CONSULTANCY AGREEMEN T (MAJOR SERVICES)
Places Victoria
Consultancy
Agreement (Major
Services)
Trim 13/40896
June 2013 version
1
CONSULTANCY AGREEMEN T (MAJOR SERVICES)
Trim 13/40896
AUTHOR(S)
:
LEGAL
DOCUMENT NUMBER
:
13/40896
VERSION
:
3
SOURCE
:
PLACES VICTORIA
STATUS
:
FINAL
DOCUMENT DATE
:
24 OCTOBER 2013
INITIALS
:
LH
June 2013 version
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CONSULTANCY AGREEMEN T (MAJOR SERVICES)
BETWEEN
AND
(g)
‘Fee’ has the meaning in clause 7.1
as set out in item 2 of the Schedule.
(h)
ABN 61 868 774 623
‘Force Majeure Event’ means any
event:
(‘Places Victoria’)
(i)
which is beyond the
reasonable control of the
Consultant;
(ii)
which could not reasonably
have been anticipated or
avoided by the Consultant at
the date of this Agreement;
and
(iii)
which having arisen could not
have been avoided or
overcome by the Consultant,
Urban Renewal Authority Victoria, of
710 Collins Street, Docklands,
Victoria, 3008
#[INSERT NAME OF
CONSULTANT]
ABN: #[INSERT]
Address: #[INSERT]
(‘Consultant’)
1.
Definitions
1.1
The following words and expressions shall,
except where the context requires otherwise,
have the meanings given to them as follows:
(a)
‘Agreement’ means the Consultant's
Brief including these terms, the
Schedule and other annexures, the
Proposal, the letter of acceptance
and, if completed, the Formal
Instrument of Agreement.
(b)
‘Authorities’ means all
Commonwealth, State and local
government departments, bodies,
instrumentalities and other public or
statutory authorities having jurisdiction
in connection with the Services.
(c)
‘Confidential Information’ means all
information belonging or relating to
Places Victoria, its suppliers or
customers, whether oral, graphic,
electronic, written or in any other form,
that is not generally available to the
public at the time of disclosure other
than by reason of a breach of this
Agreement or that is in fact, or should
reasonably be regarded as,
confidential to the party to whom it
belongs or relates including without
limitation Personal Information.
(d)
‘Consultant’ means the party named
in the Agreement, employed as an
independent professional consultant
by Places Victoria to perform the
Services.
(e)
‘Consultant's Brief’ means the
document of that description and
which specifies the Services to be
performed under the Agreement and
includes these terms.
(f)
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‘day’ means calendar day.
June 2013 version
including war, acts of foreign
enemies, invasion, revolution,
insurrection, military or usurped
power, acts of terrorism and natural
catastrophes such as earthquake,
hurricane, typhoon, lightening, flood
or fire;
(i)
(j)
‘Intellectual Property Rights’ means
all present and future intellectual and
industrial property rights conferred by
statute, at common law or in equity
and wherever existing, including:
(i)
patents, designs, copyright,
rights in circuit layouts, trade
marks, know how, brand
names, domain names,
inventions, product names,
trade secrets and any other
rights subsisting in the results
of intellectual effort in any
field, whether or not
registered or capable of
registration;
(ii)
any application or right to
apply for registration of any of
these rights;
(iii)
any registration of any of
those rights or any
registration of any application
referred to in (ii); and
(iv)
all renewals and extensions
of these rights.
‘Formal Instrument of Agreement’
means a document of that name that
may be agreed between the parties
under clause 2.1 in substantially the
same form as annexed to this
Agreement.
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CONSULTANCY AGREEMEN T (MAJOR SERVICES)
(k)
'Key Personnel' means the
Consultant's key personnel identified
in the Schedule, or such other of the
Consultant's personnel identified by
Places Victoria as key personnel.
(l)
‘Materials’ means anything supplied
to Places Victoria by the Consultant
under this Agreement and anything
created or produced or otherwise
coming into existence in connection
with the performance of the Services.
(m)
‘Personal Information’ means
information or an opinion (including
information or an opinion forming part
of a data base), whether true or not,
and whether recorded in a material
form or not, about a person whose
identity is apparent, or can reasonably
be ascertained, from the information
or opinion.
(n)
‘Places Victoria’s Objective’ for the
Services is set out in the Schedule.
(o)
‘Privacy Laws’ means any privacy
legislation which binds Places Victoria
including the National Privacy
Principles under the Privacy Act 1988
(Cth) and the Information Privacy
Principles under the Information
Privacy Act 2000 (Vic) and any
equivalent or similar legislation in
Australia.
(p)
‘Project’ means the project described
in the Consultant's Brief.
(q)
‘Proposal’ means the proposal
submitted by the Consultant, as
accepted by Places Victoria in a letter
of acceptance.
(r)
‘Safety Legislation' means
(i)
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any legislation applicable to
work health and safety,
environment protection,
dangerous goods, building
safety and electrical safety;
(ii)
regulations made under that
legislation; and
(iii)
any directions on health and
safety or notices issued by
any relevant authority or any
code of practice or
compliance code appropriate
or relevant to the Services
and/or Works undertaken by
the Consultant
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as amended from time to time.
(s)
‘Safety Requirements’ means any
direction, instruction, request or
requirement relevant or necessary for
compliance by Places Victoria or the
Consultant with any applicable Safety
Legislation, and including any such
matter of which the Consultant has
been informed by Places Victoria
either orally or in writing
(t)
‘Services’ means the services set out
in the Consultant's Brief and those
activities which the Consultant is
required to carry out under the
Agreement.
(u)
‘Service Provider’ means the
person(s) nominated to carry out the
Services for and on behalf of the
Consultant.
(v)
‘Works’ means the permanent works
to be executed for the purpose of the
Project.
2.
Consultancy Agreement
2.1
Unless a Formal Instrument of Agreement is
executed by the parties, the agreement
between the parties shall be concluded by a
letter of acceptance from Places Victoria
accepting the Proposal.
2.2
Within fourteen (14) days after being
requested in writing by Places Victoria to do
so, the Consultant must execute both copies
of the Formal Instrument of Agreement in the
form set out in the Consultant's Brief and
return them to Places Victoria. Places Victoria
shall, within fourteen (14) days after receipt
from the Consultant, execute both copies and
forward one copy to the Consultant.
2.3
Without limiting this clause 2, the Consultant is
deemed to have accepted these terms upon
commencing the Services.
3.
Appointment
3.1
Places Victoria appoints the Consultant to
provide the Services.
3.2
The nature of the Services, the term of this
Agreement, the hours the Consultant is
required to work, payment details, the Service
Provider and any other specific details are set
out in the Schedule.
3.3
The Consultant is an independent contractor,
and is not Places Victoria’s agent, employee
or a partner of Places Victoria. It is the
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CONSULTANCY AGREEMEN T (MAJOR SERVICES)
intention of both parties that under no
circumstance will the relationship between
Places Victoria and the Consultant be
categorised as one of principal and agent,
employer and employee or partner. The
relationship is one of principal and
independent contractor and any Service
Provider providing services to Places Victoria
through the Consultant must at all times
remain an employee or sub-contractor of the
Consultant (as the case may be) and not of
Places Victoria.
3.4
The Consultant has no authority to bind
Places Victoria or act on Places Victoria’s
behalf at any time.
3.5
The Consultant must not, and undertakes that
it will not act:
(a)
dishonestly, fraudulently or illegally;
and
(b)
in a manner which brings Places
Victoria into disrepute or affects
Places Victoria’s reputation or may
have the effect of bringing Places
Victoria into disrepute or affecting
Places Victoria’s reputation.
4.
Provision of Services
4.1
The Consultant must perform the Services set
out in the Agreement to achieve Places
Victoria’s Objective. Except as otherwise
provided in this Agreement, the Consultant
performs the Services at its own cost and risk.
4.2
(b)
make reasonable enquiries to
ascertain Places Victoria’s
requirements and regularly consult
Places Victoria about the progress of
the Services;
(c)
so far as is reasonably practicable,
consult, co-operate and co-ordinate
activities with Places Victoria,
contractors, suppliers and other
persons engaged in or associated
with the Services or the Works under
this Agreement:
(i)
to achieve effective coordination of activities;
(ii)
to ensure optimal health and
safety risk management; and
(iii)
to enable Places Victoria and
the Consultant and other
relevant parties to comply
with their respective
obligations under all
applicable Safety Legislation
and Safety Requirements.
The Consultant undertakes that it, together
with the Service Provider and its Key
Personnel:
(a)
(b)
4.3
limiting the Agreement) to that
standard to be expected of a
consultant who regularly acts in the
capacity in which the Consultant is
engaged, to the best of the
Consultant’s knowledge and
expertise, and must comply with all
relevant policies of Places Victoria in
carrying out such Services, as notified
to the Consultant from time to time,
including, without limitation, any policy
implemented with respect to privacy,
Safety Legislation and Safety
Requirements, information technology
and industrial relations;
has examined the Consultant's Brief
and exercising due skill, care and
diligence, that the Services are
suitable, appropriate and adequate for
the purposes stated in or to be
reasonably inferred from the
Consultant's Brief, having regard to
the assumptions that the Consultant
can be reasonably expected to make
in accordance with sound
professional principles; and
possesses the qualifications,
expertise, experience and licences (if
any) appropriate to perform the
Services.
The Consultant must:
(a)
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provide the Services with due skill,
care and diligence and (without
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(d)
The Consultant must:
(i)
promptly notify Places
Victoria or its Agent of any
accident, injury, property or
environmental damage which
occurs during the carrying out
of or is associated with any
part of the Services of the
Works under the Agreement.
The Consultant must,
promptly after any
reasonable request from
Places Victoria or its Agent,
provide additional information
in respect of the incident;
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CONSULTANCY AGREEMEN T (MAJOR SERVICES)
(ii)
(iii)
maintain records and make
reports concerning the
health, safety and welfare of
people and damage to
property, as Places Victoria
reasonably requires.
(e)
provide the Services in accordance
with relevant Australian Standards;
(f)
provide sufficient office equipment
and facilities to enable it to furnish as
expeditiously as practicable all
reports, designs and other
deliverables required by this
Agreement;
(g)
maintain backup copies of all
documents and deliverables in a
secure location;
(i)
ensure that all information and data it
is required to produce under this
Agreement is accurate and correct;
and
(a)
comply with the provisions of Places
Victoria’s ‘General Instructions to
Consultants for the Preparation of
Tender and Contract Documents and
for Various Contract Administration
Procedures’ provided by Places
Victoria to the Consultant;
(b)
do all things reasonably incidental and
necessary to give effect to the
Services even if not expressly stated
in the Consultant's Brief; and
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comply with all reasonable directions
and instructions of Places Victoria.
4.5
The Consultant remains fully responsible for
the Services notwithstanding any review or
acceptance of the Services by Places Victoria
or any directions given by Places Victoria
under clause 4.4(c).
5.
Security
5.1
If stated in the Schedule, within fourteen (14)
days of being so requested by Places Victoria
to do so, the Consultant must provide security
to Places Victoria in the form of an
unconditional undertaking in a form and from a
financial institution acceptable to Places
Victoria and for an amount equal to 10% of the
Fee.
5.2
Places Victoria may in lieu of an unconditional
undertaking required to be provided under
clause 5.1 elect to withhold as cash retention
an amount of 10% of each instalment of the
Fee up to a maximum of 10% of the Fee.
5.3
Places Victoria may have recourse to the
security taken under either clause 5.1 or 5.2 in
respect of:
(a)
any amount the Consultant is required
to pay under the Agreement or
otherwise; and
(b)
any reasonable costs Places Victoria
necessarily incurs by doing something
the Consultant is required to do under
the Agreement and which the
Consultant has failed to do having
been given reasonable written notice.
5.4
Upon completion of the Services and payment
of all amounts due to Places Victoria, Places
Victoria must return any remaining security (if
any) then held by Places Victoria under
clauses 5.1 or 5.2 to the Consultant.
6.
Time
6.1
The Consultant must complete the Services
with due expedition and without delay and in
accordance with the time requirements set out
in the Agreement, subject to adjustment in
accordance with this clause 6. If the Schedule
specifies a date for completion of the Services
and a rate for liquidated damages for delay,
the Consultant must pay as liquidated
damages the amount stated in the Schedule
for each day completion of the Services or part
of the Services is delayed beyond the relevant
date for completion (as may be adjusted under
clause 6.2) of the Services.
if the Schedule includes a date for
completion of the Services, complete
the Services by that date.
In performing the Services, the Consultant
must:
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(c)
submit draft documents and
deliverables to Places Victoria before
submitting final versions;
(h)
(j)
4.4
immediately advise Places
Victoria or its Agent in writing
any act, fact or
circumstances associated
with the activities of the
Consultant or any other
person relevant to the ability
of the Consultant to carry out
any part of the Services or
Works under the Agreement
in a manner that is safe and
without any risks to any
person; and
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CONSULTANCY AGREEMEN T (MAJOR SERVICES)
6.2
Places Victoria may, by notice in writing at any
time to the Consultant, require the Consultant
to complete any part of the Services within a
specified reasonable period and the
Consultant must comply with the notice.
terms set out in the Schedule as the
Consultant completes each respective part of
the Service. Each payment will be based on
the value of the Services completed by the
Consultant and will only be made if:
6.3
If the Consultant believes that any cause
beyond the control of the Consultant will delay
the performance of the Services or the Works,
the Consultant must notify Places Victoria in
writing within seven (7) days of the cause of
delay arising.
(a)
the Consultant submits the claim in
accordance with the payment terms
(including in accordance with the
Schedule);
(b)
the Consultant provides supporting
information for the claim required by
Places Victoria;
(c)
the Consultant is not in breach of this
Agreement;
(d)
separate claims are made for any
variations to the Services carried out
by the Consultant; and
(e)
the part of the Services for which the
claim is made complies with the
Consultant's Brief.
6.4
If the cause of the delay is:
(a)
(b)
an act, default , omission or breach of
Places Victoria (including the ordering
of a variation, or a delay caused by a
third party); or
a Force Majeure Event,
and such delay is beyond the reasonable
control of the Consultant and could not
reasonably have been anticipated or
avoided at the date of this Agreement, the
time for completion of the Services shall be
extended by a reasonable period
determined by Places Victoria. The
Consultant agrees that an extension of time
to the date for completion of the Services is
its exclusive remedy for delays.
6.5
The Consultant must take all reasonable
measures to prevent and minimise delay, and
if the Consultant is delayed, it must take all
reasonable steps to mitigate the delay and the
loss, costs and expenses arising from the
delay.
6.6
Places Victoria may at any time and from time
to time by notice in writing to the Consultant
extend the time for completion of the Services.
Places Victoria is not under any circumstances
obliged to exercise this discretion reasonably
or for the benefit of the Consultant.
6.7
The Consultant must co-operate with Places
Victoria and all other consultants, subcontractors or Authorities involved in the
Works.
7.
Payment
7.1
Places Victoria shall pay the Consultant a fee
(‘the Fee’) for the Services set out in the
Schedule. Subject to clause 7.6, the Fee is
fixed and inclusive of all costs, fees and
disbursements incurred by the Consultant in
carrying out the Services.
7.2
Places Victoria will pay the Consultant the Fee
in instalments in accordance with the payment
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7.3
Places Victoria may, within 10 business days
of receipt of a payment claim from the
Consultant, issue a certificate valuing the
claim, in accordance with the Schedule.
7.4
Each instalment shall be paid by Places
Victoria in accordance with the payment terms
set out in the Schedule, provided that the
requirements in clause 7.2 have been met.
Places Victoria may withhold from an
instalment such amount as is the subject of a
bona fide dispute between the parties
(whether or not such a dispute is subject to
clause 35), but must pay the undisputed
amount of such instalment.
7.5
Any instalment paid by Places Victoria shall be
deemed to be on account only and shall not
imply the Services or any part of the Services
is approved by Places Victoria.
7.6
Places Victoria will reimburse the Consultant
for out-of-pocket expenses if the Consultant:
7.7
(a)
obtains Places Victoria’s written
consent before incurring the
expenses; and
(b)
provides evidence to the satisfaction
of Places Victoria of the expenses
incurred.
In light of the Consultant’s status as an
independent contractor, the Consultant
acknowledges that:
(a)
Places Victoria is not liable under this
Agreement for the payment of Pay as
You Go taxes (‘PAYG’),
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CONSULTANCY AGREEMEN T (MAJOR SERVICES)
Places Victoria’s reasons for
withholding payment;
superannuation guarantee payments,
WorkCover levy, payroll tax or other
similar tax, levy or payment in respect
of the Consultant (‘Taxes or Other
Payments’);
(b)
the Consultant has no claim against
Places Victoria in respect of personal
disability, accident or workers
compensation in respect of its
engagement under this Agreement;
(c)
the Consultant has no claim against
Places Victoria in respect of annual
leave, public holidays, sick leave and
long service leave in respect of its
engagement under this Agreement;
(d)
7.8
if Places Victoria is required by any
state or federal law to pay any Taxes
or Other Payments in respect of the
Consultant (‘Consultant Liability’),
Places Victoria does so only to
comply with the relevant legislation
and that at common law and for all
other purposes the Consultant is and
shall remain an independent
contractor and agrees to indemnify
and keep indemnified Places Victoria
in respect of any Consultant Liability
(which may be set-off against any
Fees due and payable by Places
Victoria to the Consultant under this
Agreement).
If the Building and Construction Industry
Security of Payment Act 2002 (Vic) (Act)
applies to the Services:
(a)
a payment claim for the purposes of
the Act is a valid payment claim
pursuant to clause 7.2;
(b)
the times prescribed in this
Agreement as the times for delivering
payment claims by the Consultant
are, for the purposes of the Act, the
'reference date';
(c)
a payment schedule for the purposes
of the Act is the assessment by
Places Victoria of the Consultant's
claim under claim under clause 7.3;
(d)
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if the scheduled amount in a payment
schedule is less than amount claimed
in the payment claim, then the
payment schedule shall state why the
scheduled amount is less and if it less
because Places Victoria is
withholding payment for any reason,
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(e)
failure by Places Victoria to set out in
a payment certificate an amount
which Places Victoria is entitled to
retain, deduct, withhold or set-off
(whether under this Agreement or
otherwise) from the amount which
would otherwise be payable to the
Consultant by Places Victoria will not
prejudice Places Victoria 's right to
subsequently exercise that right to
retain, deduct, withhold or set-off any
amount; and
(f)
if the Consultant suspends the whole
or any part of the Services under the
Agreement pursuant to the Act, the
suspension shall not of itself affect the
date for completion of the Services
and Places Victoria will not be liable
for any loss, cost or expense incurred
by the Consultant as a result of the
suspension.
7.9
Whilst providing the Services and for a period
of seven years after the termination or
expiration of this Agreement, the Consultant
must keep and maintain records of all Fees
and/or charges rendered or to be rendered by
the Consultant to Places Victoria. These
records must be made available for inspection
and copying on request by Places Victoria, its
agents or the Auditor-General.
8.
GST
8.1
The Consultant undertakes that it is registered
for GST purposes.
8.2
Each payment due under this Agreement
must be increased by an amount equal to any
GST which a party becomes liable to pay for
any supply made under or in connection with
this Agreement so that that party retains after
payment of GST the amount which it would
have retained but for the imposition of GST.
8.3
A party does not have to make a payment until
it receives a tax invoice for that payment.
8.4
If this Agreement requires Places Victoria to
pay, reimburse or contribute to any expenses,
loss or outgoing suffered or incurred by the
Consultant (‘Relevant Expense’), the amount
which Places Victoria must pay, reimburse or
contribute will be the amount net of any input
credits to which the Consultant is entitled in
respect of the Relevant Expense, together
with any amount of applicable GST if the
payment, reimbursement or contribution
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CONSULTANCY AGREEMEN T (MAJOR SERVICES)
constitutes a separate taxable supply by the
Consultant to Places Victoria.
8.5
For the purposes of this clause:
(a)
(b)
the term ‘Payment’ means the
consideration and, in the case of nonmonetary consideration, the market
value of the consideration (taking into
account in either case of GST
payable in connection with any
consideration), payable or provided
by a party for any supply made under
or in connection with this Agreement
(other than an amount payable under
clause 8.2); and
‘GST’ has the meaning given to that
expression in the A New Tax System
(Goods and Services Tax) Act 1999
(Cth) (as amended) unless, under or
in relation to the National Taxation
Reform (Consequential Provisions)
Act 2000 (Vic) (‘NTR Act’) or a
direction given under section 6 of the
NTR Act, Places Victoria is obliged to
make voluntary or notional payments,
in which case:
9.5
The Consultant must rectify any error or
inconsistency in the Consultant's
documentation at the Consultant's expense
and within the time Places Victoria instructs
the Consultant to do so, except where the
error or inconsistency results from incorrect
information provided by Places Victoria to the
Consultant.
9.6
The Consultant must provide to Places
Victoria upon request, six (6) copies of all
documentation prepared by the Consultant in
relation to the performance of the Services.
9.7
Places Victoria may inspect and review, upon
reasonable notice, any documentation being
prepared by the Consultant in relation to the
performance of the Services.
10.
Variations
(i)
‘GST’ means those voluntary
or notional payments, and
10.1
Places Victoria may vary the scope or the
extent of the Services.
(ii)
expressions containing the
term ‘GST’ have a
corresponding meaning.
10.2
A fee for the variation shall be agreed prior to
the execution of the variation. If agreement
cannot be reached, Places Victoria may direct
the Consultant to perform the variation, and
Places Victoria must pay the Consultant a
reasonable fee for doing so as determined by
Places Victoria.
10.3
The Consultant must not commence any
variation to the Services until it receives a
written notice from Places Victoria stating that
the work is a variation under this clause 10.
The Consultant must carry out the variation
after receiving the notice. If the Consultant
carries out extra work without receiving a
notice from Places Victoria under this
clause 10, it will bear the entire cost of such
work regardless of whether the work confers a
benefit on Places Victoria or Places Victoria
was aware that the work was being
performed.
10.4
The Consultant must correct any errors or
omissions in any documents or deliverables
required to be provided by the Consultant
under this Agreement at its own expense and
such correction shall not constitute a variation.
9.
Documentation
9.1
Places Victoria shall provide the Consultant
with a Consultant's Brief.
9.2
The Consultant must take account of and to
the extent necessary to comply with the
Agreement and to achieve Places Victoria's
Objectives, comply with the contents of the
Consultant's Brief in performing the Services.
The Consultant must immediately notify
Places Victoria if the Consultant becomes
aware of any circumstances that may affect
the performance of the Services.
9.3
The Consultant must prepare all necessary
documentation to give effect to the
performance of the Services in accordance
with the Agreement. Places Victoria's
approval of or comment on this documentation
shall not relieve the Consultant of the entire
responsibility for the documentation and
performance of the Services.
9.4
Consultant, the Consultant must promptly
notify Places Victoria in writing as soon as
possible and Places Victoria will direct the
Consultant as to the resolution of the
inconsistency and, subject to clause 9.5, the
Consultant must comply with the direction at
its own expense.
If the Consultant finds an error, inconsistency
or ambiguity in or between any documentation
specifying the Services to be provided by the
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CONSULTANCY AGREEMEN T (MAJOR SERVICES)
11.
Design Undertakings
designated by Places Victoria as Confidential
Information confidential, even after this
Agreement ends and must not disclose these
details to any third party including the media,
except with the written consent of Places
Victoria or to the extent required by law.
The Consultant undertakes that:
(a)
any design work undertaken as part
of the Services will conform with
Safety Legislation and Safety
Requirements and the requirements
of this Agreement and will be fit for the
purposes stated in or to be
reasonably inferred from the
Consultant's Brief having due regard
to Places Victoria's Objective and the
assumptions that the Consultant can
reasonably be expected to make in
accordance with sound professional
principles and exercising the standard
of skill, care and diligence referred to
in clause 4.3 and will not infringe any
Intellectual Property Rights held by a
third party;
12.2
The Consultant in receiving, possessing or
otherwise acquiring any Confidential
Information acknowledges that the
Confidential Information is the property of and
confidential to or a trade secret of Places
Victoria.
12.3
Subject to clause 12.4, the Consultant must,
and must ensure that the Consultant’s agents,
employees and contractors:
(a)
keep the Confidential Information
confidential and not directly or
indirectly disclose, divulge or
communicate that Confidential
Information to, or otherwise place that
Confidential Information at the
disposal of, any other person without
the prior written approval of Places
Victoria;
(b)
all design and documentation arising
out of the Services will be fully coordinated with all other design and
documentation produced in relation to
the Works so as to eliminate design
conflict, omissions or discrepancies;
(b)
(c)
the Consultant will carry out, or
arrange the carrying out of, any
calculations, analysis, testing or
examination that may be necessary to
ensure that the design is without risks
to health and safety when used for
the purpose for which it was
designed;
take all reasonable steps to secure
and keep secure all Confidential
Information coming into its
possession or control;
(c)
the Consultant, on request, will, so far
as is reasonably practicable, give
current relevant information to Places
Victoria in relation to any results from
any calculations, analysis, testing or
examination as referred to in (c); and
not memorise, use, modify, reverse
engineer or make copies, notes or
records of the Confidential Information
for any purpose other than in
connection with the performance by
the Consultant of its obligations under
this Agreement; and
(d)
not claim authorship of any matter or
disclose to any person other than
Places Victoria any findings relating to
the Services or the Works without
Places Victoria’s prior written consent.
This includes submissions to other
professionals, bodies and the media.
(d)
(e)
the Consultant will give adequate
information to Places Victoria in
respect of the conditions necessary to
ensure that anything designed under
or for the purpose of this Agreement
is without risks to health and safety
when used for a purpose for which it
has been designed..
12.
Confidentiality
12.1
The Consultant must keep confidential, and
must ensure that the Consultant’s agents,
employees and contractors keep confidential,
the Confidential Information, all aspects of the
Agreement and all matters arising from the
Services or the Works, and any information
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12.4
The obligations of confidentiality under
clause 12.2 do not apply to any information
that:
(a)
is generally available to the public
(other than by reason of a breach of
this Agreement); or
(b)
is required to be disclosed by any
applicable law if, to the extent
practicable and as soon as
reasonably possible, the Consultant:
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CONSULTANCY AGREEMEN T (MAJOR SERVICES)
12.5
12.6
(i)
notifies Places Victoria of the
proposed disclosure and
consults with Places Victoria
as to its content; and
(ii)
uses reasonable endeavours
to comply with any
reasonable request by
Places Victoria concerning
the proposed disclosure.
On request by Places Victoria, the Consultant
must enter into, and ensure that any third
party that Places Victoria permits the
Consultant to disclose the Confidential
Information to enters into, a confidentiality
deed or acknowledgement in a form
satisfactory to Places Victoria.
Notwithstanding any other clause of the
Agreement, Places Victoria may withhold any
payment under the Agreement until the
Consultant has complied with this clause 12.5.
The Consultant acknowledges and agrees to
the special requirements of confidentiality set
out in sections 71 to 73 of the Urban Renewal
Authority Victoria Act 2003 (Vic).
13.
Privacy
13.1
The Consultant must comply, and must
ensure that its employees, agents and
contractors comply, with all Privacy Laws as
they apply to Places Victoria, and must not do
or allow the doing of any thing that would
cause Places Victoria to breach any Privacy
Laws.
13.2
13.3
The Consultant will indemnify and hold
harmless Places Victoria for any loss or
damage suffered or incurred arising from the
Consultant being in breach of its obligations
under this clause 13 or clause 12.
14.
Intellectual Property Rights
14.1
The Consultant assigns to Places Victoria all
Intellectual Property Rights, present and
future, in the Materials. The Consultant also
agrees that it will not, without Places Victoria’s
written authority, provide the Intellectual
Property Rights to any other person or use the
Intellectual Property Rights except in providing
the Services to Places Victoria. This does not
restrict the Consultant’s ongoing rights to use
its original ideas, equipment, processes or
systems.
14.2
The Consultant must sign all documents and
do anything reasonably required by Places
Victoria to give effect to the assignment of the
Intellectual Property Rights.
14.3
If the Consultant believes that it will be unable,
for any reason, to assign any Intellectual
Property Rights to Places Victoria the
Consultant must, prior to producing or creating
any Materials, notify Places Victoria in writing.
The Consultant must describe each of the
Materials and give Places Victoria reasons as
to why it believes it cannot assign the
Intellectual Property Rights in them to Places
Victoria.
14.4
Places Victoria will then decide (in its
discretion) whether it will insist on an
assignment of the Intellectual Property Rights
in those Materials or whether it will be satisfied
with a licence to use the relevant Materials.
Places Victoria will notify the Consultant in
writing of Places Victoria’s decision. If Places
Victoria decides that a licence will be
satisfactory, the Consultant agrees either to
grant Places Victoria a licence on terms
satisfactory to Places Victoria or to assist
Places Victoria in negotiating the terms of the
licence with the owner of the Intellectual
Property Rights in those Materials.
14.5
The Consultant undertakes that no design
process or construction method, procedure or
system will require Places Victoria to pay any
royalties or licence fees.
14.6
The Consultant undertakes that:
If any Personal Information is accessed by or
made available to the Consultant in
connection with the performance by the
Consultant of its obligations under this
Agreement, the Consultant must:
(a)
ensure the Personal Information is
protected against unauthorised
access, use modification or disclosure
and against other misuse;
(b)
collect, store, use, disclose and
otherwise deal with the Personal
Information only as directed by Places
Victoria;
(c)
(d)
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provide all assistance required by
Places Victoria to assist Places
Victoria in complying with its
obligations under any Privacy Law;
and
comply with all Privacy Laws.
June 2013 version
(a)
it has obtained valid consents from all
relevant authors in the creation of any
Materials so that the use by Places
Victoria or its assignees of such
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CONSULTANCY AGREEMEN T (MAJOR SERVICES)
Materials will not infringe any
Intellectual Property Rights or any
copyright, including any author’s
moral rights under the Copyright Act
1968 (Cth); and
(b)
14.7
(b)
14.9
Scope of liability
15.1
The Consultant indemnifies Places Victoria
and its officers, employees and agents
(collectively, ‘Places Victoria) against any and
all losses, costs, expenses, claims, demands
or any other actions in each case of any kind
whatsoever (collectively 'liability') which may
be brought against Places Victoria or incurred
by Places Victoria arising out of or in
connection with the Services as follows:
the consents referred to in
clause 14.6(a) permit Places Victoria
(in its absolute discretion)
reproducing, publishing, copying,
adapting, performing, communicating
to the public, materially distorting or in
any other way changing or using the
Materials (or a substantial part of
adaptation of the Materials):
(i)
with or without attribution of
authorship;
(ii)
with no title, the same title or
any other title; and
(iii)
in any way it sees fit.
The Consultant indemnifies Places Victoria, its
officers, employees and agents (collectively,
‘Places Victoria’) against all losses, costs,
expenses, claims, demands or any other
actions whatsoever which:
(a)
14.8
15.
may be brought against Places
Victoria or incurred by Places Victoria
as a result of a breach of the
undertakings given by the Consultant
in clauses 14.5 and 14.6; or
without limiting sub-clauses
15.115.1(b) or 15.115.1(c), any
liability caused by the performance of
the Services, including a breach by
the Consultant of this Agreement or
negligence or wrongful or fraudulent
act, error or omission of the
Consultant or its officers, employees
or agents;
(b)
any liability in respect of personal
injury, death or property damage
(including in relation to the Material)
arising out of the performance of the
Services;
(c)
any liability arising out of a breach of
this Agreement or negligence by the
Consultant; and
(d)
any costs incurred by Places Victoria
in taking steps to ensure compliance
by it or the Consultant or its
subconsultants with Safety
Requirements, where such or
equivalent steps should have been
taken by the Consultant, its
subconsultants in compliance with
Safety Requirements.
arise by reason of any infringement
by the Consultant of any Intellectual
Property Rights of the Consultant or
supplied by the Consultant for the
purposes of this Agreement.
All documents created by the Consultant in
relation to the Services must be able to be
used and understood without the need to refer
to extrinsic information, sources or software
packages.
Places Victoria will be entitled in its absolute
discretion and at no cost either directly or
through any other party to make use of any
ideas, designs, data, reports or other products
or outcomes used or developed by the
Consultant in conjunction with this Agreement
which are not subject to royalties or patent
rights for carrying out additional or similar work
at any location. The Consultant will not be
liable to Places Victoria or any third party in
any way for such use of these outcomes or
products.
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June 2013 version
15.2
The Consultant's liability under this clause 15
shall be reduced to the extent that the liability
in question is caused, or contributed to, by a
breach of the Agreement or negligence by
Places Victoria.
16.
Insurance
16.1
Before proceeding with the Services and as a
condition of entitlement to any payment of the
Fee, the Consultant must arrange the
following types of insurance:
(a)
workers' compensation insurance for
any of the Consultant's employees or
anyone treated as an employee of the
Consultant under any legislation for
the amount set out in the Schedule;
(b)
public liability insurance in respect of
personal injury, death or property
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CONSULTANCY AGREEMEN T (MAJOR SERVICES)
damage arising out of the
performance of the Services for the
amount set out in the Schedule;
(c)
(d)
16.2
16.3
16.4
professional indemnity insurance in
respect of any act, error or omission
arising out of the performance by the
Consultant of the Services with a
compulsory extension for liability
arising under the Competition and
Consumer Act 2010 (Cth) for the
amount set out in the Schedule; and
such other insurance required by law
or Authorities in order to perform the
Services for the amount set out in the
Schedule.
The professional indemnity and the public
liability policies must include provisions for at
least one automatic reinstatement of the sum
insured and provide cover for loss of
documents, and the Consultant must use best
endeavours to provide Places Victoria with a
letter from its insurance broker or insurer
which is addressed to Places Victoria, and
which confirms that the Consultant's insurance
broker and/or insurer agrees to notify Places
Victoria in the event that any of the following
events occur in respect of any insurance
required by clause 16.1:
(a)
cancellation and/or lapse of the policy;
and/or
(b)
non-renewal of the policy; and/or
(c)
a claim is made under the policy.
Notwithstanding clause 16.2 the Consultant
must notify Places Victoria in the event that
any of the events set out in sub-clause 16.2(a)
to (c) occur in respect of any insurance
required by clause 16.1.
The terms of the insurance must not contain
limitations, exclusions or terms and conditions
that are not commonly provided for in the
relevant contract of insurance. The
Consultant must provide to Places Victoria
upon request evidence reasonably acceptable
to Places Victoria (comprising certificates of
currency) that the insurances required have
been effected in accordance with this
Agreement and must provide written answers
(in reasonable detail) to any reasonable
questions raised by Places Victoria regarding
such insurances. Places Victoria may, acting
reasonably, on reviewing the evidence and
answers provided by the Consultant under this
clause 16.4, inspect the Consultant's policies
of insurance effected under this clause 16.
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16.5
The Consultant must keep the worker’s
compensation and public liability insurance in
force at all times while the Agreement
continues and keep the professional indemnity
insurance in force for the number of years
after the performance of the Services set out
in the Schedule (which period shall not be less
than 7 years from completion of the Services)
(‘the run off period’).
16.6
The Consultant's liability to Places Victoria
shall not be limited or affected in any way by
the terms of the professional indemnity
insurance policy unless Places Victoria agrees
in writing to do so.
16.7
The Consultant must not cancel, reduce, fail to
renew or materially alter any of the insurance
policies required by this clause during the
currency period without the prior written
consent of Places Victoria.
16.8
If the Consultant fails to take out any of the
insurances required by this clause, Places
Victoria may take out insurance in the
Consultant’s name and deduct the cost from
any moneys then owing to the Consultant.
17.
Conflict of Interest
17.1
The Consultant must not, and the Consultant
must ensure that the Service Provider and the
Consultant’s employees and subconsultants
do not, whether during the term of this
agreement or after it has ended, undertake
any activities or be interested in (directly or
indirectly) any business or activity which
concerns or proposes or purports to concern
any business or activity of Places Victoria or
which is likely to give rise to a conflict of
interest.
17.2
The Consultant undertakes, as at the date of
this Agreement, that no conflict of interest
exists or is likely to arise. If the Consultant
becomes aware that it is at risk of being
placed in a position of conflict, the Consultant
must immediately notify Places Victoria in
writing and do all things necessary to remove
itself from any such position and co-operate
with Places Victoria to resolve the conflict.
17.3
Places Victoria may give its written permission
(on such terms as Places Victoria determine)
that the Consultant may commence or
continue to provide the Services even if the
Consultant has a potential conflict of interest.
If Places Victoria gives its written permission,
the Consultant must, in addition to complying
this Agreement, at all times strictly comply with
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CONSULTANCY AGREEMEN T (MAJOR SERVICES)
the terms and conditions specified by Places
Victoria.
18.
Assignment
18.1
The Consultant must not assign any part of
the Agreement or the Services without Places
Victoria 's written consent (which consent may
be subject to any conditions which Places
Victoria considers appropriate).
18.2
Approval of any assignment under clause 18.1
does not relieve the Consultant from its
obligations under the Agreement.
18.3
Places Victoria may assign this Agreement or
any part of it to any other person at any time.
19.
Employees and Subconsultants
19.1
The Consultant must (at its own risk and cost)
utilise the Service Provider to provide the
Services to Places Victoria and may use any
other employee or a subconsultant of the
Consultant to provide the Services provided
that it first has Places Victoria’s written
consent (which consent may be subject to any
conditions which Places Victoria considers
appropriate).
19.2
The Consultant must take all reasonably
practicable steps to ensure that persons
engaged by the Consultant to undertake the
Services or Works or provide anything to
which this Agreement relates, comply with all
applicable Safety Legislation and Safety
Requirements at all relevant times.
19.3
The Consultant must ensure that the
Consultant’s permitted employees, agents and
subconsultants (including the Service
Provider):
(a)
agree to be bound by the terms of this
Agreement;
(b)
demonstrate that they have the
appropriate skills and other required
qualifications and have the required
level of understanding of their health
and safety responsibilities inherent in
the work they will be required to
undertake;
(c)
on request by Places Victoria, sign a
confidentiality undertaking in a form
acceptable to Places Victoria;
(d)
on request by Places Victoria, sign an
Assignment of Intellectual Property
Rights in a form acceptable to Places
Victoria; and
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(e)
19.4
on request by Places Victoria, sign an
undertaking in favour of Places
Victoria and in a form acceptable to
Places Victoria. The form attached to
the Agreement is approved by Places
Victoria.
If the Services are being provided by the
Consultant’s employee or subconsultant
(including the Service Provider) Places
Victoria may (without affecting any of the
Consultant's obligations under the
Agreement):
(a)
deal directly with the employee or
subconsultant for the purposes of
instruction and supervision; and
(b)
reject the employee or subconsultant.
The Consultant must replace the
employee or subconsultant if Places
Victoria so wishes.
19.5
Notwithstanding any subconsulting, the
Consultant agrees that it will be entirely
responsible for and vicariously liable for the
acts, defaults and omissions of its
subconsultants and employees (including the
Service Provider) and approval of any
subconsultant under clause 19.1 does not
relieve the Consultant from this obligation. The
Consultant and Places Victoria agree that, for
the purposes of section 24AI of the Wrongs
Act 1958 (Vic), the Consultant is entirely
responsible for any failure to take reasonable
care on the part of any of its subconsultants or
agents.
20.
Suspension of the Services
20.1
Places Victoria may by notice in writing at any
time to the Consultant suspend or defer the
Services. Upon receipt of the notice, the
Consultant must suspend the Services until
further written notice from Places Victoria.
20.2
If the suspension is due to an act, default or
omission of the Consultant, Places Victoria is
not required to pay the Consultant. Otherwise,
Places Victoria must pay the Consultant its
reasonable costs up to the suspension and
costs reasonably incurred because of the
suspension. Such costs shall be agreed by
the parties but if agreement cannot be
reached, Places Victoria must pay the
Consultant reasonable costs as determined by
Places Victoria.
20.3
Places Victoria must give the Consultant
reasonable notice of recommencement of the
Services.
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CONSULTANCY AGREEMEN T (MAJOR SERVICES)
20.4
In the event that the Services are suspended
for longer than three (3) months, either party
may end this Agreement upon one (1) month’s
written notice to the other party.
21.
Default and Termination
21.1
Places Victoria may end the Agreement at any
time by giving the Consultant thirty (30) days’
notice in writing, and may end the Agreement
immediately if:
(a)
the Consultant is unable to assign all
or any part of the Intellectual Property
Rights in the Materials pursuant to
clause 14.1;
(b)
the Consultant enters or threatens to
enter into bankruptcy, liquidation or
other analogous type of insolvency or
if the Consultant ceases to conduct
business;
(c)
Places Victoria becomes aware that
the Consultant has a real or potential
conflict of interest and the matter is
not resolved within seven (7) days of
Places Victoria giving notice to the
Consultant of Places Victoria’s
concerns;
(d)
the Consultant or any of its
employees are charged with any
criminal offence which, in Places
Victoria’s reasonable opinion, brings
the Consultant or Places Victoria into
disrepute;
(e)
the Consultant acts dishonestly,
fraudulently or illegally;
(f)
the Consultant acts in a manner
which brings Places Victoria into
disrepute or affects Places Victoria’s
reputation or may have the effect of
bringing Places Victoria into disrepute
or affecting Places Victoria’s
reputation;
(g)
the Consultant fails to execute a deed
of confidentiality upon request by
Places Victoria pursuant to
clause 12.5;
(h)
the Consultant breaches any other
material term of the Agreement,
including material breaches relating to
Safety Legislation and Safety
Requirements; or
(i)
the Consultant dies (including the
death or incapacity of any of the Key
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Personnel) or is unable to replace
Key Personnel under clause 23.4.
21.2
Places Victoria may end the Agreement for
convenience by written notice to the
Consultant. If this power is exercised by
Places Victoria:
(a)
the Consultant shall not be entitled to
treat the ending of the Agreement as
a breach of the Agreement by Places
Victoria;
(b)
Places Victoria’s right to damages for
any breach of the Agreement
(including where such breach would
have entitled Places Victoria to
terminate for default) by the
Consultant shall not be affected; and
(c)
subject to the Consultant's
compliance with clause 21.4, Places
Victoria shall pay to the Consultant
(as full compensation but without
prejudice to any accrued rights of the
Consultant) the portion of the Fee due
to the Consultant at the time of ending
the Agreement, plus a sum for the
reasonable direct costs and expenses
(but not losses, whether loss of profit
or otherwise) the Consultant incurs
solely as a consequence of Places
Victoria ending the Agreement.
21.3
If Places Victoria ends the Agreement or takes
over any part of the Services for the reasons
set out in clause 21.1(a)–(i), Places Victoria
may employ others to carry out any part of the
Services at the Consultant's expense.
21.4
At the end of this Agreement, the Consultant
must immediately provide to Places Victoria
any Confidential Information and all Materials
and all copies of the Materials in a form
capable of re-use by Places Victoria (except
for one copy of the Materials which, subject to
clause 12, may be retained by the Consultant
for record keeping purposes). Places Victoria
may withhold payment of the final instalment
of the Fee until the Consultant has complied
with this clause 21.4.
21.5
In addition to the Consultant’s right to
terminate under clause 20.4, the Consultant
may only end this Agreement if Places Victoria
does not pay any money owing to the
Consultant under the Agreement within 30
days after Places Victoria has received written
notice from the Consultant advising Places
Victoria that the money is overdue for payment
in accordance with the Agreement and that
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CONSULTANCY AGREEMEN T (MAJOR SERVICES)
the Consultant intends to terminate the
Agreement.
22.
Site Safety
22.1
The Consultant must comply with all Safety
Legislation, Safety Requirements, site safety
rules and regulations and industry standards
and when on Places Victoria’s premises or
when using Places Victoria’s facilities, comply
with all directions, procedures and policies
relating to occupational health, safety, security
and access relating to Places Victoria’s
premises and facilities.
22.2
24.
Instructions and Decisions
24.1
The Consultant must carry out any reasonable
written instructions Places Victoria gives to the
Consultant relating to any aspect of the
Services. If the Consultant reasonably
considers that the instruction constitutes a
variation, it must comply with clause 10 before
performing the work.
24.2
On matters properly referred to Places Victoria
by the Consultant in writing, Places Victoria
shall give a decision in writing within a
reasonable time.
25.
Notices
The Consultant must comply with and ensure
its employees, subconsultants and agents
comply with:
(a)
applicable Safety Legislation and
Safety Requirements;
(b)
Codes of Practice and Compliance
Codes;
(c)
Australian Standards;
(d)
all instructions or directions given by
Places Victoria from time to time; and
(e)
Places Victoria’s ‘Occupational Health
and Safety Guidelines for Consultants
in the Management of Contractors’, a
copy of which can be obtained from
Places Victoria on request.
22.3
It is the Consultant’s responsibility to ensure
that its employees have access to the
abovementioned documentation and must
ensure that all employees can demonstrate an
understanding and working knowledge of the
documentation.
23.
Key Personnel
23.1
The Consultant must ensure that the Key
Personnel will be dedicated to the
performance of the Services until they have
been completed.
23.2
The Consultant must not disengage Key
Personnel without the prior approval of Places
Victoria (which approval shall not be
unreasonably withheld).
23.3
Places Victoria may direct removal of Key
Personnel if it is reasonably of the view that
any Key Personnel are unsatisfactory.
23.4
Victoria. If the Consultant cannot provide a
replacement who is acceptable to Places
Victoria then clause 21.1 applies.
If it is necessary to replace any Key
Personnel, the Consultant must immediately
arrange for replacement, at no additional cost
to Places Victoria, by a person of comparable
competence to be approved by Places
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Where a notice has to be given under the
Agreement, it may be given by hand, or
facsimile (provided confirmation is sent by
post on the same day), or sent by post to
the address set out in the Agreement, or a
substitute address that has been notified to
the other party.
26.
Bar on Claims
26.1
Except as provided for elsewhere in the
Agreement, the Consultant does not have any
right to make a claim for money against
Places Victoria arising out of or in connection
with the Services or the Agreement unless the
Consultant gives to Places Victoria a written
notice within thirty (30) days after the earlier of
when the Consultant became aware or should
reasonably have become aware of the
occurrence of the circumstances on which the
claim is based, providing detailed particulars of
the basis for and the quantification of the
claim.
26.2
Nothing in clause 26.1 shall disentitle, limit or
restrict the Consultant from:
(a)
defending or bringing a cross claim or
action which is in substance a
defence against any claim, action, suit
or proceeding brought by the Places
Victoria against the Consultant; or
(b)
joining or exercising any right against
Places Victoria in relation to any
claim, action, suit or proceeding
against the Consultant by a third
party.
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CONSULTANCY AGREEMEN T (MAJOR SERVICES)
27.
Set Off
27.1
Places Victoria may, by giving the Consultant
prior written notice at any time, set off any of
the following amounts against any amount
Places Victoria owes the Consultant:
(b)
(a)
any amount the Consultant is required
to pay under the Agreement or
otherwise; and,
(b)
any reasonable costs Places Victoria
necessarily incurs by doing something
the Consultant is required to do under
the Agreement and which the
Consultant has failed to do having
been given reasonable written notice
to do
28.
Compliance with the Law
28.1
In performing the Services, the Consultant
must comply with any requirement under any
legislation, regulations, orders, codes,
standards, ordinances or requirements of
relevant Authorities applicable to the Services,
the Works or the Agreement (including,
without limitation, the Victorian Government’s
Code of Practice for the Building and
Construction Industry (as amended from time
to time).
29.
30.
except to the extent that any such
information, data, representation, statement
or document forms part of the Agreement.
Places Victoria acknowledges however that
this Agreement sets out the extent of
Places Victoria's requirements in relation to
the subject matter of the Agreement.
31.2
The Consultant undertakes that it enters into
this Agreement based on its own
investigations, interpretations, deductions,
information and determinations, and all
information provided by the Consultant to
Places Victoria prior to entering into the
Agreement (including in any tender) is
accurate and complete.
31.3
The Consultants acknowledges that it is aware
that Places Victoria has entered into the
Agreement relying upon the undertakings in
clauses 31.1 and 31.2.
32.
Applicable Law
The Agreement is governed by the laws of
Victoria. Any legal proceedings
commenced by Places Victoria or the
Consultant to enforce rights under the
Agreement must be brought in the
appropriate Court in Victoria.
Information
The Consultant must provide to Places
Victoria any information reasonably
requested by Places Victoria in connection
with the Services.
33.
Entire Agreement and Alteration
33.1
This Agreement is the entire agreement
between parties relating to the Services.
Subject to this clause, the Agreement cancels
and supersedes all previous offers and
negotiations between Places Victoria and the
Consultant in relation to the Services. If,
however, Places Victoria is entering into this
Agreement based on a written tender or offer
by the Consultant, then that tender offer will
form part of this Agreement only to the extent
expressly incorporated in the Formal
Instrument of Agreement. For the avoidance
of doubt, in the event of a discrepancy
between these terms and the tender offer,
these terms shall prevail unless Places
Victoria directs otherwise.
33.2
The parties may both add to or alter this
Agreement but only in writing signed by both
Places Victoria and the Consultant.
34.
Severability
Clauses Surviving Termination
Any indemnity or any obligation of
confidence under this Agreement is
independent and survives termination of
this Agreement. Any other term by its
nature intended to survive termination of
this Agreement survives termination of this
Agreement, including this clause 30 and,
clauses 12, 13, 14, 15, 16, 17, 18, 26 and
35.
31.
Non-Reliance
31.1
The Consultant undertakes that, for the
purposes of entering into the Agreement, it did
not in any way rely upon:
(a)
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any information, data, representation,
statement or document made by or
provided to the Consultant by Places
Victoria or anyone on behalf of Places
Victoria; or
June 2013 version
the accuracy or adequacy of any such
information, data, representation,
statement or document,
Any provision in this Agreement which is
invalid or unenforceable in any jurisdiction
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CONSULTANCY AGREEMEN T (MAJOR SERVICES)
is to be read down for the purposes of that
jurisdiction, if possible, so as to be valid and
enforceable, and is otherwise severed to
the extent of the invalidity of
unenforceability, without affecting the
remaining provisions of the Agreement or
affecting the validity or enforceability of that
provision in any other jurisdiction.
35.
Dispute Resolution
35.1
If a dispute arises under or in connection with
the Agreement, either party may at any time
give written notice to the other requesting that
a settlement meeting take place between
nominated senior representatives (being at or
not less than general manager level) of both
parties with authority to settle the dispute. The
nominated senior representatives must meet
within seven (7) days of the notice and
endeavour to resolve the dispute in good faith.
35.2
If a settlement meeting does not take place by
the time required or, after seven (7) days of
the settlement meeting the dispute remains
unresolved, either party may, subject to this
clause, commence litigation proceedings. The
parties must engage in a mediation prior to
referral of the dispute to litigation where:
35.3
(a)
the amount in dispute exceeds
$500,000 (indexed to CPI as at
execution of the Agreement); or
(b)
Places Victoria requests in writing
prior to the expiration of the time limits
in this clause 35 that a mediation be
held.
reasonable endeavours to agree to
procedures with employees, other workers
and other parties for the timely and effective
resolution of health and safety issues.
Any mediation conducted under clause 35.2
must be conducted:
(a)
by a mediator appointed by the
parties within fourteen (14) days of
referral of the dispute to mediation or
failing which the mediator will be
appointed on the application of either
party, to the Chairperson of The
Institute of Arbitrators & Mediators,
Australia (Victorian Chapter); and
(b)
to the extent not inconsistent with this
Agreement, in accordance with and
subject to The Institute of Arbitrators &
Mediators Australia, Mediation and
Conciliation Rules.
35.4
Notwithstanding the existence of a dispute, the
Consultant must continue to perform the
Services in accordance with the Agreement.
35.5
Without limiting anything contained in this
clause 35, the Consultant must make all
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CONSULTANCY AGREEMEN T (MAJOR SERVICES)
SCHEDULE
(to be completed and returned with the Proposal)
1.
Places Victoria's Objective
The purpose of the Services is
[*………………………………………………………………………………….]. Additionally, Places
Victoria's objective is to efficiently create the products or outcomes required by the Consultant's Brief
in a manner that maximises financial, environmental and social outcomes and is consistent with
Places Victoria's functions as stated in the Urban Renewal Authority Victoria Act 2003 (Vic). Places
Victoria seeks to engage expert consultants to advise, design and superintend construction, as may
be appropriate, and to act in Places Victoria's interests to assist in achieving these outcomes within
the parameters set out in the Consultant's Brief.
*
2.
Places Victoria to complete
Fee
Break up of Fee Stage
*% of Fee
per Stage
Cost
$
$
$
$
$
$
*
This column is optional. Places Victoria may nominate the % of the Fee to be apportioned to each
stage.
Payment Terms
(a)
Claim made on […………….] of each month. Each claim must, as a minimum:

set out the Consultant's valuation of the Services performed;

identify the relevant Stage;

set out the amount and details of any adjustments pursuant to the Agreement;

be accompanied by such supporting documents as are necessary to value and verify
the claim; and

be accompanied by a tax invoice for the amount claimed.
(b)
Payment will be made as an agreed percentage of the relevant Stage Complete as set out in
item 2 of this Schedule.
(c)
Payment certificate shall:
(d)
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
identify the payment claim;

certify the amount due to the Consultant (or Places Victoria); and

if the amount certified is less than that claimed, set out the reasons why.
Payment made within […………….] days after claim.
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CONSULTANCY AGREEMEN T (MAJOR SERVICES)
3.
PERSONNEL
Name
Hourly Rate
$
$
$
$
4.
SECURITY
Security is/is not (delete as applicable) required. Unless specified, security is not required.
5.
TIME FOR COMPLETION OF THE SERVICES
Stage
Period/Date*
Term*
Commence date:
Expiration date:
Completion of the Services
*
These columns will commonly be alternatives. If the Services are for a fixed term, complete
column 3. If the Services are to be completed by a set date or period, complete column 2.
Liquidated damages for delay in completion of the Services by the date for completion of the
Services: …..$/day [Note: If 'Nil' or 'N/A'' or no amount is inserted, Places Victoria's right to common
law damages for delay is not affected.]
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CONSULTANCY AGREEMEN T (MAJOR SERVICES)
6.
INSURANCE
Cover
Company
Limit of
cover
Workers
Compensation
As required
by statute
Public
Liability
(If no amount
stated $10m)
Professional
Indemnity
(If no amount
stated $5m)
Policy
Number
Expiry
Date
Run Off
Period
(If nothing
stated 7
years)
Other
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CONSULTANCY AGREEMEN T (MAJOR SERVICES)
D E E D P O L L ( F O R S U B - CO NS UL T ANT S O NL Y )
BY:
(Service Provider)
IN FAVOUR OF: Urban Renewal Authority Victoria (Places Victoria)
Background
A.
Places Victoria has entered into an agreement dated [Insert#] with the Consultant (Agreement) for the
provision of the Services.
B.
The Consultant has engaged the Service Provider to perform some or all of the Services (Relevant
Services).
C.
Places Victoria consents to the engagement of the Service Provider on condition that the Service Provider
executes this document in favour of Places Victoria.
Agreed Terms
1.
The Service Provider undertakes that it will provide the Relevant Services with due skill and care and
(without limiting the Agreement) to that standard to be expected of a consultant who regularly acts in the
capacity in which the Service Provider is engaged, to the best of the Service Provider's knowledge and
expertise, and must comply with all relevant policies of Places Victoria in carrying out such Relevant
Services including, without limitation, any policy implemented with respect to privacy, occupational health
and safety, information technology and industrial relations.
2.
The Service Provider undertakes that:
3.
(a)
the design work undertaken as part of the Relevant Services will conform with requirements of the
Agreement and will be fit for the purpose for which it is intended having due regard to the
assumptions that the Service Provider can reasonably be expected to make in accordance with
sound engineering practice and exercising the standard of skill, care and diligence referred to in
paragraph 1; and
(b)
all design and documentation arising out of the Relevant Services will be fully co-ordinated with all
other design and documentation produced in relation to the Works so as to eliminate design
conflict, omissions or discrepancies.
Terms capitalised but not defined in this Deed Poll have the same meaning as they do in the Agreement.
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CONSULTANCY AGREEMEN T (MAJOR SERVICES)
EXECUTED AS A DEED POLL
[Drafting Note: There are 3 execution clauses for the Service Provider. If it is a company, insert the name
of the company in the first two and delete the third– allowing the company to choose between the first two
execution clauses. If the Service Provider is a person, insert the name of the person in the third one and
delete the first two.]
No 1.
Signed sealed and delivered by [insert name of
Service Provider] by being executed in accordance
with section 127 of the Corporations Act 2001 (Cth)
Signature of director / secretary
Signature of director / secretary
Name of director / secretary
Name of director / secretary
OR
No 2.
The official seal of [insert name of Service Provider]
is affixed in accordance with its constitution in the
presence of:
Signature of director
Signature of director/company secretary
(Please delete as applicable)
Name of director (print)
Name of director/company secretary (print)
OR
No 3.
Signed sealed and delivered by [insert name of
Service Provider] in the presence of:
Signature
Witness
Name
Name of witness
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CONSULTANCY AGREEMEN T (MAJOR SERVICES)
FORMAL INSTRUMENT
OF
AGREEMENT
Urban Renewal Authority Victoria of 710 Collins Street, Docklands, Victoria 3008 ABN 61 868 774 623
(‘Places Victoria’)
- and -
[ ......................................................... ] of [
]
(‘the Consultant’)
IT IS AGREED that the following annexed documents, in order of precedence, shall together form the agreement
between Places Victoria and the Consultant:
1.
this Formal Instrument of Agreement;
2.
the Places Victoria Consultancy Agreement (Major Services) (including the Schedule and other
annexures);
3.
Consultant's Brief dated [ ]
4.
Proposal dated [ ]
5.
Places Victoria letter of acceptance dated [ ]
[*Other documents to be inserted- for example Places Victoria’s tender documents RFT (insert)]
If any ambiguity, discrepancy or inconsistency exists in any of the documents comprising the Agreement, then the
order of precedence set out in this Formal Instrument of Agreement shall apply to resolve the ambiguity,
discrepancy or inconsistency.
Except as otherwise expressly provided in this Agreement, the Consultant must perform the Services at its own
cost and risk.
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CONSULTANCY AGREEMEN T (MAJOR SERVICES)
EXECUTED AS AN AGREEMENT on the …………………………, 20
SIGNED for and on behalf of Urban Renewal Authority Victoria
by [insert name of authorised signatory]
in the presence of:
Signature:
..............................................................................
Name:
..............................................................................
Title:
..............................................................................
Witness:
..............................................................................
[Drafting Note: There are 3 execution clauses for the other party. If the Consultant is a company, insert
the name of the company in the first two and delete the third, allowing the company choose between the
first two execution clauses. If the Consultant is a person, insert the name of the person in the third one
and delete the first two.]
No 1.
Signed sealed and delivered by [insert name of
Consultant] by being executed in accordance with
section 127 of the Corporations Act 2001 (Cth)
Signature of director / secretary
Signature of director / secretary
Name of director / secretary
Name of director / secretary
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CONSULTANCY AGREEMEN T (MAJOR SERVICES)
OR
No 2.
The official seal of [insert name of Consultant] is
affixed in accordance with its constitution in the presence
of:
Signature of director
Signature of director/company secretary
(Please delete as applicable)
Name of director (print)
Name of director/company secretary (print)
OR
No 3.
Signed sealed and delivered by [insert name of
Consultant] in the presence of:
Signature
Witness
Name
Name of witness
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