PART A – INTRODUCTION€¦ · Web view2021. 4. 28. · Schedule 2: Commercial Details31. Annexure 1: Specifications33. Annexure 2: Subcontractor’s Payment Declaration33. Conditions

REQUEST FOR QUOTE Consultancy services for informing Council of the childcare needs in the Blue

Mountains Local Government REQUEST FOR QUOTE – F13846

Introduction

BMCC would like to request a written quote for consultancy service to investigate child care requirements for parents/carers, and how these needs may have changed with the impact of COVID 19, to inform Council’s role in supporting parent/carers access to accessible,

affordable, and appropriate childcare options in accordance with the statement of requirement set out in this Request for Quote (RFQ).

Quotes close 2pm Wednesday 19 May 2021 Facsimile submissions will not be accepted.Quotes are not to be placed in the Council’s Tender Box.Enquiries on the contents of this document should be in writing and directed to:

Contact Officer: Patricia DarvallEmail: [email protected]

Lodgement of Quotes

Quotes should be lodged by emailing to [email protected] (Attention: Patricia Darvall and use RFQ number F13846).

It is the Supplier’s responsibility to ensure quotes are lodged before the Closing Date.

Failure to meet these submission requirements may render the submission invalid in accordance with the requirements of the Local Government (General) Regulation 2005 (NSW).

Suppliers must:

(a) Answer response questions and submit supporting documentation as required. (b) Furnish a written brief which fully describes the extent of services and/or goods to be

provided (see assessment criteria).

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mailto:[email protected]

mailto:[email protected]%09

If Suppliers have any problem in accessing the Request for Quote and submitting their Quote they must contact the Contact Officer prior to the Closing Date.

Please ensure that you receive a confirmation e-mail after the Quote has been submitted. If you don’t receive this confirmation e-mail it is likely that your Quote has not been successfully submitted.

QUOTES MUST NOT BE SENT TO THE CONTACT OFFICER

Assessment Criteria

The Assessment Criteria listed below must be addressed and detailed information provided as part of your written quotation:

Item Assessment Criteria Description1 Compliance with Quote Conditions (Attachment 1) (these must be returned by you

with your Quote as they will form the terms of the Contract between you and Council if your Quote is accepted)

2 Completion of the attached Form of Quotation and Price Schedule

(refer to Attachment 2)

3 Compliance with the attached Contract for Consultancy Services (Attachment 3)

4 Compliance with Specification (refer to Attachment 4)

5 Demonstrate capacity to provide the Services

6 Project Methodology and Program for provision of the Services

7 Demonstrated experience in similar projects8 Demonstrate satisfactory compliance with Work Health and Safety obligations,

including evidence of a WH&S Policy and WH&S Management System, and Working with Children checks if required

9 InsuranceThe successful contractor will be required to provide evidence that it holds current policies of insurance specified in the Contract.

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Attachment 1 Quote Conditions

DefinitionsRFQ means Request For QuoteCouncil means Blue Mountains City CouncilSupplier means any person or organisation who receives

this RFQ and who submits a Quote in response.

Quote means a submission made to Council in response to this RFQ.

Contractor means any person or organisation who submits a Quote and enters into a contract with Council to supply the services/works or goods.

1. Conditions for ParticipationThe Conditions for Participation are mandatory requirements, which describe minimum standards that Suppliers must meet for their Quotes to be considered. If Suppliers do not meet the Conditions of Participation, they will be excluded from the evaluation process.The Conditions for Participation are: Suppliers must be an acceptable legal entity. It is

Council’s policy not to trade with any organisation that does not hold a registered ABN;

Suppliers must not be bankrupt or insolvent; Suppliers must declare and provide details of any

occurrence, within 5 years prior to submitting a Quote, where the Supplier has been found guilty of breaching any Act or Regulation.

Suppliers must have the minimum level of insurance cover specified in the Contract; and

Suppliers must comply with the New South Wales Government Code of Procurement.

2. Conditions of QuoteBy submitting a quote, Suppliers agree to the following conditions: A Quote submitted in accordance with this document

will be valid for acceptance for a period of not less than thirty (30) days from the Closing Date.

Council does not bind itself to accept the lowest quote, nor will it be responsible for, or pay for any expenses or losses which may be incurred by any Supplier in the preparation of their quote.

Nothing in this RFQ should be construed to give rise to any contractual obligations or rights, express or implied, by the issue of this RFQ, or the submission of a Quote in response to it. No contract will be created until a formal written contract is executed between Council and the Supplier who is awarded the Contract (Contractor).

Notwithstanding any other provision of this RFQ, Council reserves the right, at any time to:(a) alter, amend or vary this RFQ and the process

outlined in this RFQ; (b) suspend or terminate this RFQ process or any

part of it; (c) require additional information or clarification

from any Supplier or anyone else, or provide additional information or clarification to any Supplier or anyone else;

(d) negotiate or not negotiate with any one or more Suppliers, and discontinue negotiations at any time; allow, or not allow, the successful Contractor to enter into the proposed contract in the name of a different legal entity from that which provided a response to this RFQ; and

(e) add to, alter, delete or exclude any of the requirements to be provided by a preferred Supplier under this RFQ.

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Attachment 1 Quote Conditions

Suppliers are required to complete all relevant schedules, including price schedules. All schedules have been provided in Word format and can be submitted as a package and emailed as attachments.

Submissions will only be accepted from Suppliers which are known or can demonstrate experience, expertise, financial and technical capacity to undertake the size, type, quality and class of services/works or goods involved and/or required by Council.

Facsimile submissions will not be accepted. Quotes must be lodged before, 2pm Australian

Eastern Standard Time, on the date specified on the covering of this RFQ (Closing Date).

The determination by Council as to the time a Quote has been lodged will be final.

Suppliers should be aware that the Council’s Internal Service Provider (CISP) may submit a Quote. If a submission is received from CISP, their submission will be evaluated according to the same Assessment Criteria that applies to all other Quotes.

3. Acceptance of QuotationsCouncil may accept the whole or any part of a Quotation.A Supplier may withdraw the Quotation at any time after the expiration of thirty (30) days from the Closing Date, but may not withdraw their Quotation prior to the expiration of such period.

4. Canvassing of Elected Members and Council Officers

Suppliers must not canvass members or officers of Council, or attempt to unduly influence their decision with respect to the outcome of selection process of Quotes. Any breach of this provision will automatically lead to disqualification of the Supplier from contention.

5. Suppliers to inform themselvesSuppliers will be deemed to have: examined this RFQ, Statement of Requirement

and/or Specifications, Quote Conditions, the Contract and any other information available in writing to Suppliers for the purposes of submitting a Quotation;

examined all further information relevant to the risks, contingencies, and other circumstances having an effect on their Quotation which is obtainable by the making of reasonable enquiries;

satisfied themselves as to the correctness and sufficiency of their Quotation including quoted prices which will be deemed to cover the cost of complying with the Specification, Quote Conditions, the Contract and of all matters and things necessary for the due and proper performance and completion of the works described therein;

acknowledged that Council may enter into negotiations with a preferred Supplier and that those negotiations are to be carried out in good faith; and

satisfied themselves they have a full set of the RFQ documents and all relevant attachments which includes all pages which are numbered consecutively and that all supplements referred to are also included.

6. Ownership of Quotations

All documents, materials, articles and information submitted by Suppliers as part of or in support of a Quote will become upon submission the absolute property of Council and will not be returned to Suppliers at the conclusion of the selection process provided that the Supplier be entitled to retain copyright and other intellectual property rights therein, unless otherwise provided by the Contract.The Supplier does not acquire any intellectual property rights in this RFQ. The Supplier must not reproduce any of the RFQ documents in any material form (including photocopying or storage in any medium by electronic means) without the written permission of Council other than for use strictly for the purpose of preparing a Quotation.

7. Costs of QuotationEach Supplier remains responsible for all costs incurred by them in connection with their Quote, whether before or after the Closing Date and whether incurred directly by them or their advisors and regardless of whether such costs arise as a consequence directly or indirectly of any amendments made to the RFQ by Council at any time. For the avoidance of doubt, Council has no liability whatsoever to Supplier for the costs of negotiations.

8. Conflict of InterestIf the Supplier or any of its employees or agents has a potential or actual conflict of interest between performing the Works under the Contract and any other interest, the Supplier must supply in an attachment to their Quotation the details of any actual or potential conflict of interest and the way in which the conflict will be dealt with and label it ‘Conflicts of Interest’.

9. Terms of ContractUpon acceptance of a Quote by Council in writing to the Supplier a Contract is formed between Council and the Contractor.

The terms of that Contract comprise the following documents:1. The Contract for Services set out in Attachment 3,

as amended or added to by Council.2. The letter of acceptance of the Quote issued by

Council.3. The Quote, including any documents lodged with it;4. The Statement of Requirement detailed in this RFQ,

as amended from time to time by Council, whether by the issue of an addendum or otherwise.

5. Any Council approved Drawings/Plans.6. Any Council approved Project and/or Technical

Specifications.7. These Quote Conditions.8. Any other documents that Council and the

Contractor agree in writing will form part of the Contract Documents.

(together the Contract)

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Attachment 2 Form of Quotation and Price Schedule

To: The Chief Executive Officer Blue Mountains City Council2 Civic PlaceKatoomba NSW 2780

Attention: Patricia Darvall

I/We the undersigned hereby provide a Quotation for the provision of consultancy service on parent/carers childcare requirements within the Blue Mountains Local Government.The quoted consideration is as provided in the Price Schedule and submitted with this Quotation.

I/We have read and understood the Quote Conditions and the Contract prior to lodging this Quote with Council.

The submission of this Quote is an offer to Council to enter into a Contract with me/us on the terms set out in the Contract. This offer is open for acceptance by Council for thirty (30) days after the Closing Date.

DATED this day of 20

Name of Supplier:

Full Name of Company:

ABN:

Address of Company:

Contact Details Phone Number:

Facsimile Number:

Mobile Phone Number:

E-mail:

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RESPONSE SCHEDULESCHEDULE ONE

PRICING INSTRUMENT – OPTION ATo: Blue Mountains City Council

2 Civic Place KATOOMBA NSW 2780

In accordance with RFQ No. [XXXXXXXX] for a consultancy service on the requirements of parents/carers childcare needs Statement of Requirement and Terms and Conditions

………………………………………………………………………………………………………………….....Company/Person and Trading Name ABN Registration or Licence No.

Hereby submit this lump sum, schedule of rates Quote:

Item Description $Cost1

2

3

4

5

6

SubtotalGST

TOTAL

Name:

Position:

Date

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Formal Instrument of AgreementCONSULTANCY SERVICES [XXXXXXXX]

Date

Parties

Blue Mountains City Council of 2 Civic Place, Katoomba, New South Wales.

(Council)

[insert Consultant’s name, ABN/ACN if applicable, name and address]

(Consultant)

Background

A. Council wishes to engage the Consultant for the provision of consultancy service on the requirements of parents/carers childcare needs in accordance with the Contract.

B. The Consultant agrees to its engagement on the terms set out in the Contract.

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Agreement

1. Operative clauses

(a) The Consultant must carry out and perform the Services in accordance with this Contract.

(b) Subject to the due and proper performance of the Services by the Consultant, Council must pay the Consultant the Contract Sum in accordance with the Contract.

(c) The documents forming the Contract are:

(i) this Formal Instrument of Agreement;

(ii) Conditions of Contract - Consultancy Services attached as Annexure 1 to this Formal Instrument of Agreement; and

(iii) Tender Documents.

(the Contract Documents).

(d) If there is any ambiguity or inconsistency in the Contract Documents, to the extent of the ambiguity or inconsistency, the documents shall have the order of precedence in (c) above with the former taking precedence over the latter.

(e) The Contract Sum is: $[insert] excluding GST.

(f) None of the terms or conditions of the Contract shall be waived, discharged (except by performance) or released either at law or in equity except with the prior written consent of Council.

(g) The Contract represents the entire agreement between the parties in respect of the Services and supersedes all other agreements concerning its subject matter.

(h) The parties agree that in entering into the Contract, no representation, warranty or thing induced the execution of this agreement other than as expressly set out in the Contract, nor shall any representation, warranty or thing be inferred, incorporated or implied into the Contract. The Contract shall have effect according to its expressed terms.

(i) In this Formal Instrument of Agreement, words and expressions shall have the meanings as are respectively assigned to them and defined in the Conditions of Contract - Consultancy Services.

Executed as an Agreement

Executed by Blue Mountains City Council )))

............................................................Signature of Authorised Officer

............................................................Signature of

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............................................................Name of Authorised Officer

............................................................Name of

Executed by [insert Consultant’s name, ABN/ACN if applicable, name and address] in accordance with section 127(1) of the Corporations Act 2001 (Cth) by authority of its directors.

)))

............................................................Director

............................................................Director/Secretary

............................................................(Print) Full Name

............................................................(Print) Full Name

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Annexure 1 to Formal Instrument of AgreementConditions of Contract - Consultancy Services

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Table of Contents

Background..........................................................................................................................................12

Operative Provisions............................................................................................................................12

1 Definitions....................................................................................................................................12

2 Consultant to Perform Services....................................................................................................12

3 Council’s Obligations....................................................................................................................13

4 Project Specifications...................................................................................................................13

5 Representatives............................................................................................................................14

6 Directions.....................................................................................................................................14

7 Variations.....................................................................................................................................14

8 Payment.......................................................................................................................................15

9 Goods and Services Tax................................................................................................................16

10 Timing and Progress.................................................................................................................16

11 Law and Approvals...................................................................................................................17

12 Consultation and Meetings.......................................................................................................17

13 Review and Acceptance............................................................................................................17

14 Key Personnel...........................................................................................................................18

15 Assignment, Novation and Subcontracts..................................................................................18

16 Copyright and Intellectual Property.........................................................................................18

17 Confidentiality..........................................................................................................................18

18 Suspension...............................................................................................................................19

19 Termination..............................................................................................................................19

20 Indemnities...............................................................................................................................21

21 Limitation of Liability................................................................................................................21

22 Insurance..................................................................................................................................21

23 Insolvency.................................................................................................................................23

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24 Dispute Resolution...................................................................................................................23

25 Service of Notices.....................................................................................................................24

26 Governing Law..........................................................................................................................24

27 Safety management.................................................................................................................25

28 Building and Construction Industry Security of Payment Act...................................................25

29 Civil Liability Act........................................................................................................................26

30 Miscellaneous...........................................................................................................................26

Schedule 1: Defined Terms And Interpretation....................................................................................27

Schedule 2: Commercial Details...........................................................................................................31

Annexure 1: Specifications...................................................................................................................33

Annexure 2: Subcontractor’s Payment Declaration..............................................................................33

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Conditions of Contract – Consultancy Services

BackgroundA Council has requested, and the Consultant has agreed to provide the Services.

B This document records the terms upon which the Services will be satisfied by the Consultant.

Operative Provisions1 Definitions1.1 Defined terms

In this document, words beginning with a capital letter that are defined in Part 1 of Schedule 1 have the meaning ascribed to them in that schedule.

1.2 Interpretation

The interpretational rules contained in Part 2 of Schedule 1 apply in the interpretation of this document.

2 Consultant to Perform Services2.1 Performance

The Consultant must perform, and complete the Services in the manner contemplated under the Contract.

2.2 Contract Sum

(1) The Consultant understands and agrees that the Contract Sum (subject to an adjustment, addition or deduction effected in a manner authorised under the Contract) is:

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(a) the fixed lump sum price to be paid for the full, and proper completion of the Services; and

(b) not subject to rise and fall or to other adjustments from time to time including without limitation adjustments which might otherwise arise due to fluctuations in the cost of labour or materials unless provided for elsewhere under the Contract.

(2) The Consultant further agrees that it is not entitled to any reimbursement or additional payment whatsoever in respect of any payments which the Consultant may be obliged to make on behalf of its employees in respect of any superannuation fund, scheme or arrangement for the benefit of

(3) workers or otherwise which is in existence at the date of the Contract or which comes into existence after the date of the Contract.

2.3 Consultant Warranties

The Consultant warrants that:

(1) it has informed itself with respect to all matters relevant to the performance and completion of the Services;

(2) it has not relied upon information, data, representations, statements or documents that Council has made available to it, and

(3) it has entered into the Contract on the basis of its own investigations, interpretations, deductions and determinations.

(4) it will provide the Services:

(a) in a conscientious, expeditious and workmanlike manner;

(b) using its best endeavours;

(c) in accordance with this Contract;

(d) in accordance with the Specifications;

(e) in accordance with all Legislative Requirements, Approvals and the requirements of all Authorities;

(f) in accordance with any or all relevant Australian Standards; and

(g) in accordance with any reasonable Direction of Council.

3 Council’s Obligations(1) Council must ensure that the Consultant is paid in accordance with the Contract.

(2) Council, when required under the Contract, must provide the Consultant with all relevant documents, samples, patterns and other information in its possession or control sufficient so as to allow the Consultant to perform the Services.

(3) Council must give, or cause to be given timely Directions and Council Information sufficient to define the Services required and to facilitate the performance of the Services by the Consultant.

(4) Council must ensure that the Consultant is provided with sufficient access to any Site, which access will be conditional upon the Consultant at all times or all Work Health and Safety requirements, procedures, policies and reasonable Directions of Council.

4 Project Specifications(1) In exercising skill, care and diligence to the requisite standard, the Consultant

warrants that the Services will be suitable, appropriate and adequate for the purposes of the Specifications, except to the extent that, prior to the Commencement Date:

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(a) the Consultant has notified Council in writing of any ambiguities, errors, omissions, discrepancies, insufficiencies or inconsistencies in the Specifications or Council Information

(b) which could prevent the Services from being suitable, appropriate and adequate, as well as the Consultant’s proposed solution; and

(c) after receiving such notice, Council has not amended the Specifications or Council Information to the extent required, if at all, so as to address the concerns notified under paragraph (a).

(2) If, after the Commencement Date, the Consultant becomes aware that the Specifications contains an error or omission or is otherwise insufficient so as to enable the Consultant to perform the

(3) Services, the Consultant must serve prompt notice on Council setting out the nature and extent of such errors, omissions or insufficiencies.

(4) In construing the Specifications and/or Council Information, the following rules of construction apply:

(a) where inconsistent levels of quality are required, the higher level of quality applies;

(b) figured dimensions take precedence over scaled dimensions;

(c) drawings made to larger scales take precedence over drawings made to smaller scales; and

(d) if certain requirements in relation to the quality of the Services are not specified, depicted or are not otherwise clear then the requisite quality must be consistent with the intended

(e) purpose or outcome of the Specifications of the Services as contemplated under the Contract.

(5) If the Consultant gives a notice under clause 4(2), Council must either:

(a) Direct an appropriate amendment to the Specifications or the Council Information; or

(b) Direct the Consultant to proceed to provide the Services notwithstanding the notice.

(6) The Consultant is entitled to an adjustment to the Contract Sum and/or an Extension of Time in connection with the performance of the Services in relation to a Direction given under clause 4(5):

(a) if the Consultant has given Council prompt and diligent notice in accordance with clause 4(2); and

(b) it is not reasonable in the circumstances to expect the Consultant to have identified such ambiguities, errors, omissions, discrepancies or insufficiencies giving rise to the amendment prior to the Commencement Date.

5 Representatives(1) The person named in Item 3 of Schedule 2 is appointed as Council’s authorised

representative, that is, to exercise Council’s functions under the Contract.

(2) The person named in Item 4 of Schedule 2 is appointed as the Consultant’s authorised representative, that is, to exercise the Consultant’s functions under the Contract.

(3) The parties are empowered to terminate the appointment of their authorised representative upon serving the other with written notice which identifies, and provides the contact details of the newly appointed authorised representative.

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(4) The termination and new appointment of an authorised representative will be effective four (4) Business Days after service of notice in accordance with clause 5(3).

6 Directions(1) Subject to clause 7, Council will be entitled to issue a Direction of whatsoever nature

in relation to all acts, matters or things arising out of, or in connection with the Services, provided that such a Direction is in accordance with the Contract.

(2) The Consultant must ensure full compliance with a Direction that has been given in accordance with the Contract.

7 Variations(1) Council will be entitled to Direct the Consultant to perform a Variation. A Direction of

this nature must be in writing and must state that Council is, in fact, Directing a Variation.

(2) If however, the Consultant has formed the view that a particular Direction requires the Consultant to perform a Variation but:

(a) that Direction is not in writing; or

(b) that Direction does not state that Council is, in fact, directing a Variation,

then the Consultant must serve a written notice on Council setting out the basis on which the Consultant has formed the view that this particular Direction is one which requires a Variation to the

Services and the amount by which the Consultant considers the Variation will increase the Contract Sum.

(3) In the circumstances outlined in clause 7(2), the Consultant must not adhere to Council’s Direction unless the Consultant receives a written:

(a) Direction which specifies Council approves the Variation; or

(b) notice which specifies that Council disagrees, and which states Council’s reasons.

(4) If a notice is issued in accordance with clause (3)(b), the Consultant must adhere to the Direction however, within twenty (20) Business Days, will be permitted to dispute:

(a) that notice, or

(b) the particular Variation,

and the matter will be determined in accordance with clause 24 (dispute resolution).

(5) Unless the amount of an adjustment to the Contract Sum for a Variation is agreed, Council, as soon as is practicable, will price each Variation using the following order of precedence:

(a) Prior agreement.

(b) Applicable rates or prices in the Contract.

(c) Applicable rates or prices as set out within a Schedule of Rates or Schedule of Prices, even though they are not Contract Documents, to the extent that it is reasonable to use them.

This price will be added to, or deducted from the Contract Sum.

(6) Where no applicable rate is provided in the Contract and the Consultant does not agree with the reasonable rate or prices applied by Council, the Consultant may refer the matter for dispute resolution in accordance with clause 24.

8 Payment8.1 Contract Sum

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Council will pay the Contract Sum to the Consultant in accordance with this Clause 8.

8.2 Timing of Claims

(1) The Consultant must claim payment in writing at the times stated in Item 8 of Schedule 2.

(2) If however, there are no times designated under Item 8 in Schedule 2, the Consultant must claim in writing on or before the last Business Day of each month and is limited to one (1) claim for payment per month for the duration of the Contract.

8.3 Contents of Claim

The claim for payment must:

(1) in respect of the Services:

(a) identify the Services to which the claim relates;

(b) separately identify Variations;

(c) set out the amount of the Contract Sum claimed, and how that amount was determined; and

(d) be accompanied by a statutory declaration in the form attached as Annexure 2; and

(2) in respect of Disbursements:

(a) identify each disbursement claimed;

(b) state the amount of the disbursement claimed; and

(c) be accompanied by relevant invoices and receipts for payment; and

(3) to be valid, tax invoices must show:

(a) the amounts claimed as exclusive of GST;

(b) the GST claimed as a separate component;

(c) Council’s name, address and Australian Business Number; and

(d) quote a valid Australian Business Number of the Consultant. Where a tax invoice does not contain a valid Australian Business Number, the Consultant acknowledges and agrees that

(e) Council may withhold up to 48% of the amount claimed in the tax invoice on account of withholding tax.

8.4 Assessment of Claim

Council, within ten (10) Business Days after receiving a valid claim for payment, may issue to the Consultant its assessment of the moneys due from Council to the Consultant pursuant to the claim for payment and the reasons for any difference.

8.5 Timing of payment

The amount assessed in Council’s Payment Certificate as due to the Consultant for the Services will be paid by Council to the Consultant within fifteen (15) Business Days of Council receiving a valid tax invoice

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rom the Consultant. If the Consultant does not agree with Council’s assessment of its claim given in clause 8.4, the Consultant may refer the matter for dispute resolution in accordance with clause 24.

8.6 Right of set off

Without notice to the Consultant, Council may deduct from moneys otherwise due to the Consultant including:

(1) any debt or other moneys due from the Consultant to Council pursuant to the Contract; or

(2) any claim to money which Council may have against the Consultant whether for damages (liquidated or otherwise) pursuant to or in relation to the Contract.

8.7 No Evidence or Admission

Payment by Council is on account and is not:

(1) evidence of the value of work completed;

(2) an admission of liability; or

(3) evidence that the Services have been executed satisfactorily.

8.8 Interest Rate

Interest at the rate set out in Item 10 of Schedule 2 will be due and payable after the date of default in payment by any party.

9 Goods and Services Tax9.1 Interpretation

In this clause 9, terms used have the meaning prescribed under s195-1 of the GST Act.

9.2 GST Liabilities

(1) If either Council or the Consultant (for the purposes of this clause the Supplier) makes a supply under or in connection with the Contract and is liable by law to pay GST on that supply, the consideration otherwise payable by the recipient of the supply will be increased by an amount equal to the GST paid or payable by the Supplier.

(2) If the Contract requires either Council or the Consultant to pay for, reimburse or contribute to any expense, loss or outgoing (Reimbursable Expense) suffered or incurred by the other party, the amount required to be paid, reimbursed or contributed by the first party is the amount of the Reimbursable Expense net of any input tax credit or reduced input tax credit to which the other party is entitled in respect of the Reimbursable Expense.

(3) If either Council or the Consultant has the benefit of an indemnity for a cost, expense, loss or outgoing (Indemnified Cost) under the Contract, the indemnity is for the Indemnified Cost net of any input tax credit or reduced input tax credit to which that party is entitled in respect of the Indemnified Cost.

(4) Each party agrees to do all things, including providing invoices or other documentation containing stipulated information, which may be necessary or desirable to enable or assist the other party to claim any set off, rebate or refund in relation to any GST included in any payment made under the Contract.

10 Timing and Progress10.1 Commencement

The Consultant will commence the Services on the Commencement Date stated in Item 11 of Schedule 2 or within such further time as may be approved by Council or agreed between the parties.

10.2 Completion

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Subject to this clause 10, the Consultant must ensure the Services are completed on or before the time stated in Item 12 of Schedule 2.

10.3 Notice of delay

(1) On becoming aware of anything which might cause delay to the completion of the Services (Delay) the Consultant must promptly, and in any event within five (5) Business Days of when the Consultant became aware or should have become aware of the Delay, serve upon Council written notice which contains:

(a) the full details of the cause of the Delay;

(b) the date the Delay might commence (or, if the Delay has already commenced, the date the Delay commenced);

(c) the estimated period of the Delay; and

(d) where the Delay results from a Qualifying Cause of Delay.

(2) Council must pay the Consultant’s reasonable costs of, and incidental to a Delay arising as a result of a Qualifying Cause of Delay (calculated as a Variation).

(3) If the Consultant fails to give Council notice in accordance with clause 10.3(1), the Consultant has no claim for a Variation or EOT arising out of, or in connection with the Delay that should have been the subject of the relevant notice.

10.4 Qualifying Causes of Delay

(1) In the Contract, Qualifying Causes of Delay means:

(a) A negligent act or omission of Council or its officers, employees, agents or other consultants or contractors (including a Variation which is approved as being Directed by Council);

(b) Council or its employees, consultants or agents (other than the Consultant) acting in breach of the Contract; or

(c) A Force Majeure Event.

(2) The causes referred to in clause 10.4(1) are only Qualifying Causes of Delay when:

(a) the Consultant did not contribute to or direct the cause; and

(b) the Consultant has taken all reasonable steps to mitigate the effect of the Delay.

10.5 Extension of time (EOT)

(1) Within twenty (20) Business Days after receiving a valid claim for an EOT Council will give to the Consultant a written notice as to what EOT is allowed, if an EOT is to be allowed at all.

(2) The date for the completion of the Services stated in Item 12 of Schedule 2 is to be extended in accordance with such a notice.

10.6 Cost of delay

The Consultant is not entitled to make a Claim, including for reimbursement of any loss or expense which is incurred as a result of any delay in Completion.

11 Law and Approvals(1) The Consultant must obtain all or any Approvals necessary for the provision of the

Services.

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(2) The Consultant must comply with all Legislative Requirements and Approvals when performing the Services.

(3) The Consultant, upon finding that a Legislative Requirement is at variance with the Contract, must immediately serve upon Council written notice to that effect.

(4) Unless otherwise stated in the Contract, the Consultant:

(a) bears the risks associated with all changes to current Legislative Requirements, as well as new Legislative Requirements and Approvals, whether or not such Legislative Requirements come into effect before or after the Commencement Date; and

(b) is not entitled to make a Claim against Council in respect of such changes.

12 Consultation and MeetingsThe Consultant must consult regularly with Council and attend meetings and briefings reasonably required by Council in connection with the Services.

13 Review and Acceptance(1) The Consultant must allow Council to review and discuss any Deliverables (whether

complete or in progress) produced by the Consultant in the performance of the Services at any time during the term of the Contract, after giving a reasonable period of notice.

(2) The Consultant remains responsible for the provision of the Services in accordance with this Contract despite a review or acceptance of any Deliverables by Council.

14 Key Personnel(1) The Consultant must provide the key personnel (if any) stated in Item 13 of Schedule

2 to perform the Services.

(2) If a key person is not available due to circumstances outside the reasonable control of the Consultant, the Consultant must serve upon Council prompt written notice of that fact, and arrange a replacement approved by Council (such approval not to be unreasonably withheld or delayed).

15 Assignment, Novation and Subcontracts15.1 Assignment

(1) The Consultant, without Council’s prior written approval (including terms), must not assign the Contract or any payment or any other right, benefit or interest under the Contract.

(2) Council may assign the Contract or any payment or any other right, benefit or interest arising under the Contract without the Consultant’s approval.

15.2 Subcontracting

(1) The Consultant, without Council’s prior written approval (which will not be unreasonably withheld, but is at the absolute and sole discretion of Council), must not:

(a) subcontract in whole or in part the Services; or

(b) allow a subcontractor to assign a subcontract or any payment or any other right, benefit or interest under the relevant subcontract.

(2) In granting any approval Council may impose reasonable conditions.

(3) Any such subcontracting shall not relieve the Consultant from any liability of its obligations under the Contract.

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16 Copyright and Intellectual Property16.1 Intellectual Property Rights

On creation the Consultant grants to Council a free, non-exclusive licence to use, reproduce, publish and sublicense on the same terms, the Deliverables created by the Consultant for, or in connection with a purpose for which the Services are provided, including subsequent repairs, maintenance or servicing.

16.2 Warranties

The Consultant warrants that, unless otherwise stated in the Contract:

(1) the Consultant owns, or has an irrevocable and assignable licence of, the copyright in the Deliverables including without limitation designs, materials, Documents and working methods provided by the Consultant;

(2) the Deliverables do not infringe any Intellectual Property Right;

(3) if Council’s use of the Deliverables infringes any person’s Moral Rights, the Consultant will have obtained a consent from that person to that infringement prior to the infringement; and

(4) the Consultant indemnifies Council against any such infringement of a Moral Right and/or Intellectual Property Right.

17 Confidentiality17.1 Council Information

(1) Council must provide the Consultant with Council Information so as to enable the Contractor to perform the Services.

(2) Council Information:

(a) is confidential;

(b) remains Council’s property and must be returned to Council on written demand; and

(c) must not be used, copied or reproduced for a purpose other than the performance of the Services.

17.2 Confidential Information

(1) The parties must keep confidential Council Information.

(2) The parties must also keep confidential such other documents, samples, models, patterns and information as supplied or provided in connection with the Services from time to time if such information is, of its nature, confidential.

(3) The obligation of confidentiality does not apply to the extent:

(a) that the information is in the public domain otherwise than as a result of a breach of this Contract;

(b) disclosure is required by law;

(c) disclosure is necessary to procure goods or services in connection with the Services, provided that the recipient of the information is also subject to an obligation of confidentiality; or

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(d) disclosure is agreed in writing by the parties.

18 Suspension(1) Council may Direct the Consultant to suspend the performance of the Services for

such a time as Council thinks fit:

(a) for any reason after giving reasonable written notice to the Consultant; or

(b) if Council is of the opinion that it is warranted:

(i) because of an act, default or omission of the Consultant or its employees, consultants, agents, contractors, sub-consultants or subcontractors; or

(ii) for the protection or safety of any person or property.

(2) The Consultant must bear the cost of a suspension under clause 18(1)(b) if the Consultant has acted or omitted to act in a way which made the suspension necessary.

(3) Suspension under clause 18(1)(b) will not affect the date for completion of the Services in Item 12 of Schedule 2 however the cause for suspension may be a ground for an EOT.

(4) As soon as Council becomes aware that the reason for a particular suspension no longer exists, Council will Direct the Consultant to recommence the suspended Services as soon as is practicable.

(5) The Consultant must recommence the Services when reasonably Directed to do so by Council.

(6) Council is not liable to the Consultant for Consequential Loss suffered or incurred as a result of the exercise by Council of its rights under this clause 18.

19 Termination 19.1 Termination as a result of an event of default

(1) Either party may terminate the Contract effective immediately upon the occurrence of any of the following events:

(a) A party commits a breach of an essential term of this Contract which is not rectified within five (5) Business Days of a written request from the non-defaulting party to rectify the default.

(b) A party commits a non-material breach of the terms of this Contract which is not rectified within twenty (20) Business Days of a written request from the non-defaulting party to rectify the default.

(c) An Insolvency Event occurs in relation to a party.

(2) Council may terminate the Contract immediately if the Consultant commits a substantial breach. Substantial breaches by the Consultant include, but are not limited to:

(a) failing to:

(i) perform properly the Services;

(ii) provide evidence of insurance;

(iii) supply the standard of Services required by the Contract;

(b) wrongful suspension of the Services;

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(c) failing to comply with a Direction, Legislative Requirement or requirement of any Authority or Approval; and

(d) failing to act in accordance with Work Health & Safety Act 2011 (NSW) and its regulations.

(3) Where Council terminates the Contract under clauses 19.1(1) or 19.1(2), the Consultant must:

(a) provide to Council copies of any Deliverables, plans, drawings, Documents in respect of the Services current at the date of termination in a form and format which is acceptable to Council; and

(b) if the reasonable cost to Principal of engaging another Consultant to complete the Services exceeds that which would otherwise have been payable under this Contract to the Consultant to complete the Services, then the amount of that excess is to be paid by the Consultant to Council within ten (10) Business Days of demand by Council.

19.2 Termination for convenience

(1) Without prejudice to any of Council’s other rights under this Contract, Council may:

(a) at any time for its sole convenience, and for any or no reason, by written notice to the Consultant terminate this Contract effective from the time and date specified in the notice; and

(b) if it so terminates this document, complete any uncompleted part of the Services by itself or engage other Consultants to carry out any uncompleted part of the Services.

(2) If this Contract is terminated under clause (1) Council must pay to the Consultant:

(a) the applicable portion of the Contract Sum for the Services performed prior to the date of termination;

(b) all disbursements incurred by the Consultant prior to the date of termination which would have been payable had this Contract not been terminated; and

(c) any costs and expenses reasonably incurred by the Consultant by reason of termination.

(3) The Consultant must take all reasonable steps to mitigate the costs referred to in clause (2) and provide to Council copies of any plans, drawings, Documents created and/or Documents required for the Deliverables in respect of the Services current at the date of termination in a form and format which is acceptable to Council.

(4) Other than any amounts payable under clause (2) Council is not liable to the Consultant for any Claim or Consequential Loss arising out of the termination of the Contract under this clause 19.2.

19.3 Consequence of termination

Upon termination, this Contract ends as to its future operation except for the enforcement of any Claim that arises on, or has arisen before, termination.

19.4 Suspension of Performance by Consultant

(1) If Council has not paid to the Consultant the monies owed to it in accordance with clause 8 the Consultant will be permitted to serve on Council written notice that it will suspend the performance

(2) of the Services if on the expiration of not less than five (5) Business Days, Council has not paid to the Consultant those monies owed under the Contract.

(3) Unless the Consultant is paid, the Consultant will be permitted to suspend the performance of the Services following the expiration of the stipulated notice period. The Consultant must promptly lift the suspension after Council has made the payment.

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20 Indemnities(1) To the extent permitted at law, the Consultant indemnifies Council from, and against

all liabilities, losses, damages, costs and expenses (including legal expenses), due to:

(a) loss of, damage to, or destruction of any property (including the Deliverables); or

(b) personal injury (including psychological injury) or death,

to the extent that such liabilities, losses, damages, costs or expenses have arisen as a result of a breach of this Contract by the Consultant, or some negligent or unlawful act or omission of the

Consultant, its officers, employees, agents, sub-consultants or subcontractors in connection with this Contract.

(2) Clause 20(1) is not applicable to the extent that:

(a) Council has committed a breach of the Contract;

(b) Council has committed some negligent or unlawful act or omission which, has contributed to, or given rise to such liabilities, losses, damages, costs or expenses; and/or

(c) Council has failed to act in a manner reasonable so as to mitigate such liabilities, losses, damages, costs or expenses.

(3) In order to avoid confusion:

(a) clause 20(2) will not reduce the Consultant’s liabilities to nil unless such liabilities have arisen as a result of Council’s act or omission alone; and

(b) instead, these liabilities will be reduced to the extent that Council has contributed to such liabilities on a proportionate basis.

(4) Clauses 20(1) and 20(2) do not exclude any other right of Council at law.

21 Limitation of Liability(1) The liabilities of the Consultant to Council arising under or in connection with the

Contract including:

(a) in tort (including for negligence);

(b) under statute; or

(c) otherwise,

to the extent permitted by law, are limited in the aggregate to the amount specified in Item 14 of Schedule 2 (Limitation of Liability). If left blank, the liability is unlimited.

(2) The Limitation of Liability does not apply to liability arising from:

(a) personal injury (including psychological injury) or death;

(b) infringement of Intellectual Property Rights;

(c) fraudulent, malicious or criminal conduct;

(d) wilful default;

of or by the Consultant or its officers, employees, sub-consultants and/or subcontractors.

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22 Insurance22.1 Insurance Policies

The Consultant must effect and maintain the insurances set out in Item 15 of Schedule 2.

22.2 Public Liabilities

The public liability insurance must be for an amount not less than that set out in Item 16 of Schedule 2 and must be maintained for the duration of this Contract.

22.3 Professional Indemnities

The professional indemnity insurance must be for an amount not less than that set out in Item 17 of Schedule 2 and must be maintained for at least six (6) years after Completion. The policy must include a provision for automatic reinstatement of the sum insured.

22.4 Workers Compensation Insurance

The workers compensation insurance must be effected and maintained in accordance with the applicable Legislative Requirements.

22.5 Evidence of Insurance

(1) Before the Consultant commences the Services and whenever requested in writing the Consultant must provide to Council satisfactory evidence of insurances effected and maintained, in the form of a certificate of currency showing:

(a) the insurance policy numbers;

(b) the expiry date of each policy; and

(c) the amount of insurance cover required to be held under the contract.

(2) Without limiting Council’s other rights under the Contract, if the Consultant fails to provide evidence when required under clause 22.5(1) Council will be permitted to serve on the Consultant written notice requiring it to provide such evidence within a period of not less than five (5) Business Days

(3) and confirming Council’s intention to exercise its rights under this provision if the Consultant does not adhere to this request.

(4) If the Consultant does not adhere to such a request, Council will be permitted to effect and maintain all relevant insurances, ensure all premiums are paid and deduct all monies paid from monies due, or which will become due to the Consultant, or otherwise treat the failure as a breach of the Contract.

22.6 Consultant’s Conduct

(1) The Consultant must ensure that, in relation to each of the insurance policies required under the Contract, it:

(a) does not do anything which prejudices any insurance;

(b) if necessary, rectifies anything which might prejudice any insurance;

(c) reinstates an insurance policy if it lapses;

(d) does not cancel, vary or allow an insurance policy to lapse without the prior written consent of Council;

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(e) gives full, true and particular information to the insurer of all matters and things the non-disclosure of which might in any way prejudice or affect any such policy or the payment of all or any benefits under the insurance policy;

(f) takes all reasonable steps to avoid and mitigate any losses or liabilities otherwise insured under any insurance policy; and

(g) ensures the insurances are each effected with reputable insurers which have a credit rating of at least A- or better with Standard Poor’s (or an equivalent rating with another reputable ratings agency).

(2) The Consultant must:

(a) as soon as possible, give written notice to Council of any occurrence that may give rise to a claim under one of the Consultant’s insurance policies required to be effected by the Consultant under this Contract;

(b) keep Council informed of any or all subsequent developments concerning that claim or prospective claim; and

(c) ensure that the same notice and information is given to Council in relation to any occurrence, any insurance claim or prospective insurance claim involving any sub-consultant under the Contract.

22.7 Content

If requested by Council, the Consultant must ensure that the insurance policies effected by it pursuant to the Contract include provisions that:

(1) notes the interest of Council;

(2) require the insurer to advise Council in writing of any notice of cancellation or other notice given by the insurer in relation to the policy concerned; and

(3) confirm that a notice of claim given to the insurer by Council or the Consultant will be accepted by the insurer as a valid notice of claim.

23 Insolvency(1) A party becomes subject to an Insolvency Event if:

(a) the party informs the other in writing, or creditors generally, that the party is insolvent or is financially unable to proceed with the Contract;

(b) execution is levied against the party by a creditor;

(c) the party is an individual person or a partnership including an individual person, and that person:

(i) commits an act of bankruptcy;

(ii) has a bankruptcy petition presented against him or her or presents his or her own petition;

(iii) is made bankrupt;

(iv) makes a proposal for a scheme of arrangement or a composition; or

(v) has a deed of assignment or deed of arrangement made, accepts a composition, is required to present a debtor’s petition, or has a sequestration order made, under

(vi) Part X of the Bankruptcy Act 1966 (Cth) or like provision under the law governing the Contract; or

(d) the party is a corporation and:

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(i) notice is given of a meeting of creditors with a view to the corporation entering a deed of company arrangement;

(ii) it enters a deed of company arrangement with creditors;

(iii) a controller or administrator is appointed;

(iv) an application is made to a court for its winding up and not stayed within fourteen (14) days;

(v) a winding up order is made in respect of it;

(vi) it resolves by special resolution that it be wound up voluntarily (other than for a member’s voluntary winding up); or

(vii) a mortgagee of any of its property takes possession of that property,

(2) Either party may terminate this Contract without notice to show cause if the other party is subject to an Insolvency Event.

(3) The rights and remedies given by this clause 23 are additional to any other rights and remedies. They may be exercised notwithstanding that there has been no breach of the Contract.

24 Dispute Resolution24.1 Notice of Dispute

(1) If a difference or dispute (together called a ‘dispute’) between the parties arises in connection with the subject matter of the Contract, including a dispute concerning:

(a) a Direction; or

(b) a claim:

(i) in tort;

(ii) under statute;

(iii) for restitution based on unjust enrichment; or

(iv) for rectification or frustration,

or like claim available under the law governing the Contract,

then either party may, by hand or by registered mail, give the other a written notice of dispute adequately identifying and providing details of the dispute.

(2) Notwithstanding the existence of a dispute in relation to any matter other than the exercise of a right of termination under the Contract, the parties must continue to perform the Contract unless otherwise authorised to suspend the performance of the Services.

24.2 Conference

(1) Within ten (10) Business Days after receiving a notice of dispute, the parties must confer at least once to resolve the dispute or to agree on methods of doing so.

(2) At every such conference each party must be represented by their authorised representatives and/or a person having authority to agree to such resolution or methods. All aspects of every such conference except the fact of occurrence is privileged.

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(3) If the dispute has not been resolved within twenty (20) Business Days of service of the notice of dispute, either party may refer the dispute to Mediation/Arbitration/Expert Determination. [MLG

(4) Note: Council to elect which of the dispute resolution methods it would like to use for minor consultancy services]

24.3 Expert/Mediation/Arbitration Determination

If within a further ten (10) Business Days the parties have not agreed upon an Expert, the Expert is to be nominated by the President of the Resolution Institute NSW. The Expert Determination must be conducted in accordance with the Rules of the Resolution Institute for Expert Determination.

25 Service of Notices(1) Any notice, consent or other communication under this document must be in writing

and signed by or on behalf of the person giving it, addressed to the person to whom it is to be given and:

(a) delivered to that person’s address;

(b) sent by pre-paid mail to that person’s address; or

(c) transmitted by e-mail or facsimile to that person’s address,

nominated by that party in Schedule 2.

(2) A notice given to a person in accordance with this clause is treated as having been given and received:

(a) if delivered to a person’s address, on the day of delivery if a Business Day, otherwise on the next Business Day;

(b) if sent by pre-paid mail, on the third Business Day after posting;

(c) if transmitted by facsimile to a person’s address and a correct and complete transmission report is received, on the day of transmission if a Business Day, otherwise on the next Business Day; and

(d) if transmitted by e-mail to a person’s address and a correct and complete automatically generated confirmation of receipt of received, on the day transmission if a Business Day, otherwise on the next Business Day.

26 Governing LawThe law governing this Contract and its interpretation is the law of the State or Territory stated in Item 18 of Schedule 2.

27 Safety management 27.1 WH&S Requirements

(1) Unless otherwise stated in the Contract, the Consultant, at its cost, must:

(a) ensure compliance with all relevant Legislative Requirements, standards, codes and guidelines, including:

(i) the Work Health and Safety Act 2011 (NSW) (WH&S Act) and the Work Health and Safety Regulation 2011 (NSW) (WH&S Regulation);

(ii) WorkCover Authority of NSW (Workcover) requirements including but not limited to accident notification requirements, improvement notices and prohibition notices; and

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(iii) Council’s work health and safety policies.

(2) The Consultant must immediately inform Workcover and Council in accordance with s38 of the WH&S Act of:

(a) any non-disturbance incident (as defined by the WH&S Act and the WH&S Regulation); and

(b) any accident or other matter as prescribed by Part 3 of the WH&S Regulation.

(3) Within one (1) Business Day of any non-disturbance incident or accident occurring, the Consultant must provide to Council a copy of an accident report if the particular accident is of a kind that a

(4) relevant Legislative Requirement would require the Consultant to make a report to any statutory or government authority.

28 Building and Construction Industry Security of Payment Act28.1 Definitions

For the purpose of this clause 28, terms used in this clause have the meaning ascribed to them under the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOP Act).

28.2 Limits on Application

This clause 28 applies to the extent that it is permitted to do so under the SOP Act.

28.3 Notices

The Consultant must:

(1) promptly give Council a copy of any notice received by the Consultant under ss15, 16 or 24 of the SOP Act; and

(2) promptly notify Council if it becomes aware that any subcontractor or sub-consultant intends to exercise a statutory lien under s11(3) of the SOP Act over unfixed plant, materials or Deliverables supplied by the subcontractor or sub-consultant forming part of the Services.

28.4 Indemnities

The Consultant continually indemnifies Council against all claims, actions, damages, losses, liabilities, costs, charges, expenses, outgoings or payments (including legal costs on a full indemnity basis) which Council pays, suffers, incurs or is liable for which arise out of, or in connection with:

(1) the Consultant’s failure to ensure compliance with a provision of the Contract in respect of the SOP Act;

(2) any lawful suspension of the Services by the Consultant’s subcontractors or sub-consultants; and

(3) any other right or remedy lawfully exercised by the Consultant’s subcontractors or sub-consultants,

pursuant to the SOP Act.

29 Civil Liability Act It is agreed that, to the extent permitted by law, the operation of Part 4 of the Civil Liability Act 2002 (NSW) is excluded in relation to all and any rights, obligations and liabilities arising under or in relation to this document howsoever such rights, obligations or liabilities are sought to be enforced.

30 Miscellaneous

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30.1 Waiver

The non-exercise of or delay in exercising any power or right of a party does not operate as a waiver of that power or right, nor does any single exercise of a power or right preclude any other or further exercise of it or the exercise of any other power or right. A power or right may only be waived in writing, signed by the parties to be bound by the waiver.

30.2 Cooperation

Each party must sign, execute and deliver all deeds, documents, instruments and act reasonably and effectively to carry out and give full effect to this document and the rights and obligations of the parties under it.

30.3 Amendment

This document may only be amended or supplemented in writing signed by the parties.

30.4 Unenforceability

Any provision of this document which is invalid or unenforceable in any jurisdiction is to be read down for the purposes of that jurisdiction, if possible, so as to be valid or enforceable, and is otherwise capable of being severed to the extent of the invalidity or enforceability, without affecting the remaining provisions of this document or affecting the validity or enforceability of that provision in any other jurisdiction.

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Schedule 1:Defined Terms And InterpretationPart 1 – Definitions

In the Contract, except where the context otherwise requires:

Approvals means any or all certificates, licences, consents, permits, approvals and requirements made, or authorised via a Commonwealth, State, Territory or local government or via a Legislative Requirement necessary and/or relevant to the provision of the Services.

Authorities means (as appropriate) any:

(1) federal, state or local government;

(2) department of any federal, state or local government;

(3) any court or administrative tribunal; or

statutory corporation or regulatory body

Item means an Item in Schedule 2.

Business Day means any day other than:

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

(2) 27, 28, 29, 30 or 31 December.

Claim includes any claim by the Consultant for an increase in the Contract Sum, for payment of money (including damages) arising out of or in any way in connection with the Services at law or in equity, including by statute, in tort (including negligence) or for restitution.

Commencement Date is the ‘Commencement Date’ in Item 11 of Schedule 2

Completion means provision of the Services in accordance with the Specifications and to the satisfaction of Council on or before the

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date stated in Item 12 of Schedule 2.

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Consequential Loss means any consequential, indirect, special or punitive loss or damage and any loss of production, business, business opportunity, use, custom, revenue, profit or anticipated profit.

Contract means the agreement made between the parties as recorded in, and evidenced within the Contract Documents.

Contract Documents means this document and those documents (if any) listed in Item 5 of Schedule 2.

Contract Sum means the amount stated in Item 7 of Schedule 2.

Corporations Act means the Corporations Act 2001 (Cth).

Council Information means all information supplied to the Consultant in a Document for the purposes of this Contract.

Deliverables means those Documents and things required under this Contract to be handed over to Council by the Consultant as part of the Services.

Direction includes agreement, approval, assessment, authorisation, certificate, decision, demand, determination, explanation, instruction, notice, order, permission, rejection, request or requirement.

Disbursements means those disbursements agreed between the parties as payable to the Consultant in addition to the Contract Sum described in Item 9 of Schedule 2.

Documents includes information stored by electronic and other means created by the Consultant as part of the Services.

EOT (from ‘extension of time’)

has the meaning in clause 10.

GST has the meaning given in s195-1 of the GST Act.

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

Insolvency Event has the meaning ascribed to that term in clause 23.

Intellectual Property and Intellectual Property rights

means all intellectual property rights conferred by law including (without limitation):

(1) all rights in relation to inventions (including patent rights), registered and unregistered designs, circuit layouts formulas, plans, specifications or other documents, created in connection with the Project;

(2) copyright (including all rights in relation to phonograms and broadcasts), trademark, trade business, company names, business names, websites, URLs or email addresses;

(3) all other proprietary rights and all other intellectual

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property defined in Article 2 of the Convention establishing the World Intellectual Property Organisation (July 1967); and

all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.

Legislative Requirement includes:

(1) Acts, Ordinances, regulations, by-laws, orders, awards and proclamations of the jurisdiction where Services or the particular part thereof are being carried out;

(2) the requirements of any statutory or government authority with respect to the Services;

(3) Approvals and requirements of Authorities having jurisdiction in connection with the performance of the Services; and

(4) fees and charges payable in connection with the foregoing,

relating to the performance of Services

Project means the project described in Item 1 of Schedule 2

Qualifying Cause of Delay has the meaning ascribed to that term in clause 10.4.

Site means the location of the Project, that is, the site upon which the Project will be carried out and the Services performed.

Schedule of Rates means any schedule included in the Contract which, in respect of any section or item of work to be carried out, shows the rate or respective rates of payment for the execution of that work and which may also include lump sums, other sums, quantities and prices.

Schedule of Prices has a corresponding meaning.

Services means the obligations to be performed by the Consultant in accordance with the Contract, but is not limited to, the provision of professional services, the supply of any Deliverables related to the services and all other things required to be carried by the Contract.

Specifications are described in Item 1 of Schedule 2.

Tender Documents means the documents (if any) listed at Item 6 of Schedule 2.

Variation means a change to the Services, whether or not it is a change to the Specifications.

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Part 2 - Interpretational Rules

clauses, annexures and schedules

a clause, annexure or schedule is a reference to a clause in or annexure or schedule to this document.

variations or replacements

a document (including this document) includes any variation or replacement of it.

reference to statutes a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them.

singular includes plural the singular includes the plural and vice versa.

person the word “person” includes an individual, a firm, a body corporate, a partnership, joint venture, an unincorporated body or association or any government agency.

executors, administrators, successors

a particular person includes a reference to the person’s executors, administrators, successors, substitutes (including persons taking by novation) and assigns.

dollars Australian dollars, dollars, $ or A$ is a reference to the lawful currency of Australia.

calculation of time if a period of time dates from a given day or the day of an act or

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event, it is to be calculated exclusive of that day.

reference to a day a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later.

accounting terms an accounting term is a reference to that term as it is used in accounting standards under the Corporations Act 2001 (Cth) or, if not inconsistent with those standards, in accounting principles and practices generally accepted in Australia.

reference to a group of persons

a group of persons or things is a reference to any two or more of them jointly and to each of them individually.

meaning not limited the words “include”, “including”, “for example” or “such as” are not used as, nor are they to be interpreted as, words of limitation, and, when introducing an example, do not limit the meaning of the words to which the example relates to that example or examples of a similar kind.

next day if an act under this document to be done by a party on or by a given day is done after 4.30pm on that day, it is taken to be done on the next day.

next Business Day if an event must occur on a stipulated day which is not a Business Day then the stipulated day will be taken to be the next Business Day.

time of day time is a reference to Sydney time.

headings headings (including those in brackets at the beginning of paragraphs) are for convenience only and do not affect the interpretation of this document.

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Schedule 2: Commercial Details

Item No Description Particulars

1 Project Consultancy service on the requirements of parents/carers childcare needs in the Blue Mountains

2 The Specifications are described in the following documents:

(clause 4)

Attachment 3 Contract

3 Council’s Representative is:

(clause 5.1(1))

Patricia Darvall

4 The Consultant’s Representative is:

(clause 5.1(2))

5 Contract Documents Are as listed in the Formal Instrument of Agreement

6 Tender Documents Procurement Objective and Statement of Requirement detailed in Request for Quote, as amended from time to time by Council, whether by the issue of an addendum or otherwise.

7 Contract Sum

(clause 8.1)

To be determined between $12,000 - $18,000

Schedule of Rates see below

8 Timing for Payment

(clause 8.2)

Milestone /Stage/Task % of Contract Sum

1st payment:

Engagement of consultant

2nd payment:Production of draft report

3rd & Final payment Acceptance of final report

25% of agreed contract sum



9 Disbursements

(clause 8.3(2))

Nil

10 Interest Rate Nil

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(clause 8.8)

11 Commencement Date

(clause 10.1)

July 2021

12 Completion Date

(clause 10.2)

November 2021

13 Key Personnel

(clause 14)

14 Limitation of Liability

(clause 21)

Limited to the extent of required insurance

15 Insurances required (1) Public Liability Insurance

(2) Workers Compensation Insurance

(3) Professional Indemnity Insurance – Yes/No

16 Public Liability Insurance

(clause 22.2)

$20 million dollars

17 Professional Indemnity Insurance

(clause 22.3)

$5 million dollars

18 Law governing Contract

(clause 26)

New South Wales

39 | P a g e5941668_1


Annexure 1:Subcontractor’s Payment Declaration Statutory Declaration


Statutory declaration in the matter of the Contract dated [ ] (Contract) between

Blue Mountains City Council (Council)

and

[#] (ACN [#]) (Consultant)

I, [ ], of [ ] in the state of New South Wales, [occupation], do solemnly and sincerely declare that:

1 I have knowledge of the relevant facts and am authorised by the Consultant to make this statutory declaration on its behalf in relation to claim for payment [ ] submitted by the Consultant on [ ].

2 All amounts payable to subcontractors of the Consultant for work done in connection with the Services from the date of commencement of the Services to the date of this declaration have been paid.

3 All remuneration payable to employees of the Consultant for work done in connection with the Services from the date of commencement of the Services to the date of this declaration has been paid.

4 All 'workers compensation insurance premiums' (as that term is defined in section 175B of the Workers Compensation Act 1987 (NSW) (Workers Compensation Act)) payable by the Consultant in respect of the Services from the date of commencement of the Services to the date of this declaration have been

paid. A copy of the certificate of currency for the insurance to which those premiums relate is attached to this declaration.

5 I am not aware of anything which would contradict the statements made in this declaration or in the written statements provided to the Consultant referred to in this declaration.

Any term used in this declaration which is defined in the agreement has the same meaning as in the agreement.

AND I MAKE this solemn declaration conscientiously believing the same to be true and by virtue of the provisions of the Oaths Act 1900 (NSW).

DECLARED atthis [ ] day of [ ] before me:

.......................................................................Signature of authorised witness

.......................................................................Name of authorised witness(block letters)

.......................................................................Address of authorised witness

))))))))))))))



Annexure 2:

Specifications/Statement of Requirement

1. Background Information

(i) Description of Services

Blue Mountains City Council is seeking to engage an experienced and qualified consultant to investigate and report on the childcare requirements of families with children aged 12 years and under across the Blue Mountains Local Government Area. Blue Mountains City Council supports:- the capacity for parents and carers to participate in, and to be able to make a positive contribution to, community life and - child friendly communities that provide options for care that keep our children safe and support them to thrive

(ii) PURPOSE OF THE PROJECT:

Childcare arrangements are required to support parents/carers access paid employment or undertake study. They also may be used for respite or emergency situations.

Childcare provision in the mountains can include: Out of School Hours Care, Vacation Care, Occasional Child Care services and Early Childhood Education services, including long day care and Family Day Care. Supervised school holiday activities can also provide some respite. Carers may also have access to informal childcare arrangements with friends and family as an option.

This research seeks to understand:

What influences parent/carer decisions for childcare options (formal and informal) to meet their needs

How has childcare usage and needs changed with COVID 19 and what impact has this had for parent/carers and children

What are the specific needs for Grandparents /Elders who are responsible for regular childcare arrangements

How Aboriginal families view and use these services and what is important for them What are the specific childcare needs for parent/carers of children with disabilities and

additional needs What are the specific needs for Grandparent “Kinship Carers” How /where do parents/carers access information about services and activities for their children What is the experience and gaps in meeting needs of parent, carers and children

This information will be used to: Identify implications for the childcare service system Inform Council’s communication about services for children Identify other ways that Council can support families/ carers in safe childcare options


(iii) CONTEXT FOR THIS RESEARCH

In recent years, the policy shift from service funding to a per-client funding model placed the onus on parents/carers to access subsidies, which anecdotal information in the Blue Mountains is that this impacted access to some services.

Services, for e.g. Vacation Care, may be too expensive for some families not accessing the subsidy and services no longer have the reliable funding from government required to ensure certainty in provision..

There are many parents in the Mountains who may not have access to an informal support network (family and social networks) for childcare support. The Kinship Carers group of grandparent carers is slowly growing and seek support for their unplanned childcare responsibilities.

The type of service available, who attends, and the programs offered can also influence carers choice of service. Children may also be influential in selecting the option of care services.

The Families in Australia Survey – Life under Covid,Early Report July 2020,highlights some interesting data. When the Child Care Relief Package came into effect, providing free child care to families (with priority for essential workers and vulnerable children) the survey recorded a steep drop in approved care usage and all other forms of non-parental care:

30% of families used parent-only care before COVID-19, 64% used it since 52% used approved care before COVID-19, and 26% since 32% used grandparent or other informal care before, and 9% since 8% used nannies or babysitters before, and 5% since.

While hardly anyone (1%) started using approved care since COVID-19; the same for other forms of non-parental care.

An Australian Institute of Family Studies (AIFS) project using ABS Childhood Education and Care, June 2011 and 2014, 2017 data, Employed Parents with Children Aged under 12 years, shows that fathers in paid employment report using very different working arrangements to care for children than mothers in paid employment.

Almost 60% of fathers do not use any flexible working arrangements to help care for children compared to one-quarter of mothers. More than 40% of mothers work part-time, compared to only 4–5% of fathers.

The most common arrangement for both parents is flexible working hours. The next most often reported working arrangement is working from home.

In a context of recent significant social and economic change, including increasing flexibility to work from home, loss of jobs and income, the cost of childcare and health concerns, it is timely to explore what this means for parents and carers in the Blue Mountains LGA, how this impacts their childcare needs to fulfil their own aspirations and also keeps children safe and thriving.

As the choices made impact children we would also like to explore options for bringing children’s voice- older children’s voice - into the research regarding their experience of options made for them.


2. SCOPE of WORKS ___________________________________________________________

The successful Consultant will be required to respond to the following requirements:

I. Develop a survey tool

II. Survey and/or interview a diverse group of parents/ carers from across the Mountains (Upper, Mid and Lower Mountains) including:

single parents, working parents, older parents, younger parents, grandparents/elders responsible for regular childcare arrangement including kinship care

parent/carers of Aboriginal children, parents/carers of children with disabilities, parents/carers using existing formal care services (eg OOSH services, Vacation Care,

early childhood education services or other paid services ) parents /carers using informal care (eg social family networks) parents/carers not using any care

III. A model for including children of the parent/carers involved in the study (Optional)

IV. Provide a written report that: describes the study, analyses the information gathered, identifies any implications for parents and carers, which may help shape the existing service

system of care and can inform Council’s response to support parent/carers access to care.

Project Meetings with Council project group or representatives x 3 (and as required) :

(i) project initiation (ii) progress report of consultations & findings (iii) draft report

3 Pricing

Please include a quotation of your services within the range of $12,000-$18,000 ex GST. Please outline how the requirements above will be achieved in your quote.


4 Project – Delivery Program

An indicative program is set out below with proposed key dates indicated. Consultants are to include in their submission a program for the project from initial appointment through to completion and identifying major milestones for the project which may differ from what is proposed below.

1 Consultant appointment process completed June/July

2 Inception meeting July

3 Consultation July/ August

4 Completion of Analysis End September

5 Draft report completed October

6 Final report completed End November

5 Relevant Information

BMCC Guide to Services & Activities for Families https://www.bmcc.nsw.gov.au/sites/default/files/docs/GuideForFamilies_FINAL.pdf

6 Response to the RFQThe proponent is required to submit the following information.

a) Organisation Profile Profile of proponent organisation as well as any sub-contracted organisations; Full details of all personnel to be involved on the project including qualifications, technical

skills and experience.

b) Response to Requirements A clear response demonstrating an understanding of the Scope of works Declaration of any potential conflict of interest.

https://www.bmcc.nsw.gov.au/sites/default/files/docs/GuideForFamilies_FINAL.pdf


Insurance

The Contractor must have the insurance cover specified in the Contract prior to commencing any work under the Contract.

Certificates of compliance and insurance currency are required to be submitted by to EBIX Australia, certificate management services.

Work Health and Safety

It is a requirement that the successful contractor will maintain a safe workplace at all times, and comply with relevant Acts and Regulations such as:

Work Health and Safety Act 2011 (NSW) (WH&S Act) and the WH&S Regulation; The Workers Compensation Act 1987; The Workplace Injury Management and Workers Compensation Act 1998 (WIM & Workers

Compensation Act 1998); The Workplace Injury Management and Workers Compensation Regulation 2002.

Working with Children Check if required

Nature of Contract

This is a Lump Sum Contract which will not be subject to rise and fall adjustments.

Key Personnel - Subcontractors

If the Consultant proposes use Key Personnel and/or to engage sub-consultants, details must be provided with the Quote.

Details shall include responses to the conditions of participation and be considered by Council as part of its evaluation criteria.

Meetings

The Consultant will be required to attend up to 3 meetings with project team/ stakeholders and/or council staff during the construction process. Informal meetings can be arranged as required.

Council Resources

Council’s contact for the project will be Patricia Darvall contactable on e-mail [email protected].

Timing and Engagement of Contractor

It is envisaged that Council will appoint the Consultant within 5 (five) business days of the Closing Date

mailto:[email protected]