Creative Energy Solutions Pty Ltd

8/13/2019 Creative Energy Solutions Pty Ltd

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SCHEDULE 1

Item 1 Consultant

Creative Energy Solutions pty LtdABN 16 104501 091

Item 2 ServicesThe key objective of this engagement is for the Consultant to provide theClient with energy expert advice to assist in the development ofprocurement initiatives for natural gas.

The Consultant will be expected to undertake the following (but notnecessarily all):

. Development of a project plan;. Undertake an analysis of the government's natural gas spendprofile which gives consideration to current and future demand(including growth strategy);

. Produce brief succinct reports on a review of the South Australiannatural gas market that includes identification and analysis ofmarket participants (i.e. generators, retailers, network and meterproviders) outlining strengths, areas for development andopportunities and constraints;

. Procurement strategy advice to recommend the optimum timing andmethod to approach the market for procurement of Natural Gas eg:

. Optimum term of the Contract;. Timing of the approach to market;

. Validity of offers (whether they are valid for short timeframes); and

. Benefits/detriments of aggregation, ego Benefit or otherwiseof expanding gas contract coverage to below 1 OT sites.

. Examine and identify 'best practice' procurement and contractingpractices and documents utilised by successful customers of asimilar size;

. Develop suitable costing models considerate of all commercial andprice factors and including recommendations for target priceexpectations and the future price path beyond 1 January 2010;

. . Identify appropriate benchmarks which draw comparisons betweenthe effectiveness and competitiveness of the government'sprocurement process and outcomes against those implemented andachieved by other similar customers;

. Identify and model suitable and recognised industry pricing indicesto assist in costing analysis and negotiations;

. Assist in the development and review of key procurementdocuments including Acquisition Plan, Evaluation Methodology (andcosting and assessment tools), Risk Assessment, Tenderdocuments, draft Contract and Negotiation Strategy.

. Be available to attend Project Team meetings if and when required;and


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. Be available at critical stages of the procurement i.e. throughout theevaluation stages and negotiations to provide timely review,assistance and advice.

The Consultant will be required to develop and submit a project plan, forprior approval by the A/Director Strategic Contracts, which will outline anddetail the scope of the services to be undertaken for the project and thehours o be worked by the Consultant. .

Item 3 TermThe Consultant must commence providing the Services as soon as theConsultant signs the Agreement.The Consultant must continue to provide the Services until such time asthe Services described in Item 2 of Schedule 1 have been completed orthis contract is terminated in accordance with Item 8 Termination ofAttachment A, Terms and Conditions of Engagement

Item 4 Consultant's StaffThe following persons will perform the Services: Chris Tracey, Carl Daley,Bruce Cornelius, Jamie Catt and Mayur Bajaj.

Item 5 F "I"t "acilies

a) The Consultant shall provide the following facilities, equipment, dataand/or material for the purpose of providing the Services:

a. Certificates of currency for Public and Products liability andProfessional Indemnity insurance as outlined in item 7 ofSchedule1.

b. Own office facilities, including (but not limited to):. Personal Computer. Secure e-mail account. Telephone number. Mobile telephone number

b) The Client shall provide the following facilities, equipment, data and/ormaterial including (but not limited to) for the Consultant's use incarrying out the Services:

. Workstation

. Personal Computer (if required)

. Telephone

. Network access (if required)Item 6 Location

The Services may be carried out at either the Consultant's premises or atthe Client's premises, Level 1, 12 Victoria Place Adelaide.

Item 7 Insurances

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Item 8 Reports, The Consultant will provide a project plan and reports/documents (including

: all supporting work related documents) and/or advice, as agreed with theClient, as outlined in Item 2 of Schedule 1 for the term of this Agreement.

Item 9 Fee

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'.Item 10 Consultant's ABN 16104501 091.

Item 11 The Client's Project Manager is Peter Psaroulis, A/Director StrategicContracts, Contract Services, Department of Treasury & Finance.


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TERMS AND CONDITIONS OF ENGAGEMENT . PROJECT MANAGER

The Project Manager for the Client is the person named in Item 11 of Schedule 1. TheConsultant must report to and take instructions from the Project Manager.

2. SERVICES

2.1 The Consultant must perform the Services specified in Item 2 of Schedule 1 andin accordance with the performance milestones as set out in that item.

2.2 The Consultant must provide the reports specified in Item 8 of Schedule 1 atsuch times and in such format as is set out in that item.

2.3 The Consultant shall attend such meetings and give such presentations as the

Project Manager may from time to time reasonably request.

2.4 The Consultant must perform the Services in accordance with this Contract:

2.4.1 professionally, carefully, skilfully and competently,

2.4.2 in a timely and efficient manner,

2.4.3 in accordance with the best practices current in the Consultant'sindustry, and

2.4.4 strictly in accordance with the standards referred to in Item 2 ofSchedule 1 (if any).

2.5 The Consultant shall keep proper records of the Consultant's work pursuant to

this Contract and shall as and when reasonably required by the Client supply tothe Client evidence of the Consultant's progress in undertaking the tasks to beperformed pursuant to this contract.

2.6 The Consultant must not subcontract any part of the performance of theServices without the prior written approval of the Client. The Consultantremains responsible for obligations performed by sub Consultants to the sameextent as if such obligations were performed by the Consultant.

2.7 The Services must be performed personally by the persons specified in Item 4

of Schedule 1 ("Consultant's Staff').

3. FEE AND PAYMENT

3.1 The Client shall pay the Consultant the Fee for the Services at the rate specifiedin Item 9 of Schedule 1. The Consultant must provide such billing informationas is required in Item 9.

3.2 The Consultant shall invoice the Client at the if"\tervals set out in Item 9.Provided that the Consultant has performed the Services to the Client'sreasonable satisfaction, of the performance milestones, undisputed invoices willbe paid by the Client within 30 days of the invoice being received. All invoicesmust be tax invoices.

3.3 The Fee is inclusive of GST.


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3.4 The Consultant represents that:

3.4.1 It is registered under the A New Tax System (Australian BusinessNumber) Act 1999 (Commonwealth);

3.4.2 The ABN shown in Item 10 of Schedule 1 is its ABN.

3.5 The Consultant acknowledges that should the representations referred to inclause 3.4 be or become incorrect:

3.5.1 The Client may be obliged under the Taxation Administration Act 1953(Commonwealth) to deduct a withholding from the Fee and will not beobliged to gross up the Fee or make any other compensation to theConsultant; and

3.5.2 If the supply of Services is not a Taxable Supply, the Client is entitled toreduce the Fee by the amount which would have been attributable toGST had the supply been a Taxable Supply.

4. CONFIDENTIALITY AND SECURITY

4.1 All information which the Consultant obtains in the course of providing theServices is confidential and the Consultant must not disclose such informationto any person without the prior written consent of the Project Manager, exceptwhen such disclosure is necessary for the purpose of carrying out the Services.The Consultant must do everything reasonably possible to preserve theconfidentiality of the information.

4.2 The Consultant, if required by the Client, must give its consent to the conduct ofa police check or any other enquiry and the Consultant, if required by the Client,must procure the consent of the Consultant's Staff to the conduct of a policecheck or any other enquiry. The Client reserves the right to refuse entry to theLocation to any of the Consultant's Staff.

4.3 The Consultant may only use the Client's computer systems with the specificauthorisation of the Client and only in a manner as directed by the Client fromtime to time. The Consultant shall ensure that Consultant's Staff comply withthis clause.

5. INTEllECTUAL PROPERTY AND DOCUMENTS

5.1 The Client owns all intellectual property rights in all things produced by theConsultant as part of the Services. The Consultant must ensure that inperforming the Services it does not infringe the intellectual property rights of anyperson. The Consultant shall indemnify the Client against all costs, expensesand liability arising out of any claim that the performance of the Services by theConsultant infringes the intellectual property rights of any person.

5.2 The Client does not own the Consultant's intellectual property rights in existencebefore the date of this Contract or copyright in existing publications or otherwork produced by or on behalf of the Consultant prior to, or otherwise than inthe course of providing the Services.

5.3 If this Contract is terminated before the Consultant has completed the Services,the Consultant must license to the Client, free of charge, the intellectual propertyrights in any matter referred to in the clause 5.2 if the Client needs such alicence to enable it complete the Services.

5.4 The Client owns all documents prepared by the Consultant in connection withthis Contract. Upon termination and at any time on demand by the Client, theConsultant must deliver to the Client all documents provided by or originating


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from the Client and all documents produced by the Consultant in the course ofperforming the Services.

6. INSURANCE

6.1 The Consultant must effect and maintain at its expense during the term:

6.1.1 Public and Products Liability Insurance in the name of the Consultant fornot less than the amount specified in Item 7 of Schedule 1 for anyoneevent and in the aggregate for products liability in anyone policy periodor such other amount as the Client may reasonably require and suchpolicy shall include and name the Client and the Crown in right of theState of South Australia as principal;

6.1.2 Professional Indemnity Insurance in the name of the Consultant for notless than the amount specified in Item 7 of the Schedule for anyoneevent and in the aggregate in anyone policy period or such otheramount as the Minister may reasonably require and will be renewed andmaintained for a period of 2 years from the date of expiration or earliertermination of this Contract; and

6.1.3 Workers compensation insurance in accordance with the applicableworker's compensation legislation.

6.2 The Consultant will maintain the insurances pursuant to this clause with insurerssatisfactory to the Client. The Client in specifying levels of insurance in this

Iontract accepts no liability for the completeness of their listing, the adequacyof the sum insured, limit of liability, scope of coverage, conditions or exclusionsof those insurances in respect to how they mayor may not respond to any lossdamage or liability.

7. NON PERFORMANCE

If the Services, or any performance milestone required by the Project Manager is notundertaken to the Client's required standard or is not undertaken on time having regard to thetime set for completion, then the Client may withhold payment until the Services areundertaken to the required standard or the Client may terminate the Contract.

8. TERMINATION I

8.1 If the Consultant:

8.1.1 fails to commence or complete work pursuant to this Contract inaccordance with the time requirements and performance milestonesspecified in this Contract;

8.1.2 fails to perform, observe and carry out all the agreements andobligations imposed upon the Consultant by this Contract;

8.1.3 fails to comply with any default notice given by the Client to theConsultant requiring a breach to be remedied within 48 hours after theservice of the default notice;

8.1.4 abandons or refuses to proceed with Services; or

8.1.5 enters into any form of insolvency administration if a Company orbecomes bankrupt if an individual

then, the Client may at any time thereafter without prejudice to any otherlegal remedies it may have, terminate this Contract by written notice tothe Consultant.

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8.2 The Client may terminate this Contract without cause by giving 30 days writtennotice. The Client may give reasonable directions to the Consultant in relationto the performance of the Services up to the date of termination.

8.3 If this Contract is terminated the Consultant must return to the Client all

equipment, data, material provided by the Client and deliver to the Client resultsof work undertaken by the Consultant in respect of the Services.

8.4 If the Client terminates the Contract, the Client must pay only the proportion ofthe fee commensurate with that part (if any) of the Services undertaken to theClient's satisfaction (acting reasonably).

9. GENERAL

9.1 Consultant Status

The Consultant is being engaged for the provision of services and nothing in thisContract constitutes any relationship of employer and employee or partnershipbetween the parties. The Client has no obligations to the Consultant's Staff.The Consultant is responsible for complying with the Income Tax AssessmentAct 1997 in respect of the Consultant's employees and the Client is not requiredto make PA YE deductions from the Fee.

9.2 Auditor-General

Nothing in this Contract derogates from the powers of the Auditor-General underthe Public Finance and Audit Act 1987.

9.3 Contract Disclosure

The Client may disclose this Contract and/or information relating to this Contractin either printed or electronic form and either generally to the public or to aparticular person as a result of a specific request. Nothing in this clausederogates from the Consultant's obligations under any provision of this Contractor from the provisions of the Freedom of Information Act 1991.

9.4 Conflicts of interestThe Consultant must not have any conflicts of interest in relation to theperformance of the Services under this Contract and if an actual or potentialconflict of interest exists, arises or may arise in the course of performing theServices (either for the Consultant or its Staff) the Consultant must disclose thatinformation to the Project Manager as soon as practicable after it becomesaware of the conflict or potential conflict.

9.5 Contract and Variations

9.5.1 This Contract and the entire agreement b~tween the Client and theConsultant In respect of this consultancy is comprised by:

(a) these terms and conditions,

(b) the Schedules,

(c) the proposal letter and

(d) the Consultant's acceptance.9.5.2 Any variation to the Contract must be in writing and signed by the Client

and the Consultant.


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9.6 SA Government Contracting Policy

If the Consultant's employees perform any of the Services the Consultant mustcomply with the requirements of Schedule 2.

9.7 No Assignment

The Consultant must not assign, novate or encumber any of its rights orobligations under this Contract without first obtaining the written consent of theClient.

9.8 Survival

The clauses of this Contract relating to documents, intellectual property rights,insurance and conflicts of interest survive the expiry or termination of thisContract, and in relation to confidentiality, the obligations continue to applyunless the Client notifies the Consultant of its release from those obligations.

9.9 Proper Law and Jurisdiction of the Courts

9.9.1 The laws in force in South Australia apply to this Contract.

9.9.2 The courts of South Australia have exclusive jurisdiction to determineany legal proceedings in relation to this Contract.

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SCHEDULE 2

SA GOVERNMENT CONTRACTING POLICY

1. The Consultant acknowledges that the South Australian Government has a policy ofensuring that all persons ("employees") who do work in South Australia under or inconnection with any contract with an agency of the South Australian Government,whether employed by a Consultant or any sub Consultant, are employed on terms andconditions no less favourable than those contained in:

a) the State Award which applied or was capable of application to work of thenature the Consultant or sub Consultant engaged the employees to perform, asin force at 26 March 2006, as that State Award is varied from time to time by anIndustrial Tribunal; or

b) if no State Award applied to the employment of such persons at 26 March 2006,

the relevant State industrial instrument as in force at that date and capable ofapplication to work of the nature the Consultant or sub Consultant engaged theemployees to perform, as that instrument is varied from time to time by anIndustrial Tribunal; or

c) if the employees of the Consultant or sub Consultant have at any time entered acollective agreement, howsoever named, capable of application to work of thenature the Consultant or sub Consultant engaged the employees to perform thatprovides for wages and conditions of employment more favourable than a StateAward, that collective agreement,

while such persons are engaged in duties directly in connection with the performance ofthe contract ("the Policy").

2. The Consultant must ensure that all employment policies, contracts of employment andsubcontract arrangements in connection with this Contract, comply with the Policy.

3. The Consultant must not engage a sub Consultant to assist in the performance of itsobligations under this Contract, without the prior written approval of the Client, whichapproval may be given conditionally.

4. The Consultant must on the request of the Client provide access to: .

a) subcontract conditions of contract;

b) records of payments to employees who have done work under or in connectionwith this Contract;

c) records of payments by a sub Consultant to employees who have done workunder or in connection with this Contract.

The Client shall take all reasonable steps to preserve the confidentiality of informationreceived pursuant to this clause that is of a personal nature relating to any employee.

5. The Consultant must, within 7 days of receipt of a written request from the Client,provide the to the Client a compliance certificate (in a form approved by the Clientcertifying that the Consultant has complied with its obligations under this clause.


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6. For the purposes of this Schedule:

"State Award" means an award that:a) concerns the relationship between an employer and the employer's employees;

b) provides for wages and conditions of employment for employees; andc) is approved or varied by the Industrial Relations Commission of South Australia.

"Industrial Tribunal" means:

a) the Industrial Relations Commission of South Australia;

b) the Industrial Court of South Australia; or

c) any court that determines an appeal of a decision of the tribunals in (a) and (b).

7. To the extent that any provision of this clause is illegal, void or unenforceable, then theeffect of this clause shall so far as possible, be limited and read down to the extentnecessary for it to be legal, valid and enforceable.

8. The Consultant releases the Client from any claim arising out of or in connection withthe requirements of this clause.

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Creative Energy Solutions Pty Ltd