payment or part of it, the Consultant may terminate this Agreement by giving the Department at least 14 days’ written notice of termination. The notice is automatically withdrawn if the Department pays the outstanding amount during the notice period.

Obligations of the Consultant upon termination15.5 Upon termination of this Agreement, the Consultant must immediately:

(a) cease providing the Services in a manner that will not cause any unnecessary or unreasonable loss or inconvenience to the Department;

(b) take all available steps to mitigate any loss resulting from termination; and

(c) deal with any Materials or Confidential Information provided to the Consultant by the Department or produced by or on behalf of the Consultant under this Agreement, whether in the course of preparation or completed by the Consultant at the date of termination, in accordance with clause 8.8 and ensure that it is able to do so in respect of such Materials prepared by any employee, contractor or Sub-consultant of the Consultant.

15.6 The Consultant hereby waives any right of lien or similar right which might otherwise be attached to such Materials.

Payment upon termination15.7 If the Department terminates this Agreement under clause 15.1 or the Consultant terminates

this Agreement under clause 15.4, the Department will only be liable to pay the Consultant:

(a) for the Services performed in accordance with this Agreement and to the reasonable satisfaction of the Department prior to the date of termination; and

(b) an amount equal to the extra costs necessarily incurred by the Consultant as a direct result of the termination (which the Consultant must keep to a minimum and which must be evidenced to the Department's reasonable satisfaction),

provided that the Department will not be liable for any other losses or damages, including profits forgone.

15.8 If the Department terminates this Agreement under clause 15.2:

(a) the Department will only be liable to pay the Consultant for the Services performed in accordance with this Agreement and to the reasonable satisfaction of the Department prior to the date of termination, and subject to clause 15.10;

(b) the Consultant agrees that the Department may engage a third party to complete the Services and the Project; and

(c) the Consultant must pay to the Department the Additional Costs (as defined in clause 15.9) incurred by the Department in completing the Services.

15.9 For the purposes of clause 15.8(c), Additional Costs include:

(a) the additional cost to the Department of having the Services or equivalent services provided by an alternative service provider including costs of any acceleration or expedited methods used in an attempt to mitigate any delay caused by the Consultant;

(b) all reasonable charges for administering any related trade contract or consultancy agreement; and


(c) any loss, liability or cost (including legal costs on a full indemnity basis) incurred by the Department in connection with the termination of this Agreement.

15.10 Any amount due to the Department from the Consultant under clause 15.8(c) may be set off against any amount due under clause 15.8(a). If the amount due to the Department under clause 15.8(c) is not ascertainable at the time that payment would otherwise be due to the Consultant under clause 15.8(a), the Department may retain such amount as the Department reasonably estimates will become due to it under clause 15.8(c) until the actual amount has been determined.

15.11 If the amount payable by the Consultant to the Department under clause 15.8(c) exceeds the amount payable by the Department to the Consultant under clause 15.8(a), the difference is a debt due and payable by the Consultant to the Department on demand.

15.12 If either party terminates this Agreement under clause 29.3, the Department will only be liable to pay the Consultant for the Services performed in accordance with this Agreement and to the reasonable satisfaction of the Department prior to the date of the termination.

Condition precedent to payment15.13 It is a condition precedent to any payment to the Consultant of any outstanding amount as at

the date of termination that the Consultant has fully complied with its obligations under clause 15.5.

Miscellaneous15.14 The termination of this Agreement will not prejudice or affect the accrued rights, claims or

liabilities of either party under this Agreement.

Suspension15.15 The Department may, at any time by giving prior written notice to the Consultant, suspend the

carrying out of the Services or any part of the Services (Suspension Notice).

15.16 The Department may, at any time within 3 months from the date of the Suspension Notice, give the Consultant reasonable notice to recommence the performance of the Services.

15.17 If the Department has suspended the carrying out of the whole of the Services and does not give the Consultant notice to recommence the carrying out of the Services within 3 months after the date of the Suspension Notice, then following the expiry of the 3 month period, either party may terminate this Agreement by giving written notice to the other party to that effect.

15.18 If this Agreement is terminated in accordance with clause 15.17, other than where the suspension arose from the Consultant's failure to comply with this Agreement, the Department must pay to the Consultant (and the Consultant will be deemed to accept in full and final payment of any claim which the Consultant may have arising out of such suspension):

(a) any amount due to the Consultant for the portion of the Services carried out by the Consultant prior to the date of the Suspension Notice; and

(b) any additional costs and expenses directly and reasonably (and not prematurely) incurred by the Consultant by reason of the suspension in connection with carrying out the Services up to the date of the Suspension Notice and evidenced in writing to the reasonable satisfaction of the Department.

15.19 Subject only to clause 15.18, the Consultant will have no entitlement to make any Claim against the Department arising out of or in connection with a suspension of the Services.


15.20 If the Consultant suspends the carrying out of the Services or any part thereof pursuant to section 29 of the Security of Payment Act, to the extent permitted by law the Consultant will not be entitled to make any claim for compensation for any costs or damages incurred or any losses suffered by the Consultant arising out of or in connection with any delays to the carrying out of the Services resulting from such suspension.

16 Resources16.1 Except as expressly set out in this Agreement or otherwise agreed by the Supervising Officer in

writing:

(a) the Department is not required to provide any resources, assistance or other items to the Consultant in order for the Consultant to perform its obligations under this Agreement; and

(b) the Consultant must not access or use any of the resources of the Department, including its employees or premises.

17 Dispute Resolution

Application of procedure17.1 Each of the parties must use its best endeavours to co-operatively resolve in good faith any

dispute that arises relating to the Project, the Services or this Agreement (Dispute).

17.2 Each party must follow the procedures set out in this clause before commencing legal proceedings in relation to the Dispute, subject to the following:

(a) a party may seek urgent injunctive or similar interim relief from a court without first complying with the remainder of this clause; and

(b) if a party fails to comply with the procedures set out in this clause (such as by failing to attend mediation), then the other party need not comply with the remainder of this clause.

17.3 The parties must continue to perform their obligations under this Agreement despite the existence of any Dispute.

Discussions and mediation17.4 If a Dispute arises, either party may give a notice of the Dispute in writing to the other party

describing in full the details of the Dispute. The Dispute must then be immediately referred to the Consultant's Principal Officer and the Supervising Officer for resolution (except to the extent that it is a dispute related to progress payments to which the provisions of the Security of Payment Act apply).

17.5 If the Dispute remains unresolved 10 Business Days after service of a notice of Dispute (or such longer period of time as may be agreed by the parties to the Dispute), then the parties must proceed to mediation as follows:

(a) The mediator must be a mediator agreed on by the parties or, if the parties are unable to agree on a mediator within a further 5 Business Days, a mediator nominated by the Chairman of the Resolution Institute, Victorian Chapter or the Chairman’s nominee;

(b) the mediation must be convened within 20 Business Days after the appointment of the mediator;

(c) each party must participate in any mediation in good faith and use its best efforts to resolve the Dispute;


(d) any information or documents disclosed by a party under this clause must, unless and until that information or those documents come into the possession of that party through legitimate means other than the mediation:

(i) be kept confidential; and

(ii) not be used except to attempt to resolve the Dispute;

(e) each party must bear its own costs of complying with this clause and the parties must bear equally the costs of any mediator engaged; and

(f) after the expiration of 30 Business Days from the appointment of the mediator (or other period as agreed between the parties), a party that has complied with this clause may terminate the mediation process by giving notice to the other party.

18 Notices18.1 Any notice to be served on a party to this Agreement may be served:

(a) by delivering it to the party personally by means of delivery by hand to the Supervising Officer or Consultant's Principal Officer;

(b) by hand delivering it during normal office hours to the party's address set out in Schedule1;

(c) by sending it by pre-paid post addressed to the party's address set out in Schedule 1;

(d) by electronic mail to the party's email address as set out in Schedule 1 or a different email address notified by the party in writing; or

(e) in such manner as may be prescribed for the purposes of section 50 of the Security of Payment Act.

18.2 A notice given to a party in accordance with this clause is treated as having been given and received:

(a) if hand delivered, on the day of delivery if delivered or lodged before 4.00 pm on a Business Day, otherwise on the next Business Day;

(b) if sent by pre-paid post, on the third Business Day after the day on which it was posted; and

(c) if delivered by electronic mail, at the time the email containing the notice becomes capable of being retrieved by the addressee at the addressee’s email address, unless the sender receives notification that the email containing the notice was not received by the recipient (including an “out of office” notice), in which case the notice will be deemed not to have been delivered.

19 Governing LawThe laws of the State of Victoria govern this Agreement and the parties submit to the non-exclusive jurisdiction of the courts of that state.

20 Severability20.1 If any provision of this Agreement is or becomes illegal, invalid or unenforceable (Ineffective),

it must be read down to the extent necessary to ensure that it is not Ineffective. If the offending provision cannot be so read down, it must be severed. In any event, the remainder of this Agreement must be construed so as to ensure that it remains effective to the greatest extent possible.


21 Entire Agreement21.1 This Agreement constitutes the entire agreement between the parties and supersedes all prior

representations, agreements, statements and understandings, whether verbal or in writing.

22 Novation, Assignment and Subcontracting

Novation22.1 The Department may novate this Agreement or any portion of it to any third party by means of a

deed of novation in the form contained in Schedule 9 (Deed of Novation). If the Department wishes to novate this Agreement, it must serve on the Consultant a written notice of novation (Notice of Novation) together with the Deed of Novation. The novation will be effective from the date specified in the Deed of Novation, which is not to be less than 5 Business Days after the service of the Notice of Novation.

22.2 The Consultant must enter into the Deed of Novation within 5 Business Days after receipt of the Notice of Novation. If the Consultant fails to execute the Deed within that time, the Department may execute the deed on the Consultant’s behalf. The Consultant appoints the Department its attorney for the purposes of this clause.

Assignment and subcontracting22.3 Except with the prior written consent of the Department, or as otherwise provided in this

Agreement, the Consultant may not assign the whole or any part of the Consultant's rights under this Agreement or sub-contract the performance of the whole or any part of the Services or the Project. Such consent may be given subject to any terms and conditions that the Department in its sole and absolute discretion considers appropriate.

22.4 The Consultant must not assign or sub-contract any part of its rights or obligations under this Agreement on terms that are inconsistent with the terms of this Agreement.

22.5 Any sub-contract entered into by the Consultant must include terms which prohibit ‘pay when paid’ clauses.

22.6 The Consultant must, within 5 Business Days after receipt of a written request from the Department, assign the benefit of any sub-consultancy or sub-contract it has entered into (which is the subject of the written notice) to the Department.

23 Variation of Agreement23.1 The terms of this Agreement may only be varied with the written consent of each party.

24 Joint and Several Liability24.1 If the Consultant comprises two or more persons, all such persons are jointly and severally

liable to the Department for the fulfilment of the terms of this Agreement.

24.2 The Consultant and each partner, joint venture or consortium member (as applicable) represents, warrants and agrees that the Consultant’s Principal Officer has full authority to bind the partnership, joint venture or consortium and each of its members.

24.3 Where the Consultant or any part of it is a partnership, this Agreement will not automatically terminate upon death, retirement or resignation of one or more members of such partnership.

24.4 The composition or the constitution of the partnership, joint venture or consortium may not be altered without written notice to the Department.


25 Consultant as Trustee25.1 If the Consultant is entering into this Agreement as trustee of a trust, the Consultant and its

successors as trustee of the trust will be liable under this Agreement in its own right and as trustee of the trust. Nothing releases the Consultant from any liability in its personal capacity.

25.2 The Consultant warrants that at the date of this Agreement:

(a) the trust is a valid and subsisting trust;

(b) all the powers and discretions conferred by the deed establishing the trust are capable of being validly exercised by the Consultant as trustee and have not been varied or revoked;

(c) the Consultant is the sole trustee of the trust and has full and unfettered power under the terms of the deed establishing the trust to enter into and be bound by this Agreement on behalf of the trust; and

(d) this Agreement is being executed and entered into as part of the due and proper administration of the trust and for the benefit of the beneficiaries of the trust.

25.3 The Department’s right of indemnity out of or lien over the trust’s assets is unrestricted and takes priority over the right of the beneficiaries to the trust’s assets.

26 Conflict of Interest26.1 The Consultant warrants that at the Commencement Date, to the best of its knowledge and

belief having made all reasonable and diligent inquiries, no actual or potential conflict of interest exists in connection with this Agreement nor is an actual or potential conflict of interest likely to arise during the period of this Agreement.


(a) promptly notify the Department of any matter that may give rise to an actual or potential conflict of interest; and

(b) take such steps as the Department may reasonably require to resolve or manage the actual or potential conflict of interest,

26.3 Any Confidential Information provided by the Consultant under clause 26.2 must be treated in confidence by the Department to the extent permitted by law and subject to clauses 8.1 and 8.14.

27 Waiver27.1 A waiver of any provision of, or right or obligation under, this Agreement must be in writing and

is effective only to the extent specifically described in such writing.

27.2 If a party waives its rights in relation to a breach of any covenant, obligation or provision in this Agreement by the other party, that waiver does not operate as a waiver of another or a continuing breach of that covenant, obligation or provision or of any other covenant, obligation or provision in this Agreement.

28 Employment Policy28.1 The Consultant must not engage in any practice that is contrary to any employment or industrial

law or any award or other industrial instrument made under or pursuant to Laws applicable to the Consultant.

28.2 The Consultant and any person engaged in the provision of the Services must not:


(a) engage in unethical work practices; or

(b) engage employees or sub-contracted workers upon terms and conditions that are not commensurate with industry standards generally applicable in Victoria.

28.3 In addition to any rights the Department may have under clause 14, if the Consultant is in breach of this clause 28, the Department may:

(a) direct the Consultant to suspend the Services and the Project; or

(b) suspend the operation of this Agreement, or the performance of the Department's obligations under it,

immediately by notice to the Consultant for so long as the breach continues.

29 Force Majeure29.1 If a party is unable, wholly or in part, by reason of a Force Majeure Event to carry out any of its

obligations under this Agreement, the obligation will be suspended in so far as it is affected by such Force Majeure Event during the continuance of it.

29.2 The party affected must:

(a) give the other party prompt notice of the Force Majeure Event; and

(b) use best endeavours to manage and resolve such Force Majeure Event and/or the effect of it as quickly as possible.

29.3 If the Force Majeure Event continues for more than 30 days, either party may terminate this Agreement by notification in writing to the other party.

30 Victorian Industry Participation Policy

Interaction Reference Number30.1 Clauses 30.2 to 30.11 only apply if so indicated in Item 20(a).

30.2 The Consultant must comply with clauses 30.3 to 30.6 (inclusive) as a condition precedent to it becoming entitled to payment of the Fee under this Agreement.

30.3 To maximise opportunities for local business within the Project, within 30 days after the Supervising Officer's request, the Consultant must prepare and submit an IRN Form through the VMC setting out:

(a) details of the Project; and

(b) the goods and services likely to be required to deliver the Project.

30.4 When contacted by ICN, the Consultant must consult with ICN in respect of opportunities for local businesses to deliver the goods and services required under this Agreement.

30.5 The Consultant acknowledges and agrees that ICN may:

(a) review and contribute to planning for the Project; and

(b) participate in meetings regarding the Project.

30.6 Within five Business Days after receipt from ICN, the Consultant must:

(a) provide the IRN to the Supervising Officer; and

(b) inform the Supervising Officer of any opportunities for local business agreed with ICN. For this purpose, the Consultant may provide the Supervising Officer with a copy of the Reference Letter.


Record keeping and monitoring30.7 The Consultant must prepare and maintain records demonstrating its compliance with any

VIPP Commitments.

30.8 The Consultant must monitor its compliance with any VIPP Commitments.

30.9 The Consultant acknowledges and agrees that the Department or the department responsible for VIPP implementation may consult with ICN in respect of the Consultant's compliance with any VIPP Commitments.

30.10 The obligations set out in this clause 30 are in addition to and do not derogate from any obligations as set out in this Agreement.

Use of VIPP information30.11 The Consultant acknowledges and agrees that any information provided to the Department or

to the department responsible for VIPP implementation by ICN in accordance with clause 30.9 may be:

(a) included in the Department’s report of operations under Part 7 of the Financial Management Act 1994 in respect of the Department's compliance with the VIPP in the financial year to which the report of operations relates;

(b) provided to the Responsible Minister for inclusion in the Responsible Minister's report to the Parliament for each financial year on the implementation of the VIPP during that year; and

(c) disclosed in the circumstances set out in clause 8 or as otherwise required by Law.

If the Fee exceeds VIPP thresholds30.12 The provisions in Schedule 11 only apply if:

(a) so indicated in Item 20; or

(b) the ICN directs that the Consultant must comply with a VIPP Plan.

31 Counterparts31.1 This Agreement may be executed in one or more counterparts, each of which, once executed,

will be deemed to be an original and together will constitute one and the same instrument.

32 Consultant Statement32.1 If Item 18(a) indicates that the Consultant is required to inspect the Works, the Consultant

must, at the intervals stated in Item 18(b) (if any) and whenever requested to do so by the Department:

(a) conduct inspections of any Works being undertaken in respect of the Project during their performance and upon their completion; and

(b) submit a Consultant Statement to the Department.

33 Auditing33.1 The Consultant must permit an accountant or auditor on behalf of the Department from time to

time during ordinary business hours and on reasonable notice, to inspect and verify all records maintained by the Consultant for the purposes of this Agreement and the Consultant, its servants, agents and sub-consultants shall give all reasonable assistance to any person authorised to undertake such audit or inspection. Any information provided or to which an


accountant or auditor has access under this clause must be treated as confidential information and must not be used other than for the purposes of this Agreement or disclosed other than as required to comply with the written request of the Auditor General for Victoria.

The confidentiality obligations of the parties do not extend to:

(a) information already in the public domain other than due to a breach of this Agreement; or

(b) any disclosure required by Law.

33.2 The following provisions apply in relation to Public Audit:

(a) In this clause 33.2, except where the context otherwise requires:

(i) 'Public Audit' means any audit, investigation or enquiry conducted by a Public Auditor or pursuant to any Public Audit Legislation;

(ii) 'Public Audit Legislation' means Section 94A of the Constitution Act 1975 (Vic) and the Audit Act 1994 (Vic) or any other applicable legislation; and

(iii) 'Public Auditor' means any auditor or officer appointed under any Public Audit Legislation or any authorised nominee or representative of such auditor or officer.

(b) The Consultant must, at its cost and without any additional entitlement under this Contract:

(i) permit a Public Audit required by any Public Auditor;

(ii) procure that the Consultant's subcontractors and agents permit a Public Audit required by any Public Auditor;

(iii) comply with the requirements or requests of, and cooperate with any Public Auditor during the conduct of a Public Audit;

(iv) procure that the Consultant's subcontractors and agents comply with the requirements or requests of, and cooperate with any Public Auditor during the conduct of a Public Audit; and

(v) provide to the Public Auditor reasonable working accommodation and associated facilities and services required by the Public Auditor for the purposes of undertaking a Public Audit.

(c) Any obligations of confidence which one party has to the other under this Agreement or by reason of the entering into of this Agreement or the performance of this Agreement are subject to the obligations, duties, rights and entitlements of the parties in relation to any Public Audit.


Schedule 5 Confidentiality UndertakingThis Deed Poll dated the: day of: 20

is made by: (I/me)

of: (print address)

an employee, agent or contractor of: (print name of Consultant entity and ACN / ABN): (Consultant)

in favour of: the State of Victoria as represented by the Department of Health and Human Services (Department).

1. I have been engaged or requested by the Consultant to perform services (Services) in relation to the Project defined in the agreement between the Department and the Consultant dated: (Agreement)

2. I undertake to the Department that I will not communicate, publish or release any Confidential Information, as defined in the Agreement, except as directed by the Department, as required by law, or for the purpose of the performance of the Services.

3. I irrevocably authorise the Department to enforce this deed poll against me and I acknowledge that the Department is entitled (in addition to any entitlement to damages) to seek an injunction or other equitable relief for any actual or threatened breach by me of this deed poll:

(a) without the need for the Department to prove any damage; and

(b) the Department need not provide any security and/or undertaking in respect of any damages that I or anyone else might incur as a result of an injunction being granted.

4. The laws of the State of Victoria govern this deed poll. I submit to the non-exclusive jurisdiction of the courts of the State of Victoria and the courts of appeal from those courts.

Executed as a deed poll and delivered on the date set out at the top of this page.


Schedule 6 Consultancy Brief and other Technical Documents

Section 1 – Consultancy Brief[## insert short description of the Brief eg issue date and title]

Section 2 – Proposal[##insert short description of the Proposal including date]

[## Note:

• If possible, do not include the whole tender submission: include only tender schedules and any other documents containing necessary details;

• Exclude any commercial terms and conditions unless specifically agreed• Ensure that the proposal does not contain unacceptable qualifications, clarifications or

assumptions: any such must be expressly excluded here unless already addressed in the letter of acceptance.]

Section 3 – Other Relevant Documents[## list relevant documents to form part of this Schedule]


Schedule 7 Letter of AcceptanceLetter of acceptance dated [##insert date]

[## Ensure that the letter of acceptance does not incorporate by reference any document (such as a tender) to the extent it may contain unacceptable qualifications, clarifications or assumptions.]


Schedule 8 Statutory Declaration

Statutory Declaration – Progress PaymentThe following Statutory Declaration is to be submitted with each progress payment claim made by the Consultant.

I: (full name)

of: (address, in the State of Victoria)

Occupation:

do solemnly and sincerely declare that:

I am a: (position)

of: (name of Consultant entity and ACN / ABN)

and am able to make this Statutory Declaration.

As at the date of making this Declaration all sub-consultants and workers who have at any time been employed by the Consultant have been paid all monies due and payable to them in respect of their employment on the Services:

for Project:

described in the Agreement dated:

day of: 20

I acknowledge that this Declaration is true and correct, and I make it with the understanding and belief that a person who makes a false declaration is liable to the penalties of perjury.

Signature of person making declaration:

Declared at:

In the State of Victoria, this:

day of: 20

Before me: (Signature)

Name:

Occupation:

Address:


Schedule 9 Deed of NovationDated:

PartiesName Secretary to the Department of Health and Human Services (ABN 74 410

330 756) being a body corporate established under section 16 of the Public Health and Wellbeing Act 2008

Address 50 Lonsdale Street, MELBOURNE VIC 3000

Short name Department

Name [## Insert the legal name of the party to whom the Department is novating the Consultant and that party's ACN]

Address [## Insert the address of the party to whom the Department is novating the Consultant]

Short name Incoming Party

Name [## Insert the legal name of Consultant and ACN]

Address [## Insert the address of the Consultant]

Short name Consultant

BackgroundA. The Department and the Consultant are parties to the Consultancy Agreement.

B. The parties have agreed that the Incoming Party will replace the Department under the Consultancy Agreement from the Effective Date.

The parties agree

1 Deed of Novation1.1 In this Deed:

Consultancy Agreement means the contract between the Department and the Consultant dated [## insert].

Effective Date means the later of the Execution Date and any date on which the Department notifies the Consultant in writing that the Consultancy Agreement will be novated to the Incoming Party.

Execution Date means the date on which this Deed is executed by the last of the parties.

Loss includes any damage, liability, loss, charge, cost (including professional costs and legal costs on a full indemnity basis), expense, fine or penalty (where permitted by law), whether direct, indirect, consequential (including pure economic loss), present or future, ascertained or unascertained, actual, prospective or contingent and whether arising from breach of contract, in tort (including negligence), in restitution, under statute or otherwise at law.

Payment Sum means the amount determined in accordance with clause 3.1.

1.2 Capitalised terms used but not defined in this Deed have the meanings given in the Consultancy Agreement.


2 Novation2.1 From the Effective Date:

(a) the Incoming Party is a party to the Consultancy Agreement instead of the Department;

(b) all references to the Department in the Consultancy Agreement are references to the Incoming Party;

(c) the Incoming Party:

(i) enjoys all of the rights and benefits of the Department under the Consultancy Agreement;

(ii) is bound by the terms of the Consultancy Agreement as if the Incoming Party had originally been a party to the Consultancy Agreement; and

(iii) must perform all obligations of the Department under the Consultancy Agreement which are to be performed after the Effective Date; and

(d) the Consultant is bound by the Consultancy Agreement as if the Incoming Party had originally been a party to the Consultancy Agreement.

3 Payment Sum3.1 The Payment Sum is the amount (if any) due to the Consultant under the Consultancy

Agreement for the Services performed prior to the Execution Date. The Payment Sum is determined:

(a) by agreement between the Department and the Consultant; or

(b) if no agreement has been concluded by the Execution Date, by the Department, acting reasonably (as adjusted through any dispute resolution under clause 3.3).

3.2 The Department must give the Consultant written notice of a determination if required under sub-clause 3.1(b).

3.3 The Consultant may dispute the Department’s determination under sub-clause 3.1(b) by giving a notice of dispute under the Consultancy Agreement to the Department within 5 Business days after receiving notice under clause 3.2. If the Consultant gives a notice of dispute within that time, the dispute is to be resolved in accordance with clause 17 (Dispute Resolution) of the Consultancy Agreement.

3.4 As soon as practicable after the Execution Date, the Department must pay to the Consultant the Payment Sum (if any).

3.5 The Consultant acknowledges and agrees that the Payment Sum is on account of and satisfies all entitlements to payment which the Consultant had accrued prior to the Execution Date.

4 Releases4.1 From the Effective Date:

(a) the Consultant releases and discharges the Department from the further performance of the Consultancy Agreement and from all Claims in connection with the Consultancy Agreement; and

(b) the Department releases and discharges the Consultant from the further performance of the Consultancy Agreement,

except where clause 5 provides differently.


5 Consultant Statement and Pre-existing Claims5.1 Despite clause 4, the Consultant must continue to provide Consultant’s Statements to the

Department in accordance with clause 32 in Schedule 4 of the Consultancy Agreement.

5.2 Nothing in this Deed affects or prejudices any rights or liabilities which the Department may have against the Consultant in connection with matters arising before the Effective Date.

6 Consultancy Agreement confirmed6.1 The Consultancy Agreement is confirmed and remains in full force and effect.

6.2 If there is an inconsistency between this Deed and the Consultancy Agreement, the provisions of this Deed prevail to the extent of that inconsistency.

7 GST

Definitions7.1 In this clause:

(a) words and expressions that are not defined in this Deed but which have a defined meaning in the GST Law have the same meaning as in the GST Law; and

(b) 'GST Law' has the meaning given to that term in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

GST exclusive7.2 Except as otherwise provided in this clause 7, all consideration payable under this Deed in

relation to any supply is exclusive of GST.

Increase in consideration7.3 If GST is payable in respect of any supply made by a supplier under this Deed (GST Amount),

the recipient must pay to the supplier an amount equal to the GST payable on the supply. Subject to clause 7.4, the recipient must pay the GST Amount at the same time and in the same manner as the consideration for the supply is to be provided under this Deed in full and without deduction, set off, withholding or counterclaim (unless otherwise provided in this Deed).

Tax invoice7.4 The supplier must provide a tax invoice to the recipient before the supplier will be entitled to

payment of the GST Amount under clause 7.3.

Reimbursements7.5 If this Deed requires a party to pay, reimburse or contribute to any expense, loss or outgoing

suffered or incurred by another party, the amount which the first party must pay, reimburse or contribute is the sum of:

(a) the amount of the payment, reimbursement or contribution, less any input tax credit in respect of the payment, reimbursement or contribution to which the other party is entitled; and

(b) if the payment, reimbursement or contribution is subject to GST, an amount equal to that GST.


Adjustment events7.6 If an adjustment event occurs in relation to a taxable supply under this Deed:

(a) the supplier must issue an adjustment note to the recipient within 7 days after becoming aware of the adjustment; and

(b) any payment necessary to give effect to that adjustment must be made within 7 days after the date of receipt of the adjustment note.

8 Notices

Delivery of notice8.1 A notice or other communication required or permitted to be given to a party under this Deed

must be in writing and may be delivered

(a) personally to the party;

(b) by leaving it at the party's address set out in this Deed or a different address subsequently notified in writing or, if the party is a company, at the company's registered office; or

(c) by posting it by prepaid post addressed to the party at the party's address.

Time of delivery8.2 A notice or other communication is deemed delivered:

(a) if delivered personally or left at the person's address, upon delivery; and

(b) if posted within Australia to an Australian address, 3 Business Days after posting and in any other case, 5 Business Days after posting.

9 Governing Law9.1 The laws of the State of Victoria govern this Agreement and the parties submit to the non-

exclusive jurisdiction of the courts of that state.

10 Interpretation

General10.1 In this Deed, unless the context requires otherwise:

(a) words importing any gender include each other gender;

(b) the plural includes the singular and vice versa;

(c) a reference to a person includes any other entity recognised by law and vice versa;

(d) a reference to a Law includes subordinate legislation, consolidations, amendments, re-enactments, and replacements of it;

(e) where a term is defined, the definition includes all other grammatical forms of that term;

(f) headings and notes in square brackets are for reference only and do not affect the interpretation of this Deed;

(g) a reference to a clause is to a clause or schedule in or to this Deed; and

(h) the word 'include' in any form is not a word of limitation.


11 General

Variation11.1 This Deed may only be varied by a document executed by the parties.

Counterparts11.2 This Deed may be executed in counterparts, all of which taken together constitute one

document.

Liability11.3 An obligation of any 2 parties binds them jointly and severally.

Severability11.4 Any provision of this Deed that is held to be illegal, invalid, void, voidable or unenforceable

must be read down to the extent necessary to ensure that it is not illegal, invalid, void, voidable or unenforceable. If it is not possible to read down a provision as required by this clause, part or all of the clause of this Deed that is unlawful or unenforceable must be severed from this Deed and the remaining provisions continue in force.

Waiver11.5 The failure of a party at any time to insist on performance of any provision of this Deed is not a

waiver of their right at any later time to insist on performance of that or any other provision of this Deed.

Further assurance11.6 Each party must promptly execute and deliver all documents and take all other action

necessary or desirable to effect, perfect or complete the transactions contemplated by this Deed.

No merger11.7 The warranties, undertakings, agreements and continuing obligations in this Deed do not

merge on completion.

Business Day11.8 If a payment or other act is required by this Deed to be made or done on a day which is not a

Business Day, the payment or act must be made or done on the next following Business Day.


Signing PageExecuted by the parties as a Deed on:

SIGNED by:

Name:

Title

of the Department of Health and Human Services, as authorised representative for the SECRETARY TO THE DEPARTMENT OF HEALTH AND HUMAN SERVICES (ABN 74 410 330 756), a body corporate established under the Public Health and Wellbeing Act 2008.

Signature: Date:

By executing this Agreement the signatory warrants that the signatory is duly authorised to execute this Agreement on behalf of the Department.

in the presence of:



[Legal Branch Note: Appropriate execution clause should be nominated by the Consultant and the Incoming Party and the remaining clauses should be deleted]

THE COMMON SEAL of:

Company name:

ACN:

was affixed in accordance with its constitution and section 127 of the Corporations Act 2001 (Cth):

in the presence of:





Date:


EXECUTED by:

Company name:

ACN:

in accordance with section 127 of the Corporations Act 2001 (Cth)







Date:


Consultant’s name:

by its authorised representative (name):

Signature of authorised representative Date:


in the presence of:





Partnership name:

by: (Name of partner signing)

Signature of Partner: Date:


in the presence of:



[INSTRUCTION – the following execution clause must be used when a corporate trustee company executes the Agreement as trustee of the trust]

EXECUTED by:

Company name:

ACN:

as trustee for the:

Name of trust:

ABN:

in accordance with section 127 of the Corporations Act 2001 (Cth):







Date:


THE COMMON SEAL of:


was affixed by the authority of its committee:

in the presence of:


Office held:



Office held:



Schedule 10 Consultant StatementDated: [## insert]

BY: [## Insert the legal name and ACN of the Consultant]

of: [## Insert address]

(Consultant)

IN FAVOUR OF: Secretary to the Department of Health and Human Services (ABN 74 410 330 756) being a body corporate established under section 16 of the Public Health and Wellbeing Act 2008 of 50 Lonsdale Street, Melbourne, Vic, 3000

(Department)

This consultant statement (Statement) is given by the Consultant in respect of:

[## Insert the name of the project name] project (Project).

Expressions in this Statement have the same meaning as under the consultancy agreement for the Project entered into between the Consultant and the Department dated:

[## insert] (Consultancy Agreement)

I, the undersigned, state that:

1. I am a director or authorised officer of the Consultant and am authorised by the Consultant to make this Statement on its behalf.

2. The design documents prepared by the Consultant as at and up to the date of this Statement are suitable, appropriate, adequate and otherwise fit for their purpose as stated in or reasonably to be inferred from the Consultancy Agreement and comply with the requirements of the Consultancy Agreement and all applicable Laws.

3. The Consultant confirms in its professional opinion as a design consultant, based on the inspections of the Works periodically undertaken by it, that the Works have been completed in accordance with the design documents prepared by the Consultant:

(a) subject to any variations or other changes authorized or directed by the Department pursuant to the construction contract between the Department and any building contractor engaged by it to construct the Works; and

(b) save for the following areas of non-conformity (if any):

Print name:

Signature:

Dated:


Schedule 11 VIPP[## Note: if the Consultancy Contract value is under the VIPP thresholds [$1M regional or $3M metropolitan/statewide], delete the content of this schedule and insert “not applicable”.]

This schedule applies in accordance with clause 30.12 of Schedule 4.

1 Definitions and Interpretation1.1 In this schedule, the following terms have the following meanings:

Completion Date means the date that the Consultant achieves Completion;

Contestable Items means services the subject of this Agreement for which there are competitive international suppliers and Australian and New Zealand suppliers;

VIPP Monitoring Table means the table included at Attachment 2; and

VIPP Plan means the VIPP Plan certified by the ICN and set out in Attachment 1.

1.2 References in this Schedule to clauses and attachments are references to clauses in and attachments to this schedule unless the context otherwise requires.

2 Local Jobs First – Victorian Industry Participation Policy2.1 The Consultant must, in performing its obligations under this Agreement, comply with the VIPP

Plan.

2.2 The Consultant acknowledges and agrees that its obligations as set out in the VIPP Plan apply from the commencement of the Services until the later of the date on which the Consultant achieves Completion and the date upon which the Consultant fulfils all of its reporting obligations under clause 3;

2.3 If at any time a variation to this Agreement is proposed that involves or effects a change in the nature of any Contestable Items, the Consultant must prepare a revised VIPP Plan which must be certified by ICN (Revised VIPP Plan);

2.4 The Consultant must provide the Revised VIPP Plan to the Supervising Officer within the time required by the Supervising Officer.

2.5 The Revised VIPP Plan must be agreed by the parties before any variation to this Agreement may take effect unless the parties agreed that a Revised VIPP Plan is unnecessary.

2.6 Once the Revised VIPP Plan is agreed by the parties, the Revised VIPP Plan replaces the VIPP Plan in Attachment 1 and forms part of this Agreement.

3 Reporting3.1 The Consultant must prepare and maintain records in the form of the VIPP Monitoring Table

demonstrating its compliance with the VIPP Plan.

3.2 The Consultant must report when requested by the Supervising Officer demonstrating its progress towards implementing the VIPP Plan. The Consultant may comply with its reporting obligation by submitting a report in the form of the VIPP Monitoring Table.

3.3 Upon Completion, the Consultant must provide to the Supervising Officer:

(a) the VIPP Monitoring Table in the form set out in Attachment 2 detailing the Consultant’s aggregate compliance with the VIPP Plan. The VIPP Monitoring Table must identify and explain any departures from the VIPP Plan and the aggregated outcomes as reported in the VIPP Monitoring Table; and


(b) a Statutory Declaration in the form set out in Attachment 3 to confirm that the information contained in the VIPP Monitoring Table is true and accurate. The Statutory Declaration must be made by a director of the Consultant or the Consultant’s Chief Executive Officer or Chief Financial Officer.

3.4 At the request of the Supervising Officer, the Consultant must provide further information or explanation of any departures from the VIPP Plan as reported in the VIPP Monitoring Table.

3.5 The reporting obligations contained in this clause 3 are in addition to and do not derogate from any other reporting obligations set out in this Agreement.

4 Verification of Consultant’s compliance with VIPP Plan or other commitments


(a) permit the Supervising Officer, an accountant or auditor on behalf of the Department, or any other person authorised by the Department, from time to time during ordinary business hours and upon notice, to inspect, verify and make copies at the Department’s expense of all records maintained by the Consultant for the purposes of this Agreement in connection with the VIPP Plan.

(b) permit the Department or the Department’s authorised representative from time to time to undertake a review of the Consultant’s performance in accordance with the VIPP Plan; and

(c) ensure that its employees, agents and subcontractors give all reasonable assistance to the Department or any person authorised by the Department to undertake such audit or inspection.

4.2 The Consultant acknowledges and agrees that the Department, the Department’s authorised representative and ICN are authorised to obtain information from any relevant persons, firms or corporations, including third parties, regarding the Consultant’s compliance with the VIPP Plan.

4.3 The obligations set out in this clause 4 are in addition to and do not derogate from any other obligation under this Agreement.

5 Use of VIPP information5.1 The Consultant acknowledges and agrees that:

(a) ICN will assess the Consultant’s performance against the VIPP Plan;

(b) the statistical information contained in the VIPP Plan and the measures of the Consultant’s compliance with the VIPP Plan as reported in the VIPP Monitoring Table will be:

(i) included in the Department’s report of operations under Part 7 of the Financial Management Act 1994 in respect of the Department’s compliance with the VIPP in the financial year to which the report of operations relates;

(ii) provided to the Responsible Minister for inclusion in the Responsible Minister’s report to the Parliament for each financial year on the implementation of the VIPP during that year; and

may be:

(iii) disclosed in the circumstances set out in this clause 5 or as otherwise required by Law.


[Notes to VIPP Attachments following:

1. The VIPP Plan is at Attachment 1 to this Schedule.

2. The Consultant must complete the VIPP Monitoring Table at Attachment 2 to this Schedule for the purposes of its VIPP Compliance Reporting obligations set out in the Schedule.

3. The Consultant must complete the Statutory Declaration at Attachment 3 to this Schedule for the purposes of its VIPP Compliance Reporting obligations set out in the Schedule.]


Attachment 1 – VIPP Plan[VIPP Plan (if any) to be inserted as Attachment 1]


Attachment 2 – VIPP Monitoring Table

ANZ value-added activity

Item DescriptionBrand/manufacturer Supplier

VIPP Commitments Progress Secured VIPP Outcomes

ICN Assistance

(Y/N) Comments% of Local

Content

% of Total Local

Content

% of Local

Content

% of Local

Content (A)

% of Contact

Content (B)

% of Total Local

Content(C) = (A x B)

e.g. Item 1

e.g. Item 2

TOTAL ANZ value-added activity Total Committed:

Total Secured:

100%

Employment

New Jobs Existing JobsTotal Jobs Committed

Total Jobs Secured Difference / CommentsCommitted Secured Committed Secured

Apprentices/trainees

New Apprentices/ trainees Existing Apprentices/ trainees Total Apprentices/

trainees Committed

Total Apprentices/

trainees Secured DifferenceCommitted Secured Committed Secured


Attachment 3 – Statutory DeclarationState of Victoria

Statutory Declaration

I: [full name]

of: [address]

Occupation:

do solemnly and sincerely declare that:

Contracted company:

achieved the Victorian Industry Participation Policy objectives and outcomes relating to local content; employment; skills and technology transfer; and apprentices/ trainees reflected in the VIPP Monitoring Table for: [name and tender number of procurement activity]

as submitted to: [agency]

on: [date]

I acknowledge that this declaration is true and correct, and I make it with the understanding and belief that a person who makes a false declaration is liable to the penalties of perjury.

Declared at:

this: day of: 20

Signature of person making this declaration: [to be signed in front of an authorised witness]

Before me: [Signature of Authorised Witness]

The authorised witness must print or stamp his or her name, address and title under section 107A of the Evidence (Miscellaneous Provisions) Act 1958 (e.g. Justice of the Peace, Pharmacist, Police Officer, Court Registrar, Bank Manager, Medical Practitioner, Dentist)
