--Solicitor us... · FACILITIES MANAGEMENT SERVICES CONTRACT Crown --Solicitor 60-70 Elizabeth...
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The Crown in right of the State of New South Wales acting through the NSW Attorney General's Department ("Department") AND Multiplex Facilities Management Pty Ltd ("Provider") FACILITIES MANAGEMENT SERVICES CONTRACT -- Crown Solicitor 60-70 Elizabeth Street SYDNEY NSW 2000 DX 19 SYDNEY Tel: (02) 9224 5000 Fax: (02) 9224 5144 Ref: 200700526 200700526 02008/29704
Transcript of --Solicitor us... · FACILITIES MANAGEMENT SERVICES CONTRACT Crown --Solicitor 60-70 Elizabeth...
The Crown in right of the State of New South Wales acting through the NSW Attorney General's
Department
("Department")
AND
Multiplex Facilities Management Pty Ltd
("Provider")
FACILITIES MANAGEMENT SERVICES CONTRACT
--Crown Solicitor
60-70 Elizabeth Street
SYDNEY NSW 2000
DX 19 SYDNEY
Tel: (02) 9224 5000
Fax: (02) 9224 5144
Ref: 200700526
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Table of Contents
1. DEFINITIONS AND INTERPRETATION ........................................................................... 1
Definitions ......................................................................................................................... 1
Interpretation ..................................................................................................................... 8
2. AGREEMENT OBJECTIVES ............................................................................................. 9
3. TERM AND COMMENCEMENT OF FULL SERVICES ................................................... 10
4. SERVICES ...................................................................................................................... 10
Engagement of Provider .................................................................................................. 1 0
Management of Services ................................................................................................. 11
Quality assurance and measurement .............................................................................. 13
Continuity of Services ...................................................................................................... 13
5. PERSONNEL .................................................................................................................. 14
Authorised Personnel ....................................................................................................... 14
Specified Personnel ........................................................................................................ 15
Provider's responsibility ................................................................................................... 16
6. TRANSITION-IN PLAN .................................................................................................... 17
7. EXISTING DEPARTMENT SUBCONTRACTS ................................................................ 18
8. SUBCONTRACTS ........................................................................................................... 18
Approval of subcontracts ................................................................................................. 18
Subcontract terms ........................................................................................................... 19
Provider's Responsibility ................................................................................................. 20
9. DEPARTMENT DATA AND DEPARTMENT MATERIAL ................................................. 20
10. SECURITY ...................................................................................................................... 21
11. MEETINGS REPORTS AND COOPERATION ................................................................ 22
Representatives .............................................................................................................. 22
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Meetings ......................................................................................................................... 23
Regular reports ............................................................................................................... 24
Reports on request. ......................................................................................................... 24
Cooperation ..................................................................................................................... 24
12. COMPLIANCE WITH LAW, SECURITY REQUIREMENTS AND CONSENTS ................ 25
13. DEPARTMENT'S OBLIGATIONS .................................................................................... 25
14. PAYMENT AND CHARGES ............................................................................................ 26
Charges .......................................................................................................................... 26
Payment of Charges ........................................................................................................ 26
Reduction in Charges for Non-Performance .................................................................... 27
Most Favoured Customer ................................................................................................ 28
Set-Off ............................................................................................................................. 28
15. PASS THROUGH EXPENSES ........................................................................................ 28
Overpayments ................................................................................................................. 29
16. REIMBURSABLE EXPENSES OF THE PROVIDER ....................................................... 29
17. GST, TAXES, DUTIES AND GOVERNMENT CHARGES ............................................... 30
GST ................................................................................................................................. 30
Other Taxes, Duties and Government Charges ............................................................... 30
18. VARIATIONS TO THE SERVICES .................................................................................. 30
Change Notice ................................................................................................................ 30
Additional Services .......................................................................................................... 31
Reduction of Services ..................................................................................................... 32
Transfer to another NSW Government Agency ............................................................... 32
19. FINANCIAL SECURITY ................................................................................................... 33
20. PERFORMANCE GUARANTEE ..................................................................................... 34
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21. ACCOUNTS AND RECORDS ......................................................................................... 34
22. AUDITS ........................................................................................................................... 35
23. ACCESS ......................................................................................................................... 36
24. INSURANCE ................................................................................................................... 36
25. WARRANTIES ................................................................................................................ 37
26. DISCLAIMER AND RELEASE ......................................................................................... 38
Disclaimer ....................................................................................................................... 38
27. INDEMNITY .................................................................................................................... 40
28. INTELLECTUAL PROPERTY .......................................................................................... 41
New Contract Material ..................................................................................................... 42
Existing Contract Material ................................................................................................ 42
Department Material ........................................................................................................ 42
29. SOFTWARE .................................................................................................................... 43
30. CONFIDENTIALITY AND PRIVACY ................................................................................ 44
Confidentiality .................................................................................................................. 44
Privacy ............................................................................................................................ 44
31. PUBLIC ANNOUNCEMENT ............................................................................................ 45
32. BENCHMARKING .......................................................................................................... 46
33. CONFLICT OF INTEREST .............................................................................................. 47
34. FORCE MAJEURE .......................................................................................................... 47
35. DISPUTE RESOLUTION ................................................................................................. 48
36. TERMINATION FOR CONVENIENCE ............................................................................ 49
37. TERMINATION FOR CAUSE .......................................................................................... 49
38. UPON TERMINATION .................................................................................................... 50
39. TRANSITION-OUT PLAN ............................................................................................... 51
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Application ....................................................................................................................... 52
Hand Over ....................................................................................................................... 53
40. NOTICES ........................................................................................................................ 54
41. MISCELLANEOUS .......................................................................................................... 55
Assignment ..................................................................................................................... 55
Writing ............................................................................................................................. 55
Consents ......................................................................................................................... 55
Non-waiver ...................................................................................................................... 55
Assistance .................................................................................................. : .................... 55
Severability ...................................................................................................................... 55
Relationship .................................................................................................................... 56
Entire Agreement ............................................................................................................ 56
Legal advice and costs .................................................................................................... 56
Counterparts ................................................................................................................... 56
Applicable law ................................................................................................................. 56
G . . . d" t" 56 overmng JUns 1c 1on ..................................................................................................... .
ATTACHMENT A AGREEMENT DETAILS ATTACHMENT B SERVICES AND SERVICE LEVELS ATTACHMENT C FEES AND CHARGES
ATTACHMENT D PROVIDER'S RESPONSE TO THE RFT ATTACHMENT E CONFIDENTIALITY DEED
1. Definitions and interpretation ............................................................................................. 1
2. Non disclosure .................................................................................................................. 3
3. Consent. ............................................................................................................................ 3
4. Restriction on use .............................................................................................................. 3
5. Privacy and Personal Information ...................................................................................... 3
6. Departing employees ........................................................................................................ 4
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7. Survival ............................................................................................................................. 4
8. Return of Information ......................................................................................................... 4
9. Conflict of interest. ............................................................................................................. 5 -
10. Notices .............................................................................................................................. 5
11. Miscellaneous ................................................................................................................... 6
SCHEDULE ATTACHMENT F FINANCIAL SECURITY ATTACHMENT G PERFORMANCE GUARANTEE
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Facilities Management Services Contract
THIS AGREEMENT is made on the J_"}fh day of f6BQu f>tR.'-{ 2008
BETWEEN
1. The Crown in right of the State of New South Wales acting through the New South
Wales Attorney General's Department (the "Department"); and
2. Multiplex Facilities Management Pty Ltd (A.B.N. 83 064 638 197) of Level 1, 1 Kent
Street, Sydney NSW 2000 (the "Provider").
RECITALS
A The Department has issued a Request for Tender for Facilities Management
Services.
B. The Provider has submitted a response to the Request for Tender and was selected
by the Department as the preferred proponent for the delivery of the Services.
C. The Provider has agreed to supply the Services to the Department on the terms and
conditions set out in this Agreement.
The Parties Agree
1. DEFINITIONS AND INTERPRETATION
Definitions
1.1 In this Agreement, unless the context otherwise requires:
"Access Facilities" means facilities of the Department. including computer
terminals, communications equipment and software required in order to access the
Services supplied by the Provider.
"ACDC" means the Australian Commercial Dispute Centre.
"Addenda to RFT" means the following addenda issued by the Department:
(a) "RFT 148- Addenda 1 ";
(b) "Request for Tender for Facilities Management Services RFT Number AMS -
148- Addendum No. 2" issued on 23 July 2007;
(c) "Request for Tender for Facilities Management Services RFT Number AMS -
148- Addendum No. 3" issued on 20 July 2007;
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(d) "Request for Tender for Facilities Management Services RFT Number AMS -
148- Addendum No.4" issued on 24 July 2007; and
(e) "Request for Tender for Facilities Management Services RFT Number AMS -
148- Addendum No. 5" issued on 27 July 2007.
"Additional Services" means the additional services referred to in Clause 18.2 and
agreed between the Parties from time to time.
"Agreement" means this agreement for the provision of Services, including the
Agreement Details as amended fmm time to time, other attachments and
appendices, and any document expressly incorporated as part of the Agreement.
"Agreement Details" means Attachment A.
"Business Day" means a day which banks are generally open for normal business
in Sydney and excludes Saturdays, Sundays, bank holidays and public holidays.
"Change Notice" means a notice provided by the Department to the Provider in
accordance with Clause 18.
"Charges" means the charges for the Services calculated in accordance with
Attachment C (Fees and Charges).
"Commencement Date" means the Full Service Commencement Date.
"Confidential Information" of a Party means any information disclosed by that
Party to the other, whether before or after the Commencement Date, that:
(a) is by its nature confidential;
(b) is designated as confidential; or
(c) the other Party knows or ought to know is confidential,
but does not include information which:
(d) is or becomes public knowledge other than by breach of this Agreement;
(e) is in the lawful possession of the other Party without restriction in relation to
disclosure before the date of receipt of the information; or
(f) is required to be disclosed pursuant to law, government policy or guidelines,
parliamentary process or legal process.
"Contract Material" means:
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(a) any Material created, written or otherwise brought into existence by or on behalf
of the Provider in the course of performing this Agreement in which subsists
newly created Intellectual Property Rights ("New Contract Material"); and
(b) any Material which exists at the date of this Agreement and which is
incorporated with the New Contract Material ("Existing Contract Material").
"Control" means in relation to a person, partnership, trust, joint venture, corporation
or other entity (the "Entity"):
(a) the ability to control the composition of the board of directors or governing body
of the Entity;
(b) the ability to cast or control the casting of more than fifty percent (50%) of the
maximum number of votes that might be cast at any general meeting (or
equivalent) of the Entity; or
(c) the holding of more than fifty percent (50%) of the issued ordinary share capital,
the equity, or other ownership interest, in the Entity.
"Department Data" means all data and information relating to:
(a) the Department's Portfolio;
(b) the management or operation of the Department's Portfolio; and
(c) the Department or any other agency of the New South Wales Government and
their operations, facilities, customers, personnel, assets or programs, in
whatever form that data or information may exist and whether or not it was
generated by or processed by or on behalf of the Department or any other
agency of the New South Wales Government,
and includes any data related to the Provider's performance of the Services and
data related to the Department's business and the Department's Portfolio that may
be gathered, created or derived by the Provider in the course of providing the
Services.
"Department Facilities" means the facilities of the Department which may from
time to time be provided by the Department and/or third parties including on-site
accommodation at designated Sites and communication equipment to enable or
facilitate the Provider to carry out the Services.
"Department's Material" means any Material (including Department Data) provided
by the Department to the Provider or its Personnel, by whatever means, in relation
to this Agreement.
"Department's Portfolio" means the court buildings and other associated
properties and facilities operated by the Department throughout the State of New
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South Wales and more particularly described in the RFT (and in particular in
Annexure B of the Tender Data Pack), as amended from time to time in accordance
with this Agreement.
"Department's Representative" means the person specified in the Agreement
Details.
"Equipment" means equipment used by the Provider to provide the Services.
"Existing Department Subcontracts" means the contracts between the
Department and third parties for the provision of Managed Services set out in Part
10 of Attachment B (or otherwise as from time to time notified by the Department to
the Provider).
"Financial Security" means the security described in Clause 19.1.
"Force Majeure Event" means an act of God, fire, lightening, earthquake,
explosions, flood, subsidence, insurrection or civil disorder or military operations or
act of terrorism, expropriation, strikes, lock-outs or other industrial disputes of any
kind not relating solely to the Party affected, and any other event which is not within
the reasonable control of the Party affected which in the case of the Provider
includes the reasonable control of its subcontractors but does not include any act or
omission of the other Party to this Agreement.
"Full Service Commencement Date" means the date of commencement of full
Services delivery by the Provider which will occur on the day immediately following
the expiration of the Transition-In Period.
"GST" has the meaning given to this term in the GST Law.
"GST Law" means A New Tax System (Goods & Services Tax) Act 1999 (Cth),
related legislation and any delegated legislation made pursuant to such legislation.
"Information Protection Principles" has the same meaning as contained in
sections 8 to 19 of the Privacy and Persona/Information Protection Act 1998 (NSW).
"Input Tax Credit" has the same meaning given to that term in the GST Law.
"Insolvency Event" means:
(a) the Provider becoming unable to pay its debts as and when they fall due;
(b) the Provider no longer has the resources to perform this Agreement;
(c) an application for winding up is made regarding the Provider and not stayed
within 14 days;
(d) a winding up order is made against the Provider;
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(e) a controller, administrator, receiver and manager, provisional liquidator or
liquidator is appointed to the Provider;
(f) a mortgagee enters into the possession of any property of the Provider;
(g) notice is given of a meeting of creditors for the purposes of a deed of
arrangement; or
(h) any actions of a similar effect are taken.
"Intellectual Property Rights" includes patent, know-how, copyright, design, semi
conductor or circuit layout rights, trade mark, trade, business or company names or
other proprietary rights and any rights to registration of such rights, whether created
before or after the Commencement Date, in Australia or elsewhere.
"Licensed Software" means software licensed by the Provider and used by the
Provider for the provision of the Services and, if applicable, includes any part of the
software forming part of the Property MIS and the helpdesk.
"Managed Services" means those services and products, the overall scope of
which will not be performed or provided by the Provider but which will be provided
through:
(a) the engagement by the Provider of subcontractors; and
(b) subcontractors under Existing Department Subcontracts,
and includes services and products such as plumbing, lighting and electrical,
mechanical, HVAC maintenance, painting locksmith, signage, fences, fire, pest
control, ground maintenance gas, telecommunication/data, security, cleaning and
other building and health and safety services in relation to the Department's
Portfolio.
"Material" includes, but is not limited to, software, documentation, information or
data, whether or not in material form.
"Material Variation to the Department's Portfolio" means a material variation to
the Department's Portfolio as defined in Clause 14.3.
"Month" or "month" means a calendar month.
"Moral Rights" means the right of integrity of authorship, the right of attribution of
authorship and the right not to have authorship falsely attributed, more particularly
as conferred by the Copyright Act 1968 (Cth), and rights of a similar nature
anywhere in the world whether existing at the Commencement Date or which may
come into existence on or after the Commencement Date.
"Party" means the Department or the Provider and "Parties" means both of them.
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"Pass Through Expenses" means fees and charges of the:
(a) Provider's subcontractors relating to the Managed Services; and
(b) Department's subcontractors for goods and services provided under the Existing
Department Subcontracts.
"Personal Information" means information or an opinion (including information or
an opinion forming part of a database) whether true or not and whether recorded in
a material form or not, about an individual whose identity is apparent or can
reasonably be ascertained from the information or opinion.
"Personnel" means:
(a) in relation to the Provider, the Provider's officers, employees, agents and
subcontractors, and the employees and agents of the Provider's subcontractors;
and
(b) in relation to the Department, means the Department's officers, employees,
agents and subcontractors.
"Property MIS" means the facilities management information system referred to in
Clause 4.3.
"Provider's Representative" means the person specified in the Agreement Details.
"Response" means the Provider's response to the RFT dated 2"d August 2007,
forming Attachment D to this Agreement.
"RFT" means the Request for Tender for Facilities Management Services RFT
Number - AMS 148 issued by the Department on 6 July 2007 and includes the
annexures set out in the Tender Data Pack and the Addenda to the RFT.
"Service Levels" means the performance levels or standards, specified in
Attachment B (Services and Service Levels) for the Services, including any
amendments agreed under this Agreement from time to time.
"Services" means the services (or any part of them) to be provided by the Provider
under this Agreement described in Part 1 of Attachment B (Services and Service
Levels) as amended from time to time in accordance with this Agreement, and
includes the Managed Services and any Additional Services.
"Site" means the site or sites forming part of the Department's Portfolio where any
of the Services are to be provided.
"Software" means computer programs or software (including without limitation,
utilities, embedded software, system software and application software) together
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with all relevant user or supporting documentation and includes any Licensed
Software.
"Specified Personnel" means the personnel to be used by the Provider or a
subcontractor to provide part of the Services, as set out in the Agreement Details, as
varied, from time to time, in accordance with this Agreement.
"Specified Project Management Services" means project management services
in relation to building upgrades, relocations, refurbishments and other works
requiring project management of multiple activities and/or subcontractors and
described in section 3.4 of Part 3 of the RFT.
"Specified Timeframes" means the timeframes for the performance of the Services
as specified in Part 2 of Attachment B (Services and Service Levels).
"Supply" has the same meaning given to it in the GST Law.
"Tax Invoice" has the same meaning given to it in the GST Law.
"Tender Data Pack" means the electronic zip file containing the following
annexures which were issued by the Department together with the other documents
calling for tenders for the provision of facilities management services:
Annexure A Contract List 03-06
Annexure B Site Listing 140307
Annexure C Asset Register Downing Centre
Annexure D Asset Register John Maddison Tower Full
Annexure E Asset Register North & South NSW 140207
Annexure F Repairs and Maintenance Spending
Annexure G Help Desk Statistics Nov 06
Annexure H GEMP Report Inputs
Annexure I Capital Expenditure Details
Annexure J Cleaning Costs
Annexure K Security Costs
Schedule 7 Property MIS Functionality Response Matrix
Schedule 8 Pricing Schedules.
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"Term" means the period referred in Clause 3 and any extension thereof in
accordance with this Agreement.
"Transition-In Period" means the period specified in the Agreement Details or
such other period as may be agreed between the Parties.
"Transition-In Plan" means the transition-in plan referred to in Clause 6.
"Transition-Out" means the transfer of responsibility for the provision of the
Services (or part of them) and the transition of knowledge from the Provider to the
Department (or to a third party service provider designated by the Department) and
all other matters related to or connected with the Department (or a third party
service provider) assuming control of the Services. If requested by the Department
transitioning-out will include documenting the Department's requirements in
connection with the preparation of a request for proposal or tender.
"Transition-Out Period" means the period referred to in Clause 39.3 or such other
period as may be agreed between the Parties.
"Transition-Out Plan" means the plan developed in accordance with Clause 39.
Interpretation
1.2 In this Agreement, except where the context otherwise requires:
(a} a reference to a statute, regulation, ordinance or by-law ("Law") will be
deemed to extend to include a reference to all statutes, regulations,
ordinances or by-laws amending, consolidating or replacing that Law from
time to time;
(b) a reference to a person which has ceased to exist or has been reconstituted,
amalgamated or merged, or other functions of which have become exercisable
by any other person or body in its place, shall be taken to refer to the person
or body established or constituted in its place by which its said functions have
become exercisable;
(c) where any time limit pursuant to this Agreement falls on a non-Business Day
then that time limit shall be deemed to have expired on the next Business Day;
(d) a references to a monetary amount or to "$" is a references to Australian
dollars;
(e) a reference to a subcontractor includes a supplier and a reference to a
subcontract includes a third party contract, agreement or arrangement
between the third party and the Department or the Provider, as the case may
be;
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(f) measurement of a physical quality should be in Australian legal units as
prescribed under the National Measurement Act 1960 (Cth) or, if items
incorporated into the Services are imported, units of measurements as agreed
by the Department's Representative;
(g) where a word or phrase is given a defined meaning in this Agreement, any
other part of speech or other grammatical form in respect of such word or
phrase shall unless the context otherwise requires have a corresponding
meaning;
(h) no rule of construction operates to the detriment of a Party only because that
Party was responsible for the preparation of this Agreement or any part of it;
and
(i) Where there occurs a reference to the doing of anything by the Department
including giving any notice, consent, direction or waiver, this may be done by
any duly authorised officer of the Department.
1.3 If there is a conflict between a provision of this Agreement and the attachments or
any parts thereof, the documents shall be given the following order of priority such that the conflicting provision in the document lower in the order below shall be read
down or severed to the extent necessary to resolve the conflict:
(a) this Agreement;
(b) Attachment A (Agreement Details);
(c) Attachment B (Services and Service Levels);
(d) Attachment C (Fees and Charges);
(e) the RFT; and
(f) Attachment D (the Response).
2. AGREEMENT OBJECTIVES
2.1 It is the Parties' intention that, subject to the terms of this Agreement, the Provider
will:
(a) proactively manage the Department's Portfolio to support the Department's
business needs and service delivery requirements;
(b) respond to the changing business needs and environment in which the
Department operates;
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(c) continuously seek to innovate and improve the quality, effectiveness and
efficiency of the Services and their delivery and implement cost containment
strategies with a view to:
(i) achieve and pass on cost savings to the Department;
(ii) achieve greater certainty in service levels, response times and quality
of work; and
(iii) achieve a high level of satisfaction from stakeholders in the
Department's Portfolio;
(d) have and maintain the skills, qualifications and experience to provide the
Services in an efficient manner and to the highest degree of quality and
responsiveness; and
(e) provide the Services in accordance with the other terms and conditions of this
Agreement.
3. TERM AND COMMENCEMENT OF FULL SERVICES
3.1 This Agreement commences on the Commencement Date and, subject to this
Agreement, will continue for a period of five (5) years.
3.2 The Department will conduct a review of the Services in the third and fourth year of
the Term and may, by written notice to the Provider prior to the expiry of the fourth
year, extend the term of this Agreement for a period of two (2) years, bringing the
duration of this Agreement up to seven (7) years. The Provider acknowledges and
agrees that any extension of the Term for a period exceeding five (5) years is
subject to Ministerial approval in accordance with the Public Sector Management
(Goods and Services) Regulation 2000.
3.3 If the Term of this Agreement is extended under Clause 3.2, the Department will
conduct a second review of the Services in the fifth and sixth year of the Term and
may, by written notice to the Provider prior to the expiry of the sixth year, extend the
term of this Agreement for a further period of two (2) years, bringing the duration of
this Agreement up to nine (9) years.
3.4 The Provider must, from the Full Service Commencement Date, assume full
responsibility for the provision of the Services for the remainder of the Term.
4. SERVICES
Engagement of Provider
4.1 The Department engages the Provider to provide the Services on the terms of this
Agreement.
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4.2 The Provider must perform the Services:
(a) in accordance with the description of the Services and to the Service Levels
set out in Attachment B (Services and Service Levels);
(b) diligently, with a high degree of skill and care and to the best of its knowledge
and expertise;
(c) in accordance with the Specified Timeframes; and
(d) in accordance with any reasonable directions given by the Department from
time to time.
4.3 In the performance of the Services, the Provider must use an integrated online
facilities management information system for the management of services delivery
which meets:
(a) the functional, technical and other requirements set out in Attachment B
(Services and Service Levels); and
(b) any other requirements from time to time requested by the Department which are reasonably necessary to meet the· changing business needs of the
Department's Portfolio.
4.4 In the performance of the Services, the Provider shall use the methodology, if any,
and comply with any standards described in the Response.
4.5 The Provider must:
(a) use all reasonable efforts to inform itself of the ongoing requirements of the Department in performing the Services;
(b) regularly liaise, consult and/or meet with the Department or its representatives
in order for the Department to inspect, discuss or assess the provision of the
Services; and
(c) consult, co-operate and confer with others as reasonably directed by the
Department.
Management of Services
4.6 The Provider must provide all administrative and project management services
necessary for the provision of the Services. Without limiting the generality of
Attachment B (Services and Service Levels), as a minimum, the Provider must
provide the following services to the Department:
(a) implementation of a planned systematic, efficient and comprehensive
approach to the performance of the Services;
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(b) identifying and mobilising resources;
(c) identifying who will perform the work, when it is required, and how it.will be
executed and validated;
(d) coordinating all activities and the functional outputs of all relevant persons
including subcontractors;
(e) monitoring of progress;
(f) efficient decision-making within the Provider's organisation and the advising of
decisions required by the Department under this Agreement;
(g) controlling and rectifying faults or other deficiencies which may arise in, or
during the performance of, the Services;
{h) managing those risks which are the Provider's responsibility under this
Agreement;
(i) status reporting to the Department;
{j) preparing all reports required by the Department in a format acceptable to the
Department; and
-------'------(k-)--- providing continuous, visible and aaequate audit trails.
4.7 The Provider must provide a helpdesk to:
(a) act as the co-ordinator and centralised point of contact for all issues relating to
the provision of the Services; and
(b) maintain all databases connected with the provision of the Services.
4.8 The Provider is also responsible for providing any accommodation, facilities,
furniture, Equipment, Software and interfaces and all management, human
resources supplies, materials and other items necessary to provide the Services,
outside of those:
(a) provided by third parties as part of the Managed Services; and
(b) facilities and equipment provided as Access Facilities and Department
Facilities.
4.9 The Provider agrees that if any incidental services or functions are required for the
proper performance and provision of the Services, (including without limitation, any
functions previously performed by the Department's Personnel in respect of the
Sites in the twelve (12) Months immediately preceding the Commencement Date
even where these are not listed as part of the Services) they will be taken to be
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included in the scope of the Services. The Provider also recognises that the nature
of the incidental services or functions will change over the Term of the Agreement.
Quality assurance and measurement
4.10 The Provider must:
(a) measure its performance against the Service Levels and if required by the Department provide to the Department details of measurement of Service
Levels in accordance with Attachment B (Services and Service Levels);
(b) use appropriate measurement and monitoring procedures to measure its
performance accurately; and
(c) provide the Department with information and access to those measurement and monitoring tools and procedures on request, to enable the Department to
verify that they accurately measure the Provider's performance.
4.11 The Provider must provide continuous quality assurance and quality improvement
through:
(a) the identification and application of proven techniques and tools that would provide for continuous improvement in Services' delivery and Services' cost
reductions to the Department; and
(b) the implementation of programs, practices and measures designed at a
minimum to ensure that the Services are performed in accordance with this Agreement and to improve levels of performance.
4.12 If the Provider fails to meet a Service Level, and such failure is not directly and
substantially attributable to the conduct of the Department, the Provider must
promptly:
(a) investigate the underlying failure to meet the Service Levels;
(b) prepare and deliver to the Department a report identifying the Service
problem;
(c) take whatever action is reasonably necessary to minimise the impact of the
Services problem and prevent it from recurring; and
(d) correct the Services problem and meet the Service Levels.
Continuity of Services
4.13 Notwithstanding Clause 34, in the event of a declared (internal or external)
emergency or civil disaster, the Provider must, unless otherwise directed by the
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Department's Representative, use best endeavours to continue to provide the
Services in accordance with this Agreement.
4.14 Subject to Clause 4.15, without limiting its other obligations and liabilities under this
Agreement, the Provider must correct any failure to comply with its obligations to
perform the Services in accordance with this Agreement as soon as practicable after
becoming aware of the failure.
4.15 Where the failure referred to in Clause 4.14 has been caused by the unlawful,
wilfully wrongful, or negligent act or omission of the Provider or its Personnel or by a
breach of this Agreement by the Provider, the cost of correcting the failure will be
borne by the Provider.
4.16 Where the Department has caused the failure referred to in Clause 4.14, and is
responsible for the cost of correcting the failure, the Provider must provide a cost
estimate to the Department prior to the Provider correcting the failure and the
Department will determine whether the cost is reasonable before directing the
Provider to correct the failure. The Department will only be obliged to pay to the
Provider the costs that the Department has agreed to pay it under this Clause 4.16.
5. PERSONNEL
5.1 The Provider must ensure:
(a) that the Services are provided in accordance with the staffing structure and
profiles set out in Part 9 of Attachment B (Services and Service Level) and by
Personnel who are competent, properly qualified and trained; and
(b) at all times that it uses an adequate nurnber of Personnel to provide the
Services.
Authorised Personnel
5.2 If any Personnel of the Provider is required, whilst carrying out work or performing
duties forming part of the Services or the Managed Services, to:
(a) enter into any secure areas of a Site;
(b) have access to, or be responsible for the physical custody of official,
classified, sensitive, personal or commercial information, or documents or
valuable assets belonging to the Department or a third party; or
(c) hold a particular kind of security clearance the details of which have been
notified to the Provider by the Department,
such personnel must, before commencing work or his/her duties, be authorised by
the Department to carry out that work or perform those duties. The Department
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may, or may require the Provider to, conduct police checks, security clearance and
such other investigations on the Provider's Personnel as the Department considers
reasonably necessary. The Provider will be responsible for the full costs of
undertaking such checks, clearances and investigations and, in addition, must give
the Department such assistance and information as may be reasonably necessary
(including without limitation, obtain any necessary consent forms from its Personnel)
to conduct the same.
5.3 The Department must not unreasonably withhold authorisation of a person under
Clause 5.2 and must notify the Provider in writing of:
(a) the names of the persons it authorises to carry out work or perform duties
under this Agreement (in this Clause 5 referred to as an "Authorised Person"),
the type and level of clearance given in respect of each of those persons and
the date from which, or the period during which, those clearances will be
effective; and
(b) the names of the persons it refuses to authorise to carry out such work or
perform such duties,
and the Provider must sign a copy of that notice, and return it to the Department as
soon as possible as acknowledgment of the receipt of the document.
5.4 Where the Provider is aware (or should reasonably have been aware), the Provider
must advise the Department promptly in writing of any change in the circumstances
of an Authorised Person that, in the Provider's reasonable opinion, is likely to affect
the Department's assessment of the person as an 'Authorised Person'.
5.5 The Department may at any time, on reasonable grounds, and by notice in writing to
the Provider, withdraw, limit or suspend its authorisation in respect of a particular
Authorised Person.
5.6 Where the Department withdraws, limits or suspends the authorisation of a person
under Clause 5.5, the Provider must propose another person for authorisation by the
Department under Clause 5.2 within a reasonable time.
Specified Personnel
5. 7 The Provider must engage the Specified Personnel to perform the Services and
must ensure that the Specified Personnel do not engage in other activities which
affect their ability to perform the Services. The Provider acknowledges and agrees
that certain Specified Personnel may be required to act in specific roles (such as site
manger) at particular times and Sites and otherwise, as is reasonably directed by
the Department or agreed between the Parties.
5.8 If any Specified Personnel is unable to provide the Services, for any reason, the
Provider must:
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(a) notify the Department immediately; and
(b) at its own cost, provide replacement Personnel with comparable skill and
experience within 20 Business Days of tiaving provided the Department with
notice in accordance with Clause 5.8(a), or such longer period as the
Department may reasonably agree.
5.9 All temporary or substitute personnel provided in accordance with Clause 5.8, must
be approved in writing by the Department, which approval may be given or withheld
in the Department's absolute discretion. In giving its approval, the Department may
impose such conditions as it sees fit
5.10 For the purposes of ensuring continuity in the provision of the Services, the Provider
must, at all times during the Term, use reasonable endeavours to ensure that the
Provider has other Personnel available who are either familiar with, or otherwise
have been trained to take on, the roles and responsibilities of, and the tasks
undertaken by the Specified Personnel, to act as back-up should a Specified
Personnel be unable, (whether by illness, accident, leave, termination of
employment or otherwise) to do so.
5.11 The Provider must use its best endeavours to ensure that turnover of Specified
Personnel is minimised and must in any event immediately report, on turnover of
Specified Personnel.
5.12 Notwithstanding any other provision contained in this Agreement, the Provider
acknowledges and agrees that Clauses 5.7 to 5.11 are fundamental terms of this
Agreement a breach of which allows the Department to terminate the Agreement in
accordance with Clause 37.1 (a).
5.13 Without limiting the generality of Clause 5.5, the Department may at any time, on
reasonable grounds and by notice in writing to the Provider, require the Provider to
withdraw or remove any of its Personnel from carrying out work or performing duties
under this Agreement
Provider's responsibility
5.14 The Provider is responsible for:
(a) all wages, salaries and other payments to its Personnel except where the
same forms part of the Pass Through Expenses; and
(b) compliance with all applicable statutory requirements in relation to its
employees including superannuation, workers compensation, group tax,
payroll tax and occupational health and safety.
5.15 Nothing in this Agreement prevents the Department, on the expiry or earlier
termination of the Agreement, from hiring (or engaging or arranging for its incoming
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third party service provider to hire or engage) any Personnel of the Provider to carry
out services similar to the Services.
6. TRANSITION-IN PLAN
6.1 The Provider must, in consultation with the Department, develop a transition-in plan
to manage and execute the implementation of the Services and the establishment of
contractual and operational systems, procedures and processes.
6.2 The Transition-In Plan must include:
(a) details of the specific transition-in services and resources to be provided by
the Provider, including without limiting the generality of the foregoing:
(i) the extraction and migration of the Department's Data to the Provider;
(ii) the transfer or management of third party subcontractors'
agreements;
(iii) the services described in section 3. 7.4 of Part 3 and the matters set
out in section 4.5.9 of Part 4 of the RFT; and.
(iv) the preparation of a procedures manual which must describe how the
Provider will manage the delivery of the Services;
(b) the roles and responsibilities of and the resources to be provided by each
Party;
(c) the timing and transition methodology that will be used by the Provider to
implement the Services; and
(d) the time schedules, dates and milestones that will apply to completion of the
transition-in services.
6.3 The Transition-In Plan or any amendments to the Transition-In Plan must be
approved by the Department prior to the Provider implementing any of the required
Services or any changes.
6.4 The Transition-In Plan or any amendments thereto shall be binding on the relevant
Parties following approval by the Department under Clause 6.3 and the Provider
must perform all the transition-in services identified in the Transition-In Plan. The
Provider must perform the transition-in services without causing any unreasonable
disruption to the Department's business.
6.5 The Provider must, in addition to any other requirement specified in this Agreement,
as necessary:
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(a) acquire from the Department any assets specified in the Transition-In Plan (if
any);
(b) comply with the requirements of the Transition-In Plan concerning the future
role of the Department's existing Personnel, including the transfer of such
Personnel to the Provider (if any); and
(c) ensure it is able to deliver the Services from the start date(s) stated in the
Transition- In Plan.
6.6 The Department must pay the Provider the amount set out in Attachment C (Fees
and Charges) for the transition-in services.
7. EXISTING DEPARTMENT SUBCONTRACTS
7.1 The Provider will, in accordance with the Transition-In Plan, take over the
management of and become the main point of contact for the Existing Department
Subcontracts.
7.2 The Department shall use reasonable endeavours to assign its Existing Department
Subcontracts to the Provider as soon as possible following the commencement of
the Transition-In Period. Where the Department is unable to assign an Existing
Department Subcontract or the relevant subcontractor refuses to consent to the
assignment, the Department will as soon as possible, notify the Provider of the
same.
7.3 The Provider remains responsible for managing all Existing Department
Subcontracts that are not assigned to the Provider and agrees that the provisions of
Clause 5 relating to 'Authorised Personnel' will apply to any new or replacement
personnel provided under an Existing Department Subcontract.
7.4 The Department will use all reasonable endeavours to assist the Provider in carrying
out its role as:
(a) the manager of Existing Department Subcontracts; and
(b) head contractor following the assignment of Existing Department Subcontracts
to the Provider.
8. SUBCONTRACTS
Approval of subcontracts
8.1 The Provider must:
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(a) comply with the 'New South Wales Government Procurement Policy'
(including where appropriate, entering into a sub-contract as nominee
purchaser under a ·state Contracts Control Board period contract); and
(b) not subcontract the whole, or any part, of the work under this Agreement or
enter into a subcontract or an agreement with a third party for the provision of
Managed Services except:
(i) with the written approval of the Department (not to be unreasonably
withheld or delayed); and
(ii) on the conditions set out in Clause 8.2.
Subcontract terms
8.2 The Provider must:
(a) if the subcontractor is required to deal with Confidential Information but
otherwise, if required by the Department, obtain from the subcontractor and/or
its employees and agents and provide the Department with an original of a
signed Confidentiality Deed in the form of Attachment E;
(b) ensure that all subcontracts entered into by the Provider for the purposes of
this Agreement incorporate a term requiring the subcontractor to consent to
the novation or assignment of those subcontracts to the Department or to an
alternative service provider of the Department upon termination of this
Agreement or any part of the Services for any reason. The Provider will bear
any costs resulting from the inclusion of this term in those subcontracts;
(c) ensure that all subcontracts entered into by the Provider for the purposes of
this Agreement which are to the order of the value of $20,000 or more reserve
a right 'of termination to take into account the Department's right of termination
under Clause 36;
(d) ensure that to the extent relevant, the subcontractor complies with the terms of
this Agreement and that the subcontract contains all the relevant terms of this
Agreement including those relating to access to the Department's Data,
subcontracting, intellectual property, audit and access to accounts, records
and financial information, privacy, confidentiality, indemnities, termination and
transition-out. This subclause does not apply to a subcontract for Managed
Services;
(e) not allow further subcontracting by the subcontractor without the prior written
approval of the Department;
(f) ensure that all subcontractors comply with all applicable standards, laws and
regulations;
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(g) if requested by the Department provide a copy of the proposed subcontract
before it is executed to the Department; and
(h) provide copies of all executed subcontracts to the Department.
Provider's Responsibility
8.3 The consent of the Department to any subcontract does not relieve the Provider
from any liability or obligation under this Agreement.
8.4 Despite any approval given by the Department, the Provider remains responsible for
ensuring the suitability of a subcontractor for the work proposed to be carried out
and for ensuring that the work performed by the subcontractor meets the
requirements of this Agreement. For the avoidance of doubt, the Provider will be the
Department's sole point of contact regarding payment under the subcontracts.
9. DEPARTMENT DATA AND DEPARTMENT MATERIAL
9.1 The Provider must, and must ensure that its Personnel, use the Department's Data
and the Department's Materials for the purpose of supplying the Services and for no
other purpose.
9.2 The Provider must keep full and accurate records of the location of all Department
Data and Department Material and must include in the reports provided to the
Department, sufficient information to ensure the Department is kept fully informed
about the nature and location of any database containing the Department Data.
9.3 The Provider must:
(a) ensure that the Department Material is, to the extent practicable, signified as
the property of the Department;
(b) ensure that the Department Material remains at all times free of any lien,
charge or other encumbrance of a third party; and
(a) comply with the requirements set out in Clause 10 relating to the custody
and/or security of the Department Data and such other requirements as may
be notified by the Department to the Provider from time to time.
9.4 The Provider must, on request by the Department at any time, provide to the
Department and/or its nominees any Department Data or Department Material
required by the Department. Where the Provider is required to convert the
Department Data into a format which is suitable for use with the Provider's Property
MIS, the Provider must ensure that the data is capable of being extracted from the
Property MIS and converted into a format that is capable of being read and used by
any widely utilized commercial software.
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9.5 The Provider must, at no additional cost to the Department, provide the Department
with the facilities necessary (including interfaces and interlinkage software) to
access the Department's Data at any time (including remote access).
10. SECURITY
10.1 The Provider must use its best endeavours to implement and maintain appropriate
security measures relating to the Services with the purpose of the prevention of
unauthorised access to the Provider's Property MIS, the Department Data and the
Department's Confidential Information, including:
(a) implementing and maintaining appropriate measures to maintain the
confidentiality and integrity of data in the Provider's Property MIS;
(b) ensuring that all Software deployed in the delivery of the Services incorporates
industry best practice in relation to the implementation of encryption systems,
anti-virus protection, patches, updates and upgrades for security purposes;
(c) providing an applicable information security management system in
accordance with AS/NZS ISO/IEC 17799:2001 Information Technology -
Code of Practice for Information Security Management (as updated from time
to time) and, as relevant, AS 13335 Parts 1 to 5 Information Technology -
Guidelines for the Management of IT Security (as updated from time to time)
or equivalent;
(d) meeting the following standards:
(i) "Information Security Guidelines - Issue no. 6" (February 2007)
issued by the Government Chief Information Office, as updated from
time to time (available from
http://www.gcio.nsw.gov.au/documents/lnformation%20Security%20
Guideline%20V1.1.pdf);
(ii) AS/NZS 7799.2:2000 (Previously known as 4444.2) Information
security management - Specification for information security
management systems, as updated from time to time; and
(iii) relevant information privacy statutes and codes of practice;
(e) implementing, maintaining and following an appropriate business recovery
plan (including disaster recovery, data backup, alternate power supply and so
on);
(f) taking such steps as may be necessary to prevent its Personnel from making
copies of any materials which may enable access to the Sites, the
Department's Data and the Department's Confidential Information; and
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(g) addressing any specific security needs of the Department in relation to the
Services, as notified to the Provider in writing from time to time, provided that
to the extent such request is in addition to the requirements for compliance
with this Clause 10, the Department must bear the cost of such additional
requirements.
10.2 The Provider must provide to the Department:
(a) as soon as reasonably practicable following a request by the Department:
(i) a statement of the types and severity of any security risks to
confidentiality and integrity against which the Provider's Property MIS
is safeguarded from time to time;
(ii) a copy of the Provider's then current security policy; and
(iii) the details of any changes made to the security policy since the last
time a copy was provided to the Department; and
(b) following any security incident affecting the Provider:
(i) notification of the security incident within one (1) Business Day; and
(ii) a detailed security incident report within three (3) Business Days.
10.3 The Provider acknowledges and agrees that from the Commencement Date and
from time to time during the Term, the Department may conduct security audits of
the Provider's premises, IT systems and storage facilities (and if applicable, those of
its subcontractors) to ensure compliance with all security measures required
pursuant to this Clause 10 (including, without limitation, testing the strength of the
Provider's firewalls against external attack or hiring an external organisation to do
so). The Provider must, and if applicable must use its best endeavours to ensure
that its subcontractors, participate promptly and cooperatively in such security
audits. The Provider must promptly, at its own cost, take corrective action to rectify
any non-compliance identified in the security audits.
10.4 Clause 10.3 does not apply if the Provider is co-located with the Department.
11. MEETINGS REPORTS AND COOPERATION
Representatives
11.1 Each Party will at all times during the Term ensure that it has nominated one
suitably qualified person as its administrator under this Agreement. The
Department's Representative will act as the administrator for the Department and
the Provider's Representative will act as the administrator for the Provider. Any
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substitute administrator for the Provider must be agreed in writing by the
Department.
11.2 The Department's Representative and Provider's Representative will be responsible
for the operational co-ordination and management between the Parties of the
provision of the Services. The Provider's Representative must, upon request and
reasonable notice, meet with the Department's Representative in order for the
Department to inspect, discuss or access the provision of the Services. The
Provider must comply with any reasonable direction (which is not inconsistent with
this Agreement) given by the Department's Representative within the general scope
of administration of this Agreement. The Provider's Representative must also report
immediately to the Department's Representative on any actual, perceived or
anticipated problems on the delivery, operation or provision of the Services. If the
report is first given orally, the Provider's Representative must promptly confirm the
report in writing to the Department's Representative.
Meetings
11.3 The Department's Personnel and the Provider's Personnel shall meet and
communicate with each other at such frequencies and intervals as may be
necessary to ensure efficient and effective delivery of the Services. Without limiting
the generality of the foregoing:
(a) relevant Personnel from each Party shall hold operational meetings to discuss
and review (and in the case of the Department's Personnel, to give directions
or approve work on) the day to day operation issues concerning the
Department's Portfolio or any Sites;
(b) the Provider must comply with any communications and/or meetings
requirements set out in Part 5 of Attachment B (Services and Service Levels);
(c) the Parties shall form a 'Service Control Group' which will meet Monthly to
review ongoing service performance, the achievement of key performance
indicators, provide recommendations regarding payment of the performance
component of the Charges and to carry out such other functions as may be
specified in Part 5 of Attachment B (Service and Service Levels) or otherwise
agreed between the Parties; and
(d) the Parties shall form a 'Relationship Management Group' which will meet
quarterly to consider and review the overall contract relationship, the
achievement of key performance indicators and critical success factors,
determine the payment of the performance component of the Charges,
discuss any extension of the Term and to carry out such other functions as
may be specified in Attachment B (Service and Service Levels) or otherwise
agreed between the Parties.
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11.4 The Service Control Group and the Relationship Management Group shall comprise
of persons holding the positions specified in Part 5 of Attachment B (Service and
Service Levels).
11.5 Each Party must promptly attend to all matters arising from the meetings which
require its attention.
Regular reports
11.6 The Provider must provide the Department with such regular periodic reports and
specific reports on tasks, Service Levels and performance standards as are further
specified in Part 6 of Attachment B (Services and Service Levels).
Reports on request
11.7 The Provider must, within a reasonable time of any request, provide the Department
with:
(a) any additional written report relating to the Services; and/or
(b) access to copies of any documentation, records or other information relating to
the past, current and future performance of this Agreement,
in the form and by such means as requested by the Department.
Cooperation
11.8 The Parties intend to conduct themselves for the purposes of the performance of
this Agreement in the spirit of co-operation and good faith. For avoidance of doubt,
the spirit of co-operation and good faith does not override or limit the provisions of
this Agreement.
11.9 The Department will cooperate with the Provider by:
(a) setting priorities for the Services;
(b) making available, as reasonably requested by the Provider, management
decisions and information that is necessary for the Provider to provide the
Services; and
(c) providing Access Facilities and Department Facilities in accordance with this
Agreement.
11.10 The Provider must cooperate with any third party service provider appointed by the
Department (and in-house units within the Department or within another New South
Wales Government agency or statutory body when they are providing services to
the Sites), where this is necessary to ensure the integrated and efficient conduct of
the Department's operation of the Sites. Without limiting the generality of the
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foregoing, the Provider must provide such reasonable assistance to other service
providers as the Department may reasonably request from time to time.
12. COMPLIANCE WITH LAW, SECURITY REQUIREMENTS AND CONSENTS
12.1 In the performance of the Services the Provider must and must ensure that its
Personnel:
(a) comply with all applicable standards, laws and regulations to the extent that
such standards, laws and regulations are relevant to this Agreement, the
performance of the Services and/or the Managed Services;
(b) not do anything that would cause the Department to breach its obligations
under any such legislation;
(c) comply with the New South Wales Government Procurement Policy, the New
South Wales Attorney General's Department Court Design Guidelines, the
National Code of Practice for Construction Industry, the 'Heritage' guidelines,
the 'Emergency Services' guidelines, all relevant building, health and
environmental codes and other policies, guidelines and codes set out in the
RFT or from time to time notified by the Department to the Provider; and
(d) comply with any security requirements from time to time in place at the Sites.
12.2 The Provider must, at all times during the Term, hold all rights and consents as
required to provide the Services and otherwise fulfil its obligations under this
Agreement.
12.3 The Provider must:
(a) keep itself informed and up-to-date on any legislative and regulatory changes
which may have an impact on the delivery, performance or provision of the
Services or are otherwise relevant to this Agreement; and
(b) promptly inform or advise the Department of such changes.
13. DEPARTMENT'S OBLIGATIONS
13.1 The Department will be responsible for the matters set out in Part 7 of Attachment B
(Service and Service Levels) described as the Department's responsibility.
13.2 Without limiting Clause 13.1, the Department will as soon as practicable, or as
required by this Agreement
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(a) make or arrange to make available to the Provider all relevant instructions,
information, documentation, data, Access Facilities, Department Facilities, or
any other material as is necessary for the performance of the Services; and
(b) provide assistance to the Provider, as reasonably required, so that the
Provider may competently perform its duties under this Agreement.
13.3 Subject to Clause 5 and to the provisions of this Agreement, the Department shall
allow the Provider's Personnel access to the Sites as required, to deliver, perform or
provide the Services.
13.4 The Provider agrees and acknowledges that the Department's provision of
information and assistance in accordance with this Clause 13 is by way of
assistance only and cannot in any way be deemed to give rise to a duty of care on
the part of the Department. The Provider must rely on its own professional and
personal expertise in providing the Services.
14. PAYMENT AND CHARGES
Charges
14.1 In consideration of the performance of the Services by the Provider, the Department
will pay the Charges for the Services in the amounts and at the times specified in
Attachment C (Fees and Charges).
14.2 Except as set out in this Agreement, the Charges shall be fixed for the Term.
14.3 The Parties agree that the Charges may be varied if a material variation occurs to
the Department's Portfolio. A material variation to the Department's Portfolio means
an increase or decrease of:
(a) ten percent (10%) or more of the square meterage of the Department's
Portfolio; or
(b) ten percent (1 0%) or more of the total number of properties.
Payment of Charges
14.4 The Department shall make payment for the Services thirty (30) days after receipt of
a correctly rendered invoice.
14.5 An invoice is correctly rendered if the invoice is in the form of a Tax Invoice where:
(a) the amount claimed in the invoice is due for payment and correctly calculated
in Australian dollars;
(b) the invoice is set out as an itemised account, which identifies the GST
exclusive amount, the GST component and the GST inclusive amount and
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enables the Department to ascertain what the invoice covers and the Charges
or components of the Charges payable;
(c) the invoice is addressed to the officer specified in the Agreement Details to
receive invoices; and
(d) the invoice is accompanied by relevant documentation necessary to establish
that, to the satisfaction of the officer specified in the Agreement Details, the
amount claimed is in accordance with the Agreement.
14.6 The Provider must provide any further details with regard to an invoice that is
reasonably requested by the Department from the Provider.
14.7 The making of a payment is not an acknowledgement that the Services have been
supplied or accepted in accordance with this Agreement.
14.8 If the Department disputes the invoiced amount, the Department must notify the
Provider:
(a) of the amount it believes is due for payment and pay that amount; and
(b) of the reasons for rejection of the remainder of the invoice and any action that
should be taken by the Provider for the claim to be rendered correct for
payment.
14.9 Upon receipt of a notice issued pursuant to Clause 14.8, the Provider shall without
delay take all steps that may be necessary to make the claim for payment conform
to the requirements of a correctly rendered invoice and submit a revised invoice to
the specified officer in the Agreement Details when such action is complete.
Processing of the resubmitted invoice shall be subject to the same conditions as if it
was the original invoice.
14.10 Any claims by the Provider for outstanding amounts that are not resolved by the
Parties shall be dealt with in accordance with Clause 35.
Reduction in Charges for Non-Performance
14.11 If the Provider fails to supply the Services in accordance with this Agreement, then
the Charges will be reduced to cover the lower level of Services delivered to the
Department, the failure to meet the Service Levels or the loss and damage suffered
by the Department (as the case may be) because of the failure, in accordance with
Table 6 ("Service performance scorecard") set out in Section 3.6.2.5, Part 3 of the
RFT.
14.12 If the reduction in the Charges referred to in Attachment C (Fees and Charges) does
not cover the loss or damage suffered by the Department, the Department may
claim the balance of the loss or damage from the Provider.
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Most Favoured Customer
14.13 In the event that the Provider provides services to another person, whether or not
that person is a New South Wales Government department or agency or otherwise
(the "other person"}, which are substantially similar in nature and extent as the
Services provided to the Department under this Agreement and the prices charged
to such other person are lower than the prices charged to the Department under this
Agreement, the prices charged to the Department will be equitably and
proportionally adjusted to provide the Department with the benefit of such lower prices.
Set-Off
14.14 Any losses, damages, fees and other expenses recoverable by the Department from
the Provider may be deducted from any money then due to the Provider under this
Agreement. If the money due to the Provider is insufficient for this purpose, the
balance remaining unpaid will be a debt due by the Provider to the Department and
may be recovered from the Provider by the Department in any court of competent jurisdiction.
15. PASS THROUGH EXPENSES
15.1 The Provider must comply with the requirement of this Clause 15 in relation to Pass Through Expenses.
15.2 The Department will pay the Pass Through Expenses in accordance with the
provisions of this Clause 15.
15.3 The Provider must promptly:
(a) review all invoices received by the Provider from all subcontractors in relation to the Managed Services;
(b) identify whether the charges set out in the invoices are proper and valid;
(c) take such action as may be necessary to dispute any improper or incorrect
charges and/or to resolve any disputes in relation to the charges; and
(d) in relation to approved invoices, provide the Department with a funding request setting out a summary of the invoices and charges (in a format agreed
between the Parties) together with a statement that the Provider has reviewed
the invoiced charges and have identified that the charges are proper and valid
and should be paid by the Department. Original copies of all invoices will be
held by the Provider, and made available to the Department upon request.
15.4 The Department will, if it is satisfied that charges in a funding request should be
paid:
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(a) approve payment of the invoices from the Department's own account; and
(b) notify the Provider of the transfer.
15.5 The Provider will issue remittances to sub-contractors detailing all payments being
made. Following receipt of notification of the transfer of funds by the Department
through procedures that have been agreed with the Department, the Provider will
then be required to reconcile the Department's account referred to in Clause
15.4(a}.
15.6 When incurring Pass Through Expenses, the Provider must take advantage of any
preferential purchase rates for products and services that are available to it and
must demonstrate to the Department that the Pass Through Expenses are
reasonable and represent best value for money in the circumstances.
15.7 The Provider must disclose to the Department any interest it has in any products or
services it intends to acquire as pass through expenses, and that nature of the
interest. For the purpose of this Clause 15.7 there will be an interest if the supplier
of the products or services is a related corporation of the Provider or if there is any
relationship of partnership, joint venture or strategic alliance between the Provider
and the supplier or the Provider has a right to any commission, volume discount,
rebate, bonus or entitlement to products or services as a result of any supply of
those products, services or their use.
Overpayments
15.8 If the Provider makes an overpayment of any Pass Through Expenses, then, except
to the extent that the overpayment is caused by an act or omission of the
Department or its Personnel, the Provider is responsible for the overpayment and
hereby indemnifies the Department for the full amount of the overpayment.
15.9 The Provider must co-operate with the Department in the recovery of any overpaid
amounts referred to in Clause 15.8 but the Provider is not entitled to take legal
action for the recovery of any money without the Department's written consent (such
consent not to be unreasonably withheld) and subject to any conditions imposed by
the Department.
16. REIMBURSABLE EXPENSES OF THE PROVIDER
16.1 Except as set out in this Clause 16, the Department will not be liable to the Provider
for any other expenses incurred by the Provider in connection with the provisions of
the Services .unless the Provider has first obtained the Department's prior written
approval to incur such expenses. In relation to approved travel expenses, the
Department shall not be liable for any amount of travel expenses in excess of the
rates specified by the NSW Public Employment Office, NSW Premier's Department
(as amended from time to time). For air travel approved by the Department, the
200700526 02008129704
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Department will not pay any amount in excess of the cost of an economy class
airfare. Clauses 15.8 and 15.9 also apply to any reimbursable expenses.
17. GST, TAXES, DUTIES AND GOVERNMENT CHARGES
GST
17.1 To the extent that a Party to this Agreement ("GST Supplier") is or becomes liable to
pay GST in connection with any Supply made under this Agreement and the amount
of any such GST is not included in the amount payable under this Agreement:
(a) the GST Supplier may add to the price of the Supply an amount equal to the
GST payable on the Supply ("GST Amount"); and
(b) the other Party will pay the GST Supplier the price for the Supply in
accordance with this Agreement plus the GST Amount.
17.2 If, for any reason, the GST Supplier's GST liability in respect of a particular Supply is
different from the amount of GST paid by the other Party:
(a) the GST Supplier must immediately repay to the other Party the amount of any
excess paid by the other Party above the GST Supplier's GST liability; or
(b) the other Party must pay the deficiency in the amount previously paid by the
other Party to the GST Supplier for that Supply, as appropriate.
17.3 Where the Provider is entitled to reimbursement from the Department for out-of
pocket or other expenses incurred by the Provider under or in connection with this
Agreement, the Provider may not recover from the Department any portion of any
expenses to be reimbursed for which the Provider is or would be entitled to an Input
Tax Credit (whether or not any Input Tax Credit is claimed).
17.4 The Provider warrants that it is registered for GST purposes as at the date of this
Agreement and will continue to be so for the Term of this Agreement.
Other Taxes, Duties and Government Charges
17.5 All other taxes, duties and government charges imposed or levied on or in
connection with this Agreement shall be met by the Provider, except to the extent
they form part of the Pass Through Expenses.
18. VARIATIONS TO THE SERVICES
Change Notice
18.1 In the event the Department requests the supply of services not provided for in this
Agreement (including without limitation corporate real estate and lease management
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services) or wishes to vary the scope of the Services, the Department will inform the
Provider of the proposed requirement or variation, in the form of a 'Change Notice'.
Additional Services
18.2 Where the Change Notice relates to request for additional services (including a
variation to increase the size of the Services or the provision of Specified Project
Management Services, the Provider will, within ten (10) Business Days of receipt of
a Change Notice (or such longer period as may be agreed between the Parties)
provide the Department with:
(a) an estimate of the costs or financial impact (if any) on the Department for any
change or variation to the Services. Charges for any Additional Services
must, where applicable, be calculated in accordance with Attachment C (Fees
and Charges) or, if Attachment C (Fees and Charges) does not apply, the
basis for calculating the additional services must be provided. Except:
(i) in the case of a Material Variation to the Department's Portfolio; or
(ii) in respect to the provision of Specified Project Management Services,
no variation may be made to the Charges to take into the account the
provision of Additional Services;
(b) details of proposed scheduling, Personnel, service levels and other issues
relating to any change or variation to the Services. The Service Levels set out
in Attachment B (Services and Service Levels) will, to the extent applicable, apply to the Additional Services; and
(c) a list of all consequential changes which would be required to be made to this
Agreement (including any Attachments and/or annexures).
18.3 The Provider shall not make any changes or variations referred to in Clause 18.2
unless and until:
(a) the financial impact of such changes or variations;
(b) the nature, scope and timing of such changes or variations; and
(c) any requirement for any consequential amendments to this Agreement,
have been submitted to and approved in writing by the Department. The Provider
shall not be entitled to any additional payment for such work in the absence of
approval in writing by the Department's Representative dealing with all these
matters.
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Reduction of Services
18.4 Where the Change Notice relates to the removal of Services from this Agreement:
(a) the removed Services will, from the date specified in the Change Notice (and if
no date is specified, from the date of the Change Notice) no longer form part
of the Services;
(b) the Provider will provide all reasonable co-operation and assistance as may
be necessary to the Department (or a third party service provider nominated
by the Department) to effect an efficient and orderly transition out of the
removed Services (including complying with any applicable obligations under
the Transition-Out Plan); and
(c) the Charges will, to the extent necessary, be adjusted to reflect the reduced
scope and/or volume of the Services, provided however, no variation shall be
made to the Charges except:
(i) in the case of a Material Variation to the Department's Portfolio; or
(ii) in the case of the removal or cancellation of Specified Project
Management Services.
18.5 The Provider acknowledges and agrees that the Department retains the right to
perform the removed Services in-house or to have another New South Wales
Government department, agency or statutory body and/or third party perform the
removed Services.
18.6 The Department's Representative is authorised by the Department to give a Change
Notice, to approve any submissions of the Provider in response to a Change Notice
and to deal with any other matters arising under a Change Notice. No other
employee or representative of the Department shall be permitted or authorised by
Department to require any additions or variation to the Services and the Provider
shall not act upon any instruction of any the Department's employees and agents
other than the Department's Representative which in any way materially adds to or
changes the requirements of this Agreement, or in any way alters the Charges
payable by the Department under this Agreement.
Transfer to another NSW Government Agency
18.7 If any part of Department's Portfolio is transferred to another New South Wales
Government department, agency or statutory body, the Provider must, if requested
by the Department, continue to provide the Services for the transferred Sites to that
department, agency or statutory body for the remainder of the Term.
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19. FINANCIAL SECURITY
19.1 The Provider must, within twenty (20) Business Days of the Commencement Date,
provide a financial security substantially in the form of the agreement set out in
Attachment F for the amount set out in the Agreement Details.
19.2 The Financial Security will be held as security for the due and proper performance
and completion of all the obligations of the Provider under this Agreement.
19.3 The Financial Security must be issued by an Australian domiciled bank, insurance
company or other financial institution acceptable to the Department.
19.4 If the Provider fails to properly perform and complete its obligations under this
Agreement and the Department suffers loss or damage arising from, or in connection with, such failure by the Provider, the Department may deduct any or all
such loss or damage (as ascertained and certified by the Department) from the
Financial Security.
19.5 If the Financial Security is not sufficient to meet payment of all the loss or damage
suffered by the Department, the balance remaining will be a debt due and owing
from the Provider to the Department and may be recovered by the Department in accordance with Clause 14.14.
19.6 The Provider agrees that the Department will have no liability of any nature (whether
in negligence or otherwise) for any loss or damage suffered or incurred by the
Provider where the Department exercises its rights under this Clause 19 in good faith.
19.7 The Provider waives any rights it may have to obtain an injunction or otherwise
prevent the Department from making a claim or receiving a payment under the Financial Security. This Clause 19.7 does not prevent the Provider from taking
action to recover from the Department any amount invalidly received by the
Department under any such Financial Security.
19.8 The Financial Security must be released to the Provider (or to whom the Provider
directs) if:
(a) the Provider has fully performed and discharged all of its obligations under this
Agreement; and
(b) in the reasonable opinion of the Department as applicable, there is no
prospect that money or damages will become owing (whether actually or
contingently) by the Provider to the Department.
19.9 The Department acknowledges that the Financial Security may have an expiry date
before the end of the Term and the Provider agrees to renew the Financial Security
in accordance with clause 19.1 0.
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19.10 The Provider must replace the Financial Security not later than 3 months prior to the
date on which the Financial Security is due to expire, with a replacement Financial
Security which complies with the requirements set out in this Clause 19.
19.11 If the Provider fails to replace the Financial Security within 2 weeks prior to the
Financial Security expiry date referred to in Clause 19.1 0, the Department may
immediately call on the Financial Security and hold the Financial Security monies in
a retention account until such time as the Financial Security is replaced by the
Provider.
19.12 Where a replacement Financial Security is provided under the foregoing provisions,
the Department must, in exchange for the replacement Financial Security, return the
original Financial Security to the Provider.
20. PERFORMANCE GUARANTEE
20.1 If requested by the Department, the Provider must arrange for a guarantor approved
in writing by the Department to enter into an agreement with the Department
substantially in the form of the agreement set out in Attachment G (Performance
Guarantee).
21. ACCOUNTS AND RECORDS
21.1 The Provider must at all times maintain full, true, separate and up to date accounts
and records in relation to the Services, the Charges, the Pass Through Expenses
and the reimbursable expenses. Such accounts and records must:
(a) be drawn in accordance with any applicable Australian accounting standards;
(b) include appropriate audit trails for transactions performed;
(c) separately record and itemise all receipts and expenses in relation to the
Services for the Department by relevant cost centre against the chart of
accounts provided by or agreed with the Department;
(d) in the case of any Services performed on a time and materials or cost plus
basis, identify the time spent by Provider's Personnel in performing those
Services;
(e) be kept in a form and manner as to facilitate access and inspection; and
(f) enable the extraction of all information relevant to the performance of the
Agreement for the Department.
21.2 The Provider must, within one (1) Month of the end of each financial year during the
Term and expiration or any termination of this Agreement in respect of:
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(a) the period from the Commencement Date to 30 June 2008;
(b) each financial year during the Term; and
(c) the period commencing 1 July following the end of the last financial year
before expiration or earlier termination of this Agreement to the expiry or
termination date,
provide to the Department a statement in respect of the previous financial year or
period, signed by a person who is registered as an auditor under the Corporations
Act 2001 (Cth) or a member of the Institute of Chartered Accountants in Australia or
the A.ustralian Society of Certified Practising Accountants, certifying that the person
is satisfied that the accounts held by the Provider under this Clause 21 are dealt with
in accordance with this Clause 21 and all current Australian accounting standards.
22. AUDITS
22.1 Audits may be conducted in respect of:
(a) the Provider's compliance with all its obligations under this Agreement;
(b) the Provider's operational practices and procedures as they relate to this
Agreement, including security measures and data protection procedures
pursuant to Clause 1 0;
(c) the efficiency of the Provider's operations in relation to the provision of the
Services under this Agreement; and
(d) any other matters reasonably determined by the Department to be relevant to
the performance of the Provider's obligations under this Agreement.
22.2 The Provider must participate promptly and cooperatively in any audits conducted
by the Department or its nominee.
22.3 Except in those circumstances in which notice is not practicable or appropriate, the
Department must give the Provider reasonable notice of an audit and, where
reasonably practicable, an indication of which documents and/or class of documents
the auditor may require.
22.4 Each Party must bear its own costs of any audits.
22.5 The Provider must promptly, at no additional cost to the Department, take corrective
action to rectify any error, non-compliance or inaccuracy identified in any audit in the
way the Provider has under this Agreement supplied any Services, calculated the
Charges, the Pass Through Expenses, reimbursable expenses or any other
amounts or fees billed to the Department.
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23. ACCESS
23.1 For the purposes of Clauses 21 and 22, the Provider must grant, and where
relevant, must ensure that its Personnel grant the Department and its nominees,
access to the Provider's premises, data, records, accounts and other financial
material or material relevant to the performance of this Agreement, however and
wherever stored, under the Provider's or its Personnel's custody, possession or
control. Without affecting the requirements of Clause 9.4, access must be granted
at such times as may be suitable to the Provider and the Provider must not
unreasonably delay or deny such access.
23.2 In the case of documents or records stored on a medium other than in writing, the
Provider must make available on request at no additional cost to the Department
such reasonable facilities as may be necessary to enable a legible reproduction to
be created.
23.3 Clauses 22 and 23 apply for the Term and for a period of seven (7) years from the
date of its expiry or termination.
23.4 In the exercise of the general rights granted by this Clause 23, the Department must
use reasonable endeavours not to unreasonably interfere with the Provider's
performance under this Agreement in any material respect.
24. INSURANCE
24.1 The Provider must hold and maintain, and must, to the extent applicable, ensure
that all subcontractors (including those subcontractors managed by the Provider for
the Department under Clause 7.3) are beneficiaries under or otherwise hold and
maintain, the following insurances for the Term:
(a) a broad form liability policy of insurance that includes:
(i) public liability insurance of the value of at least the amount specified in
the Agreement Details in respect of each claim;
(ii) products liability insurance of the value of at least the amount specified
in the AgreemE'!nt Details for the total aggregate liability for all claims
arising out of the Provider's products for the period of cover;
(b) workers' compensation insurance in accordance with applicable legislation for
all the Provider's employees;
(c) professional indemnity insurance to the value of at least the amount specified
in the Agreement Details. The professional indemnity insurance must:
(i) cover the Provider's liability to the Department in respect of the
Services and any products supplied ancillary to the Services;
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(ii) be maintained by the Provider for the period specified in the
Agreement Details;
(iii) include at least one automatic reinstatement provision; and
(iv) include a description of the risk covered by the policy; and
(d) such other insurances as are specified in the Agreement Details.
24.2 All policies of insurance must
(a) be effected with an insurer approved by the Department (which approval will
not be unreasonably withheld); and
(b) other than in the workers' compensation and professional indemnity policies of
insurance, have the Department as a named insured in respect of its interest
under this Agreement.
24.3 The Provider must, and must ensure that subcontractors (including those
subcontractors managed by the Provider for the Department under Clause 7.3), as
soon as practicable, inform the Department in writing of the occurrence of an event
affecting the Services that may give rise to a claim under a policy of insurance
effected as required by this Agreement and must ensure that the Department is kept
fully informed of subsequent action and developments concerning the claim.
24.4 During the Term, the Provider must when requested in writing by the Department
supply proof that all insurance policies required by this Agreement are current.
24.5 If the Provider fails to comply with Clauses 24.1 and 24.2, the Department:
(a) may effect and maintain the insurances required under Clause 24.1 and pay
the necessary premiums; and
(b) may recover from the Provider or set-off in accordance with Clause 14.14
against other money due by the Department to the Provider, the cost of the
premiums and the Department's reasonable costs of effecting and maintaining
the insurance.
24.6 Where the Provider is insured under a foreign parent company's or holding
company's insurance policy, that insurance policy must clearly indicate that it
applies to and extends coverage to the Provider in accordance with Clause 24.1.
24.7 The Provider's compliance with this Clause 24.1 does not limit the liabilities or
obligations of the Provider under other provisions of this Agreement.
25. WARRANTIES
25.1 The Provider warrants that
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(a) it has full corporate power and authority to enter into, perform and observe its
obligations under this Agreement; and
(b) that the execution, delivery and performance of this Agreement has been duly
and validly authorised by all necessary corporate action on part of the
Provider.
25.2 It is a condition of this Agreement that the Provider has disclosed in writing to the
Department prior to this Agreement:
(a) any litigation or proceeding whatsoever, actual or threatened, against the
Provider;
(b) the existence of any breach or default or alleged breach or default of any
agreement, order judgement or award binding upon the Provider; and
(c) matters relating to the commercial, technical or financial capacity of the
Provider, its Personnel or of any subcontractor proposed to be engaged in
connection with this Agreement,
being matters which may materially affect the Provider's ability to perform any of its
obligations under this Agreement. The Provider must promptly notify and fully
disclose to the Department in writing any event or occurrence actual or threatened
during the Term which may materially affect the Provider's ability io perform any of
its obligations under this Agreement.
25.3 The Provider warrants that:
(a) it has the necessary expertise, experience, capacity and facilities required to
perform its obligations and responsibilities in accordance with this Agreement
at a standard that meets or exceeds industry practice; and
(b) that the Services shall be in accordance with the requirements of this
Agreement.
26. DISCLAIMER AND RELEASE
Disclaimer
26.1 (a) The Provider represents and warrants that it has made its own assessment of
all the information made available in the RFT and throughout the procurement
process (the "Information") and has sought appropriate independent
professional advice on:
(i) any information, statements, or representations contained in any
Information;
(ii) the regulatory regime applicable to delivery of the Services;
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(iii) the assumptions, uncertainties and contingencies which may affect
the future delivery of the Services; and
(iv) the impact that a variation in future outcomes may have on any
Services.
(b) That, subject to any law to the contrary, and to the maximum extent permitted
by law, the Department, its Personnel and advisers each disclaim all liability
for any losses (whether foreseeable or not) suffered by the Provider, its
Personnel or any other person acting on any part of the Information, whether
or not the loss arises in connection with any negligence, default or lack of care
on the part of the Department, its Personnel or advisers or any other person,
or any misrepresentation, or any other cause.
Release
26.2 To the fullest extent permitted by law, the Provider releases each of the Department,
its Personnel and advisers from and against all claims, actions, damages, remedies
and matters arising from or which may arise from or in connection with the provision
of, or any purported reliance on, the Information and the Provider agrees that none
of the Department, its Personnel or advisers:
(a) makes or gives any representation, assurance or warranty, express or implied,
that the Information or any part of the Information is or will be current,
accurate, reliable or complete;
(b) is under any obligation to notify the Provider or any other person, or to provide
any further information to the Provider or any other person, if they or any of
them become aware of an inaccuracy, incompleteness or change in the
Information;
(c) is under any obligation or duty in relation to the Information, either to the
Provider, or to any person obtaining Information from the Provider;
(d) professes any expertise, or represents any willingness to apply any expertise,
for the benefit of the Provider;
(e) makes any express or implied representation or warranty that any estimate or
forecast will be achieved or that any statements to future matters will prove
correct;
(f) (except so far as liability under any statute cannot be excluded) accepts no
responsibility arising in any way for errors in, or omissions from, the
Information, or in negligence;
(g) accepts any liability for any loss or damage suffered by any person as a result
of that person or any other person placing any reliance on any Information; or
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(h) assumes any duty of disclosure or fiduciary duty to any interested party.
26.3 This Clause 26 is intended to benefit and is to be interpreted as benefiting the
Department and each of its Personnel and advisers and to be enforceable by each
of those persons. To that extent, the Department has entered this Agreement on its
own behalf and on behalf of each of those persons.
27. INDEMNITY
27.1 The Provider must indemnify the Department and its Personnel from and against
any loss (including reasonable legal costs and expenses) or liability that may be
incurred or suffered by the Department and/or its Personnel arising out of any suit,
actions or proceedings by any person against the Department and/or its Personnel:
(a) where that loss or liability was caused or contributed to by any unlawful,
wrongful, wilful, or negligent act, default or omission of the Provider or its
Personnel in connection with the Agreement;
(b) where and to the extent that loss or liability relates to personal injury, death or
property damage caused or contributed to by the Provider or its Personnel in
connection with this Agreement;
(c) where that loss or liability was caused or contributed to by a breach of this
Agreement by the Provider or its Personnel; or
(d) where that loss or liability arises from a claim made or threatened against the
Department or its Personnel in which it is alleged that the Contract Material
(including the Department's use of the Contract Material) infringes the
Intellectual Property Rights, including the Moral Rights of a third party or
individual who has performed work under this Agreement on behalf of the
Provider.
27.2 For the purposes of Clause 27.1 (d) an infringement of Intellectual Property Rights
includes unauthorised acts which would, but for the operation of the Patents Act
1990 (Cth) s.163, the Designs Act 2003 (Cth) s.96, the Copyright Act 1968 (Cth)
s.183 and the Circuits Layout Act 1989 (Cth) s.25, constitute an infringement.
27.3 The Department may in its discretion permit the Provider, at the Provider's expense,
to handle all negotiations for settlement and, as permitted by law, to control and
direct any litigation that may follow a claim under Clause 27.1, or clause 27.4
subject to the Provider agreeing to comply at all times with the Department's
reasonable directions and government policy relevant to the conduct of the litigation.
27.4 The Provider must indemnify and keep indemnified the Department and any
incoming third party service provider of the Department which may take over the
provision of the Services (or any part thereof) from the Provider, from and against all
clairns, losses, and liabilities which may be made against the Department and/or its
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incoming service provider by a subcontractor arising from any defaults and/or
omissions of the Provider under or in respect of any subcontract occurring prior to
the date of novation or assignment, where such subcontract is, following the expiry
or termination of this Agreement or the termination of any part of the Services,
novated or assigned to the Department or service provider.
27.5 The Provider's liability to indemnify:
(a) the Department and its Personnel under Clause 27.1; and/or
(b) the Department and any incoming service provider under Clause 27.4;
shall be reduced proportionally to the extent that any unlawful, wrongful, wilful or
negligent act, default or omission of the Department, its Personnel or its incoming
service provider (as the case may be) caused or contributed to the loss or liability.
27.6 The Provider agrees that the Department may enforce the indemnity in favour of the
persons specified in Clauses 27.1 and 27.4 for the benefit of each of such persons
in the name of the Department or of such persons.
27.7 Liability under this Agreement may not be capped unless a risk management plan
consistent with AS/NZ 4360:1999 is completed by the Provider and approved by the
Department. The risk management plan must be provided substantially in the form
specified by the Department and must include at least:
(a) a description of the procurement context;
(b) an identification and schedule of potential risks and their impacts;
(c) an assessment of risk likelihood and consequences;
(d) a risk management plan; and
(e) a risk treatment plan.
27.8 The Provider will bear all costs arising from its obligations pursuant to Clause 27.7.
27.9 Despite any other provision of this Agreement the liability of the Provider under this
Agreement to the Department and any incoming third party service provider for any
loss, cost, damage or expense is limited in aggregate to five times the first year
Charges.
28. INTELLECTUAL PROPERTY
28.1 This Agreement does not assign any Intellectual Property Rights existing at the
Commencement Date and neither Party may assert ownership of all or part of any
Intellectual Property Rights in the other Party's then existing Intellectual Property
Rights.
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New Contract Material
28.2 Copyright (including future copyright) in all New Contract Material, vests in the
Crown in right of the State of New South Wales or is otherwise hereby assigned by
the Provider to the Crown in right of the State of New South Wales. Title to, any
Intellectual Property Rights in all New Contract Material (other than copyright) shall,
on creation, vest or otherwise be assigned or transferred to the Crown in right of the
State of New South Wales, without the need for further assurance.
28.3 The Provider will, prior to a subcontractor commencing any work under this
Agreement, obtain from that subcontractor and provide to the Department a written
assignment to the Department of all the Intellectual Property Rights created as a
result of the subcontractor performing the work.
Existing Contract Material
28.4 This Agreement does not affect the ownership of Intellectual Property Rights in
Existing Contract Material. However, The Provider hereby grants, and ensures that
relevant third parties grant, to the Department, without additional cost, a non
exclusive, irrevocable, transferable licence:
(a) to use, reproduce, communicate to the public and adapt for its own purposes
all those Intellectual Property Rights but only as part of the Contract Material
(and any further development of that material); and
(b) to sub-licence to New South Wales Government agencies and statutory
bodies and their service providers, all Intellectual Property Rights in the
Existing Contract Material, to the extent necessary or desirable to enable the
Department, its service providers and any other New South Wales
Government departments, agencies and statutory bodies or their service
providers, to carry out services similar to the Services (which for the
avoidance of doubt is not restricted to the Department's Portfolio) but only as
part of the Contract Material (and any further development of that material).
Department Material
28.5 As between the Parties, the Department is the owner of, and retains ownership of
the Intellectual Property Rights in the Department Material as it exists from time to
time, including any modifications or additions which may have been made to the
Department Material by the Provider or its Personnel in the course of the carrying
out the Services.
28.6 The Department grants to the Provider a non-exclusive non-transferable licence to
use and modify the Department Material only for the purposes of providing the
Services in accordance with this Agreement and in accordance with any terms and
conditions notified to the Provider by the Department.
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28.7 If requested by the Department to do so, the Provider shall at its own cost, bring into
existence, sign, execute or otherwise deal with any document which may be
necessary or desirable to give effect to this Clause 28.
29. SOFTWARE
29.1 The Provider must use best endeavours to ensure that each of its licence
agreements in respect of the Licensed Software provides for an automatic
assignment of the licence to use the Licensed Software (such licence may be non
exclusive) to the Department or to the Department's nominee upon written notice
from the Department to the licensor in the event that:
(a) the Provider is unable or unwilling to provide the Services required of it in
relation to the relevant Licensed Software under this Agreement; or
(b) this Agreement expires or is terminated for any reason.
29.2 Any Software which is owned by the Provider and used by the Provider for the
purposes of this Agreement, remains the property of the Provider but the Provider
grants to the Department a non-exclusive, royalty free licence to use, or to enable a
third party on behalf of the Department to use, that Software during the Term of this
Agreement and any Transition-Out Period solely for the purposes of the provision of
services similar to the Services to the Department.
29.3 The Provider must, if requested by the Department, grant the Department and its
service providers, a licence to use the Software referred to in Clause 29.2 after
termination or expiration of this Agreement in order to provide services similar to the
Services to the Department. The Parties will negotiate in good faith on a reasonable
fee for the licence provided however, the fee must not exceed the market rate for
licences of similar Software or the price offered to other customers of the Provider
for the Software (whichever is the lesser).
29.4 Notwithstanding the terms of Clause 29.1, if the Provider is, or reasonably considers
it will be, after having used its best endeavours, unable to assign to the Department
the licence in respect of the Licensed Software, it must promptly notify the
Department of that failure and, if requested by the Department, the Provider and the
Department will negotiate in good faith with respect to the Provider obtaining for the
Department's benefit and at the Department's cost such rights or arrangements to
use the Licensed Software as the Department reasonably requires to provide the
Services.
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30. CONFIDENTIALITY AND PRIVACY
Confidentiality
30.1 Neither Party shall make public, disclose or use any Confidential Information except
in accordance with this Agreement, unless the other Party gives its prior written
consent.
30.2 Each Party may disclose the Confidential Information of the other Party:
(a) to its Personnel where the disclosure is essential to carrying out their duties
for the purposes of this Agreement;
(b) to its legal advisers and accountants in order to advise the first-mentioned
Party in relation to its rights under this Agreement, but only to the extent
necessary for that purpose;
(c) to a benchmarker for the purposes of conducting a benchmarking evaluation
under Clause 32;
(d) to an auditor for the purposes of conducting an audit under Clause 22; and
(e) during a Transition-Out Period, to a third party service provider designated by
the Department to assist the service provider to transition-in and assume
control of the provision of the Services (or any part thereof).
30.3 The Provider shall take all reasonable steps to ensure that any Confidential
Information of the Department is used solely in connection with, or for the purposes
of fulfilling its obligations under this Agreement.
30.4 Upon request by the Department, the Provider must ensure that permitted recipients
of the Department's Confidential Information execute a confidentiality deed (in the
form of Attachment E) and promptly provide these executed deeds to the
Department.
30.5 Nothing in Clauses 30.1 to 30.4 shall be construed to prevent the Department from
disclosing information provided by the Provider to the State Contracts Control Board
or to any other New South Wales Government departments or agencies, provided
that if the information is Confidential Information, the Department takes all
reasonable steps to ensure that such information is treated as confidential by the
State Contract Control Board or such departments or agencies and their servants
and agents.
Privacy
30.6 The Provider agrees that with respect to all the Department's Confidential
Information that comprises Personal Information:
200700526 02008129704
45
(a) to use, access, retain or disclose Personal Information obtained during the
course of providing the Services under this Agreement only for the purpose for
which the Personal Information was acquired;
(b) not to do any act or engage in any practice that would breach an Information
Protection Principle, or which if done or engaged in by the Department, would
be a breach of that Information Protection Principle;
(c) to comply with, carry out and discharge to the maximum extent possible, the
obligations contained in the Information Protection Principles as if it were the
Department carrying out and discharging those obligations;
(d) to notify the Department immediately upon becoming aware of a breach or
possible breach of any of the obligations contained in or referred to in this
Clause 30.6, whether by the Provider or its Personnel;
(e) to notify the individuals affected, that complaints about acts or practices in
relation to such individuals' Personal Information may be investigated by the
Privacy Commissioner;
(f) to comply with all reasonable directions of the Department in relation to the
care and protection of Personal Information held in connection with this
Agreement and in addition thereto, take all reasonable measures to ensure
that such information is protected against loss, unauthorised access or use,
modification or disclosure and against other misuse;
(g) to ensure that any Personnel of the Provider who is required to deal with the
Personal Information for the purposes of this Agreement is made aware of the
obligations of the Provider under this Clause 30.6; and
(h) to ensure that any other agreement with any Personnel of the Provider who
may be fulfilling a requirement in relation to this Agreement which includes the
handling of Personal Information, contains the same or equivalent obligations
to this Clause 30.6 which are enforceable by the Provider against such
person.
30.7 The Provider acknowledges and agrees that all Department Material, Material
containing the Department's Confidential Information and any Material containing
Personal Information will be stored solely within Australia and no such Material will
be transferred or transmitted overseas at any time.
31. PUBLIC ANNOUNCEMENT
31.1 The Provider must not make any press or other announcements or releases relating
to this Agreement and the Services without the prior written approval of the
Department.
200700526 02008129704
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32. BENCHMARKING
32.1 The Department may undertake at least once annually a benchmarking of the
Services for the purposes and scope specified below to compare:
(a) the Charges the Department is paying to the Provider for the Services; and/or
(b) the quality and standard of performance of the Services (as reflected in,
among other things, the Service Levels),
against prices being paid by, and/or the quality and standard of performance of
services being provided:
(a) to organisations similar to the Department (whether these be NSW
Government departments, agencies or statutory bodies or those of the
Commonwealth or other Australian States and Territories or otherwise) for the
same or similar services;
(b) to organisations holding a broadly equivalent or a similar asset portfolio to the
Department's Portfolio; and/or
(c) in the market place.
32.2 The Department may at its own cost engage an independent consultant to
undertake the benchmarking. The Parties agree that the Department may disclose
to the independent consultant any provisions of this Agreement relevant to the
Services, and that the independent consultant will be required to comply with each
of the Parties' reasonable confidentiality and security requirements.
32.3 The Parties must give the independent consultant:
(a) access to any premises, equipment, Personnel, records or documents; and
(b) any assistance,
reasonably required by the independent consultant to conduct the benchmarking
exercise.
32.4 Each Party will bear its own internal costs of complying with its obligations under this
Clause 32.
32.5 The Department will use its reasonable endeavours to ensure that the Provider has
an opportunity to provide input into the benchmarking exercise and to comment on a
draft of the independent consultant's benchmarking report before it is issued in final
form.
32.6 Where the independent consultant finds that the Provider's performance fails to
match then current Australian market prices and/or standards for delivery of similar
services:
200700526 02008/29704
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(a) the Department will assist the Provider to determine the causes of the failure
and/or uncompetitive pricing; and
(b) the Provider must, at no additional cost to the Department, promptly take
corrective action to match then current Australian standards of delivery for
similar services including where appropriate, by providing additional staffing,
increasing levels of training, upgrading the Property MIS (or any part thereof)
or introducing new and improved tools and improving processes. The
Provider agrees that the Service Levels for the Services will be adjusted to
reflect the service levels for delivery of similar services in the Australian
market place; and/or
(c) to the extent the uncompetitive pricing is not caused by the Department's
unique requirements, the Provider must lower the Charges to match the then
current Australian market prices.
32.7 If the Provider fails to implement the results of any benchmarking exercise as
required and identified in Clause 32.6, the Provider will be in material breach of this
Agreement and the Department may:
(a) terminate the Agreement in accordance with Clause 37; or
(b) cease to acquire the whole or any specified part of the Services affected by
the benchmarking exercise by way of a reduction in Services, and in such
case Clause 18 will apply.
33. CONFLICT OF INTEREST
33.1 The Provider undertakes that at the date of this Agreement, no conflict of interest
exists or is likely to arise in the performance of the Services. The Provider must
notify the Department, in writing, immediately upon becoming aware of the
existence, or possibility, of a conflict of interest.
33.2 On receipt of a notice under Clause 33.1, the Department may:
(a) approve the Provider continuing to perform the Services, which approval may
be subject to reasonable conditions to ensure appropriate management of the
conflict.
(b) where in the Department's reasonable view the conflict of interest cannot be
appropriately managed, exercise its rights of termination under this
Agreement.
34. FORCE MAJEURE
34.1 Where a Party ("Affected Party") is, by reason of a Force Majeure Event, unable,
either wholly or in part, to carry out any obligation under this Agreement, that
200700526 02008/29704
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obligation is suspended so long as it is affected by the Force Majeure Event,
provided that the Affected Party:
(a) provides prompt notice of the Force Majeure Event to the other Party,
identifying the effect of this event on its performance of this Agreement;
(b) uses all reasonable diligence to remove or minimise the effect of the Force
Majeure Event as quickly as possible; and
(c) consults with the other Party for the purpose of agreeing on measures to
remove or minimise the effect of the Force Majeure Event and performs any
such agreement.
35. DISPUTE RESOLUTION
35.1 The Parties must attempt to settle any dispute in relation to this Agreement in
accordance with this Clause 35 before resorting to court proceedings or other
dispute resolution process.
35.2 (a) A Party claiming that a dispute has arisen, must give written notice of the
dispute to the other Party. On receipt of this notice the Parties must within ten
(10) Business Days of receipt seek to resolve the dispute.
(b) If the dispute is not resolved within this ten (10) Business Day period or within
such other further period as the Parties agree in writing, the dispute is to be
referred to the Chief Executive Officer of the Provider and the Director
General of the Department for resolution.
(c) In the event the Chief Executive Office of the Provider and the Director
General of the Department fail to resolve the dispute within a fifteen ( 15)
Business Day period or within such further period they may agree in writing
after referral of the dispute to them then the dispute is to be referred to the
ACDC for mediation.
(d) The mediation shall be conducted in accordance with the ACDC Mediation
Guidelines which set out the procedures to be adopted, the process of
selection of the mediator and the costs involved.
(e) If the dispute is not settled within twenty (20) Business Days (or such other
period as agreed to in writing between the Parties) after appointment of the
mediator, or if no mediator is appointed within twenty (20) Business Days of
the referral of the dispute to mediation, the Parties may pursue any other
procedure available at law for the resolution of the dispute.
(f) If the Department requests it, the Provider must continue performing this
Agreement while a dispute is being dealt with in accordance with this
200700526 02008/29704
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Clause 35, other than such Services (or part thereof) the subject of the
dispute, to the extent practicable to do so.
(g) Nothing in this Clause 35 will prevent either Party from seeking urgent
interlocutory relief.
36. TERMINATION FOR CONVENIENCE
36.1 The Department may, at any time terminate this Agreement for convenience in
whole or in part, by giving at least ninety (90) days' notice in writing to the Provider,
such tennination being effective upon expiry of period or the date specified in the
notice.
36.2 If the Department terminates this Agreement for convenience:
(a) the Department will pay the Provider any unpaid fees which relate to Services
properly performed up to the date of termination, less any pre-paid amounts;
(b) the termination charges specified in Attachment C (Fees and Charges);
(c) the Department will reimburse the Provider its unavoidable costs and
expenses directly incurred as a result of termination provided that any claim by
the Provider:
(i) is limited to the amount of the cap on reimbursable unavoidable costs
in the event of termination for convenience, as specified in the
Agreement Details;
(ii) is supported by satisfactory written evidence of the costs claimed;
(iii) will be in total satisfaction of the liability of the Department to the
Provider in respect of this Agreement and its termination; and
(d) the Provider must do every1hing reasonably possible to prevent or otherwise
mitigate any losses resulting to the Provider from the termination.
37. TERMINATION FOR CAUSE
37.1 The Department may, by notice in writing to the Provider, immediately terminate this
Agreement if the Provider:
(a) commits a material breach of this Agreement which, in the Department's
opinion, is not capable of being remedied;
(b) fails to remedy a material breach which, in the Department's op1mon is
capable of being remedied, within five (5) Business Days of receiving notice
from the Department requiring it to remedy that breach, or such longer period
200700526 02008/29704
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as the Department may reasonably allow having regard to the nature of the
breach and a reasonable time to remedy it;
(c) suffers a change in Control without obtaining the Department's prior written
approval, which approval shall not be unreasonably withheld;
(d) becomes the subject or suffers an Insolvency Event; or
(e) is the subject of proceedings or investigations commenced or threatened by
the Independent Commission Against Corruption, the police service or similar
public body.
37.2 If the Department terminates this Agreement for cause the Department may:
(a) contract with any other person for the provision of the Services.
(b) deduct any loss or damages arising from or in connection with the termination
(which may be as ascertained and certified by the Department) from any
money due, or which may become due, to the Provider (whether under this
Agreement or otherwise); and
(c) recover in an appropriate court the balance of any outstanding loss or damage
remaining unpaid as a debt due and payable by the Provider to the
Department.
37.3 For the purposes of the termination provisions in this Agreement, the Provider
acknowledges that a series of minor breaches may constitute a "material breach".
38. UPON TERMINATION
38.1 Without limiting the Department's rights in relation to this Agreement, if the
Department pre-paid any amounts to the Provider for Services to be performed
which at the date of termination have not been performed and this Agreement is
terminated for any reason:
(a) the Provider must refund to the Department such prepaid amounts, within five
(5) Business Days of termination of this Agreement; and
(b) the Department may recover in an appropriate court the balance of any
prepaid amount not refunded as a debt due and payable by the Provider to the
Department.
38.2 The Provider must, except to the extent approved by the Department in writing or
agreed in the Transition-Out Plan, deliver to the Department, within five (5)
Business Days of termination or expiry of this Agreement:
(a) all Confidential Information of the Department;
200700526 02008/29704
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(b) all Contract Material and Department's Material; and
(c) all copies of (a) and (b) above,
which are in the possession, custody or control of the Provider or its Personnel.
38.3 The provision dealing with the return of Materials upon termination or expiry of this
Agreement does not prevent the Provider from keeping a bona fide copy of the
Department's Material and Contract Material, in so far as they specifically relate to
the Parties' communications in relation to the administration of this Agreement, for
the Provider's record, subject however:
(a) to the confidentiality requirements contained in this Agreement; and
(b) to the removal of all Personal Information from such materials.
38.4 Termination of this Agreement in respect of a particular Service, does not affect the
other Services provided under this Agreement which will remain subject to the terms
and conditions of this Agreement.
38.5 Any termination of this Agreement is without prejudice to any accrued rights or
remedies of either Party.
38.6 Unless otherwise advised by the Department in writing, on and from the date of
termination the Provider must Transition-Out in accordance with its obligations
under Clause 39 and the Transition-Out Plan and the Parties agree that the
provisions of this Agreement shall, to the extent they may be applicable to the
Transition-Out, remain in full force and effect for the Transition-Out Period.
38.7 Clauses in this Agreement dealing with access to records, licences and consents,
software confidentiality, intellectual property, insurance, consequences of
termination, and any other provision of this Agreement which by its nature should
survive termination shall survive termination, expiry or repudiation of this
Agreement.
39. TRANSITION-OUT PLAN
39.1 The Provider must, in consultation with the Department:
(a) within twelve (12) Months of the Commencement Date, prepare a draft
transition-out plan; and
(b) update the transition-out plan annually.
39.2 The Transition-Out Plan will set out the obligations of the Provider in relation to
Transition-Out and provide details about how and in what timeframe such
obligations will be performed. In particular, the Transition-Out Plan will specify all
things necessary to enable Transition-Out to be completed as efficiently and
200700526 02008/29704
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effectively as possible without adversely impacting the quality of the Services. The
Transition-Out Plan must, without limitation, include:
(a) a strategy for effecting a seamless Transition-Out from Provider's control to
the control of either the Department or a third party service provider, including
the transfer of Managed Services, help desk services, subcontractors, the
Department's Data and a proposed Transition-Out Period;
(b) a detailed work breakdown structure identifying the tasks to be performed and
expected resources needed during Transition-Out;
(c) a Transition-Out timeline (in the format of a milestone schedule - Gantt chart)
showing the start and finish date for each of the identified exit transition tasks
and the end date for each Service; and
(d) a description of how the Provider proposes to return the Department's
Material, Department Data and all other information gathered during the Term
of this Agreement such that the information is in electronic form readily usable
by the Department or by another third party service provider taking over the
Services from the Provider.
Application
39.3 Clauses 39.3 to 39.9 apply, at the option of the Department as notified to the
Provider in writing:
(a) during the period commencing on the date specified in the Department's
notice which must be no earlier than six (6) Months prior to the expiry of the
Term and ending on the date specified in the Department's notice, provided
that such date must be no later than twelve (12) Months after the expiry of the
Term; or
(b) during the period commencing on the date on which this Agreement is
terminated pursuant to Clause 36 or 37 and ending on the date specified in
the Department's notice, provided that such date must be no later than twelve
(12) Months after the date of termination.
39.4 Each Party must, at least five (5) Business Days prior to the commencement of a
Transition-Out Period (or such other time as agreed between the Parties):
(a) nominate a transition-out manager to supervise and project manage the
performance of their respective obligations in relation to the Transition-Out;
and
(b) notify the other Party of the name and contact details of its Transition-Out
manager.
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53
39.5 The Parties' Transition-Out managers, and if applicable, any incoming third party
transition-in managers, must meet at the earliest opportunity possible and enter into
negotiations in good faith to update and finalise the Transition-Out Plan. The
Transition-Out Plan will describe in detail, the Transition-Out services to be provided
by the Provider, the activities for which each Party is responsible, the activity
completion dates and the basis upon which fees for any additional services are to be
calculated and expenses reimbursed.
Hand Over
39.6 The Provider acknowledges that it is critical that there is continuity of the Services
and, for that reason, the Department relies significantly on the Provider fulfilling its
Transition-Out obligations. Accordingly the Provider must:
(a) in relation to the Services disengaged, except to the extent they are
inconsistent with the terms of the Transition-Out Plan, continue to provide
such Services (including any associated monitoring, reporting and other
related services required under this Agreement) during the Transition-Out Period in accordance with the terms of this Agreement;
(b) at all times during the Transition-Out Period ensure that it is able to deploy all
necessary resources to complete Transition-Out in accordance with the Transition-Out Plan;
(c) do everything within its control to ensure that there is no disruption to such Services during the Transition-Out Period;
(d) provide for the orderly handover of such Services to the Department or to a
third party service provider nominated by the Department in accordance with the Transition-Out Plan; and
(e) unless otherwise specified in the Transition-Out Plan, implement arrangements for:
(i) the novation or assignment (to the extent practical) of subcontracts,
licences and other contractual arrangements entered into by the
Provider for the purposes of this Agreement or the transfer of
management responsibility in respect of such subcontracts, licences
and arrangements from the Provider to the Department or its
alternative service provider. The Provider must use its reasonable
commercial endeavours to ensure that the transfer is effected without
incurring to the Department, any increases in or transfer charges for
the products and services to which those agreements relate;
(ii) the selling to the Department or its alternative service provider at fair
market value any Equipment used by the Provider for the delivery of
the Services; and
200700526 02008/29704
54
(iii) the transfer of the Department's Data to the Department or its
alternative service provider.
39.7 During the Transition-Out Period, each Party must provide all reasonable co
operation and assistance to the other Party (and, in the case of the Provider, to any
third parties nominated by the Department to take over the Services or any part
thereof) in relation to Transition-Out.
39.8 The Department must pay the Provider for any Services provided during the
Transition-Out Period. Unless otherwise agreed in writing, Charges for such
Services must be calculated in accordance with Attachment C (Fees and Charges)
but adjusted, to the extent necessary, to reflect the reduced or reducing scope
and/or volume of Services being provided as the Transition-Out Period progresses.
39.9 The Department will also pay the Provider a reasonable amount for any additional
services (other than the Services referred to in Clause 39.8) provided and
reasonable expenses incurred in the provision of the Transition-Out services, such
amounts to be calculated to the extent practicable in a manner consisted with
Attachment C (Fees and Charges).
40. NOTICES
40.1 A notice under this Agreement must be:
(a) in writing, directed to the representative of the other Party as specified in the
Agreement Details; and
(b) forwarded to the address, facsimile number or the email address of that
representative as specified in the Agreement Details or the address last
notified by the intended recipient to the sender.
40.2 A notice under this Agreement will be deemed to be served:
(a) in the case of delivery in person- when delivered to the recipient's address for
service and a signature received as evidence of delivery.
(b) in the case of delivery by post- within three (3) Business Days of posting.
(c) in the case of delivery by facsimile - at the time of dispatch if the sender
receives a transmission report which confirms that the facsimile was sent in its
entirety to the facsimile number of the recipient.
(d) in the case of delivery by email -on receipt of confirmation by the sender that
the recipient has received the email.
40.3 Notwithstanding Clause 40.2, if delivery or receipt of a communication is on a day
which is not a Business Day in the place to which the communication is sent .or is
200700526 02008/29704
55
later than 5 pm (local time in that place) it will be deemed to have been duly given or
made at 9 am (local time at that place) on the next Business Day in that place.
41. MISCELLANEOUS
Assignment
41.1 The Provider must not assign or otherwise transfer any right or obligation under this
Agreement without the Department's prior consent.
Writing
41.2 All amendments to this Agreement and all consents, approvals, waivers and
agreements made under or pursuant to this Agreement must be evidenced in
writing.
Consents
41.3 A Party may give its consent or approval conditionally or unconditionally or may
withhold its consent, in its absolute discretion, unless this Agreement specifically
provides otherwise.
Non-waiver
41.4 No failure or delay by the Department in exercising any right, power or remedy
under this Agreement and no course of dealing or grant by the Department to the
Provider of any time or other consideration, will operate as a waiver of the breach or
a default by the Provider. Any waiver by the Department of a breach of this
Agreement will not be construed as a waiver of any further breach of the same or
any other provision.
Assistance
41.5 Each Party must, upon written notice from the other Party, do, sign, execute and
deliver and must procure that each of its Personnel does all acts and signs,
executes and delivers all deeds, documents and instruments reasonably required of
it or them in order to give full effect to this Agreement and the rights and obligations
of the Party under it.
Severability
41.6 If any part of this Agreement is prohibited, void, voidable, illegal or unenforceable,
then that part is severed from this Agreement but without affecting the continued
operation of the remainder of the Agreement.
200700526 02008/29704
56
Relationship
41.7 Neither Party is an employee, agent or, partner of the other for any purpose.
Entire Agreement
41.8 This Agreement constitutes the entire agreement and understanding between the
Parties as to the subject matter of this agreement. Any prior arrangements,
agreements, representations or undertakings as to the subject matter of this
agreement are superseded.
Legal advice and costs
41.9 Each Party will bear its own costs incurred in relation to this Agreement.
Counterparts
41.10 This Agreement may be executed by counterparts by the respective Parties, which
together will constitute one agreement.
Applicable law
41.11 This Agreement is governed by, and must be construed in accordance with, the laws
in force in the State of New South Wales.
Governing jurisdiction
41.12 Each Party submits to the exclusive jurisdiction of the Courts exercising jurisdiction
in the State of New South Wales and the courts of appeal therefrom.
200700526 02008/29704
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This agreement is executed on --~=--q_:_---:M-'f:=&::.:'t.::..::vc.:M-.~:::..'1__.___ ________ 2008.
Execution by the Department:
Signed for and on behalf of the Crown in right )
of the State of New South Wales acting )
through the NSW Attorney General's )
Department by the Hon. John Hatzistergos, )
MLC, Attorney General )
in the presence
(insert name of witness)
)
)
)
200700526 02008/29704
Execution by the Provider:
Signed for and on behalf of Multiplex Facilities ) Management Pty Ltd
A.C.N: 064 638 197
by······················································· {insert name of Director)
in the presence of.
(insert name of witness not a party to this Agreement)
--and by
(insert name of Director or Company Secretary)
in the presence of.
(insert name of witness not a party to this Agreement)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
58
(signature of Director)
200700526 02008/29704
BGIS>
Proposal for Statutory Maintenance and Facilities
Managem nt ervices th in r mu
I i rr cti nal ntr ul rn C
BGIS>
Contents
Proposal for Statutory Maintenance & e Facilities Management Services
Our Business ........................................................................................................................ 3
Summary of relevant experience ......................................................................................... 4
Proposed service delivery .................................................................................................... 6
BGIS- Current Team ............................................................................................................ 8
Pricing Model Proposal ........................................................................................................ 9
BGIS Confidential & Proprietary 2
South Windsor & Emu Plains Correctional Centres & Goulburn CSC
BGIS> Proposal for Statutory Maintenance & e Facilities Management Services
Our Business
BGIS is a leading professional provider of property management and facility services. We have been providing services within Australia for more than 19 years, where we have a presence in every state and territory across the country, and more recently New Zealand.
Our team of 900 people provide a diverse platform that delivers deep technical knowledge through integrated solutions:
Real Estate Management Services
Facilities Management Services
Project Delivery Services
Workplace Solutions
BGIS work extensively with the Department of Justice, Attorney General, Defence and Police on providing a range of facilities and maintenance services. We are recognised as industry experts in managing complex specialist Government properties and believe the insight, and experience we have will benefit the John Morony Correctional Complex.
We have been providing comprehensive maintenance services across the Parramatta Justice Precinct, including the Justice Precinct Office and Courts since 2008. With an established team of 50 people in Parramatta, we can mobilise immediately and able to scale additional resources quickly.
BGIS bring a fresh perspective to the management of correctional complexes balancing service delivery against value for money, added value, and a belief that better managed facilities can support rehabilitation
Establishing and maintaining strong client and stakeholder relationships is central to our approach and we pride ourselves on our core values of integrity, customer satisfaction, employee engagement, innovation and sustainability.
BGIS Confidential & Proprietary
South Windsor & Emu Plains Correctional Centres & Goulburn CSC
3
BGIS> Proposal for Statutory Maintenance & • Facilities Services
Summary of relevant experience BGIS understands the highly secure environment of the John Morony Correction Centre and the special requirements to operate in such a sensitive facility. We appreciate the importance of John Morony's security processes, plans and systems, including the clearance requirements our personnel and our subcontractors must comply with to ensure the ongoing safety of the site.
We are cognisant of the importance of ensuring that all staff under our control (direct and subcontracted) maintain the appropriate security clearances and demonstrate the highest behavioural standards for all sites they require access to. Our ability to operate in this secure environment is demonstrated by our work with similar government clients as detailed below.
Department of Justice
Maintenance Management of eight (8) Correctional Centres, John Morony, Outer Metropolitan, Dillwynia, John Morony Complex, Amber Laurel, Emu Plains , Bolwarra, Boronia and the lllawarra Reintegration Centre.
Our Projects Team has completed works in a number of various NSW correctional centres which are itemised within the monthly BGIS report.
Management of the facilities of the Department of Justice court facilities throughout the State ranging from small rural courthouses to major metropolitan court complexes and city office blocks. Of over 280 buildings, 212 are Crown owned Department of Justice buildings that accommodate court hearings, associated support services and other agencies. These include a number of heritage listed sites.
Management of Juvenile Justice Department sites (11 sites total- 10 Owned & 1 Leased) and its major service providers.
Management of Juvenile Justice Department 39 x leased site offices and its major service providers.
Downing Street centre/ John Maddison Tower complex in the Sydney CBD. We are incumbent service provider at Justice Precinct Offices, Sydney West Trials Court and Parramatta Children's Court and delivered a smooth transition between the current Parramatta Justice Precinct team and our Justice Portfolio team.
Trustee and Guardian (TAG) managed its maintenance and operational services contracts internally. The majority of services were managed on a reactive basis, apart from vertical transport and fire and safety services which were covered under regular maintenance contracts.
Department of Defence BGIS has been delivering services to the Department of Defence since 2001, and we were awarded the Northern NSW region when Defence restructured and re-tendered its entire property portfolio in 2014. The new contract encompasses more than 4,500 buildings across 147 sites within NSW.
BGIS Confidential & Proprietary 4
South Windsor & Emu Plains Correctional Centres & Goulburn CSC
BGIS> Proposal for Statutory Maintenance & e Facilities Management Services
We directly employ more than 190 personnel to deliver services in addition to some 1200 subcontractors across all the sites. We manage a range of specialist facilities including canine facilities, live firing ranges, armouries, explosive ordnance stores, hazardous materials stores and bulk fuel installations, airfields, wharves & jetties, naval and army barracks.
NSW Police Force
The NSW Police Force is Australia's oldest and largest police organisation with a large and diverse workforce of more than 15,000 police officers. The NSWPF services a population of seven million covering an area of 801 ,600 square kilometres.
BGIS provides facilities management, real estate management and project management services to the NSW Police Force's property portfolio, comprising 1 ,462 individual sites, including 756 operational facilities and 648 residential I housing facilities.
In total, the property portfolio comprises both freehold and leasehold property with a total gross area of approximately 700,000 sqm, spread throughout both metropolitan and regional NSW. The types of facilities we manage include corporate offices, police stations and training facilities.
City of Sydney
BGIS provides facilities, project and property management services to the entire City of Sydney portfolio, which includes educational facilities, commercial offices, retail shops, cafes, libraries, public domain areas, and many heritage buildings such as the Sydney Town Hall and Customs House.
We manage 245 properties and 580 parcels of land, and approximately 15,000 transactions per month In addition, we manage more than 1 ,000 leases and licences for the City as well as program and project management of the City of Sydney Property Divisions $1Om per annum Minor Works and Maintenance Program.
Perth Courts
BGIS, as a member of the Western Liberty Group consortium, joined with the West Australian Department of the Attorney General in December 2004 in this pioneering 25 year PPP to provide Perth with a world-class court facility.
BGIS provides asset management services to Perth District Courts, including an onsite Help Desk, performance reporting, integrated facilities management, essential services/building fabric, lifecycle replacement and refurbishment and minor and major capital works. The contract comprises a 12-storey Perth Courts building incorporating four civil and 20 trial courts, administrative and office facilities and a cafe on the ground floor. There are also two levels of basement space to accommodate custodial holding cells and 53 staff parking bays.
BGIS Confidential & Proprietary 5 South Windsor & Emu Plains Correctional Centres & Goulburn CSC
BGIS> Proposal for Statutory Maintenance & e Facilities Management Services
Proposed service delivery
Deliver of scope, under a non-coterminous agreement for a minimum term of 6 months, commencing September 1, 2017 to 31st March 2018. With 90 Days' notice of termination is required pursuant with the existing HC.
Statutory and Planned Maintenance based on the asset list provided to Australian Standards: Please note: a current and updated asset list and register is required from the PAS branch with DoJ or alternatively our PPM contractors will validate and provide pricing for review and approval.
• Air Conditioning & Refrigeration Services
• Exit & Emergency Light Testing
• RCD Testing
• Switchboard Thermoscans
• Generator Testing & Service
• TMV Testing
• Back Flow Prevention Testing
• All Fire Systems
DoJ component- As advised by Warren Bourke in 2016.
• Two cleaners undertaking current scope • Manual weeding of the sterile zones - This required as wind blowing weeds can trigger
proximity alarms • Pest control for kitchens - currently sub-contractor • Sewerage treatment plant -Aerator cleaning - currently a Resolve FM handyman
monthly function • Weekly sewer line walk approx. 4km - This is a 5 inch poly line that carries effluent to
Council treatment plant when diverted from site plant ,check integrity of pipe line • Weekly check of security lighting - Currently Resolve FM handyman duty • Grease trap pump outs • Resolve have a Telstra account for selected telemetric alarms approx. 6 alarm points,
this is $300 a month , • River pumps serving irrigation • Includes BSEM Spotless call out as part of one BGIS help desk system • Electricians • Plumbers
FM Management and coordination of the statutory planned maintenance works via BGIS PPM approved contractors as a variation to their existing service agreements between BGIS and DoJ PAS.
BGIS contractors will validate and provide PPM pricing as per asset lists provided to BGIS via PAS.
Management and commencement of these services can commence 1 September 2017. Our price includes the existing BGIS Snr FM to regularly visit the IRC and Goulburn Sites at a minimum 6 times per calendar year.
BGIS Confidential & Proprietary 6
South Windsor & Emu Plains Correctional Centres & Goulburn CSC
BGIS> Proposal for Statutory Maintenance & e Facilities Management Services
The pricing differential compared to the existing agreement is an extra $23,176 per month.
BGIS have identified employment of an extra 2.2 roles for the FM management of the requested scope.
1 x Facility Manager/ Supervisor/Planner.
1 x Facility Co Ordinator Administrator (Works Release Program)
0.2 Help Desk support 24 hrs. Allowing for the expected 100 calls per month and the doubling from contract exception at South Windsor & Emu Plains Correctional Complexes since June 2016 (Figure 0.1)
Figure 0.1
650
600
550
500
450
400
350
300
250
200
JOBS LOGGED over 12 Months
Jul-16 Aug-16 SeJ>-16 Oct-16 Nov-16 Dec-16 Jan-17 Feb-17 Mar-17 Apr-17 May-17 Jun-17
BGIS Confidential & Proprietary
South Windsor & Emu Plains Correctional Centres & Goulburn CSC
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BGIS>
BGIS- Current Team BGIS Department of Justice Team r~
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BGIS Confidential & Proprietary
South Windsor & Emu Plains Correctional Centres & Goulburn CSC
Proposal for Statutory Maintenance & • Facilities Management Services
BGIS>
Brookfield Customer Solutions Centre Contract Lead
AmrltaHouse
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BGIS>
Pricing Model Proposal Facilities Management and Maintenance Services
la.Trar1isition cC>st· ·
Technology Set Up
Asset Capture and Upload set up
I Total
BGIS- NSW CSC
BGIS- JM site
BGIS- JM site
BGIS - JM Site
BGIS - JM site
Electricians x 2 STAR STAR- JM Site
Plumbers x 2 Kingsway KINGSWAY- JM Site
General Hand- David Polzot BGIS- JM site
General Hand- Tony Cullens BGIS- JM site
General Hand- Vince Gammon BGIS- JM site
Cleaners x 2 Broad lex Broad lex- JM Site
BGIS- Parramatta
B. Project Overhead Items
Insurances
Mobile Phone
IT Charge (Key Users)
IT Charge (Minor sers)
PPE/Uniforms/Tools
Ongoing Recruitmenr- surcharge- short form
FM support account and trAVEL
Training
Helpdesk - BCSC in Adelaide
BGIS Confidential & Proprietary
South Windsor & Emu Plains Correctional Centres & Goulburn CSC
Proposal for Statutory Maintenance & e Facilities Management Services
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BGIS>
C. Margin
I D. Monthly Charge (excluding Transition)
E. Likely Charges (Excluding Transition)
Notes
1. Tools Pass Through Cost,
Proposal for Statutory Maintenance & e Facilities Management Services
2. Cleaners, Plumbers, Electricians and all other Subcontractor costs are pass through costs
3. Minimum 6 Months Term, commencing 151 September 2017. Transition costs will be invoiced in full in Month 1 as a separate line item
4. 90 day notice for termination (pursuant with HC)
s. Will Continue Month to Month (pursuant with HC)
6. Excluding GST 7. Non-coterminous 8. Contract terms as per existing DJAG contract, but not Profit at Risk 9. Call centre FTE 0.2 based on 100 calls per month
BGIS Confidential & Proprietary
South Windsor & Emu Plains Correctional Centres & Goulburn CSC
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BGIS>
Date
E)<· Director Property Asset Services Justice Department
Witness
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Date
Contracts Manager Property Asset Services Justice Department
BGIS Confidential & Proprietary
South Windsor & Emu Plains Correctional Centres & Goulburn CSC
Proposal for Statutory Maintenance & e Facilities Management Services
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Date
BGIS State Director
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BGIS Senior Contracts Manager
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