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Huon Valley Council | Document Title Goes Here | Document Subtitle Goes Here Page 2 █

Tender Number: TN95

Provision of Services for Cleaning Gutters on

Council Buildings

Tenders Close: Tuesday 27 September 2016 at 5pm

At: Huon Valley Council Office40 Main StreetHuonville, Tasmania

Huon Valley Council | TN95 - Provision of Services for Cleaning Gutters on Council Buildings Page 2█

TABLE OF CONTENTS

OVERVIEW .........................................................................................................................3

TENDER FORM ..................................................................................................................4

CONDITIONS OF TENDER.................................................................................................5

SCHEDULE 1 SPECIFICATIONS OF CONTRACT.........................................................8

SCHEDULE 2 STATEMENT OF TENDERER’S EXPERIENCE ANDDEMONSTRATED ABILITY...................................................................13

SCHEDULE 3 WORKPLACE HEALTH AND SAFETY..................................................14

SCHEDULE 4 RISK ASSESSMENT FORM..................................................................16

SCHEDULE 5 AGREEMENT FOR PROVISION OF SERVICES ..................................19


OVERVIEW

The Huon Valley Council is seeking tenders from suitably qualified contractors with experience inroof, gutter and downpipe cleaning to undertake routine maintenance and associated works onbuildings in the Huon Valley Municipal area.

The successful contractor will be required to comply with appropriate standards for working atheights and other relevant safe work practices due to the gutter line of numerous buildingsexceeding 2m in height.

Due to the close proximity of trees around many buildings, these buildings will require guttercleaning annually whereas the remaining buildings’ gutters require cleaning every two years.

A summary of the building assets and their cleaning schedules is included in Section 5.1 of theScope of Works & Specifications in Schedule 1 of this document.

.


TENDER FORM

Contract TitleTN95 – Provision of Services for Cleaning Gutters onCouncil Buildings

Closing Date Tuesday 27 September 2016 at 5pm

Location of Tender Box 40 Main Street, Huonville

Tender to be Addressed To General Manager – Huon Valley Council

Name of Tenderer

Address of Tenderer

Contact Person of Tenderer

Position

Telephone Number

Email address

ABN Number of Tenderer

Are you registered for GST Yes No

Contract Sum – The Tenderer is to supply the Huon Valley Council with the products and/orservices listed in the Tender schedule for the prices described in and in accordance with theterms and conditions of the Tender Documents, as defined in the Conditions of Tender.

The Tender price is the Contract Sum of: $................................... (inclusive of disbursementsand other out of pocket expenses) exclusive of GST for the supply and delivery of the Servicesas described and in accordance with the terms and conditions of the Tender.

In signing this Tender the Tenderer agrees to the Conditions of Tender, agrees that theinformation provided in the Tender is accurate and correct and that the person signing the formis duly authorised to do so.

Authorised representative ofTenderer signature

Position of authorisedrepresentative of Tenderer

Dated

As part of the TenderSubmission, the followingdocuments must be provided:-

Evaluation Criteria:

Tender Prices exclusive of GST

WHS and Risk Management System (Clauses 9 &10 of Conditions of Tender)

Statement of Experience and Ability (Schedule 2)

Other Documentation:

Insurance Details (Clause 11 of Conditions ofTender)

Tenderer Profile (Clause 8 of Conditions of Tender)


CONDITIONS OF TENDER

1. Council PolicyThis Tender is called in accordance with the provisions of the Local Government Act 1993and the Huon Valley Council’s Code for Tenders and Contracts 2014 (the Code) -http://www.huonvalley.tas.gov.au/wp-content/uploads/2015/01/Code-for-Tenders-and-Contracts-October-2015-_2_.pdf

2. Description of ContractThe Contract is for the supply of gutter cleaning services for Council’s Building Assets.

3. Tender ClosingTenders close on Tuesday 27 September 2016 at 5pm

4. Lodgement of TenderTenderers must complete the Tender Form provided and lodge it with all required andaccompanying information in a sealed envelope marked as follows: “Confidential – TN95 –Tender for Provision of Services for Cleaning Gutters on Council Buildings” deposited in theTenders Box, which is located in the foyer of Huon Valley Council, 40 Main Street, Huonville.Tenders not lodged in accordance with this clause will not be accepted and tenderers mustensure that in the case of mailed tenders they are received by the Council on or before thetender close time and date.

5. Tender FormThe Tender Form included in this Tender documentation must be completed, signed andreturned by the Tenderer. To be valid it must include a declaration from the Tenderer that theTenderer agrees to the Conditions of Tender, the information provided in the Tender isaccurate and correct and the person signing the form is duly authorised to do so.

6. Specifications of TenderThe Tenderer must complete all of the Specifications of Tender Schedules, including detailson their company’s Workers Compensation, public liability and professional indemnityinsurance policies as required under the Specifications of Contract.

7. Conditions of ContractThe Contract will be subject to the draft contract included in Schedule 5.

8. Tenderer ProfileIn order to assist the Council in assessing the best Contractor tenderers must provide aprofile including a description of plant, equipment currently owned and human resources,leased or employed that would be available to provide the proposed service.

9. Workplace Health and SafetyTenderers must provide details on their company’s Workplace Health and Safety skills,experience and ability to deliver the service/goods required within this contract.

10. Risk ManagementTenderers should provide details on their company’s Risk Management skills, experienceand ability to deliver the service/goods required within this contract.

11. InsuranceTenderers must provide details on their company’s Workers Compensation, public liabilityand professional indemnity insurance policies as required under the Specifications ofContract.


12. Acceptance of Tenders

12.1 Late Tenders will not be accepted.

12.2 The Council shall not be bound to accept the lowest or any Tender.

12.3 Tenders received by facsimile or email will not be accepted.

12.4 A Tender shall be deemed to be accepted when a Notice in writing of suchacceptance is sent by post to the address provided to the Council by the Tenderer.

13. Tender PriceThe tender price is to be exclusive of GST and is to be in accordance with the tenderschedule. Alternative bids may be considered.

14. Tenderer ConductTenderers must not:

14.1 Engage in any form of collusive tendering

14.2 Lobby Councillors or Council employees

14.3 Offer gifts or personal benefits to Councillors or Council employees.

Any Tender will not be considered if a Tenderer is found to have acted in breach of thisrequirement.

15. Council ContactGerard Brereton, Property Management Coordinator, is the sole point of contact for theCouncil for this Tender:Phone 03 6264 0368Email [email protected]

16. Evaluation CriteriaThis Tender will be evaluated generally in accordance with the following evaluation criteria.

Criteria Details required in tender form

Tender price Overall contract price

Experience and abilityCapability statementCurrent contracts

WH&S - Risk ManagementStatement of existing Workplace Health and Safetyprocedures

Non conforming tenders will not be evaluated.

17. Tender ClarificationThe Council reserves the right to clarify Tenders and request further information for which theTenderer must respond in the time frame given provided that the Council provides theTenderer with at least one week to comply with the request.

18. Unsuccessful Tenderer De-BriefingFollowing acceptance of the Tender, those Tenderers who are unsuccessful may arrange ade-briefing by contacting: Matthew Palmer, Executive Manager Infrastructure Services,03 6264 0318.


19. Complaints ProcessIn the first instance a Tenderer is to seek resolution through the Manager in charge of thetender process. Tenderers are encouraged to seek a de-briefing if they have not alreadydone so.

If a Tenderer is not satisfied with the response provided by the Manager in charge of theTender process, the Tenderer is able to write to the General Manager, PO Box 210,Huonville 7109 providing copies of all correspondence and other relevant material. TheGeneral Manager will take whatever action is necessary to deal with the complaint.

20. Documentation

20.1 To the extent of any conflict between the Council’s documentation and thedocumentation submitted by the Tenderer, the Council’s documentation is to prevailto the extent of any inconsistencies as detailed in Clause 2 of Schedule 5.

20.2 The Tenderer is to advise Council of any changes requested to the Contract and/orTender Conditions as part of the Tender response.


SCHEDULE 1 SPECIFICATIONS OF CONTRACT

GENERAL REQUIREMENTS

1. ContractThe contract is for the supply of gutter cleaning services for Council’s Building Assets.

2. Duration of the ContractThe Contract shall be for the period of three years commencing on 1 November 2016 andterminating on 31 October 2019.

3. Schedule of RatesThe Contract Sum shall be the amount accepted by the Council exclusive of GST that isinclusive of all aspects of the specifications.

4. Australian Business NumberOnly suppliers with an ABN will be considered eligible to tender for this contract. Thesupplier’s ABN is to be included on all invoices.

SCOPE OF WORKS & SPECIFICATION

5. GeneralThe Contractor is required to provide gutter cleaning services for Council’s Building Assets inaccordance with the specification requirements outlined below.

5.1 Standard of Work

Roofing Gutters both external and internal

• All dirt, grass and litter to be removed by either vacuum or hand tool

• Gutters are to be rinsed with clean, fresh water internally and externally

• Buildings that capture rainwater for tank collection are to have downpipes divertedbefore commencement of cleaning

• Working at heights and WHS requirements to be compliant at all times

• Gutter condition report to be completed annually for each building

BUILDING CLEANING FREQUENCY

Southbridge Waste Transfer Station 2 yearsCygnet Waste Transfer Station 2 yearsGeeveston Waste Transfer Station 2 yearsDover Waste Transfer Station 2 yearsCygnet Medical Centre AnnualDover Medical Centre AnnualHuonville Visitors Information Centre 2 yearsHuonville Depot buildings 2 yearsHuonville SES building 2 yearsHuonville Sale Street toilet block 2 yearsHuonville Council Offices 40 and 40A 2 yearsHuonville Scout Hall AnnualHuon REC ground buildings 2 years


BUILDING CLEANING FREQUENCY

Huonville Childcare buildings AnnualRanelagh Hall 2 yearsRanelagh REC buildings 2 yearsHuonville Swimming pool complex AnnualMountain River Hall 2 yearsHuonville Esplanade toilet block AnnualHuonville Esplanade apex shelter AnnualGlen Huon park complex (including Hall) Annual

Judbury Hall2 years (has gutter guard but

requires flushing)Judbury toilet block 2 yearsSouthport public toilets AnnualSouthport Community Hall AnnualDover Oval Cricket Clubrooms 2 yearsDover Doctors residence 2 yearsDover Units 1-6 AnnualDover Online Centre (Old School building) 2 yearsDover Childcare Centre AnnualDover beachside public toilets and BBQ shelter AnnualDover township public toilets AnnualSurveyors Bay public toilets AnnualSurges Bay Hall and BBQ shelter AnnualGeeveston Community Hall 2 yearsGeeveston Honeywood Homes Unit 1-8 AnnualGeeveston public toilets 2 yearsGeeveston Town Hall 2 yearsGeeveston Medical Centre AnnualGeeveston Heritage Park BBQ shelter AnnualGeeveston Childcare centre AnnualKermandie football clubrooms 2 yearsPort Huon Sports Centre 2 yearsShipwrights Point regatta grounds toilet andBBQ shelter

Annual

Franklin foreshore public toilet and BBQ shelters AnnualFranklin Oval clubrooms and toilet block AnnualFranklin Palais Theatre 2 yearsPelverata Hall AnnualBurtons Reserve complex buildings AnnualCygnet Town Hall 2 yearsCygnet Rec Ground buildings AnnualCygnet Cottages Units 1-6 AnnualCygnet Yacht club public toilets 2 yearsVerona Sands public toilets AnnualRandalls Bay public toilets AnnualRandalls Bay BBQ shelter AnnualEggs and Bacon Bay public toilets AnnualCygnet Mary street public toilets AnnualCradoc Park Hall and toilet block Annual


5.2 Personal Information and Confidentiality

The Contractor must ensure that they will in the course of and after fulfilling itsobligations arising under this contract:

• use personal information obtained by or held by them in connection with the contractonly for the purpose of providing the service and fulfilling the Contractor’s obligationsunder this contract;

• comply at all times with the Personal Information Protection Act 2004 and Council’sPrivacy Policy and all other legislation in force at any time throughout the term ofthis contract relating to the privacy of personal information;

• at the time of collecting personal information, obtain all necessary consents andauthorisations from the persons to whom that information relates, which will enablethe personal information to be used in the provision of the service;

• take all reasonable measures to ensure that the personal information in thepossession or control of the Contractor or other employees of the Contractor held inthe provision of the service is protected against loss and unauthorised access, use,modification and disclosure;

• the Contractor indemnifies and will keep indemnified Council in respect of any loss,liability or expense suffered or incurred by Council arising out of or in connectionwith a breach of the obligations of the Contractor under this Clause 5.2 or anymisuse of the personal information by the Contractor or any of its employees,subcontractors, or agents in breach of an obligation of confidence whether arisingunder the Personal Information Protection Act 2004 or otherwise.

5.3 Information

The Contractor acknowledges that any information held under this contract is to beproperly kept and made available to the Council as required to meet the obligations ofthe Council under the Right to Information Act 2009.

6. Workplace Health and Safety and Risk Management Requirements

6.1 Generally all works shall comply with all Environmental, WH&S and other relevantstatutory requirements. Specific workplace health and safety requirements are includedin Schedule 3 as follows:

(a) The Contractor warrants that it shall obey all Council safety procedures andpolicies and any applicable State and Federal laws, including the provisions ofthe Work Health and Safety Act 2012 and any relevant regulations. When theContractor provides at its expense a person to operate the equipment pursuant tothis Contract (“the Operator”), the Contractor warrants that:

(i) The Operator is competent to operate the equipment in a safe and efficientmanner;

(ii) The Operator has been formally certified by a recognised appropriateauthority (where such certification is available) as being a competentoperator to use the equipment;

(iii) All matters necessary for the safe operation of the equipment have beenexplained to the Operator and the Operator has demonstrated anunderstanding of those matters in the Operator’s use of the equipment.

6.2 For all equipment to be used under the Contract the Contractor warrants that theequipment has been formally certified by a recognised appropriate authority (wheresuch certification is available) as being safe and suitable to be operated.


6.3 The Contractor shall, at its expense, keep the equipment in good running order suitablefor the job required at all times and undertakes to effect repairs immediately uponbreakdown or loss of efficiency due to condition of the machine.

6.4 Prior to the commencement of the operation, the Contractor will be required toundertake a risk assessment with respect to the works in accordance with Schedule 4.Risk management requirements will be included within the contract documentation;

6.5 The contractor is to provide a weekly list of maintenance items via email whereapplicable.

7. Insurance

7.1 For the purposes of this Contract the Contractor shall take out and keep current at alltimes throughout the term of the contract the following policies of insurance:

(a) A public liability policy of insurance (“the public liability policy”) in respect of theContractor’s performance or non-performance of its obligations under thisContract for an amount of $20,000,000. The public liability policy shall cover andname the Council as Principal for any claims for personal injury or propertydamage arising out of any claim or negligence of the Contractor;

(b) A workers compensation policy of insurance in accordance with the Work Healthand Safety Act 2012 for any employees, deemed employees or independentContractors of the Contractor;

(c) A comprehensive motor vehicle insurance policy for an amount at least equal tothe value of the Collection Vehicles owned or under the control of the Contractorand used in connection with this Contract and including motor vehicle third partyproperty damage insurance with respect to those vehicles for an amount of notless than $5,000,000;

(d) A compulsory third party insurance policy for personal injury to a person directlyfrom a motor vehicle accident.

7.2 Such insurance policies shall be effected with an insurance company approved by theCouncil but the Council is not to unreasonably withhold approval.

7.3 If requested by the Council, the Contractor shall provide copies of the policies referredto in Clause 7.1 from time to time and with the certificates of currency for such policies.

7.4 The Contractor shall not do or permit to be done any thing as a result of which anyinsurance effected by the Contractor or the Council may be rendered void or avoidableor the premium payable on any such insurance will be liable to increase (except withthe Council's approval).

8. Indemnity

8.1 The Contractor agrees to indemnify and to keep indemnified the Council, its servantsand agents and each of them from and against all actions, costs, claims, charges,expenses, penalties, demands and damages whatsoever which may be brought ormade or claimed against them, or any of them, arising from the Contractor’sperformance of its obligations under this Contract and are directly related to thenegligent acts, errors or omissions of the Contractor.


8.2 The Contractor’s liability to indemnify the Council and to hold harmless shall bereduced proportionally to the extent that any act, error or omission of the Council, itsservants or agents, contributed to the loss or liability.

9. Contract RateThe Contractor’s rate shall be adjusted on an annual basis in accordance with CPI.

PERFORMANCE REVIEW

After completion of each yearly production program Council will review the performance of theContractor.


SCHEDULE 2 STATEMENT OF TENDERER’S EXPERIENCE AND DEMONSTRATEDABILITY

Tenderers to complete as part of their tender submission.

Provide details of capability and experience in the successful completion of similar contracts:

Capability and experience:

Provide details of current contracts:

Provide details of qualifications and experience of key staff who will be involved in the contract:

Date:

Organisation:

Signature of Tenderer:


SCHEDULE 3 WORKPLACE HEALTH AND SAFETY

1. General Workplace Health and Safety RequirementsContractors must provide the Services in accordance with the requirements of the WorkHealth and Safety Act 2012, its regulations and Codes of Practice.

The Contractor will be responsible for providing the Services in a safe manner and at alltimes identify and exercise all necessary precautions for the health and safety of all personsincluding the Contractor and persons under its control and their employees, the Council’semployees and their agents, and members of the public who may be affected by theprovision of the services under this Agreement.

The Contractor must inform itself of all workplace health and safety policies, procedures ormeasures implemented or adopted by the Council and/or occupiers of any workplace at orwithin which the Contractor will provide services under this Agreement. The Contractor mustcomply with all such policies, procedures or measures so that the highest level of health andsafety compliance is achieved and maintained.

The Contractor will forthwith comply with any and all lawful directions of the Council relatingto workplace health and safety.

2. Legislative ComplianceThe Contractor must comply with any Acts, regulations, local laws and by-laws, Codes ofPractice, Australian Standards and Council Workplace Health and Safety (WHS) policy andprocedures which are in any way applicable to this Agreement or the performance of theservices under this Agreement.

3. Contractor WHS Management SystemsThe Contractor must provide details of its Workplace Health and Safety (WHS) ManagementSystem in compliance with all duties of an employer specified in the Work Health and SafetyAct 2012.

The Contractor must submit a complete copy of their WHS Management Systemdocumentation which must also include as a minimum requirement:• WHS policy and objectives• Organisation structure & responsibilities• Safe work practices and procedures• WHS training and induction• WHS auditing & inspection procedures• WHS consultation procedures• WHS performance monitoring

4. Incident NotificationIf the Contractor is required by the Workplace Health and Safety Regulations or by any otherregulations or Act to give any notice of an accident occurring during the performance by theContractor of Services under the Agreement, the Contractor must, at the same time, or assoon thereafter as possible in the circumstances, give a copy of the notice to the Council.

The Contractor must promptly notify the Council of any accident, injury, property orenvironmental damage which occurs during the carrying out of the Services. All lost timeincidents must be immediately notified to Council. The Contractor must, within 3 days of anysuch incident, provide a report giving complete details of the incident, including results ofinvestigations into its cause and any recommendations or strategies for prevention in thefuture.


5. Non ComplianceIf, during the performance of works under this Agreement, the Council informs the Contractorthat it is the opinion of Council that the Contractor is:

(a) not conducting the Services in compliance with the Contractor’s Workplace Health andSafety Plan, health and safety management procedures, relevant legislation or healthand safety procedures provided by Council from time to time; or

(b) conducting the Services in such a way as to endanger the health and safety ofContractor’s employees or Council’s or its Contractors’ and sub Contractors’employees, plant, equipment or materials the Contractor must promptly remedy thatbreach of workplace health and safety.

Council may direct the Contractor to suspend the Services until such time as the Contractorsatisfies Council that the Services will be resumed in conformity with applicable health andsafety provisions.

During periods of suspension referred to above, Council will not be required to make anypayment whatsoever to the Contractor.

If the Contractor fails to rectify any breach of health and safety for which the Services havebeen suspended, or if the Contractors performance has involved recurring breaches of healthand safety, the Council may at its option terminate the Services forthwith, without furtherobligation to the Contractor.

In this event, Council’s liability will be limited to payment for the Services performed and costsincurred by the Contractor up to the time of termination or suspension of Services.


SCHEDULE 4 RISK ASSESSMENT FORM

The attached Risk Assessment Form must be completed by the Contractor in relation to theServices and submitted to Council for approval within two weeks of commencement of theServices. The primary objectives of the Risk Assessment are to:

(a) identify hazards associated with Agreement tasks and activities

(b) determine the level of risk

(c) establish appropriate risk control measures

Each major or significant task or activity associated with this Agreement will be assessed in termsof the associated hazards. When all hazards have been identified the most likely outcome as aresult of an incident will be determined.

Risks must be classified according to the following schedule:

Class 1: Potential to cause death or permanent injury to one or more persons.

Class 2: Potential to cause one or more lost time injuries.

Class 3: Potential to cause an injury treatable with first aid.

A primary goal shall be to eliminate all risks associated with this Agreement and should be a majorfocus of the Risk Assessment. Contractors should detail risk control measures, which adequatelyaddress all identified Class 1, 2 and 3 risks.

Where safe work procedures or instructions are developed they must clearly spell out the worksequence, highlighting the procedures required to adequately control each Class 1 and Class 2risk identified in the risk assessment. All employees involved in the activity must receiveappropriate training in the safe work procedure.

The risk assessment must be completed on the Risk Assessment Form evaluating the full scope ofServices associated with the Agreement. Additional risk assessments may be undertaken duringthe course of the Agreement as required (i.e. work undertaken by subcontractors).

The Risk Assessment Form requires the Contractor to complete the following:

(i) Specific Task/ActivityThe Contractor should document each major task associated with the Agreement. Thisshould consider the sequential aspects of the Services to be performed from Agreementcommencement to finalisation of the Agreement.

(ii) Potential HazardsThe Contractor should identify the particular hazards associated with each activity or task tobe carried out.

(iii) Class of RiskEach hazard should be evaluated as a level of risk, described as Risk Class 1, 2 or 3 definedabove. Classification in this way provides an indication of priority in terms of determining riskcontrol measures.

(iv) Control MeasureThe Contractor should identify and document what actions are necessary to eliminate orminimise the hazards that could lead to accident, injury or occupational illness.

Huon Valley Council | TN95 - Provision of Services for Cleaning Gutters on Council Buildings Page 17 █

RISK ASSESSMENT FORM (To be submitted prior to project commencement)

Contractor: Agreement Manager:

Agreement: Agreement No:

Contractor’s Representative: Telephone: Fax:

Telephone: Fax:

Signature: Date: Signature: Date:

Specific Task/Activity PotentialHazards/Consequences

Class of Risk Control Measures

Huon Valley Council | TN95 - Provision of Services for Cleaning Gutters on Council Buildings Page 18 █

Specific Task/Activity PotentialHazards/Consequences

Class of Risk Control Measures


SCHEDULE 5 AGREEMENT FOR PROVISION OF SERVICES

PROVISION OF SERVICES FOR CLEANING GUTTERS ON COUNCIL

BUILDINGS

TENDER NUMBER: TN95

Between

THE HUON VALLEY COUNCIL

And

ABN:


AGREEMENT PARTICULARS

1. This Agreement is between

The Council The Contractor

The Huon Valley Council

PO Box 210 Huonville TAS 7109

40 Main St Huonville TAS 7109

ABN: 77 602 207 026

Contact person: Gerard Brereton Contact person:

Phone Number: (03) 62640368 Fax Number: (03) 62640399 Phone Number:

E-mail address: [email protected] E-mail address:

2. The Goods and/or Services

The "Goods and/or Services" that are to be provided and completed in accordance with this Contract are those specified in theTender Documents (attached to this Contract):

1. The Council’s tender documentation for the Provision of Services for Cleaning Gutters on Council Buildings - Tender NoTN95

2. The Contractor’s tender application dated ……………………………..

To the extent of any conflict between the Contractor’s and the Council’s documentation, the Council’s will prevail.

3. The Price

The "Price" is:

*All prices stated exclude GST

The lump sum amount of:

The schedule of rates as set out at:

The time for claiming payment is: Upon completion of The Services

4. Contract Duration

The "Commencement Date" is:

The "Duration of the Contract" is: Three (3) years from commencement

The "Program of Works" is any program, as amended from time to time, prepared by or on behalf of the Council which setsout the times for the completion of the whole or any part of the Services and the Project.

5. Liability of the Supplier

The maximum liability of the Supplier arising out of theperformance or non-performance of the Services is

Unlimited

6. Insurance

The minimum amount of professional indemnity insurance tobe held by the Supplier is

Not applicable

The minimum amount of public liability insurance to be heldby the Supplier is

$20,000,000

EXECUTED as an Agreement

Executed by Council by or in the presence of: Executed by the Contractor by or in the presence of:

Please print name and position held:

Simone Watson, General Manager

Please print name and position held:

In the presence of: In the presence of:

Please print name: Please print name:

Dated: this day of 2016 Dated: this day of 2016


CONDITIONS OF AGREEMENT

DEFINITIONS

Provided Information means the information provided bythe Council as set out in the Agreement of Particulars.

Occupational Health and Safety Requirements means allof the Council’s occupational health and safety policies andprocedures as published from time to time, all legislativerequirements relating to occupational health and safety andthe Contractor’s occupational health and safety policies orprocedures that are relevant for the carrying out of theServices.

Agreement means this contract including the Agreementparticulars and any attachments.

1. THE SERVICES1.1 The Contractor must perform the Services in

accordance with the Agreement.1.2 Unless otherwise stated in writing by the Council,

the Contractor:(a) is solely responsible for the provision of the

Services in accordance with this Agreement;(b) the Council is relying upon the advice, skill

and judgment of the Contractor in theperformance of its obligations under thisAgreement; and

(c) except as expressly set out in thisAgreement, the Council has not made anyrepresentations or given any advice,warranty or undertaking of any kind inrelation to the Services, the ProvidedInformation or this Agreement.

1.3 Where any information has been supplied by theCouncil, the Council has not made anyrepresentations or given any advice, warranty orundertaking of any kind in relation to the accuracyor completeness of such information.

1.4 The Contractor represents and warrants that:(a) it has informed itself completely as to the

nature of the Services and the requirementsof the Agreement;

(b) it has examined carefully and acquired actualknowledge of the contents of the Agreementand any other information provided by theCouncil (or anybody acting on behalf of theCouncil) to the Contractor prior to theexecution of the Agreement;

(c) the Services shall be fit for the intendedpurpose and the all deliverables shall be fitfor the intended purpose and complies withthe requirements of the Agreement;

(d) it has satisfied itself that the Price covers thecost of complying with all of its obligationsunder the Agreement;

(e) it has informed itself completely of alllegislative requirements in relation to theServices; and

(f) it shall commence the performance of theServices on the Commencement Date andprovide the Services on the terms of thisAgreement for the Duration of theAgreement.

2. RESPONSIBILITIES AND OBLIGATIONS OF THECONTRACTOR2.1 The Contractor shall:

(a) comply with all directions of the Councilgiven pursuant to this Agreement;

(b) remain fully responsible for the Servicescarried out by the Contractor notwithstandingany review or acceptance of those Servicesor the Provided Information;

(c) only engage employees, agents andcontractors with appropriate qualificationsand experience to carry out the Services;

(d) promptly give written notice to the Council if,and to the extent, the Contractor becomesaware that any document or otherinformation provided by the Council isambiguous or inaccurate or is otherwiseinsufficient to enable the Contractor to carryout the Services;

(e) make all necessary enquiries to ascertain therequirements of the Council regarding theServices;

(f) regularly consult the Council regarding thecarrying out of the Services;

(g) subject to clause 8, promptly, after becomingaware of any matter or circumstance whichmay adversely affect or has adverselyaffected the scope, timing or carrying out ofthe Services, give written notice to theCouncil detailing the matter or circumstanceand its anticipated effect on the Services;

(h) comply with all legislative requirements incarrying out the Services;

(i) perform the Services in compliance with allpolicies, procedures, plans, manuals,guidelines, instructions and otherrequirements of the Council as published onthe Council’s website or otherwise providedto the Contractor from time to time which are,or may become, applicable to the Services;

(j) after reasonable prior written notice by theCouncil, permit the Council to inspect anddiscuss the work, relevant records,documents and Provided Informationproduced by the Contractor in carrying outthe Services;

(k) notify the Council immediately the existenceor likelihood of a conflict of interest becomesapparent to the Contractor and prepare allrequests for, and organise and attend, allmeetings;

(l) cooperate with the Council to resolve anyconflict of interest;

(m) do all things necessary for the properperformance of the Contractor’s obligationsunder the Agreement;

(n) fully cooperate with the Council, any othercontractors and any other parties on theCouncil’s premises required by the Council inconnection with the Services or thisAgreement; and

(o) when on the Council’s premises, and whenusing the Council’s facilities, ensure that itkeeps the same clean and tidy and regularlyremoves any rubbish and surplus material.


2.2 The Council may direct the Contractor to remove,within a stated time, from the Council’s premises(or from any activity involved in the provision ofthe Services and the development of thedeliverables) any of the Contractor’s employees,agents or subcontractors who, in the Council’sreasonable opinion, are incompetent, negligent orguilty of misconduct.

3. RESPONSIBILITIES AND OBLIGATIONS OF THECOUNCIL3.1 The Council shall:

(a) when and as required under the Agreement,provide the Contractor with relevantdocuments, samples and other information inthe possession or control of the Councilsufficient to enable the Contractor to carryout the Services; and

(b) provide the Contractor with such access topremises or sites of the Council as isreasonably necessary for the Contractor tocarry out the Services.

4. OCCUPATIONAL HEALTH AND SAFETY4.1 The Contractor:

(a) warrants that it is familiar with, and has thecapabilities and resources to comply with theOccupational Health and SafetyRequirements;

(b) shall, and must, ensure that itssubcontractors and any other personengaged by the Contractor for the purposesof this Agreement, comply with theOccupational Health and SafetyRequirements;

(c) shall, on the reasonable request of theCouncil, demonstrate compliance with theOccupational Health and SafetyRequirements, including providing evidenceof measures taken to achieve suchcompliance; and

(d) shall cooperate with the Council and allemployees, agents or other contractors ofthe Council to ensure that all parties are ableto comply with the Occupational Health andSafety Requirements.

4.2 The Contractor must, in the event of anyaccident, injury or property or environmentaldamage occurring during, or in association with,the performance of the Services (“Incident”):(a) immediately notify the Council of the Incident

and the loss suffered;(b) within two days of the Incident occurring,

provide a written report to the Council givingcomplete details of the Incident, including:(i) the cause of the Incident;(ii) the loss or damage suffered as direct

or indirect consequence of theIncident, including a record of allinjuries to persons;

(c) the treatment of any persons as adirect or indirect consequence of theIncident; and

(d) a strategy for preventing the Incident,or an event of a similar nature to theIncident, reoccurring;

(c) cooperate fully with any investigation by theCouncil into the Incident; and

(d) to the extent permitted by law, indemnify theCouncil against any costs, losses, liabilitiesor expenses which the Council may incurarising out of, or as a result of, any breach ofcontract by the Contractor.

4.3 Any breach of this Clause 4 entitles the Council,at its option, to:(a) suspend the whole or part of the Services

and the Contractor must bear the costs itincurs as a result of that suspension; or

(b) terminate the Agreement immediatelywithout further obligation to the Contractor.

4.4 This clause 4 will survive the expiry or terminationof the Agreement.

5. INSURANCE5.1 From the Commencement Date, the Contractor

must have current insurance policies as follows:(a) a professional indemnity insurance policy for

the Services with a total aggregate cover ofnot less than the sum stated in theAgreement Particulars and which shall:(i) include provisions for one automatic

reinstatement of the sum insured andfor loss of documents; and

(ii) be maintained for the Duration of theAgreement and thereafter for a periodof not less than 10 years;

(b) a public liability policy for the Duration of theAgreement for an amount in respect of anyone claim or series of claims arising from theone original cause of not less than the sumstated in the Agreement Particulars; and

(c) a workers’ compensation policy for theDuration of the Agreement, for the maximumamount permitted by law, covering theContractor’s liability under common law andstatute for death or injury to any personemployed by the Contractor.

5.2 The Contractor must ensure that the Council’sinterests are noted on the policy to thesatisfaction of the Council.

5.3 The Contractor must provide written evidence tothe satisfaction of the Council of the insuranceseffected and maintained by the Contractor beforecommencing the Services and wheneverreasonably requested by the Council.

6. PAYMENT6.1 The Council shall pay the Contractor the Price as

set out in the Agreement Particulars.6.2 The Contractor shall submit to the Council claims

for payment progressively in accordance with theAgreement Particulars.

6.3 All monies due and payable by the Council to theContractor must be paid within 30 days of thereceipt by the Council of a properly prepared taxinvoice from the Contractor in accordance withclause 7.4.

6.4 It is a condition precedent to any claim forpayment by the Contractor that the Contractorhas:(a) effected the insurances required by clause 5

and, where requested, provided proof ofsuch insurance to the Council; and

(b) complied with clauses 7.4 and 14.


7. GST7.1 Words or expressions used in this clause 7 which

are defined in A New Tax System (Goods andServices Tax) Act 1999 (Cth) have the samemeaning in this clause.

7.2 All amounts stated in and payable under or inconnection with this Agreement exclude GSTunless otherwise indicated.

7.3 If a payment to a party under this Agreement is areimbursement or indemnification, calculated byreference to a loss, cost or expense incurred bythat party, then the payment will be reduced bythe amount of any input tax credit to which thatparty is entitled for that loss, cost or expense.

7.4 The Council will not be liable to pay theContractor for a taxable supply made under or inconnection with this Agreement until theContractor has given the Council a tax invoice forthe supply to which the payment relates.

7.5 Where an adjustment event occurs in relation to asupply made by the Contractor under or inconnection with this Agreement, the Contractorwill issue an adjustment note to the Council inrespect of that supply within 28 days afterbecoming aware of the relevant adjustment.

8. VARIATIONS8.1 The Council may give to the Contractor a

direction to carry out any variation to theServices, including to increase, decrease,substitute or omit any part of the Services or themethod, sequence or timing of the Services andthe Contractor must comply with any suchdirection (“Variation”).

8.2 The parties must use their best endeavours toagree in writing on the value of a Variation, but inthe event that the parties are unable to agreewithin seven days of the issue of the direction,then the value of the Variation will be determinedby the Council.

8.3 No Variation will invalidate the Agreementirrespective of the nature, extent or value of theServices the subject of the Variation.

8.4 If a new legislative requirement or a change in alegislative requirement after the date of theAgreement could not reasonably have beenanticipated at that date, then the extent to whichthe Services are changed by that legislativerequirement shall be deemed to be a Variationpursuant to clause 8.1.

9. DELAYS9.1 The Contractor shall proceed with the work under

the Agreement with due expedition and withoutdelay.

9.2 When it becomes evident to a party that an act oromission of the Council or an employee, otherContractor, contractor or agent of the Council,may delay the performance of the Services, thatparty shall promptly notify the other party inwriting with details of the possible delay and thecause.

9.3 The Council may direct the Contractor in whatorder and at what time the Services shall beperformed and if:(a) the Contractor:

(i) can reasonably comply with thedirection, the Contractor shall do so;and

(ii) cannot reasonably comply with thedirection the Contractor shall so notifythe Council in writing, giving reasonsand providing all reasonable availablealternatives for giving effect to thedirection; and

(b) compliance with the direction causes theContractor to incur more or less cost thanotherwise would have been incurred had theContractor not been given the direction, thedifference shall be valued pursuant to clause8.2 as though the direction was a direction tovary the Services.

9.4 Nothing in this clause shall:(a) oblige the Council to pay extra costs for

delay or disruption which have already beenincluded in the value of a Variation or anyother payment under the Agreement; or

(b) limit the Contractor’s liability for damages fora breach of the Agreement.

10. SUSPENSION10.1 The Council may direct the Contractor to suspend

or to recommence performance of all or a part ofthe Services.

10.2 Unless the suspension is the result of theContractor’s failure to perform its obligationsunder this Agreement, a direction to suspendunder this clause 10 will entitle the Contractor tobe paid by the Council any extra costs incurredby it as a result of the suspension as reasonablydetermined by the Council.

10.3 The Contractor’s entitlement under clause 10.2will be its only right to payment of money arisingfrom a direction to suspend and will be subject tothe Contractor taking all steps possible tomitigate its extra costs.

11. CONFIDENTIALITY11.1 Except as required by law and in accordance with

the Privacy Act 1988 (Cth) and the PersonalInformation Protection Act 2004, the Contractorand the Council will keep confidential informationwhich is so designated in writing by the partyproviding the information, or which shouldreasonably be known by the recipient party to beconfidential. This clause 11 will survive theexpiry or termination of the Agreement.

12. LIABILITY OF THE CONTRACTOR12.1 To the extent permitted by law, where a monetary

limit of liability is stated in the ContractParticulars, the Contractor’s liability to the Councilarising out of the performance or non-performance of the Services, whether under thelaw of contract, tort or otherwise, shall be limitedto that monetary limit of liability.

12.2 This clause 12 shall not apply:(a) in relation to any breach by the Contractor of

its obligations under clauses 11 or 17;(b) to claims in respect of personal injury or

death (including claims by employees andthird parties); and

(c) to exclude any other right of the Council tobe indemnified by the Contractor.


13. CONTRACTOR’S INDEMNITY13.1 Subject to clause 12, the Contractor shall

indemnify the Council against:(a) loss of or damage to property of the Council

including the Provided Information; and(b) claims by any person against the Council in

respect of personal injury or death or loss ofor damage to any other property, arising outof or in consequence of carrying out theServices by the Contractor.

13.2 The Contractor’s liability to indemnify the Councilunder clause 13.1 shall be reduced proportionallyto the extent that the act or omission of theCouncil or the employees, agents or othercontractors of the Council contributed to the loss,damage, death or injury.

13.3 The Contractor’s obligations under this clause 13shall survive the expiry or termination of theAgreement.

14. SUBCONTRACTING14.1 The Contractor must not assign, novate, transfer

or subcontract any of its obligations under theAgreement without the Council’s prior writtenconsent, which may be withheld at the Council’sabsolute discretion or may be subject to suchconditions as the Council determines.

15. DISPUTES15.1 If a dispute arises between the Contractor and

the Council in respect of any fact, matter or thingarising out of, or in any way in connection with,the Agreement or the Works, either party maygive a notice in writing (“Notice of Dispute”) tothe other party specifying the nature of thedispute, the particulars of the party’s reasons forbeing dissatisfied and the position that the partybelieves is correct.

15.2 The parties must meet within 14 days of the dateof the Notice of Dispute and undertake genuineand good faith negotiations with a view toresolving the dispute.

15.3 If the parties are unable to resolve the dispute inaccordance with clause 15.2, within 14 days offirst meeting under clause 15.2, the dispute maybe referred, by written notice of either party, tomediation, which is to be conducted inaccordance with the Institute of Arbitrators andMediators Australia Mediation and ConciliationRules.

16. NOTICES16.1 A notice (and other documents) must be in

writing, legible, in English and delivered inperson, by facsimile or by post.

16.2 A notice (and other documents) shall be deemedto have been given and received:(a) if addressed or delivered to the relevant

address listed in the Contract Particulars orlast communicated in writing to the persongiving the notice; and

(b) on the earliest date of:(i) actual receipt if delivered in person;(ii) confirmation of correct transmission of

fax; or(iii) three days after posting.

17. INTELLECTUAL PROPERTY17.1 The Contractor warrants that, in relation to the

Services, Provided Information, design, materials,documents and methods of working shall notinfringe any Intellectual Property Right. TheContractor shall indemnify the Council against theinfringement of any Intellectual Property Right.

17.2 With regard to all Intellectual Property Rights inthe Services:(a) the title to any Intellectual Property Rights

vests in the Council upon its creation but thatmaterial will remain readily available to theContractor to the extent necessary to enablethe Contractor to perform its duties underthis Agreement;

(b) in instances where the Intellectual PropertyRights are owned by the Contractor, theContractor grants to the Council; or

(c) in instances where the Intellectual PropertyRights are not owned by the Contractor, shallensure the Council is provided with anirrevocable, royalty free, non-exclusive,transferable, perpetual licence to exercise allrights of the owner of the IntellectualProperty Rights associated with theServices, for any business purpose of theCouncil, including additions or alterations orentering into any agreement with any thirdparty which is associated with or utilises theServices or Provided Information.

17.3 The licence referred to in clause 17.2(c) arisesimmediately upon formation of the Agreementand survives the expiry or termination of theAgreement.

18. TERMINATION18.1 The Agreement may be terminated:

(a) at any time by mutual agreement;(b) for the convenience of the Council, in which

case the Council shall pay the Contractor:(i) that portion of the Price payable to the

date of termination; and(ii) any direct costs actually and

reasonably incurred by the Contractorto the date of termination;

(c) upon a substantial breach of the Agreementby either party which is not remediated withina reasonable time (and in any case within 14days) of notice by the non-breaching party ofthe substantial breach; or

(d) immediately by either party in the event theother party becomes insolvent or financiallyunable to proceed with the Agreement.

18.2 Upon termination of the Agreement, theContractor shall promptly return to the Councilthe Council’s documents, samples, patterns,moulds and other information provided to theContractor in carrying out the Services.

18.3 If a party breaches (including repudiates) theAgreement, nothing in this clause 18 shallprejudice the right of the other party to recoverdamages or exercise any other right or remedy.

19. GOVERNING LAW19.1 This Agreement is governed by and construed

with reference to the laws of the State ofTasmania.

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